Vol. 17, Part II · pages 71–75

48 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES to their respective modes and purposes of proceeding, the great depositaries of the universal justice of the realm, and as such, in every instance in which it is attempted to withdraw a case from their cognizance, bound to see, distinctly and unequivocally, that a jurisdiction adequate to the object in view exists elsewhere. If that be not stated so as to appear to the court, a plea to the jurisdicton fails, and the jurisdiction remains. But it is different here, because, though coordinate in its nature with those courts so far as its jurisdiction attaches, the jurisdiction of this court is limited with regard to persons not being British subjects.” This passage, we apprehend, bears on the very subject under consideration here. Though there are words in this charter giving to the court the authority of the Court of King’s Bench, it is the nature of the authority which is described, and not the extent of the jurisdiction. The extent of the jurisdiction is limited by other clauses; but the nature of the authority which the Judges are entitled to exercise where they have jurisdiction, whether within the local limits in respect of the inhabitants generally, or beyond the local limits in respect of British subjects, for English purposes, and administering English law, is in the nature of the authority exercised by the Court of King’s Bench in England. “Generally speaking,” adds Sir Thomas Strange (page 136), “it is restricted with regard to the natives (whether wisely or not is not for us to consider) to the inhabitants of Madras, and the plea therefore very properly confines itself to these facts; upon which the court is fairly called upon to say, whether the defendants, being natives, can be considered as inhabitants of Madras for the purpose of being subject to our jurisdiction upon the present bill. It is said in many cases, boni judicis est ampliare jurisdictionem. If for jurisdictionem be read (as was always read by Lord Mansfield) justitiam, it is a noble maxim. If an object and matter of jurisdiction exists, it is indeed the part of a Judge so far as circumstances may admit, to administer an enlarged and amplified justice, embracing the interests of all parties and all the bearings of the case in any other sense of the maxim. It seems to me that the strength of every jurisdiction consists mainly in a temperate admeasurement of it by those in whom it is vested; and that so far from its being the duty boni judicis ampliare, it becomes none more than Judges to set to others in power a different

49AND THE LORD SAID UNTO— example, instead of, by overstrained constructions, and upon fanciful imaginations, to be outstepping the bounds set by their commission. Neither are we to presume that justice will not be done, though this court, sustaining the plea, should decline the office of rendering it.” There are various passages to be found in different statutes which strongly show, not, perhaps, the entire exemption of the natives of India from the jurisdiction of the Supreme Court, but that the authority of the Supreme Court was never intended to embrace them; and that they were never comprehended within that extensive authority which was given to the Supreme Court with respect to British subjects. Your Lordships will find in the 53rd of Geo. III., cap. 155, a long list of offences created in various clauses, all of which are introduced by words importing in clear terms the distinction between the local and personal jurisdiction of the court. At section 114, after reciting that it “was expedient that the stealing securities for the payment of money within the East Indies should be made felony,” and so on, it enacts, that if any person or persons within the “local limits of the criminal jurisdiction of any of his Majesty’s courts at Fort William. Fort Saint George, Bombay, or Prince of Wales’s Island, or if any person or persons, personally subject to the jurisdiction of any of the said courts at any place in the East Indies :” so that the distinction between the local jurisdiction the court, and the personal jurisdiction of the court, is very distinctly recognized, and that there may be persons within the local limits of the jurisdiction who are not personally subject, acknowledging a distinction between the local and the personal jurisdiction. A question then arises whether a native who is an officer of a Provincial Court, a Gaoler, for instance, and who as such may be considered as a person in the service of the East India Company, is subject to have an habeas corpus directed to him in his character of Gaoler, for the purpose of bringing up a native prisoner in his custody before the Supreme Court at Bombay. If we are right in supposing that there never has been any intention of giving to the Supreme Court a control over the proceedings of the Provincial Courts, if a regular succession of appeals has been established from

50 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES the Provincial Courts up to the highest appellate tribunal and in cases of sufficient magnitude to justify it to your Lordships at this Board, passing by the Supreme Court, and proceeding in a course of judicature entirely distinct from that of the Supreme Court, it is a most important question whether the course of proceeding is to be entirely evaded, on a ground very similar to that acted upon between 1773 and 1781. At that time certain natives, because they held land, or because they were employed in certain transactions, were contended to be within the language of the Act of Parliament and charter, which subjected persons in the service of the East India Company to the jurisdiction of the Supreme Court. Let it be admitted for the argument that the gaoler of a Provincial Court stands in the character of a person in the service of the Company and that he would be liable, as such, to have an habeas corpus directed to him, if he, as an individual, detained any person in his custody. Does it, therefore, follow that his character as a servant of the Company would give a right to the court to direct an habeas corpus to that person, to bring up a person in his custody as a prisoner of the local court? Does it give a right to the Supreme Court to examine into the constitution of the court (for this has been asserted), and to review its proceedings ? It has been said the court must have before it all the regulations and laws by which the Provincial Court was constituted, whether such court be a part of the original establishment of the Mogul Government not yet altered, or whether it be a new court established under the authority given by Parliament to the Government to make regulations. All this, according to the doctrine contended for, must be brought before the court in the shape of a return, for the Supreme Court to judge, first, whether the Provincial Court has been legally constituted, its proceedings have been properly conducted. We humbly apprehend, that it is manifest from the whole tenor of the Acts of Parliament and charter, that no such jurisdiction was intended to be given. In the Regulating Act of 21st George III. (c. 70), Section 23, it is enacted “that the Governor General and Council shall have power and authority from time to time to frame regulations for the Provincial Courts and Councils.” Here is a distinct legislative recognition of these Provincial Courts. A similar power is given to the Governments of Madras and Bombay to regulate the proceedings of the Provincial Courts of their Presidencies, and all those

51AND THE LORD SAID UNTO— regulations are subject to the revision of his Majesty in Council. They are all directed to be transmitted to the Secretary of State, and if not altered, they become the law of the provinces by which those courts are governed. It is quite clear, therefore, that the Legislature has distinctly recognized the existence of those courts, the manner in which they are to be regulated, and the law by which they are to be governed. The regulations for the government of the provinces require no registration in the Supreme Court; while those which bind the inhabitants of Calcutta, Madras, and Bombay, and all British subjects, must be registered in and approved by these courts. Then we come to this section, (sec. 24) ; “That no action for wrong or injury shall lie in the Supreme Court against any person whatesoever exercising a judicial office in the country courts, for any judgement, decree, or order of the said court, nor against any person for any act done by or in virtue of the order of the said court.” So that although a native should be in the service of the East India Company as an officer of a provincial court, and although a British subject should be a Judge of such a court, for acts done in such court, no action lies against him. The same language is to be found in the charters; but although no action is allowed to try whether the act was legal or not in the Supreme Court, yet it is contended that the legality of the proceedings may be examined through the medium of an habeas corpus. This appears an extraordinary argument; and seeing that there is no provision to that effect in any of the Acts, we venture to submit that there is no ground for issuing the writ. We will now consider the charter recently granted to Bombay ( Morley’s Dig., Vol. II., P. 638). This charter contains a clause on which the whole question turns, and but for which there would be no ground of argument. The clause (clause 10) runs thus : “That the said Chief Justice and the said puisne Justices shall, severally and respectively, be, and they are, all and every of them, hereby appointed to be Justices and Conservators of Peace, and coroners, within and throughout the settlement of Bombay, and the town and island of Bombay, and the limits thereof and the factories subordinate thereto, and all the territories which now are, or hereafter may be, subject to or dependent upon the Government of Bombay aforesaid, and to have such jurisdiction and authority as our Justices of our Court of King’s Bench have and may lawfully

52 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES exercise within that part of Great Britain called England, as far as circumstances will admit.” Now, is it possible to construe this section otherwise than as saying that they are to be Justices and Conservators of Peace throughout the Presidency of Bombay, and to have such jurisdiction and authority secundum subjectam materiam ? that is, as such Justices and Conservators of Peace as the Justices of the King’s Bench, who we know are Justices of Peace, have and may exercise in that character throughout the whole realm of England, as far as circumstances will admit. Unquestionably, the Judges of the Supreme Court are so with respect to ail British subject throughout the provinces; and as such, the jurisdiction they have is of the nature of the jurisdiction which is possessed by the Judges of the King’s Bench when acting as Justices and Conservators of Peace. It is insisted, however, that by this clause all the powers of the Court of King’s Bench in England are granted to the Supreme Court at Bombay, not merely throughout the settlement of Bombay, but throughout the territories subject to the Presidency of Bombay, unlimited in any manner whatever with respect to persons; and that the Court of King’s Bench has authority to issue such a writ to any part of the provinces subject to the different Presidencies of India; a position into which it is not necessary to enter at large, but which, we apprehend, is founded upon an expression in one of Lord Mansfield’s judgements (Cowle’s Case, 2nd Burrows, P. 856), in which he mentions, “the plantations”. In that very judgement, however, his Lordship says he does not recollect or know of any instance of a writ of habeas corpus having been issued to such dominions. Applications, he says, had been made to this Board upon the subject, and we all know that this Board has a general superintendence in matter of law over the colonies. If, therefore, an affidavit should be laid, before the court, in which some individual was bold enough to swear to circumstances giving a prima facie jurisdiction to it, according to the doctrine contended for, an individual imprisoned at the foot of the Himmalayah Mountains must be brought from thence to the Court of King’s Bench at Westminster, provided that the Court of King’s Bench should think fit to issue a writ. It is said that the court possessed this power, and