The Regulating Act of 1773: From Diarchy to direct control

Dual System (Diarchy) of Government(1765-1772)

• Following the Treaty of Allahabad (1765), Robert Clive set up the infamous dual system of administration in Bengal.
  • On August 12, 1765 Clive secured from Shah Alam II, the powerless Mughal Emperor, a farman granting to the English Company the Diwani of Bengal, Bihar and Orissa, stipulating in return to pay the Emperor an annual subsidy of 26 lakhs of rupees.
    • The Nawab of Bengal became a mere pensioner: the Company was to pay him annually a fixed sum of 53 lakhs of rupees for the support of the Nizamat.
    • Clive thus established a Double Government in theory, with the Company as Diwan, and the Nawab as Nizam.
• During Dual System, Nawab-ud-Daulla and Saif-ud-Daull were the Nawabs of Bengal.
• Under this system, the administration of Bengal was divided into Nizamat and Diwani.
  • Diwani:
    • The Diwani was concerned with revenue and civil justice.
    • It was the right to collect revenue  which was given to East India Company.
    • The British administration acquired the functions of the Diwani or revenue Diwani (Fiscal) in Bengal, Bihar and Orissa from the Mughal emperor.
  • Nizamat:
    • Nizamat was concerned with police, criminal justice etc.
    • Nizamat (administrative responsibility) was entrusted to Bengal Nawab.
• Though the administration theoretically divided between the Company and the Nawab, the whole power was actually in the hand of the Company.
  • Under the Dual system, the fiction of sovereignty of Mughal emperor and formal authority of Nawab was maintained.
  • As the diwan, the Company was authorised to collect revenues of the province, while through the right to nominate the deputy Nizam (deputy subahdar), it was in a position to control the Nizamat or the police and judicial powers.
  • The deputy subahdar (appointed to help Nawab) could not be removed without the consent of the Company.
    • English Resident at the Durbar decided every matter of importance.
  • The Nawab, having lost all independent military or financial support for his executive actions, became in fact a mere figurehead.
• However, at this point of time, the Company was neither willing nor able to collect the revenue directly. Hence, it appointed two deputy diwans for exercising diwani functions:
  • Mohammad Reza Khan for Bengal and
  • Raja Sitah Roy for Bihar.
• Mohammad Reza Khan also functioned as deputy Nizam.
• In this way, the whole administration of Bengal was exercised through Indian agency, although the actual authority rested with the Company.
• The establishment of this ‘masked system’ was a sign of the Company’s unwillingness to recognise that it had ceased to be a mere trading body and become a ruling power.
  • In England, the aspect of the arrangement which attracted chief attention was the immense wealth which the Company was expected to derive from the revenues of Bengal, estimated at £ 4,000,000 per annum.
• The system of government associated with the name of Clive continued under his successors Verelst (1767 69) and Cartier (1769-72).

Merits and reasons of the Dual Government:

• The primary object of this arrangement was to bolster up the finances of the Company which had suffered from the maintenance of armies without incurring the burden of formal and avowed dominion.
• Clive showed his sagacity by following the policy of decentralization in the matter of Company’s administration in Bengal.
  • By this policy he could save the British in India from the wrath of the Indian rulers who might have taken drastic steps to oust the British from India had it been done otherwise.
• By the dual system of Government in Bengal Clive could save the company from the jealousy of the other European powers like the French, the Dutch and the Portuguese.
  • These European powers would have withdrawn their payment of tariff to the servants of the Company on the event of Clive’s full occupation of Bengal.
• Clive was wise enough not to take upon the administration of Bengal directly.
  • He knew fully well that the servants of the company were not conversant with the languages, customs, traditions and laws prevailing among the people of Bengal.
  • They would have cut a very sorry figure had they been entrusted with the administration of Bengal in the event of Clive’s occupation of the state.
  • In addition to their ignorance of the task of administration, their number was also too small to manage it.
• Both the Board of Directors and the British Parliament were not in favour of direct administration in Bengal.
  • Clive did not like to insure displeasure of the home authority by taking over the administration of Bengal directly.
  • By establishing Dual Government in Bengal, Clive showed his honour to the Board of Directors on the one hand and saved the Company from the wrath of British parliament on the other.
  • Some, including Pitt, held even then that the Crown should take over the governmental authority which the Company had now assumed, but this view was held by few and the first intervention of Parliament in the affairs of the Company in 1767 took the form merely of a demand for a share of the plunder to the extent of £ 400,000 per annum.
• The dual Government in Bengal helped the East India Company to remain free from the real responsibility of the administration of Bengal.
  • The English Company got power and pelf by this system of Government by successfully keeping themselves away from the hazards of administration.
  • For every omission and commission in the Government the Nawab of Bengal was to be held responsible.
• Clive established Dual Government in Bengal because the exigencies of time demanded it.
  • It provided a conducive atmosphere for the growth of British power in India under the prevailing circumstances.
  • Any alternative would have led the company to disaster.
  • It was stop-gap arrangement.
  • It was make-shift agreement which aimed at tiding over the difficulties confronting the English in 1765.

Demerit of the Dual Government:

• The Dual Government of Clive has been criticized in various ways. It led to disastrous results.
• Power was divorced from responsibility:
  • The Dual Government of Clive led to disastrous results. The administration in Bengal almost collapsed. Power was divorced from the responsibility.
    • The absence of responsibility on the part of the company led to abuses of power and corruption.
  • The British were in possession of power and money whereas the Nawab had neither power nor money. He had only the responsibility of running the administration and take the blame for any failure.
  • The Nawab failed to manage the administration smoothly with a small annual grant of rupees 50 lakhs only.
  • The company tried to improve its own lot by the revenue it collected from Bengal, Bihar and Orissa. The Nawab could not do any work of public utility due to paucity of fund.
• Lawlessness:
  • The Nawab also had no power and fund to enforce law. As a result lawlessness prevailed in most parts of Bengal. The cases of theft and rubbery increased by lips and bounds. The common people had to suffer a lot due to want of justice.
  • People failed to get proper justice. The judges of the Nawab were influenced by British authority, because the latter played vital role in their appointment. Thus, the judges failed to give impartial verdict which was detrimental to the interest of the public.
• Oppression of peasantry:
  • The dual system caused oppression of peasantry. The condition of agriculture in Bengal gradually deteriorated.
    • The power of collection of revenue rested in the hands of the company only.
    • So, the Nawab could not make any provision like irrigation for the development of agriculture in Bengal.
    • He also failed to advance loan to the needy farmers due to shortage of fund.
  • The great famine of 1770 was an indirect outcome of the above difficulties.
  • Private trade by Company servants caused reduction in the company’s revenue and it demanded higher revenue from the Zamindars and it led to the oppression of peasantry.
  • The oppression reached such a limit that the governor of Bengal, Verelst (1767-1769) had to appoint English supervisors for Diwani lands to check high hardness and venality of revenue collectors and zamindars after the oppression of peasantry become rampant.
    • But his successor John Cartier (1769-1772) found that the English supervisors only made confusion more confounded and corruption more acute.
• Downfall in the revenue collection: 
  • The downfall of agriculture under the Dual Government ultimately led to the downfall of Company’s income due to decrease of revenue collection.
    • During the 7 years for which the dual system was in operation, the Company was on the verge of bankruptcy and the Company had to ask to be excused from paying the sum of £400,000 p.a. demanded by Parliament while its servants were flourishing exceedingly.
    • The sad state of affairs at last roused the British Government to make an effort to introduce some order into the affairs of the Company in India.
• Abuse of private trade:
  • The poor administration in Bengal led to rapid increase of private trade. British were enjoying the duty-free trade.
    • The servants of the East India Company carried on trade and commerce privately without paying any tax. They earned a lot of profit out of this illegal trade.
  • But on the other hand the merchants of Bengal suffered a lot, because they were over burdened with tax. Thus, the Dual Government dealt a terrible blow to the local trade and commerce.
• Downfall of local industries:
  • The Dual Government of Clive was further responsible for the downfall of local industries. The company’s people forced the local weavers to work exclusively for the company. Many other small local industries also were brought under the control of the company.
• Oppression by the servants of the Nawabs:
  • The servants of the Nawab became wayward and oppressive when they came to know that the Nawab was a great puppet in the hands of the English company.
  • This led to the suffering of the people of Bengal.
• Partial justice:
  • People failed to get proper justice under the Dual system of Government.
  • The judges of the Nawab were influenced by British authority, because the latter played vital role in their appointment.
  • Thus, the judges failed to give impartial verdict which was detrimental to the interest of the public.
• Thus, the Dual Government of Clive proved to Bengal a failure. It gave rise to several complications in the administration of Bengal. The absence of responsibility on the part of the company led to abuses of power and corruption.
• This dual system was proved to be unsuccessful and in 1772 it was ended by Lord Warren Hastings on the orders of the directors of the company.
• At the time of end of this system Mubaraq-ud-Daulla was the Nawab of Bengal.

The Regulating Act (1773)

The Regulating Act was passed by Lord North’s Government in 1773. It was designed to remove several evils inherent in the Company and state of affairs in India. The Act did not prove to be a long-term solution to concerns over the company’s affairs; Pitt’s India Act was therefore subsequently enacted in 1784 as a more radical reform. It marked the first step towards parliamentary control over the company and centralised administration in India.

Background

• The first association of the British with the work of administration under what is called the system of Dual Government (1765 to 1772) was a discreditable and shameful page of British history.
• Then came the famine of 1770 in Bengal which was one of the most appalling disasters in Indian history. The company’s agents were blamed for the complete collapse of the government leading to the famine.
• No co-ordination between the three Presidencies
  • The territories of the Company in India were divided into three Presidencies- Bengal, Madras and Bombay.
  • Each presidency was headed by a Governor-in-Council, which was responsible to the Directors in England.
  • There was little co-ordination and co-operation between them in India.
  • Moreover, Presidencies in India made wars and concluded treaties at their own direction. They not only create more problems for the Company, but also brought disgrace and disaster.
  • The British Government could not tolerate such hazardous events and chaotic affairs. Hence state intervention was thought to be necessary.
• Administrative Confusion:
  • The system of Dual Government devised by Clive in Bengal in 1765 made the confusion worse confounded. Corruption was at climax. Confusion and chaos prevailed.
  • Cases of plunder and oppression were the order of the day. The unfortunate divorce of power from responsibility made the system suffer from all possible defects.
  • Thus parliament could not remain a mere passive spectator of the Company’s affairs.
• Richness of the Servants of the Company:
  • The rich resources of Bengal had fallen into the hands of the Company whose proprietors raised dividends to 10 percent in 1767 and proposed in 1771 to raise the rate further to 12.5%.
  • The Company’s English servants took advantage of their position to make quick fortunes through illegal and unequal trade and forcible collection of bribes and gifts from Indian chiefs and zamindars.
  • Clive returned to England at the age of 34 with wealth and property yielding 40,000 pounds a year.
  • The Company’s high dividends and the fabulous wealth brought home by its officials excited the envy, jealousy and contempt of the other sections of British society.
  • Merchants kept out of the East by monopoly of the company, the growing class of manufacturers and, in general, the rising forces of free enterprises in Britain wanted to share profitable Indian trade and the riches of India which the Company and its servants alone were enjoying.
    • They, therefore, worked hard to destroy the company’s trade monopoly and in order to achieve this, they attacked the Company’s administration of Bengal. They also made the officials of the Company who returned from India (like Clive and Warren Hastings) the special target.
  • The officials were given the derisive title of nabobs and were ridiculed in the press and on the stage. They were boycotted by the aristocracy and were condemned as the exploiters and oppressors of the Indian people.
  • In March of 1772 the Directors had declared another dividend of 12.5 % in August they asked the Government for of loan of £ 1 million. Why should a Company go bankrupt, members pertinently asked, when its servants were returning to England with their pockets bulging with gold.
  • These factors made the Company unpopular.
• Non-Payment of tribute by the Company:
  • In 1766, it was agreed that the Company would pay 4,00,000 Pound as tribute to the British Government.
  • Though for some years this tribute was paid, subsequently the Company showed its inability to pay it on the plea that it had been wrecked financially because of the loss of tea sales to America since 1768 as Dutch were able to enter the American Markets.
    • The East India Company owed money to both the Bank of England and the government; it had 15 million lbs of tea rotting in British warehouses.
  • The mismanaged Finances made the company almost insolvent and the company was forced to apply to the British Government for a loan.
• The bankruptcy of the Company:
  • The Dual Government in Bengal brought disastrous results. The administration of Bengal was completely ruined and so were the finances of the Company.
  • The Company, therefore, was obliged to seek loan from the British Government.
    • It came as a surprise to the British Government as nobody could imagine that the Company, whose servants were returning to England loaded with gold, was running under financial loss.
    • It was an ill chosen moment for the Company to go bankrupt, especially when it had so few friends, being hated by all and sundry.
    • In applying for loan from the Government, the Directors of the Company the death warrant of their Company’s independence.
  • A secret committee was appointed and it reported that the financial condition of the company was really deplorable.
  • The British Government sanctioned a loan of 1.4 million pound at 4% annual interest to the company on certain condition such as the obligation to submit its accounts to the British treasury. But, at the same time, it passed the Regulating Act with a view to regulating the administration of the Company.
• The East India Company was basically a trading farm that made business over a vast area of India but also maintained an army to protect its interests.
  • PM Lord North decided to start Governmental control, as East India Company had no experience in ruling it conquered few areas.
• The British Parliament appointed two committees:
  • Secret Committee
  • Select committee.
• Lord North decided to overhaul the management of the East India Company and to provide some form of legal government for the Indian possessions of the East India Company with the Regulating Act 1773.
  • This was the first step along the road to government control of India.
  • The Act set up a system whereby it supervised (regulated) the work of the East India Company but did not take power for itself.
  • East India Company had a very powerful lobby in Parliament in spite of the financial crises of the Company. The Shareholders along with this lobby of Parliament opposed the act.
• Since the Government in Britain regulated the company and did not take it over, it was termed “Regulating Act”.
• Hence the Regulating Act of 1773 was passed because:
  • Being a trading company, EIC had difficulties in Governance.
  • Address the problem of management of company in India.
  • Address the problem of corruption
  • Terrible famine in Bengal
  • Address the problem of dual system of governance instituted by Lord Clive
  • To control the company, this was so far a business entity but now a semi-sovereign political entity in India
  • Lack of proper judicial administration
  • Company’s defeat in 1769 at the hands of Hyder Ali

Provisions of Act:

• The Act remodelled the constitution of the Company both in England and in India.
• The Regulating act of 1773 permitted the Company to retain its former possessions and power in India but the management was brought under control by the British Government.
• Election for Directors:
  • The directors of the company were elected for four years (hitherto elected every year).
  • The number of Directors was fixed at 24, one fourth retiring every year.
  • The retiring Directors were not entitled to be elected again.
  • In England the right of vote in the Court of Proprietors was raised from £ 500 to £ 1,000.
• In order to assert British Cabinet’s control over the company:
  • The directors were required to place regularly all their correspondence, regarding civil and military affairs with the Indian authorities, before the secretary of the state in England.
  • All correspondence regarding to revenues in India was required to be placed before the Treasury in England.
• The Act limited Company dividends to 6% until it repaid a GB £1.5 Million loan and restricted the Court of Directors to four-year terms.
• The Regulating Act laid down the fundamental principle of honest administration by:
  • providing that “no person holding or exercising any civil or military office under the Crown shall accept, receive or take directly or indirectly any persent, gift, donation, gratuity or reward, pecuniary or otherwise.”
  • prohibiting the servants of company from engaging in any private trade
• Governor General and Council:
  • The status of governor of Bengal was raised to that of governor general, to be assisted by a council of four members.
  • The vote of the majority was to bind the Council, the Governor General having a casting vote when there was an equal division of opinion.
  • Three members of the Council formed a quorum.
  • The first Governor General (Warren Hastings) and Councillors (Philip Francis, Clavering, Monson and Barwell) were named in the Act.
  • They were to hold office for five years, and could be removed earlier only by the King on the recommendation of the Court of Directors.
    • Future appointments were to be made by the Company.
  • The Governor General in Council were vested with the civil and military government of the Presidency of Fort William in Bengal.
    • They were to superintend and control the subordinate Presidencies of Madras and Bombay in the matters of waging war or making peace with the Indian states, except in emergency situations.
    • The governor general in council was given all the power
      • to govern the company’s territorial acquisition in India,
      • to administer the revenue of Bangal, Bihar, Orissa and
      • to supervise and control the general civil and military government of the Presidency.
  • The Governor General and the Council were to keep the court of directors fully informed of all their activities affecting the interests of the company and they were also to work in entire obedience to the orders and instructions of the court of directors.
• India’s First Supreme Court: 
  • The Act empowered the Crown to establish by charter a Supreme Court of Judicature, consisting of a Chief Justice and three puisne judges.
  • The Supreme Court was constituted in 1774 at Fort William at Calcutta with Sir Elijah Impey as Chief Justice and Chambers, Lemaister and Hyde as the Puisne judges.
  • Sir Elijah Imphey was the first Chief Justice.
  • The Supreme Court was the supreme judiciary over all British subjects including the provinces of Bengal, Bihar and Orissa.
  • Position of the Supreme Court Calcutta: 
    • There was nothing comprehensible in the act with regard to the relation of the Supreme Court with the Government of Bengal.
    • The Supreme Court subjected the company to the control of British Government.
  • Jurisdiction:
    • Supreme court was given very wide but vague jurisdiction.
    • The supreme court was vested with the jurisdiction over:
      • all British subjects (though it was not clear who were British subject? If Calcutta was under British, all residents could be British Subjects?),
      • their servants and
      • the persons employed by the company.
    • Cases against company and corporation of Calcutta also placed under the court Civil jurisdiction: His Majesty’s subjects or persons employed directly or indirectly by the company or persons who have voluntarily agreed in writing to refer their disputes to the supreme court were under the jurisdiction.
      • Various terms like the “British subjects”, “subjects of His majesty”, “persons employed directly or indirectly in the service of the company” were used to define the personal jurisdiction of the Supreme Court.
      • The significance of these terms by no means clearly defined.
      • All the public servants of the Company were made amenable to its jurisdiction.
      • All British subjects in Bengal, European and Indian, could seek redress in the Supreme Court against oppression.
      • The Supreme court could also entertain suits, actions and complaints against persons in the Company’s service or any of His Majesty’s subjects.
    • The Court could determine all types of cases and grant redress through all the methods then in vogue in English judicial procedure.
      • The Court was given both original and appellate jurisdiction.
      • Following the British custom, the Court heard these cases with the help of a jury of British subjects.
    • Supreme Court was also given permission to accept cases against the Governor General and any of his Council members. But court had no power to arrest or imprison any of them in any action.
  • The Supreme Court was also made to consider and respect the religious and social customs of the Indians.
  • Appeals could be taken from the provincial courts to the Governor-General-in-Council and that was the final court of appeal. The rules and regulations made by the Governor General-in-Council were not to be registered with the Supreme Court.
  • Later an amendment in this act was made (The amending act of 1881), in which the actions of the public servants in the company in their official capacity were exempted from the jurisdiction of the Supreme Court.
• Liberal salaries were provided for the Governor-General (£25,000), each member of the Council (£ 10,000), the Chief Justice of the Supreme Court (£ 8,000) and for each puisne Judge (£ 6000) a year.

Criticism of the Regulating Act 1973:

• The act was by no means satisfactory, as it failed to streamline Indian administration, while the supervision of the British government remained ineffective due to problems of communication.
• There was nothing in the act which could address the people of India, who were paying revenue to the company but now were dying in starvation in Bengal, Bihar and Orissa.
• The Act was based on the theory of checks and balances. In actual practice it broke down under the stress of Indian circumstances and its own inherent defects.
• Governor General at the Mercy of Council:
  • The appointment of the Governor-general and a Council of four members was calculated to improve the state of affairs in Fort William which was earlier governed by a Governor and an unwieldy Council of 12 to 16 members.
  • The Governor-General was not vested with a veto power.
  • The administration in India was hampered by the disunity in the council and disharmony between the council and the governor general.
    • Due to decision of council was to be by majority, many times decisions could not be taken as per Hasting as Governor General in Council was first among equal with no veto.
    • During the first two years the Governor General (Warren Hastings) was perpetually outvoted by the majority in the Council.
    • As a result, the situation worsened day by day and ambiguity of the Act gave rise to a serious conflict between the Governor-General and the members of his Council.
• Vague jurisdiction of the Supreme Court:
  • The ambiguities in the jurisdiction of the Supreme Court and the council created serious conflicts between competing authorities.
    • Nothing clear was mentioned regarding the jurisdiction of the Supreme Court and its relation to the Governor-general in Council was not defined.
    • The Council and the Court were ranged in two hostile camps set against each other on the borderland of debatable jurisdictions.
    • The Governor General in Council could make no laws that the judges did not condescend to notice.
  • The Act did not defined clearly who were the British subjects within the meaning of the Charter of the Supreme Court.
    • In one sense, the whole population of Bengal, Bihar and Orissa were British subjects.
    • In another sense, no one was a British subject who was not an English man born.
    • In third sense, the inhabitants of Calcutta and not the general population of Bengal might be regarded as British subjects.
  • It was also not clarified whether the Supreme Court would hear the cases in accordance with the British Laws or the Native Codes of the Indian people.
    • As the British Judges were familiar only with the British Laws they forced upon the Indian people, what they thought was legally right according to the British law.
      • It was due to this ambiguity that Nand Kumar was hanged to death.
    • There was anomalous relations between the new Supreme Court administering English law, and the country courts already existing in Bengal.
• Inadequate Control of Governor-General over Presidencies and increased vulnerability of the Company:
  • The provincial governors took advantage of the wide manoeuvring space they had been offered by the vague wordings of the act.
  • On the plea of emergency the Presidencies of Madras and Bombay acted on their own discretion and started wars and made alliances without reference to the Governor and Governor-in-Council.
  • The Act could not create goodwill between the Company and the British Government.
  • Moreover, the Company remained extremely vulnerable to the attacks of its enemies as the administration to be corrupt, oppressive and economically disastrous.
• Provisions of the Act were also towards stopping corruption but it failed to do so.
  • The major charges were brought against the first Governor General, Warren Hastings and he was impeached in the trial for corruption.
  • In fact the whole council was divided into two factions based on the corruptions- the Hastings Group and the Francis Group.
  • They fought against each other on the issues of corruption charges alleged on them.
• The Act was a compromise throughout and intentionally vague in many of its provisions. It did not openly assert the sovereignty of the British Crown or invade the titular authority of the Nawab of Bengal.
  • The Act had “neither given the state a definite control over the Company nor the Directors a definite control over their servants, nor the Governor General a definite control over his Council nor the Calcutta Presidency a definite control over Madras and Bombay.”
• All these obscurities and indeterminate character of the act, it seemed, arose from Parliament’s inability to define properly the issue of sovereignty in India.
• Many defects of the Act were removed by the Declaratory Act 1781 (defined more precisely the jurisdiction of the Supreme Court), The Pitt’s India Act 1784 and the Amendment Act of 1786.

But the Regulating Act was still relevant

• The Regulating Act of 1773 was important as it was the first attempt of the British Government to regulate the administration of the Company in India for its better governance.
  • The Regulating Act of 1773 formally recognised parliamentary right to control Indian affairs.
  • Apart from that, territories in India were also subjected to some degree of centralised control.
  • From 1773 onwards, the executive and judicial administration of the country was placed on a regular, though imperfect, footing by parliamentary act.
• It can be said to mark the beginning of a constitution of India and asserted the right of the Parliament to legislate for the country.

Nanda Kumar Case:

• This case is example of corruption, nepotism, injustice during British era.
• Raja Nanda Kumar of Bengal was a big Zamindar.
  • In March, 1775 he laid a letter before the Council member with charging allegation against Warren Hastings.
  • According to the letter Warren Hastings received bribe from former Nawab wife Munni Begum for granting Zamindari.
  • The case was entertained by Council member Sir Philip Francis (he encouraged Nanda Kumar to expose Hasting) and the other members of the Supreme Council of Bengal.
• The council majority decided that Hasting received a sum of Rs.3,45,105 as bribe and directed him to refund the money in the Company’s treasury however Warren Hastings could overrule the Council’s charges.
  • While charges against Warren Hastings were still pending which were subsequently dropped, Nanda Kumar was suddenly arrested at the instances of a Calcutta merchant Mohan Das on a charge of forgery at the instigation of Warren Hasting.
• Nanda Kumar was tried under Elijah Impey, India’s first Chief Justice, was found guilty and hanged in Kolkata in 5 August 1775 as per statute of British parliament.
• Peculiar features of trial:
  • Charge preferred against Raja Nanda Kumar was shortly after he had levelled charges against Warren Hastings.
  • Chief Justice Imphy was a close friend of Hastings.
  • Every Judge of the Supreme Court cross examined the defense witness due to which the whole defense of Nanada Kumar collapsed.
  • After the trail, when Nanda Kumar was held guilty by the court he filed an application for granting leave to appeal to the King-in-Council but the court rejected his application.
  • Nanda Kumar committed the offence of forgery nearly five years ago, i.e much before the establishment of Supreme Court.
  • Neither under Hindu Law nor under Mohammedan Law was forgery regarded a capital crime.
• Warren Hastings was impeached for crimes and misdemeanour during his time in India in the House of Commons upon his return to England, especially for the alleged judicial killing of Nanda Kumar.
  • The House of Lords finally made its decision on April 1795 acquitting him on all charges.
  • The Company subsequently compensated him with 4,000 Pounds Sterling annually.

From Diarchy to Direct Control

• In 1773, Warren Hastings became the first Governor-General of Bengal and had administrative powers over all of British India.

Practices of Warren Hastings:

• The arrival of Warren Hastings in Bengal as Governor of the presidency of Fort William in 1772 proved to be a turning point.
• The same year, the Company was ordered by the Court of Directors to stand forth as ‘Diwan’ which meant the termination of system of ‘dual government’ and imposition of an administrative task upon the commercial men and thus the foundation of the civil service was formally laid.
• Accordingly, Englishmen were to be appointed as Collectors in district under the overall control of a ‘Board of Revenue’ at Calcutta, a weak system, rightly characterized by Hastings as “petty tyrants and heavy rulers of the people”.
• The foundation of the civil service in the modern sense was, nonetheless, laid down during his regime.
• Under Hastings’s term as Governor General, a great deal of administrative precedent was set which profoundly shaped later attitudes towards the government of British India.
  • Hastings, having proficiency in Bengali, Urdu, Persian, understood the relationship between on acculturated civil servant and an efficient one and accordingly he emphasized on the creation of an ‘oriental elite club of the civil servants’, competent in Indian languages and responsible to Indian tradition.
  • He made efforts at lifting the moral tone and intellectual standards of servants.
  • ‘Dastaks’ were abolished in 1773 and those engaged in the private trade had to pay a duty of 2.5 % to the Board of customs.
  • Hastings separated the revenue and commercial branches.
  • The Regulation Act of 1773 prohibited all officials of the Company, from the Governor-General and his councillors and Chief Justice and other judges of the Supreme Courts, from accepting gifts, donations, gratuity or rewards.
    • If found guilty of doing so, they could be legally convicted by the Supreme Court or the court of the Mayor.
  • In 1780-81, revenue and judicial administration in districts was entrusted to English officers which was the beginning of the ‘nucleus’ of the civil service with systematization and specialization of functions, essential to such service.
  • By Pitt’s India Act of 1784, they were provided with definite scales of pay and emoluments.

More about Warren Hasting:

• In 1758 Hastings was made the British Resident in the Bengali capital of Murshidabad, a major step forwards in his career, at the instigation of Clive.
• In 1771 he was appointed to be Governor of Calcutta, the most important Presidency.
• In Britain moves were underway to reform the divided system of government and create a single rule across all of British India with its capital in Calcutta.
  • Hastings was considered the natural choice to be the first Governor General.
  • While Governor, Hastings launched a major crackdown on bandits operating in Bengal which was largely successful.
• Hastings had a great respect for the ancient scripture of Hinduism and set the British position on governance as one of looking back to the earliest precedents possible.
  • This allowed Brahmin advisors to mould the law, as no English person thoroughly understood Sanskrit until Sir William Jones; it needed to be elucidated by religious commentators who were well-versed in the lore and application.
• In 1781, Hastings founded Madrasa ‘Aliya‘.
• In 1784, Hastings supported the foundation of the Bengal Asiatic Society (now the Asiatic Society of Bengal), by the oriental scholar Sir William Jones; it became a storehouse for information and data pertaining to the subcontinent.
• Hastings’ legacy has been somewhat dualistic as an Indian administrator: he undoubtedly was able to institute reforms during the time he spent as governor there that would change the path that India would follow over the next several years.
  • He did, however, retain the strange distinction of being both the “architect of British India and the one ruler of British India to whom the creation of such an entity was anathema.” He respected Indian customs but was loyal to the British mission.
• In 1784, after ten years of service, during which he helped extend and regularise the nascent Raj created by Clive, Hastings resigned.

Judicial System

Background:

• The grant of diwani in 1765 gave the East India Company the right to collect revenue in Bengal, Bihar and Orissa, but the nawabi administration and the Mughal system remained in place.
• The judicial administration of the subah remained initially in the hands of the Indian officers between 1765 and 1772 and the Mughal system was followed in both civil and criminal justice.
• Clive appointed Muhammad Reza Khan to represent the Company’s civil jurisdiction; as Naib Nazim he also administered the criminal jurisdiction of the nawab.
• The Mughal system was never centrally organised and depended to a large extent on the local faujdars and their executive discretion.
  • Although the sharia or the Islamic law was referred to for legitimation, its application varied widely depending on the seriousness of the case and the interpretation of the muftis and kazis.
  • The focus of this system was more on mutual resolution of conflict rather than punitive justice (except in cases of rebellion), and punishment when meted out often depended on the status of the accused.

British criticism of the system:

• Many Company officials attributed this system to an eighteenth century degeneration when the zamindars and revenue farmers had allegedly usurped judicial authority.
• These people were thought to be driven more by considerations for pecuniary benefit than justice.
• This led to the complaint about the “venality” of the justice system.
• It was therefore argued by 1769 that there was need for some sort of direct or overt European supervision to ensure a “centralization of the judicial prerogative” retrieved from the hands of the zamindars and revenue farmers, and thereby to assert Company’s sovereignty.

How system evolved?

• When Warren Hastings took charge as governor in 1772, he decided to take full control of the justice system.
• Reza Khan was arrested and Hastings pleaded with the Company directors not to restore him to his former position.
• Under the new system of 1772, each district was to have two courts:
  • a civil court or diwani adalat 
  • a criminal court or faujdari adalat,
• Thus the Mughal nomenclature was retained, and the laws to be applicable were Muslim laws in criminal justice and the Muslim or Hindu laws in adjudicating personal matters, such as inheritance, marriage etc.
• This division of the topics of law was evidently in accordance with the English system, which left such matters as marriage, divorce, property, religious worship or excommunication, in the jurisdiction of the Bishops’ courts, where the law applicable was the ecclesiastical law.
• The civil courts in India were to be presided over by the European District Collectors, and they were to be assisted by maulvis and Brahman pundits interpreting indigenous laws for their understanding.
• There would be an appeal court in Calcutta, which too would be presided over by the president and two members of the council.
• The criminal courts were to be under a kazi (judge) and a mufti (jurist of the Muslim community), but they were to be supervised by the European collectors.
• The appeal court, the Sadar Nizamat Adalat, was removed from Murshidabad to Calcutta.
• Failure of the system
  • In reality, Hastings personally supervised the criminal justice system until 1774, when he finally acknowledged his failure to improve law and order situation.
  • He reluctantly accepted the Court of Directors’ decision to reappoint Reza Khan at the head of the nizamat adalat, which was once again moved back to Murshidabad.

Further changes:

• In civil justice system further changes took place between 1773 and 1781,
  • partly in response to the demands of revenue collection and
  • partly in deference to the Whig principle of separating executive functions from the administration of justice.
• According to the plans worked out by Hastings and Sir Elijah Impey, the chief justice of the Calcutta High Court, district collectors were divested of their judicial duties.
• In the area of civil justice, instead of district courts, initially six provincial courts, later replaced by eighteen mofussil courts were created and they were to be presided over by only the European covenanted officers of the Company.
• For some time the new Supreme Court, created by the Regulating Act of 1773, acted as an appeal court.
• The Code of 1781 prescribed specific rules and regulations to be followed in all the civil courts down to the lowest level and all judicial orders were henceforth to be in writing.

Problem that remained:

• The major problem that hindered certainty and uniformity in the system was that of conflicting and varying interpretations of indigenous laws.
  • Brahman pundits, for example, often gave divergent interpretations of the various schools of dharmashastra and sometimes their opinions on the same law varied widely from case to case.
• To reduce this element of uncertainty, a committee of eleven pundits compiled, at the behest of Hastings, a digest of Hindu laws in 1775, and it was translated into English by N.B. Halhed in 1776 for the purpose of lessening the dependence of European judges on their indigenous interpreters.
• A code of Muslim laws was also compiled by 1778.
• With this standardisation of law, the practice of law now needed professional expertise that could only be expected from a specially trained group of people, the ‘lawyers’.

Thus, in its effects, the reforms of the Hastings era “tended to centralise judicial authority, and reduce administration to a system.

Changes by Cornwallis

• Civil Justice:
  • It was Lord Cornwallis and his Code of 1793 that finally set the rule of separating revenue collection from administration of civil justice as a safeguard for property rights against abuse of power by revenue officials and their agents.
  • The new system provided for a hierarchy of courts from zillah (district) and city courts to four provincial courts and the Sadar Diwani Adalat with appellate jurisdiction.
  • All the courts were to be headed by European judges, with provision for appointment of ‘native commissioners’.
• Criminal Justice:
  • The criminal justice system was also completely overhauled, as the district magistrates complained to Cornwallis about the anomalies of Islamic laws and the corrupt practices at the criminal courts.
  • Also, it was felt that such an important branch of administration could no longer be left in charge of an Indian.
  • The faujdari adalats, which until then functioned under Naib Nazim Reza Khan, were therefore abolished and replaced by courts of circuit, headed by European judges.
  • The office of the Naib Nazim itself was abolished and the Sadar Nizamat Adalat was brought back to Calcutta and placed directly under the supervision of the Governor-General-in-Council.
  • The entire judicial reform of Cornwallis therefore saw a total exclusion of Indians from the whole system, which became less ambiguous in its authoritarian and racially superior tone.

Extension of Judicial System:

• The Cornwallis regulations were extended to the province of Banaras in 1795 and to the Ceded and Conquered Provinces in 1803 and 1805 respectively.
• But the Bengal system based on the assumptions of a permanent settlement with the zamindars, faltered seriously in Madras, where it was introduced because of Lord Wellesley.
• By 1806 it was clear that in a Ryotwari area, where the collector had to function also as a Settlement Officer and assess revenue, and where there was no such powerful class as the zamindars of Bengal, the separation of revenue collection and magisterial and judicial powers posed serious problems.
• On Thomas Munro’s insistence, the Court of Directors in 1814 therefore proposed a different system for Madras, which included provisions for greater Indianisation of the system at the lower levels (village panchayats, district and city courts) and the union of magisterial, revenue collection and some judicial powers in the office of the collector.
• Fully introduced in Madras by 1816, it was later extended to Bombay by Elphinstone in 1819.

Certain unresolved issues:

• Certain unresolved issues remained in the area of judicial  administration however.
• Apart from the question of lndianisation, there was the issue of codification of laws, which would establish a uniform judicial administration and civil authority throughout British India.
• These issues were not raised until the governor-generalship of Lord Bentinck and the Charter Act of 1833.

Charter Act of 1833:

• The act threw open judicial positions to Indians and provided for the appointment of a law commission for codification of laws.
• The law commission appointed under Lord Macaulay completed the task of codification by 1837, but it had to wait until after the revolt of 1857 for full implementation.
• The Code of Civil Procedure was introduced in 1859, the Indian Penal Code in 1860 and the Criminal Procedure Code in 1862.

Limitations:

• This institutionalised justice system was to be applicable only in British India.
  • In the vast regions that remained within the princely states, whose size and efficiency varied widely, the judicial administration was usually run by a motley amalgam of British Indian laws and personal decrees of the princes, who also acted as the highest judicial appellate authority.
• In British India, however, the judicial administration now looked significantly different from what it was under the Mughal rule, and these changes the ordinary Indians found hard to comprehend.
• The judicial interpretations made the laws often look very different and incomprehensible to the indigenous people.
• Justice now became distant:
  • Physically, because of the geographical distance from the district courts,
  • psychologically, as the indigenous people did not understand the complex judicial procedures, dominated by a new class of lawyer.
• As a result, justice also became expensive.
  • As the huge number of court cases started piling up, for most people justice became inordinately delayed, sometimes even by fifty years.
• In most cases the way Hindu personal laws were interpreted by Brahman pundits that these only benefited the conservative and feudal elements in Indian society.
• The concept of equality before law often did not apply to the Europeans.
• And there were significant domains of activity, for example, those of the police and the army, which remained unaffected by this colonial definition of the ‘Rule of Law’.