The Great Repression Read online

  In this regard, the Company received a royal grant from the British Crown on 14 December 1615 authorizing it to issue commissions providing for adjudication on offences and imposition of punishments on its subjects under martial law. The only condition imposed by the grant was that any case which could lead to a death penalty had to be tried before a jury. 8 This grant enabled the Company to issue commissions without needing to approach the king for each voyage, as was the practice earlier. However, this grant was limited to offences committed on voyages.

  The earliest recorded criminal trial pursuant to the royal grant of 1615 involved a Company employee named Gregory Lellington in Surat. 9 He was accused of murdering an Englishman by the name of Henry Barton, an employee sailing on board the James, a ship belonging to the Company, on 16 February 1616. He was charged with the crime on 28 February 1616 and his trial was held on a ship named Charles off the coast of Surat. Lellington confessed to killing Barton and was duly sentenced to death by Henry Pepwell (chief commander of the fleet) and Thomas Kerridge (chief of the factory). Lellington, someone with an actual death wish, desired an immediate execution. The executioners were happy to oblige and shot him the very next day to end his misery. 10

  On land, however, there existed a situation where the employees of the Company were at the mercy of local laws and judicial systems when it came to their disputes with the native population. The native rulers did not really bother about disputes between Englishmen. This necessitated another royal grant of 1623 which extended the grant of 1615 for jurisdiction over offences inter se the servants of the Company located in India. This grant was again subject to the same condition as earlier, that is, offences punishable by death were to be tried before a jury. 11 Mutiny, murder and any other felonies were offences punishable by death which required a jury trial. The power to adjudicate under the grant was placed with the president or chief of the factory, thereby empowering the Company to enforce the rule of law on high seas as well as land. 12 By 1623, 13 the Company had also established factories at Ahmedabad, Broach, 14 Agra and Masulipatnam. 15

  However, the royal grant of 1623 did not specify the territory over which the grant had been made but only provided for imposition of martial law. This necessitated another grant in 1624 which empowered the Company to issue commissions to the presidents of factories in India to punish English employees of the Company under martial law as well as under English ‘Common Law’. This empowerment was for trial of offences on land as well as on the high seas. 16

  The control of the East India Company and the operations of the Company in India vested with the court of directors of the Company, which exercised such control under instructions from the Crown, which in turn acted through a secretary of state. 17 This structure was overhauled only towards the end of the eighteenth century, but more on that later.

  The East India Company, being an expansionary enterprise, had already set up a factory at Masulipatnam in 1611 in present-day Andhra Pradesh, and it went on to set up more trading posts over the course of the next couple of decades. In 1639, a place called Madraspatnam 18 drew the attention of the English due to the superior quality of cloth available for trade as compared to its other posts on the east coast. The Company obtained the lease of the locality from the local ruler, the nayak, and got permission to build fortifications. The fort was named Fort St George after the patron saint of England. Previously under the control of the Bantam Presidency located in Java, Fort St George was elevated to a presidency by the English in 1653, which was the birth of the Madras Presidency. The presidency was administered by a governor and a council of three. One of the governors of Madras was Elihu Yale, who served from 1687 to 1692, after whom Yale University in the USA is named. The Madras Presidency, after many conflicts with the French and native rulers, spread to almost all of present-day Tamil Nadu, present-day Andhra Pradesh and parts of present-day Karnataka (including the Malabar coast) by the end of the eighteenth century. 19

  On the west coast, the Company established the Bombay Presidency, which stretched from Sindh in the north, parts of present-day Gujarat till Daman, and down the Western Ghats up to Karwar in present-day Karnataka. The Presidency was administered from Surat before the control shifted to Bombay. The island of Bombay became a part of the English empire in 1665 once it was ceded by Portugal as part of the dowry for the marriage of Princess Catherine of Portugal to King Charles II of England. 20

  Digressing for a moment, the marriage of the two royals in 1662 was unique because it was carried out in proxy. The king was not present in Lisbon when the ceremony was conducted under Catholic customs. The crowds carried full-size portraits of the royal couple in a procession to celebrate the union. Only upon Catherine’s arrival in England was the marriage formalized under Protestant customs in the presence of both bride and groom. 21

  The king transferred the control of the island of Bombay to the East India Company in 1668, and eventually in 1687 Bombay was elevated to the seat of the presidency which was earlier located at Surat. Bombay received this honour due to its defensible nature which was seen as an advantage by the Company and the English. The city of Bombay prospered and grew, along with the growth of the presidency. 22

  Up in the Gangetic plains, the Company had established its first factory in Bengal in 1640 23 at Hooghly, and was permitted to set up factories in Patna, Balasore, Dhaka, etc. in the 1650s. It only purchased land rights, called zamindari, of three villages in Bengal in 1698 from the Mughals. The site of the acquisition went on to become present-day Kolkata. It was made the headquarters of the East India Company in Bengal and was fortified as Fort William, named after King William III. After conflicts with the Mughals and the French, the English established their hold over Bengal in 1757 under the lame duck Nawab Mir Jafar, who had been placed in that position by the English, after defeating Siraj-ud-Daulah at the Battle of Plassey. Eventually, the British established complete control over Bengal, Bihar, Awadh and Orissa in 1765, thus establishing the prosperous Bengal Presidency with its seat at Calcutta—prosperous for the Company but ruinous for Bengal. Thus commenced the actual rise of the British political and military empire in India, and the East India Company started transforming from a trading corporation into a territorial and colonial force. The Company assumed dewani rights and thus controlled the civil justice system, but the nizami or criminal justice powers remained with the nizam and his administrators. 24

  The celebrated judgment of the Privy Council in Ryots of Garabandho v. Zamindar of Parlakimedi 25 sheds light on the justice system of the presidencies. The administration of law and the judicial system in India at this stage was dual in nature. Under the Mughal Empire, Hindus and Muslims were subject to their personal laws with regard to civil cases, but as far as criminal cases were concerned Mohammedan law was largely applied for deciding the punishment to be imposed. The judicial tribunals mostly comprised of native clerics overseen by the local rulers. The English exercised judicial power over their subjects in accordance with English law, but the same could not be applied to the natives. A civilian judicial system established by the English did exist in the three presidencies, but it largely concerned itself with disputes between its subjects and offences against the English. In places where it had to be exercised on the local populace, natives who were well versed in the personal laws of Hindus and Muslims were employed. There was absolutely no uniformity, mainly due to the diversity of the Indian populace and the different systems of administration in the three presidencies. The first change came about in 1773 when the British Parliament established a Supreme Court in Calcutta to replace the existing system which exercised jurisdiction over the Company’s employees and inhabitants of its towns and factories in Bengal and Bihar. This was a part of the British Parliament’s first attempt to take control of the administration of the Company.

  Prior to the Company taking over, the dispensation of criminal justice was left to the native administrators or zamindars who passed sentences according to their whims an
d even handed out death sentences. In 1790, the Company started taking control of the criminal justice system against natives using Mohammedan penal laws for both Muslims and Hindus, with certain adjustments made whenever the defendant was a Hindu. Appeals from civil and criminal cases went to the Sadar Dewani Adalat and Sadar Nizami Adalat. However, none of the courts established by the Company had any jurisdiction over British subjects who were not servants of the Company. In fact, the Company did not permit any British subject to reside beyond ten miles from the capital unless they voluntarily submitted to the jurisdiction of such district courts outside the ten-mile limit.

  Parallelly, the Supreme Court at this time was tasked by the British Parliament with jurisdiction over British subjects residing in the towns and settlements within the presidency, and subject to the protection of the Company. The Supreme Court applied English laws to exercise such jurisdiction and decided upon civil and criminal complaints against both English and Indian servants of the Company. Such sweeping powers of the Supreme Court were restricted in 1781 by excluding revenue matters and official actions of the principal officer of the Company from its jurisdiction. Further, the Supreme Court was mandated to apply Hindu and Mohammedan law against Indian defendants in accordance with their religion. The above system was extended to the Madras and Bombay presidencies in the first decade of the nineteenth century. The powers of the Supreme Court were curbed due to active lobbying by the Company led by Warren Hastings, the governor general of Bengal.

  Earlier in 1780, conflict between the Supreme Court’s and the Company’s system of administration reached a head during the famous case of Raja Sundernarain, who was the zamindar of Cosijurrah (which lies in present-day Midnapore in Bengal). Kashinath, a resident of Calcutta, had lent money to the raja, who defaulted in its payment, which led to Kashinath filing a suit against him in the Supreme Court. The Supreme Court issued a warrant against the raja by holding that he was a servant of the Company as he collected revenue on its behalf. While the raja avoided the warrant, the Council of the Governor General of Bengal issued instructions to all zamindars that they could ignore the orders of the Supreme Court as they did not fall under its jurisdiction because of being natives. Thereafter, the Supreme Court sent a sheriff to enforce its warrant and to establish its authority over the zamindars. The Company saw this as an affront to their authority and sent armed forces to repel the sheriff. By doing so, the Company undermined the Supreme Court and reasserted its authority over revenue and civil matters in the presidency. It is said that the Cosijurrah case was the lowest point between the Company and the Supreme Court which culminated in restrictions on the jurisdiction and powers of the Supreme Court. 26

  All this while, the British Parliament was actively making efforts to exercise greater control over the East India Company as it realized that the Company was not a mere trading corporation any more. It had attained the characteristics of an imperial power and was slowly turning into a monster with a mind of its own. Unfair trade practices and extortionate revenue collection by the Company resulted in massive economic crises for the natives. Hoarding and export of food grain to the disadvantage of local agriculturists and consumers and no attention to the economic plight of the natives culminated in the first Great Bengal Famine which occurred between 1769 to 1773, causing the deaths of about 10 million people, or one-third of the population of Bengal, Bihar and Orissa. The British Parliament was conscious of the atrocities and unregulated commercial conduct of the Company which was causing resentment amongst the natives in India.

  In 1784, the Parliament, by way of an Act, 27 placed the control of the Company under a Board of Commissioners to control the affairs of India, called the Board of Control. Its members were the chancellor of the exchequer, a secretary of state and four privy councillors appointed by the Crown. The Board was in charge of the military and political activities of the Company. 28

  Having said that, it would be amiss to not point out that the British government enjoyed a level of control over the political and military affairs of the East India Company in India, albeit unofficially, even prior to 1784. Not a very well-known fact, but there existed a glamorously named Secret Committee which comprised a small number of directors of the Company who were responsible for the relay of political and military instructions from the British cabinet from time to time. This covert communication system was formalized by Pitt’s Act of 1784, and the Secret Committee became an official conduit for instructions and information between the Board of Control and administrators of the Indian presidencies. The Secret Committee went on to play a major role in the expansion of the Company’s—and by proxy Britain’s—political control in India. 29

  One must ask the question: What was the need for the British to introduce a structured legal system and bring uniformity of justice dispensation for the natives? They could have simply applied English law over the British subjects and non-native servants of the Company, or even all servants of the Company, native or otherwise. At the end of the day, the Company was a for-profit corporation and not a vehicle for social reform or change. So, the question arises, where was the need for replacing or modifying indigenous law for justice delivery?

  The answer to this lies in the principle of free markets. The Hindus were governed by laws of the Shastras 30 and customary laws. Such customs recognized a caste system which created a feudal structure consisting of brahmins, kshatriyas, vaish and shudras (priests/intellectuals, warriors, traders and untouchables) in that order of importance. This structure ensured there was no equality of status which, according to the British, acted as a hurdle for a free market. 31 The Company could only profit if indigenous society enabled free commerce, and so it went about trying to change the same. It woefully failed to disturb the caste system, an evil which prevails till date, but it succeeded in transforming the law and the judicial system. According to Galanter, 32 the British made an attempt to compile Hindu laws but were hindered by the fact that there was no uniformity in the application of customary law, and even the Shastras were not entirely helpful. Muslim laws were used for criminal cases, with regulations making modifications for its applicability to Hindus. However, the driving principle behind the application of the laws, by virtue of the adjudicators being British, were the principles of justice, equity and good conscience. Another change which was brought forth was the introduction of formal systems of appeal, rules of procedure, and the creation of a class of professionals to plead and argue before the Courts. On this, Galanter quotes Maine: 33

  At the touch of a Judge of the Supreme Court, who had been trained in the English school of special pleading, and had probably come to the East in the maturity of life, the rule of natural law dissolved and, with or without his intention, was to a great extent replaced by rules having their origin in English law-books. Under the hands of the judges of the Sudder Courts, who had lived since their boyhood among the people of the Country, the native rules hardened and contracted a rigidity which they never had in real native practice.

  These changes filled the gaps created by the lack of uniformity in law and forever changed how justice was dispensed in India.

  2

  Bentham, Mill and Macaulay

  Nanda Kumar 1 was an upper-caste Hindu in the employ of the nawab of Bengal. He rose through the ranks to become the dewan of Hooghly in 1752 and went on to become the military governor of Hooghly. Hooghly was the first European settlement in Bengal, having been established as a trading centre by the Portuguese who were eventually driven out by Shah Jahan. Hooghly was a district of importance for trade and was the principal trading centre for the British before Calcutta. Nanda Kumar became extremely powerful and was bestowed with the title of ‘maharaja’ by the Mughal nawab. His prominence and power did not go down well with Warren Hastings, who was a high-ranking Company official at Murshidabad before being elevated to the governorship of Bengal in 1772. Hastings and Nanda Kumar resented each other for various reasons, and Hastings thought of Nanda Kumar as deceitf
ul and cunning.

  Their mutual hatred culminated in Nanda Kumar levelling charges of corruption and bribery against Hastings. However, this proved to be the death knell for Nanda Kumar. In 1774, the Supreme Court at Calcutta had been established with Sir Elijah Impey as its chief justice. Impey and Hastings went way back and enjoyed a great friendship. Working in collusion with Impey, Hastings made one of his acolytes bring about charges of forgery against Nanda Kumar, for which he was tried in the Supreme Court before a four-judge bench led by Impey in 1775. According to most accounts, the trial, which was conducted under English law, was a farce with witnesses deposing falsely and Impey acting partially. The trial merely moved towards the foregone conclusion that Nanda Kumar was to be held guilty, which he eventually was. The final act of conviction and sentencing was seen as a victory for Hastings, who was under threat of having his career ruined due to the charges levelled by Nanda Kumar. 2 One would assume that a conviction for an offence like forgery would result, at worst, in rigorous imprisonment. One would be shocked to know that the punishment for forgery under the English Common Law was a sentence of death. The dubious case of King v. Maharaja Nanda Kumar concluded with Nanda Kumar being sentenced to death by hanging.