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Mufassal, if he brought a suit against an Indian, would do so in the Supreme Court at Calcutta; and, if an Indian residing in the Mufassal brought a suit against a European, the latter could claim the right of having the matter decided in the Supreme Court. The unfairness of this procedure became all the greater after the removal of restrictions against the immigration of Europeans in 1833. The anomalies of the position were explained by James Mill in his evidence before the Select Committee, which is given below.
The Anomalies of the Supreme Court
Source.-Evidence of James Mill before the Select Committee of 1832. (Parliamentary Papers.)
The anomaly of the case in India at present consists in the extraordinary circumstances of there being a class of people in the country, a class in reality of foreigners, not very considerable in point of numbers, but remarkable in certain circumstances, and from the power attendant on those circumstances, who are not subject to the legislative power of the Government under which they live; who claim exemption from its enactments, and for whom the Government has no power of making laws. I allude to the Englishmen who are in India. Our habit of looking with indifference upon things which we have long seen the same, prevents us from observing the extraordinary nature of this case; by putting something of a parallel case it may be more easily understood. If we were to suppose that there were a class of foreigners in this country, in England, to bind whom by laws the King or Parliament had no power; foreigners spreading themselves in all directions among the people of the country, but exempt from the jurisdiction of our tribunals, and claiming to own no obedience but to a single court belonging to their own Sovereign, whom they speak of and represent as far superior to ours; further, if we were to suppose that this single court of theirs was seated in the metropolis, so that Englishmen could have no redress for any injury sustained at the hands of these foreigners, except by coming up to the metropolis to sue them in their own court; that those foreigners, moreover, from their peculiar circumstances, carry with them such power that the subjects of the King of England are in perpetual dread of them, afraid of applying for redress against anything they do; and if to the above supposition we were to add that this same court of their sovereign, not ours, placed in our metropolis, should exclusively have power of administering justice to the
whole of the inhabitants of our metropolis; that the inhabitants of our metropolis should have no access to justice but through this single court; while the Government itself, King and Parliament, should have no power of making any laws to bind the inhabitants of the metropolis, but according to the pleasure of those same foreign judges; this would be a parallel to the case as it now stands in India, and seems to me to require no words to prove its incompatibility with good government. I can hardly anticipate contradiction to the opinion both of the Supreme Government and the judges of the Supreme Court, that there cannot be good government in India till one uniform system of law is made to include all the subjects of that Government, this portion as well as every other.
This unsatisfactory state of affairs was altered by the Charter Act of 1833. The reports of the peculiar privileges and opportunities enjoyed by Europeans in India not only in economic matters but in the eyes of the law had reached England. The report of the Committee of 1832 on the affairs of India with reference to the administration of justice, based on evidence such as that given above, suggested the necessary reform. It was in the fitness of things that England which had just passed through a peaceful revolution and had emerged pledged to a wider justice between class and class and the removal of all exclusive privileges should not tolerate a situation which brought discredit to England and demoralisation to India. The Reform Parliament which initiated so many measures of social reform affecting the lives of the masses in England and which also by means of the Charter Act removed the exclusive trading rights of the East India Company, also made provision for a better administration of justice and ensured equality in eyes of law between British and Indian subjects of His Majesty. But, as has often happened in the history of British India, declaratory provisions of Acts of Parliament have come to nothing until they have been endorsed and explained by the Court of Directors. For this reason the following extracts from the communication of the Court of Directors to the Governor-General in Council in India which accompanied the Charter Act of 1833 are of great importance.
The Relations between Europeans and Indians in
Source.-Despatch accompanying the Government of India Act, 1833. Dated 10 November, 1834. From the Board of Directors East India Company to the Government of India. (Parliamentary Papers.)
41. The importance and indeed the absolute necessity of extending to natives such protection we need not demonstrate. Though English capitalists settling in the country, if they are governed by an enlightened sense of their own interests, will see the importance of acquiring the confidence of their native neighbours by a just and conciliatory course of conduct, yet even some of this class may yield to the influence of worse motives. Eagerness for some temporary advantages, the consciousness of power, the pride of a fancied superiority of race, the absence of any adequate check from public opinion, the absence also in many cases of the habitual check supplied by the stated and public recurrence of religious observances-these and other causes may occasionally lead even the settled resident to be less guarded in his treatment of the people than would accord with a just view of his situation. Much more may acts of outrage or insolence be expected from casual adventurers cut off possibly from Europe by the consequences of previous malconduct, at all events released from the restraints which in this country the overawing influence of society imposes on all men not totally abandoned, the greater necessity is there that such persons should be placed under other checks.
42. If the administration of justice in the Mufassal were completely adequate to ensure to the injured native the means of due and prompt redress you would be put to little difficulty. It would only be necessary to render British subjects fully amenable to the jurisdiction of the native tribunals, and all would be well. But some time must elapse before your judicial system in the interior will be thus effectual; and while, on the one hand, it will be necessary that you expedite by all possible means the desired improvement of that system, it will, on the other, be incumbent on you to provide for its deficiencies in the interim both by framing laws adapted to the particular object in view and by directing the vigilant attention of Government to cases of abuse with which the ordinary administration of justice may be unable to cope. Our instructions on this head are necessarily general, suggesting principles rather than prescribing rules; to your discretion we must commit the task of carrying them into detailed execution.
43. Whatever provision may be made against occasional abuse, the views of Parliament in opening the interior of India
to Europeans are to be carefully kept in recollection. The clauses which affect this great alteration in our Indian policy are not restraining but enabling enactments.
The Legislature has avowedly proceeded on the principle that generally speaking and on the whole the increased entrance of Europeans into the interior of India, their increased power of blending their interests with those of the country and their increased opportunities of freely associating with the natives will prove beneficial to the native people and promotive of their general improvement and prosperity. That which by legislature is thus assumed is also to be assumed by us and by you. Your laws and regulations therefore, and also all your executive proceedings in relation to the admission and settlement of Europeans, like that law of the Imperial Legislature out of which they grow, must, generally speaking and on the whole, be framed on a principle not of restriction but of encouragement.
The regulations which you shall make with the just and humane design of protecting the natives from ill-treatment must not be such as to harass the European with any unnecessary restraints or to give him uneasiness by the display of improper distrust and suspicion. Laws framed in such a spirit tend to produce the very mischief which they aim at preventing. To the evilminded they suggest evil, they furnish the discontented with materials or pretexts for clamour, and they irritate the peaceably disposed into hostility.
59. From these premises there are some practical inferences to which we must call your attention. First, we are decidedly of opinion that all British-born subjects throughout India should forthwith be subjected to the same tribunals with the natives. It is, of course, implied in this proposition that in the interior they shall be subjected to the Mufassal courts. So long as Europeans penetrating into the interior held their places purely by the tenure of sufferance and bore in some sense the character of delegates from a foreign power, there might be some reason for exempting them from the authority of those judicatures to which the great body of the inhabitants were subservient. But now that they are to become inhabitants of India they must share in the judicial liabilities as well as in the civil rights pertaining to that capacity, and we conceive that their participation in both should commence at the same date.
60. It is not merely on principle that we arrive at this conclusion. The 85th clause of the Act to which we have before referred, after reciting that the removal of restriction on the
intercourse of Europeans with the country will render it necessary to provide against any mischiefs or danger that may thence arise, proceeds to direct that you shall make laws for the protection of the natives from insult and outrage-an obligation which in our view you cannot possibly fulfil, unless you render both native and European responsible to the same judicial control. There can be no equality of protection where justice is not equally and on equal terms accessible to all.
61.... But variances like this do not affect the main principle. The maxim still remains that justice is to be distributed to men of every race, creed, and colour, according to its essence, and with as little diversity of circumstance as possible.
In pursuance of the spirit of the provisions of the Charter Act so ablyandclearly explained in the despatch quoted above, the controversy regarding the privileged position of European British subjects was ended in 1836. By Act XI of 1836 the special right of appeal to the Supreme Court was taken away and it was enacted that no person whatever should by reason of place of birth or by reason of descent, be, in any civil proceeding whatever, excepted from the jurisdiction of the courts of Sadr Diwani Adalat, of the zillah and city judges, of the principal Sadr Amin, and the Sadr Amins in the territories subject to the Presidency of Fort William in Bengal.
This Act, which met with the approval of all Provincial Governments and of the majority of the Company's servants, excited the most tenacious opposition from the European residents of Calcutta. The narrow prejudices and the selfish attitude of a certain section of the English population in India are illustrated with his usual skill and lucidity by Macaulay in his minute given below.
Agitation in Calcutta
Source.-Minute written by T. B. (afterwards Lord) Macaulay. Reproduced in "The Public Life of Lord Macaulay," the Rev. Frederick Arnold. (Tinsley Brothers.)
I conceive, therefore, that the Act is good in itself and that the time for passing it has been well chosen. The strongest reason, however, as I formerly said, for passing it was the nature of the opposition which it experienced. Approved by the Governments of Madras, Bombay, and Agra, approved by