Politicians v Judges

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!