HISTORY ASSIGNMENT
SUBMITTED BY: POOJAGOLA BA.LLB. 2 ND SEMESTER SECTION(A)
CASE OF RAJA NAND KUMAR, 1775 BRITISH INDIA. INTRODUCTION The case of Nandkumar stands in a class by itself. It brings out the conflict between Warren Hastings and the majority in the council and between the court and the majority. Nandkumar was the protégé of the majority in the council and his trial before the Supreme Court thus became in a way a trial of strength between the court and the majority. This case illustrates forcefully the anomalous character of the first impact of the English law on the Indians and depicts what kind of difficulties arise when a foreign system of law is transplanted suddenly in a society and is enforced with all its rigours.The Supreme Court of Calcutta though established, by the charter of 1774 by King George III, with the avowed object of protecting the Indians against the oppressive activities of the servants of the Company, was not, however, an unmixed blessing to those Indians who came within its purview. The Court’s constitution, jurisdiction, powers, law and language were all foreign and unknown to the Indians and were completely out of harmony with their customs and traditions. All these aspects of the matter are dramatically brought out by the Nandkumar Case. With the insistence of judges on the independence of judiciary, inspire of interference of the Council, began a new era in the administration of justice in India. The trial gained great historical importance as it formed an integral part of the charge on which Warren Hastings and Impey were impeached by the House of Commons after their return to England.
THE CASE
Nandkumar was arrested with Fawkes and Radhacharan for conspiracy at the instance of the governor general and Barwell. The Supreme Court in this case delivered its judgment in 1775, Fawke was fined but judgment was reserved against Nandkumar on grounds of the forgery case. The charge of forgery against Nandkumar, which came before the Supreme Court in May 1775 was with respect to a bond or a deed claimed as an acknowledgement of debt from Bulaki Das the Banker, which it said was executed by him in 1765. Mohan Prasad brought a case of forgery before the Justices of Peace for the town of Calcutta. The magistrate, in the capacity of the Justices of Peace, being satisfied with the evidence of the prosecution witness, ordered the Sheriff at Calcutta to keep Nandkumar in safe custody until he should be discharged in the due course of law. On 7thMay Mohan Prasad gave a bond to prosecute Nand Kumar in the Supreme Court. On the basis of it the trial began before the Chief Justice, Elijah Impey and three other puisne judges, Robert Chambers, John Hyde and Le Maistre along with a twelve member jury of which two were Eurasians and the rest were Europeans. Durham was engaged as the counsel for Mohan Prasad and Alexander Elliot as the interpreter of the court. Thomas Farrer was appointed as the defence counsel for Raja Nandkumar. The trial continued for a period of eight days without any adjournment. On 16thJune 1775, Chief Justice Impey summed up the whole case. The judges gave the unanimous verdict of “guilty” and the jury also declared their verdict of “guilty”. Rejecting all defense pleas the Chief Justice passed the sentence of death on Nand Kumar under an Act of British Parliament, which was passed in 1729.The defense counsel decided to take an appeal to the King in Council and petitioned the court to stay the execution of the sentence so long as the council’s decision was not known. The court rejected the petition. Efforts were also made to seek the assistance of the members of the council but all efforts proved in vain. Raja Nandkumar was thus hanged on 5thAugust 1775 at the Cooly Bazar near Fort William.
IMPORTANT QUESTIONS TO BE DEALT WITH. Whether NandKumar was under the jurisdiction of the court? Objection regarding the jurisdiction of the Supreme Court over Raja Nandkumar was based on the ground that before the advent of the Supreme Court, the Indians in Bengal were tried by their own men in their own criminal local courts, the faujdari adalats. In this case the offence was committed in 1770, i.e. Before the formation of the Supreme Court, thus Nandkumar could be tried only by Faujdari Adalat and not by the Supreme Court. According to Keith, the Supreme Court had committed an “odious crime” by convicting Raja Nandkumar. Thus the role of Supreme Court did not exhibit a very healthy tendency conducive to the protection of interests of Indians against the oppression of servants of the Company. It showed an anomalous character of the Supreme Court in so far as it exercised jurisdiction over Indians. Whether the English Act of 1728, which made forgery a capital offence and under which Raja Nandkumar was tried, was extended to India? Nand Kumar’s case throws interesting light on the early notions entertained by the Supreme Court on the question of applicability of the English law to Calcutta. The court held that the statute of 1728 was applicable to the presidency towns. Now whether an English law is applicable or not to a place is determined by two factors:
Whether or not it is suitable to the conditions prevailing there? The theory of English law is that it is not the whole of English law, but only such portions thereof as suit the conditions of the colony, which are introduced there, even the charter laid that the Supreme Court would administer criminal justice in such and like manner as the court of over and termini and gaol delivery did in England. The question therefore was that whether the statute of 1728 making forgery a capital offence in England suited the conditions prevailing in Calcutta at that time. The court specifically went into the question, took evidence, heard arguments and concluded finally that the town of Calcutta enjoyed a great commercial importance and the conditions which made the Act necessary in England existed in Calcutta also and so the law in question suited Calcutta.2.
The date when the English law was introduced there? 4At that time nobody entertained any doubt that the English law had been introduced into Calcutta not only by the charter of 1726 but also by the charter of 1753. Impey did assert at that time that all the criminal law in force in England 1753 became the law in Calcutta. On this supposition the court held that the Act of 1728was applicable to Calcutta and so Nandkumar was tried. Later, however, the judicial view underwent a change and it came to be held that English was introduced in the presidency towns in 1726 and that the subsequent charters could not be regarded as substantive re-introduction of English law up to their date. On this view the Act of 1728 could not be made applicable to Calcutta and so Nandkumar could not be punished there under. Looking in retrospect therefore Nandkumar’s trial thus becomes unlawful. Moreover quite a good amount of this law was repugnant to the customs and morals of the Indian people.
DISTRICTIVE FEATURES
Every judge of the Supreme Court cross-examined the defense witnesses dueto which the whole defense of Raja Nandkumar collapsed. Judges took the unusual course themselves in crossexamining the witnesses and ‘that so me what severely’. Indian witnesses were not conversant with the English law and procedure and this shattered the whole defense of Nandkumar. Criticizing the attitude of the judges H.E. Busteed wrote, “ The desire of the judges was to break down Nandkumar’s witnesses, in particular the Chief Justice’s manner was bad throughout and that the summing up wasunfavourable.” •After the trial when Nand Kumar was held guilty by the court he filed an application before the Supreme Court for Granting leave to appeal to the King-in-Council but the court rejected this application without giving due consideration. Under its charter the court had the power to reprieve and suspend the execution of a capital sentence and recommend the case for mercy to His Majesty. The court did not exercise this powering favor of Nandkumar though there could not perhaps be a strong case deserving exercise of the 5court’s power. Denial of permission to appeal to the King in Council to Nandkumar was in a nutshell, a blatant disregard of justice, Supreme Court ought to have exercised this jurisdiction in order to prove its impartiality in the eye of law. •Nandkumar committed the Offence of forgery nearly five years ago In 1770 i.e. Much before the establishment of the Supreme Court. The Act of 1728under which Nandkumar was tried had never been formally promulgated in Calcutta and the people could not be expected to know anything about it. He was thus tried by an
ex post facto Law in the prosecution was based on the charter. •Neither under Hindu law nor under Muslim law was forgery considered to be a capital crime. To sentence an Indian to death under these circumstances by applying literally an obscure English law was nothing short of miscarriage of justice. It appears that the attitude of the court was conditioned by the hostility which the majority of the council had shown to the court from thievery beginning of Nandkumar’s trial. Keith has rightly said, “ The sentence in any event, as a matter of plain duty, have been respite by the court, but Hastings’ private secretary intervened to prevent such action, and the councilors did nothing.’’ •It was doubtful whether Supreme Court had jurisdiction over Nandkumar, who was not a resident of Calcutta and that too in a case initiated on the complaint of Mohan Prasad, another native. Thus, Warren Hastings prosecuted Nandkumar through a native, Mohan Prasad. All these facts show the mala fades the Judge of the Supreme Court and the fate which Nandkumar met was due to a predetermined plan. Edmund Burkevery correctly narrated the popular view in his speech on “Fox’s India Bill” that “Raja Nandkumar was by an insult on everything which India holds respectable and sacred, hanged in the face of all his nation, by the Judges you sent to protect that people hanged for a pretended crime, upon an ex post facto Act of the British Parliament in the midst of his evidence against Mr. Hastings.”
CONFLICTS
Chief Justice Impey in this case acted unjustly in refusing to respite to Nand Kumar. No rational man can doubt that he took this course in order to gratify the Governor-General. The trial of Nand Kumar disclosed that the institution of Supreme Court hardly commanded any respect from the natives as it wholly unsuited to their social conditions and customs. The trial has been characterized as “judicial murder” of Raja Nand Kumar which rudely shocked the conscience of mankind. Raja Nand Kumar’s trail was certainly a case of miscarriage of justice. In October 1775, as an immediate effect, the Governor-Generalin-Council restored Mohamad Reza Khan to the position of Naib Subah in charge of criminal justice in Bengal and to administer the Sadar Nizamat Adalat which was moved from Calcutta to Murshidabad. In April 1777, the British East India Company created the post of Advocate General in the Supreme Court and appointed Sir John Day to the position. His responsibilities included conducting the Company's suits before the court. As an aftermath to the Nandkumar case, on 22 July 1777, Hastings was in a hurry to amend his role as a governor commanding respect. In consequence, he separated the roles of civil justice from revenue collection as carried out then. In lieu of instructions from the Company, Hastings established a Diwani Court for civil jurisdiction at Dacca. Only in 1780 were the other provincial courts similarly modified. On 11th April 1780, the Governor-General and Council issued Regulations for the Administration of justice. It had the intent of embodying the rules of 1772, of reducing friction between revenue and judicial authorities and in promoting the impression of Justice done.
On 17th April 1780, a regulation provided for the Indians of Bengal, Bihar and Orissa to continue to use their Mohammedan or Hindu laws in the 'Mofussil' (places and areas that did not fall under city categories, remote districts). This practice was generally repeated in future regulations and in Bombay and Madras. As possible, the courts attempted to apply Armenian law in Calcutta and Parsi law in Bombay. Hastings, together with his council of generals also tried to make hasty efforts by granting supreme native rights in city jurisdictions. On 18th October 1780, the Governor-General-in-Council revived the Sadar Diwani Adalat to hear appeals regarding revenue cases from lower courts. In a highly controversial decision, Hastings placed Sir Elijah Impey (1732-1809), Chief Justice of the Supreme Court of Calcutta, also at the head of this court thus creating every appearance of a conflict of interest. As a consequence, the Court of Directors ended the appointment in 1782 and the House of Commons recalled Impey in May 1782 to face impeachment proceedings. These were substantial evidence that British administration were consciously aware of their terrible wrong-doing of hanging Nandkumar and dismissing his case as forgery.
PATNA CASE,(1777-1779). INTRODUCTION The Patna Cause was . an action brought in the Supreme Court by Naderah Begum against Behader Beg, Cazi Sahdee, Mufti Barracktoolah, and Mufti Gholam Muckdoom. The plaint was for assault, battery, and imprisonment said to have extended over the period between the 31st of January and 1st August 1777, also for breaking and entering the plantiff's house and carrying off her property to the value of R.600,000. Behader Beg pleaded to the jurisdiction, but on this plea judgment was given against him. Al l the defendants pleaded not guilty, and they also gave notice of facts of which they proposed to give evidence in justification of what they had done. Behader Beg's proposed justification was, in substance, that in the matters complained of he acted only as a suitor, and the other three defendants said that they acted only as ministers and officers of a court of justice.
THE CASE The facts out of which the action arose were these:— Shabaz Beg Khan was a native of Cabul who came into India to seek his fortune as a soldier. He became very rich, settled at Patna, married late in life Naderah Begum, the plaintiff, and had no other wife. He died on the 10th December, 1776, " leaving very great " property behind him, and his widow in possession of it. " Some
time before his death he brought up from Cabul a nephew, Behader Beg, the son of his brother. And it was stated, though not proved, that he had expressed his intention to make this man his heir. There was also living in his house another nephew, Cojah Zekereah, the son of one of his sisters. On the death of Shabaz Beg Khan, his widow, Naderah Begum, remained in possession of his property, but Behader Beg, within three weeks of his death, presented a petition to the Patna Council endorsed by their officer " 2nd January, 1777." The petition said that the petitioner was the adopted son of the deceased, that the widow had embezzled some of the deceased's goods, and prayed that guards might be set to protect the property, and that the Council would order the Cazi to ascertain the petitioner's right, " and " give information to the Presence " (i.e. to the Council) " that your petitioner may obtain his right." It made no definite, distinct claim. The Council 2 thereupon issued an order to the Cazi and Muftis to take an inventory of the property, secure it until the time of the decision and division, and to transmit to the Council a written report " according to ascertained facts and legal "justice. It is a remarkable proof of the looseness with which business of this kind was then conducted, that this proceeding seems to have been entirely ex parte and without notice to the widow or any one on her behalf. The Cazi and the Muftis went to the house, and after a great deal of difficulty and some dispute as to the appointment of Cojah Zekereah as attorney for the widow (an appointment alleged by the defendants and denied by the plaintiff to have been duly made), got into the house and locked it up and sealed some of the doors. A few days after they returned and made an inventory of the property. It was said that on this occasion they behaved very rotfghly, compelling the plaintiff by threats of force to leave one room after another, until at last she took refuge in a filthy outhouse open to a common bazaar. After undergoing, as was said, some other indignities, she retired into the durgah of Shah Azum, which was inhabited by Fakeers, who
gave her hospitality. A guard was set upon her by the Council at Patna 2 " to intimidate her to give up the slave-women, " papers, and seal of the deceased/' She remained at this place under restraint for about three months. At first the guards would not even allow the Fakeers to give her food, and they did so secretly; but the strictness of the guard was afterwards somewhat relaxed. In the meanwhile (the exact date does not appear) the Cazi and Muftis held an inquiry, and sent in a1 report which must have been delivered before January 20th, 1.777, because on that day an 2 order upon it was signed by Mr. Droz, one of the Patna Council. Upon this the Court at Patna ordered the Cazi and Muftis to divide the inheritance according to the report, but in favour of the widow they ordered that Behader Beg should pay her a quarter of the income of the Altamgha lands, which had been reported by the Cazi and Muftis as excluded from the inheritance. Some sort of division was accordingly made, and it seems that Cojah Zekereah was told that he could take the part allotted to Naderah Begum. He refused to do so. There was much controversy, into which it is needless to enter, as to the circumstances of this division, and as to Cojah Zekereah's proceedings in relation to it. The only point worth noticing as to this part of the case is that very early in the proceedings Cojah Zekereah was arrested for the forgery of one or both of the documents produced by him. The result of the whole matter was that Naderah Begum was expelled from the house in which she was living, treated with considerable indignity, deprived of the possession of the whole of the property which had belonged to her husband, and declared to be entitled to one-fourth of it only, the deeds on which she claimed the whole being alleged to be forged. These were the wrongs for which she brought her action.
JUGEMENT
In the provincial Court the case placed before Muhammadan law officers. • The officers after full hearing reported to the council that gift deeds were forged documents and no gift was made in favor of Nadirah Begum by deceased. • They also reported that the nephew, Bahadur Beg court not be adopted under Muslim law.• Therefore, recommended that property be divided into four parts out of which three parts were to be given toBahadur Beg on the basis of consanguinity (relationship by blood) and also heir of the diseased and the fourth part be given to the widow. . • Nadirah Begum was dissatisfied with the decision of the provincial Council, and she filed an appeal before the SadarDiwani-Adalat at Calcutta • Due to their busy routine work they could not considered the matter for a long time. • With indifferent approach of the court, she filed a suit in the Supreme Court against Bahedur Beg, Kazi and mufti for assault, battery, unlawful imprisonment and claimed 6lakhs as damage. • The Supreme Court issued ordered to arrest of BahadurBeg, Kazi and mufti. • The supreme court decided that the documents were genuine and that Kazi and mufti did not act in good faith.• The court awarded the damages of Rs.3,00,000 in favor of Nadirah Begum and the law officers were imprisoned • The whole case was bitterly criticized on the grounds that which law Bahadur Beg and law officers were subjected to the jurisdiction of the Supreme Court • The Supreme court justified his jurisdiction over Bahadur Beg as a former and paying land revenue to the company. • Both the parties were Muslims to which the Mohammedan Law of inheritance was to apply; it was purely a matter of personal law to Mohammeans. • There were no written agreement between the parties to submit the case to the Supreme Court for a decision.
CONFLICTS In Impey's days there was no doubt a great amount of corruption and extortion. Whether he was right in imputing it to the Cazi and Muftis in the Patna Cause is a matter on which I have no opinion. He may have been wrong, but he may also have been right, and if he was I see no hardship in what befell them. If they really did plunder the woman of her property and treat her with gross indignity by an abuse of powers which the Council had illegally abandoned to them, I do not see why they should not pay for it. The administration of justice by the English in India can never be wholly satisfactory. The difficulties inherent in the enterprise can never he entirely overcome : but a great deal may be and has been done to overcome them, and the existing system, while it has great defects, has nevertheless conspicuous merits. A whole system of law has been enacted which errs perhaps on the side of over-minuteness, but which is at least in the most important parts simplified and made definite to the utmost practicable extent. A network of Courts arranged in different grades and connected together by a system of superintendence, revision and appeal, which may in some particulars be over-elaborate, but which is the best security against oppression or corruption, has been spread all over the country. The great numerical majority of these Courts are presided over by native judges specially educated for their profession, and the result of all this anxious care has been the establishment of a system absolutely different from anything which was dreamt of in India or in England either 100 years ago. It was in efforts like these, and in the vigilance, care, and thought necessary for making them, that the true remedy lay for the evils which the Supreme Court set in a striking light and attempted to remedy by giving heavy equally obviously Impey was the man. He had made enemies on all hands. Francis was accusing him of the murder of Nuncomar, the Europeans at Calcutta were accusing
him of being a thorn in their sides in various ways to be mentioned immediately. The thorough-going advocates of the East India Company regarded the Supreme Court with aversion as at once the bulwark and the most marked instance of the usurpation by the King of England on what they viewed as the rights of the Company. The union of these various topics of prejudice produced what may be described as the orthodox faith on this subject. It has ever since been the accepted opinion that in this matter, at least, the Supreme Court and Impey, its chief justice, grossly misconduct themselves
KAMALUDDIN CASE (1775) CASE Kamaluddin a farmer of Hugli was court’s control by the Calcutta Revenue Council on the ground of arrears of revenue.The Revenue council released to orders to arrest Kamaluddin. He approached the Supreme Court for a writ of habeas corpus and court given bail till the enquiry as his obligation to pay was completed. Same time court directed the council to accept bail for Kamaluddin’s appearance in the Diwani court and not to take him into custody until his under renter had been called upon to pay the rent. The council thought that according to the 1773 Act, the court had no right to interfere in revenue collection. Three members of the council suggested that court order should not be recognized and obeyed. But some time later Kamalluddin was arrested again and he again obtained writ habeas corpus and he was finally discharged by the court.
CONFLICT Chief justice Imphy writes in a letter to the Court of Director Justified court’s action on two grounds. In a case of this nature, it had been the usual practice for the Revenue Council to take bail and so the court made the direction for taking bail. It has been the established practice to demand rent from the under tenant before demanding much less imprisoning the former and the court order was consistent with the practice.
