On the 5th
of August 1775 Raja Nandakumar was hanged, after being found guilty of forgery by
the newly established Supreme Court. He was tried a few days after having
brought charges of corruption against the Governor-General, Warren Hastings. A
year before that, the Supreme Court had been established by the English Crown
to restrain the exercise of power by the officials of the East India Company. In order to maintain the autonomy of the Supreme Court, the judges were
directly nominated by the Crown.
After their appointment, the judges started to
entertain suits against the officials. In one case, they even ordered the
arrest of powerful members of the Provincial Council for illegally taking over
the property of a complainant. Because of this, tensions arose between the
Supreme Court and the Governor-General, who accused the activist judiciary for
putting British rule in India at risk. He argued that by imposing their
authority on revenue officials, the judges usurped the sovereignty of the
Company. The Supreme Court, on the other hand, insisted on the difference
between the public responsibilities of the officials and their use of official
powers for private gains. The Chief Justice, Sir Elijah Impey rebutted the
charge that the Supreme Court exceeded its authority by claiming that the
Supreme Court represented the people of India.
Notwithstanding the hostility between the
judiciary and executive, Governor-General Hastings acknowledged the role of the
Supreme Court in the Indian political system. After all, it was the Supreme
Court which had averted a coup against him when a member of the Council
threatened to take over the garrison at Calcutta because of dissension in the
Council. This was a partial reason behind the Chief Justice Impey’s accepting
the position of a judge in the Company’s highest court, Sadr Diwani Adalat. He received an extra salary for this position,
though it jeopardised his impartiality as the Chief Justice of the Supreme
Court. In Macaulay’s words, acceptance of an additional office made him ‘rich,
quiet and infamous’.
Historians recognised Impey’s significant contribution
towards improving the operation of the Company’s
courts. However, his services were cut short when he was dismissed from his
office as the Chief Justice of the Supreme Court for accepting a salary from
executives of the East India Company, to whom he was required to control as a
judge. Later, he was impeached for the judicial murder of Raja Nandakumar but
was found not guilty.
Finally, a solution for this
executive-judicial tussle was found by appointing the Chief Justice along with
one judge and a barrister as the members of the Governor-General’s Council in
1853. In this way, the conflicting executive and judicial powers were merged into
the one body of the executive council. This did not stop various Chief
Justices from taking an activist judicial role in holding executive officers to
account and providing relief to people against the government. When the judicial system was reorganised, the Supreme Court
was abolished. For the next hundred years until Independence in 1947, there was
no Supreme Court in India. Appeals from the decisions of various High Courts
were made directly to the Privy Council based in London, though a federal court
was established in 1937 with limited powers regarding constitutional cases.
This story is illustrative of the fact
that a discord between the executive and judiciary is inevitable. There could
be two alternate solutions. First, by making the system more representative,
which could legitimate the authority of parliament over the judiciary. Second,
by increasing executive power, which could supersede the judiciary, though
nominal representation of judges could be accepted as part of the executive. The
first option was adopted in England and the second in colonial India. There
was, however, an interim solution to this convoluted problem of
executive-judicial tussle: ‘soften’ the hearts of judges by providing them with
additional perks. Recent events show that the successors of the first Supreme
Court in South Asia are still in the ‘interim period’ on either side of the
border in both India and Pakistan. Meanwhile, Hastings and Impeys prosper,
while Nandakumars suffer!
