Brief Narration of Separation of Power in Colonial India and the conflict between Executive and Judiciary
The doctrine of separation of power, more or less is governed by the principle of checks and balance in today’s times. The generally accepted meaning of doctrine is division of executive, legislative and judicial functions of government amongst disparate and independent bodies similar to other significant doctrines like that of liberty, equality, etc. Separation of power is also considered a product of western intellectual revolutions. According to Britannica Encyclopedia and the most acceptable proprietor of this theory Motesque, it is an ideal way to run a government. Though the notion of the separation of power prevailed since ancient times, it was only Montesque who for the first time formulated this doctrine systematically, scientifically and clearly in his book ‘Espirit des Lois’ (the spirit of the Laws) published in the year 1748.
He declared it the best way to safeguard liberty. This doctrine influenced the framers of the Constitution of United States and they adopted it as a part of the Constitution of United States. In the American Constitution, there is a system of checks and balances and the power vested in one organ of the government cannot be exercised by any other organ. This doctrine one may also say was accepted in India too. Under the Indian Constitution, the executive powers are vested with the President according to Article 53 (1) of the Constitution of India, 1950. The legislative powers are vested in the Parliament and judicial power with the Judiciary, i.e. with the courts of India.
This paper is an attempt to trace the historical presence of this doctrine in India with or without its proprietors or philosophers. Efforts are made to see practical implications of this doctrine in India during the colonial rule. Though at a very elementary level, in the research into this interdisciplinary theme, it would be difficult to counter any Indian philosopher or thinker like Plato or Aristotle of the West. So looking into modern period of the history of India, the focus will be on the relationship of executive with the judiciary in India. Usually during the development of any substantive and procedural law in India, very often credit is given to the English Laws. It is humbly submitted that it seems to the author that the seed of this conflict were sown during the British rule by the colonial masters!
Condition of Separation of Power during the Company’s rule in India and conflict between Executive and Judiciary
Colonization of India by the British stand outs as a unique event in the history of the world. Unlike other areas of the world the British rule in India began with the British commercial body, known as the East India Company. Queen Elizabeth issued the Charter in 1600 by which East India Company was established in England. The same Charter also provided legislative and judicial powers to the company to maintain law and order in their settlements in India. Precisely speaking, the history of the introduction and development of Indian laws and courts began with the East India Company under the Crown’s Charter of 1600. In the beginning in Surat, Bombay, Madras and Calcutta settlements, the judicial duties were performed by the Governor and its council in their respective presidencies. In these presidencies, subordinate courts were also established to deal with petty civil and criminal cases. In the beginning the judicial functions were vested totally in the hands of executive and as soon as the expert in law was appointed in these courts, the conflict between the Judiciary and Executive began.
The first incidence of such conflict between the executive and judiciary was noticed during the early settlement at Bombay. In November 1684, a court of Admiralty was established in Bombay by the Charter of 1683. The Company sent from England, Dr. St. John, a person ‘learned in civil law’ to preside in the court as Judge-Advocate. He also got the authority to act as the Chief Justice of the court of Judicature at Bombay and took to himself the administration of civil and criminal justice as well. St. John believed in the idea of independence and impartiality in the administration of justice. It gave rise to conflicts between the Governor and the Chief Justice. Dr. St. John’s judicial independence was interpreted by the Governor John Child as insubordination towards himself. In 1685 the Governor got an opportunity to relegate Dr. St. John and the powers of Dr. St. John to act as Chief Justice of the Court of Judicature were taken away. Vaux, a member of the Bombay Council was appointed Judge to preside over this Court in place of Dr. St. John. These steps further bolstered the existing conflict between the Governor and the Chief Justice.. As a consequence Dr. St John got dismissed from his post. Gradually in the Bombay Presidency, executives got complete control over the judicial administration and they abused their judicial powers to resolve their personal enmity and benefits. For instance, Rama Kamti a rich and influential merchant of Bombay was the supporter of the Company. On the charge of being in touch with Angria, a pirate chief, Kamti was arrested. Angria was harrowing the Company. The trial was held before Governor Boone and his Council.
There was no conclusive evidence whatsoever against Kamti but it was only a contrived story by a witness. The witness had been told by one dancing girl that the pirate chief Angria had told her that Kamti had written to him. His servant was also tortured by cutting off his thumb to extract evidence and a statement implicating Kamti was recorded. Parker, the judge of the court of judicature objected to such type of torture to the servant. In some of the letters written to Angria appeared manipulated by forgery. Kamti was found guilty and was sentenced to an indefinite period of imprisonment. His property was confiscated and auctioned. After the death of Rama Kamti, the truth came out that the whole drama of trial was plotted by the Governor who misused his judicial power for his personal antagonism.
The condition of Calcutta settlement did not differ much from that of Bombay. Here the doctrine of separation of power was totally neglected and all judicial and executive functions rested with the Collector. In the Judicial system of Calcutta, the office of Collector became a very important office. It was dealing with civil, criminal and revenue matters. It was also authorized to decide petty civil and criminal cases concerning Europeans in India. The Governor and Council had appellate jurisdiction and were also empowered to decide serious criminal cases. All judicial and executive powers were exercised by the Collector and the Governor and Council. The common mode of punishment was whipping, fines, work in chains on the roads, imprisonment, banishment from the settlement and death. References in M.P. Jain describes the severity of punishment; in one of the illustrative cases punishment was rewarded as “receiving one hundred and one lashes every Friday for three months”. First punishment by non- law professionals and at the top of it brutal punishments denoted the sordid state of affairs which prevailed in the Presidency of Calcutta.
Up to the passing of the Charter of 1726, Company’s government in India hardly enjoyed any legislative power, the Charter of 1726 which was also known as Judicial Charter empowered the Governor and the Council of each Presidency town to make bye-laws, rules and ordinances and to prescribe punishments for its breach which should not be contrary to English law but agreeable to the person concerned, the same Charter also provided for the establishment of Corporation and setting up or remodeling of the Mayor’s Courts at three Presidencies of Bombay, Madras and Calcutta. The Mayor and Alderman, who presided over the Mayor’s Court, were either senior servants of the Company or dependent on the Company’s pleasure for their stay in India. They had neither any regular legal training nor any judicial experience to their credit. The Royal Courts were constituted to work independently but its relationship with the executive machinery became strained. Executive machinery expressed its hatred and jealousy against the independent attitude of the Mayor’s Court.
In Madras, a study of the working of the Mayor’s court during this period reveals that the relationship between the Mayor’s court and the Governor-in council were not cordial. On many occasions they were at loggerheads. Whenever any decision was made either by the Council or by the Court, the two asserted independence and superiority of one over the other giving surge to conflict between the two”.
The conflict and clashes between the Mayor’s Court and the Governor and Council created much perplexity and chaos in the British Presidencies in India. The Company, therefore requested the British King to issue a fresh Charter so as to resolve such disputing situations. Unfortunately, the Charter of 1753 made the judicial machinery more or less a branch of the Company’s executive government and it failed to provide for the due administration of justice. The Mayor’s Court was presided over by persons who were selected from the junior servants of the Company. The judges were yet again inexperienced, ignorant of law and untrained in the art of administering justice.
The second recorded attempt to separate judicial function from the executive was recorded during Warren Hasting’s governorship. While reorganizing Adalat System in 1780, in Moffusil areas, he tried to separate revenue administration from the judiciary. The provincial council of revenue continued at six provincial divisions i.e. Calcutta, Murshidabad, Burdwan, Dacca, Dinajpur and Patna which looked after the collection of revenue but their judicial power to hold civil court’s was taken away. At each of these six provincial divisions, a provincial court of Diwani Adalat was established to be presided by a covenanted servant of the Company.
While preparing the first civil code Warren Hasting and Sir Elijah Impey, the first Chief Justice of Supreme Court at Calcutta recognized separation of powers. This led to the establishment of independence of judiciary at Adalat level. It assisted in introduction of the rule of law in the country. Chief Justice Impey incorporated certain provisions in the civil court which specifically provided that even Zamindar’s, Talukdar’s and Farmers, employed in the collection of revenue were also under the jurisdiction of the civil courts.
For the betterment of judiciary further, Supreme Courts were established at all the three Presidencies. The Regulating Act of 1773 empowered the Crown to establish, by Charter or Letter Patent, a Supreme Court of Judicature at Calcutta on the ground that the Charter of 1753 did not sufficiently provide for the due administration of justice. In pursuance of these provisions, the Crown by issuing the charter of 1774 established the Supreme Court at Calcutta and appointed eminent judges to preside over the Court. The Governor General and Council were also constituted under the same Act by the Crown. While functioning both of them i.e. judiciary and executive came into serious conflict amongst themselves over certain issues. Each of them claimed their superiority over the other on the bases of their appointment by his majesty. The Regulating Act flunked to define their mutual relationship and no procedure was laid down to avoid any future conflict amongst them. According to the Charter, the Governor General and Council were exempted from the criminal jurisdiction of the Supreme Court except in the cases of treason and felony. The Act of Settlement of 1781 was passed to explain and amend the Regulating Act. Its preamble spoke about the doubts and difficulties with regard to the meaning of the provisions of the Act of 1773 and the Charter of 1774, of dissentions between the judges of the Supreme Court and the Governor General and member of the Council, of fear of apprehension which disquieted the minds of inhabitants subject to the Government of Bengal. With the passing of the Act of Settlement by the Parliament, the “rule of law” was broken into the favors of the Executive. Full immunity was given to the Governor and its Council from the jurisdiction of Supreme Court. Further Supreme Court was not to exercise any jurisdiction in any matter concerning the revenue or acts ordered or done in its collection according to the usage or practice of the country or the Regulation of the Governor General in Council.  The same provision removed one of the cause of friction between the Council and the Court. It was nothing but a policy decision of British Parliament as they realized that in order to acquire territory in India and establish the British Empire therein, it was important to support the Governor General and Council. They refused to allow the Supreme Court to introduce English principles of independence of the judiciary and the rule of law in India. Ilbert criticized this policy as a legislative reversal, dilatory and expensive, Cowell viewed this as a break to impose on Indians a policy to which they were opposed and were determined to subvert.
Another thread in the history of separation of power in India was provided by the Cornwallis Code of 1783. After gaining sufficient experience in Indian affairs from 1787 to 1793, Cornwallis realized that the changed conditions required major changes in the civil and revenue setups. No doubt, in his reforms of 1787 Lord Cornwallis merged all the civil, criminal and revenue powers under the authority of the Collector of the district for simplicity and efficiency of revenue collection in the area, later he realized the importance of separation of power and introduced the principle of separation in the second round. The policy of separating the two functions was put into practice by Regulation II of 1793, which abolished the Mal Adalat and transferred the suits triable there to the Moffusil Diwani Adalat. Thus ordinary civil courts were empowered to try civil as well as revenue cases. Not only this, he also brought executive under the control of judiciary. Section 10 of Regulation III provided that not only Collectors including all other executive officers of the Government would be subject to the Court’s jurisdiction for their official acts and it was also stated that they would be personally liable for any violation of the Regulations. The main object of introducing this provision was to observe the rule of law. The injured party had a remedy to approach the court against the corruption and excesses of the executive officers. In the words of M.P. Jain, “Cornwallis thus took a great step forward in establishing sovereignty and rule of law and safeguarding the person and property of the people”.
After separating the judiciary from the subordinate executives, the gradual efforts were made to separate judicial functions from the executive authorities of India. Lord Wellesley, who succeeded Sir John Shore in 1798 was against the concentration of judicial, legislative and executive powers in the Governor General in Council. It was practically not possible for the Governor General to devote time to preside over the Sadar Diwani Adalat and Sadar Nizamat Adalat. Therefore that Regulation II of 1801 provided that the Sadar Diwani Adalat and the Sadar Nizamat Adalat were to be presided over by the three judges selected and appointed by the Governor General in Council. Further it was laid down that the Chief Judge would be a member of the Council but the Commander-in-Chief and the Governor General were not allowed to occupy the judicial post. The other two judges were to be covenanted civil servants of the Company having wide experience of judicial work in the Provincial Court’s of Appeal. But during the time of Lord Minto, judicial functions were mixed with the functions performed by executives. By Regulation XV of 1807, Lord Minto increased the number of judges of Sadar Adalats from three to four. Out of these four judges, the Chief Judge was a member of the Governor General’s Council. In this way Lord Minto, following Lord Wellesley’s approach, mixed judicial function with legislative and executive. While defending his act, Lord Minto stated that the Chief Judge was an appointed member of the Council in order to achieve economic goals but in fact, this was done so with a view to keep upper hand of executive over judiciary. The increased number of judges at Sardar Adalats was justified on the grounds of disposing the arrears of judicial work earlier.
Another attempt to combine judicial functions with the Collector’s office was tried by William Bentinck, who was appointed as the first Governor General of
India in 1833. Though in 1821, under Lord Hastings, provisions were made for combining the functions of Collector and Magistrate, though it was not extensively used. William Bentinck gave civil and revenue jurisdiction to the Collector. Cases relating to rent were transferred to the exclusive cognizance of the Collectors of revenue who were empowered to decide the suits summarily. Their decisions were final subject to a regular suit to be instituted in the civil courts. The cases relating to rent and revenue were transferred to the Collector in order to make the Collector’s task easier in the collection of revenue.
During this period also, as in the past, conflicts continued between the judiciary and the executive. This was so because the regulations passed in Bengal, Madras and Bombay alike emphasized on the need for the judicial functions of the Government to be administered by courts of justice distinct from the legislative and executive authority of the state. The duties of the Sadar Courts were not exclusively judicial and exercised administrative functions too; the Sadar Courts of Bengal and Madras appear to have been regarded as branches of the executive. The Presidency Governments and the Directors in London were issuing directions to the Courts and the judges being under close scrutiny were asked explanations regarding their disposals. In Bombay, the Sadar Court embroiled with the Supreme Court over the problem of criminal jurisdiction in case of R. V. Pandurang Hirajee.  The office of judge seems not to have been held in the same high regard in Madras as in the other Presidencies. In cases pertaining to misconduct by servants of the Company and of offences against the State, the court’s opinion was treated with little respect. Mylapilly case and Oakes case are its apt examples. In Bengal also the conflict was apparent as can be seen from the cases of Ooman Dutt and Purtab. The decision in these cases was that if the courts were left uncontrolled, it would amount to abandoning the most sacred duty of the Supreme power.
It seems that such grim tussle between judiciary and executive whether at district level or provincial level, continued; sometimes in the form of conflict between Supreme Court and Supreme Council and sometimes between judges of Sadar Adalat and Governor Generals council. Various Governor Generals of British India during their tenure tried to establish rule of law and introduce the principle of independence of Judiciary though did not succeed completely. Probably due to their half hearted efforts as their main interest vested in the accumulation of wealth in India, implementation of such ideal principle would have created an obstacle in fulfillment of their main motive. Though we find with the establishment of High Courts in British India, slowly but surely the ideas of independence of judiciary started brewing. By the Government of India Act 1935, the administrative control of the High Courts was placed in the Provincial Government It can, therefore, be ascertained that the Government of India Act, 1935 established a strong judiciary and by safeguarding the service matters of the judges of the High Courts, it strengthened the independence of judiciary prior to independent India.
- Britannica Ready Reference Encyclopedia
- C.K.Takwani, Lecture on Administrative Law, Eastern Book Publication, 2006
- C Ilbert, the Government of India, 1962
- Cowell Herbert, History and constitution of Courts and Legislative Authority in India, 1936
- Dr. N.V. Paranjape, Indian Legal and Constitutional History, Central Law Agency, Allahabad, 2006
- J.K. Mittal, Indian Legal and Constitutional History, Allahabad Law Agency, 2003
- M.P. Jain, Outline of Indian Legal and Constitutional History, Wadhwa, Nagpur, 2006
- V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006
 C.K.Takwani, Lectures on Administrative Law, Eastern Book Company, Lucknow, 3rd edn., 2006, p. 29
 Britanica Ready Reference Encyclopedia, Vol. IX, p.17
C.K.Takwani, Lectures on Administrative Law, Eastern Book Company, Lucknow, 3rd edn., 2006, p. 33
 J.K. Mittal, Indian Legal and Constitutional History, Allahabad Law Agency, 2003, p.3
 Ibid at p. 19
 M.P. Jain, Outline of Indian Legal and Constitutional History, Wadhwa, Nagpur,2006, p.25
 Dr. N.V. Paranjape, Indian Legal and Constitutional History,Central Law Agency, Allahbad, 2006, p. 20
 V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p.49
 Ibid at p. 51
 Settlement at Calcutta was founded in 1690 when the English first settle themselves at Sutnati on the bank of Hungly and erected a fortified factory. In 1699 Calcutta was declared Presidency under the administration of Governor.
 V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p. 54
 M.P. Jain, Outline of Indian Legal and Constitutional History, Wadhwa, Nagpur,2006, p.32
Dr. N.V. Paranjape, Indian Legal and Constitutional History ,Central Law Agency, Allahbad, 2006, p.25
 V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p. 62
 Mayor’s courts were established by the Charter of King George and in whose name justice was administered in India as well, therefore these courts were also called ‘Royal Courts’.
 V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p. 63
 Ibid at p. 67
 The newly conquered area apart from the Presidencies.
 Ibid at p.82
 Ibid at p. 86
 J.K. Mittal, Indian Legal and Constitutional History, Allahabad Law Agency, 2003, p. 48
 V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p.100
 J.K. Mittal, Indian Legal and Constitutional History, Allahabad Law Agency, 2003, p. 64
 C Ilbert,The Government of India, 1962, pp.60-61; see also V.D. Kulshrestha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p.124
 Cowell, History and constitution of Courts and Legislative Authority in India, Thacker, Spink & Co., Calcutta, 1936, p. 63
 V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p.139
 For administering revenue administration the collector presided in different court called Mal Adalat.
 Muffosil Diwani Adalat is a district court dealing with civil matters in mofussil area.
 V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p. 140
 M.P. Jain, Outline of Indian Legal and Constitutional History, Wadhwa, Nagpur,2006, p.130
 Apex court in the moffusil areadealing with civil matters
 Apex court in the moffusil area dealing with criminal matters
 V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p. 147
 Sadar Diwani and Nizamat adalats collectively called ‘Sadar Adalats’.
 Ibid at p. 148
 Ibid at p. 149
 M.P. Jain, Outline of Indian Legal and Constitutional History, Wadhwa, Nagpur,2006, p. 182
 V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p. 155
 Bengal Regulation 2 of 1801, Madras Regulation 4 of 1806.
V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p. 156
 Bombay Curier, 14th and 21st March,1829; for facts of these cases see chapter 5-10 of V.D Kulshreshta, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006.
 V.D Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p.171