Vol. 17, Part II · pages 81–85

58 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES Court. If such jurisdiction in issuing the writ is allowed, every person acting under the authority of the Court on receiving such a writ, must bring up the body to the Presidency, or state in detail the reasons of the detention, by whom made, and so on. How could such officers state the circumstances with such precision as to obviate objection ? A return to a habeas corpus drawn at Delhi or Poonah would be found extremely deficient according to our forms. Those who framed these laws could never have overlooked that consideration, and it is clear they never intended to let in such a state of things at all. It may be important to call your Lordships’ attention to this circumstance, that provision is made in various Acts for the establishment and regulation of the Provincial Courts with a course of appeal. By the 37th Geo. III cap. 142, sec. 8, the regulations of the Governor General affecting the natives are to be formed into a code, and published in all the native languages, that the natives may know what is the law to which they have to look. This was a measure first adopted by the late Marquis Cornwallis, and found to be so highly beneficial that it was adopted by the Legislature, and made part of the law of the country. There is a regular establishment of Provincial Courts, with a succession of appeals from the lowest court to a court of the highest appellate jurisdiction, both in criminal and in civil matters, established at the several Presidencies. The Court of Suddur Dewany Adawlut is the highest court of appeal in India in civil, as the Court of Suddur Nizamut Adawlut is the highest court of appeal in criminal cases. Both these courts are recognized by the 53rd Geo. III. (c. 155). A provision is also made for an appeal to His Majesty in Council, in cases above the value of £5000 from the Court of Appeal in India, passing by the Supreme Court. At Bombay, the numerous regulations concerning the Courts of Justice have with great labour and care been lately reviewed, and formed into a code. This code was published in 1827, and clearly shows that as much pains have been taken for the protection of the subject, to enable him to obtain redress from any injury which he may sustain from Provincial Courts or Magistrates in the territories of Bombay, as in any part of His Majesty’s dominions. With respect to the improper

59AND THE LORD SAID UNTO— detention of persons, there are particular regulations, all which the Magistrates are bound by their oaths to carry into execution; and if they act corruptly they are subject to be proceeded against in the Supreme Court, for which there is a special provision by statute. In Regulation XII, the manner in which the senior Magistrate is to superintend all subordinate officers is pointed out, and by Regulation XIII, the Judge is bound to visit all the gaols, for the purpose of ascertaining whether persons are unlawfully detained there; he is to visit both the criminal and civil gaols, to notice to the officer concerned erroneous judgements, and to forward cases, if necessary, to the Suddur Foujdaree Adawlut for revised decision. It is not intended to say that a man who is in the service of the Company as an officer of a Provincial Court is therefore exempted from the jurisdiction of the Supreme Courts in matters where he acts as an individual; but it is declared, that if he detains any person by the orders of the Provincial Court he is subject to no action for such an act, nor is the Judge subject to an action. The only proceeding against him in the Supreme Court is by information, in case of corruption. When a person is detained under the orders of the courts in the Provinces the Supreme Court cannot order such person to be brought up for the purpose of investigating his case. That court has no such superintending jurisdiction over the courts in the Provinces as that which Lord Coke in his fourth Institute states the Court of King’s Bench to possess, by virtue of which it superintends and restrains the excesses of all the inferior jurisdictions of the country. Such an authority has not been given to the Supreme Court, and consequently the issuing of the writ of habeas corpus in the cases mentioned in the petition were illegal acts. Mr. Denman, in reply.–The Supreme Court at Bombay is made a Court of Oyer and Terminer, it has also the jurisdiction of the Court of King’s Bench in England, and it is as incident to that court that the present power is claimed. It has express power (clause 59, Morley’s Dig. ii. p. 677) over the Court of Requests and the Court of Quarter Sessions, “to issue

60 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES writs of mandamus, certiorari, procedendo, or error, and to punish any contempt thereof, or wilful disobedience thereunto, by fine and imprisonment”. Now the question is asked, why the charter should give these particulars if they were already included in the general grant. Is this, then, the first time that in all the rolls of English Acts of Parliament an unnecessary power can be shown to have been created, or express terms to have been used, where they were superseded by clear implication, or that the figure of speech called tautology can be detected ? Unless the argument is pushed to that extent it is plainly worth nothing; and that it cannot be fairly pushed to that extent the experience of every session demonstrates. But if this clause proves any thing it proves a great deal too much. The only writs enumerated in it are those of mandamus, certiorari, procedendo, and error. There is no mention of habeas corpus in this charter; yet it is stated on all hands that writs of habeas corpus have constantly issued; and if not, the certiorari for removing convictions and orders of Magistrates would be of little value. Why set aside the judgement against a man who has been convicted by a Justice, if the man is himself to remain in gaol, and the writ of habeas corpus cannot rescue him ? It is admitted that within Fort William in Bengal the Supreme Court of Calcutta is authorized to issue writs of habeas corpus ; therefore within the territories of Bombay, as described in the fourth of his present Majesty (4 Geo. iv. c. 71), the same power must exist in this Supreme Court. It is to be a court for all “the town and island of Bombay, and the limits thereof, and the factories subordinate thereto, and within the factories which now are, or hereafter may be, subject to or dependent upon; “with such powers as are given within Fort William in Bengal aforesaid, or the places subject to, or dependent upon, the Government thereof” (clause 10, Morley’s Dig. ii. p. 645). Thus appointed, they form a Supreme Court, which is “to have such jurisdiction and authority as our Justices of our Court of King’s Bench have and may lawfully exercise within that part of Great Britain called England, as far as circumstances will admit” (clause 10). Here is a court with all the powers which the Court of

61AND THE LORD SAID UNTO— King’s Bench possesses in this country. Then where is the exception which is to prevent its jurisdiction from attaching in any particular case ? We find it affecting actions, suits and indictments: as affecting criminal information, writs of habeas corpus, and the other high prerogative writs, it is nowhere to be found. The single decision of Sir Thomas Strange (Nagapah Chitty v. Rachummah) has no relation to our question. A person that was not within the jurisdiction of the court at Madras had been actually brought within it by a fraudulent process of law. The Chief Justice there decided (1 Strange’s Madras Cases, p. 135), “That as where a native has been brought for some purpose to Madras by Government, against his will, and a third party, not concerned in bringing him here, attempts to take advantage of his being within the limits, to hold him to the jurisdiction, it seems to be agreed it is not to be permitted; much less ought it to be so in a case, where they were brought here, in their necessary defence against the injurious act of the plaintiff, of the consequences of which he would now take advantage to fix them, contrary to the maxim that no man should take advantage of his own wrong.” The whole effect, then, of the only case cited is this; that in a civil suit between individuals, where the defendant was clearly not within the jurisdiction, unless the plaintiffs fraudulent proceeding brought him within it, such a proceeding should not endure to the benefit to the wrong-doer and the prejudice of the party wronged. It is truly stated, that no clause has expressly given the power of issuing mandatory writs; but as the existence of that power is unquestionable, since it has been always exercised, and can be traced to no origin but the erection of a Supreme Court with all the functions of the English King’s Bench, we have here another proof, that the words erecting it are more than a mere formula, and have received their full effect. The statute of the 21st Geo. III. (c.70) is said to have made a difference not easily comprehended; for if its object really was to prevent the 13th Geo. III. (c. 63) from having so extensive an operation, the change would have been brought about by a plain enactment.

62 DR. BABASAHEB AMBEDKAR : WRITINGS AND SPEECHES No judgement was delivered in this case, but the report of the Privy Council, which was affirmed by His Majesty, was. “That the writs of habeas corpus were improperly issued in the two cases referred to in the said petition. “That the Supreme Court has no power or authority to issue a writ of habeas corpus except when directed either to a person resident within those local limits wherein such court has a general jurisdiction, or to a person out of such local limits, who is personally subject to the civil and criminal jurisdiction of the Supreme Court. “That the Supreme Court has no power or authority to issue a writ of habeas corpus to the gaoler or officer of a native court as such officer, the Supreme Court having no power to discharge persons imprisoned under the authority of a native court. “That the Supreme Court is bound to notice the jurisdiction of the Native Court, without having the same specially set forth in the return to a writ of habeas corpus .” NOTE :– Before this decision had been pronounced, the Supreme Court at Bombay had closed under the following circumstances. No return having been made on the 10th of October 1828 to the writ alias habeas corpus directed to Pandoorang Ramchunder, a pluries habeas corpus was ordered to issue, returnable immediately, and marked in the penalty of 10,000 rupees. To this writ also no return was made; and on the 23rd of February 1829, Mr. Justice Grant ordered an attachment to issue against Pandoorang, and that it should be directed to the Governor and Council, in order that they might execute it by such person or persons as they might depute for that purpose; he also directed a letter to be sent at the same time to the Secretary of Government to explain the reasons of the Court acting in this manner, and enclosing copies of the affidavits and proceedings in the case. Upon the receipt of this letter and writ, the Secretary replied, that it was the intention of the Government to persist in the line of conduct