The Early Administrative Structure; The Regulating Act (1773), From Diarchy to Direct Control: Part III

From Diarchy to Direct Control

• In 1773, Warren Hastings became the first Governor-General of Bengal and had administrative powers over all of British India.

Practices of Warren Hastings:

• The arrival of Warren Hastings in Bengal as Governor of the presidency of Fort William in 1772 proved to be a turning point.
• The same year, the Company was ordered by the Court of Directors to stand forth as ‘Diwan’ which meant the termination of system of ‘dual government’ and imposition of an administrative task upon the commercial men and thus the foundation of the civil service was formally laid.
• Accordingly, Englishmen were to be appointed as Collectors in district under the overall control of a ‘Board of Revenue’ at Calcutta, a weak system, rightly characterized by Hastings as “petty tyrants and heavy rulers of the people”.
• The foundation of the civil service in the modern sense was, nonetheless, laid down during his regime.
• Under Hastings’s term as Governor General, a great deal of administrative precedent was set which profoundly shaped later attitudes towards the government of British India.
  • Hastings, having proficiency in Bengali, Urdu, Persian, understood the relationship between on acculturated civil servant and an efficient one and accordingly he emphasized on the creation of an ‘oriental elite club of the civil servants’, competent in Indian languages and responsible to Indian tradition.
  • He made efforts at lifting the moral tone and intellectual standards of servants.
  • ‘Dastaks’ were abolished in 1773 and those engaged in the private trade had to pay a duty of 2.5 % to the Board of customs.
  • Hastings separated the revenue and commercial branches.
  • The Regulation Act of 1773 prohibited all officials of the Company, from the Governor-General and his councillors and Chief Justice and other judges of the Supreme Courts, from accepting gifts, donations, gratuity or rewards.
    • If found guilty of doing so, they could be legally convicted by the Supreme Court or the court of the Mayor.
  • In 1780-81, revenue and judicial administration in districts was entrusted to English officers which was the beginning of the ‘nucleus’ of the civil service with systematization and specialization of functions, essential to such service.
  • By Pitt’s India Act of 1784, they were provided with definite scales of pay and emoluments.

More about Warren Hasting:

• In 1758 Hastings was made the British Resident in the Bengali capital of Murshidabad, a major step forwards in his career, at the instigation of Clive.
• In 1771 he was appointed to be Governor of Calcutta, the most important Presidency.
• In Britain moves were underway to reform the divided system of government and create a single rule across all of British India with its capital in Calcutta.
  • Hastings was considered the natural choice to be the first Governor General.
  • While Governor, Hastings launched a major crackdown on bandits operating in Bengal which was largely successful.
• Hastings had a great respect for the ancient scripture of Hinduism and set the British position on governance as one of looking back to the earliest precedents possible.
  • This allowed Brahmin advisors to mould the law, as no English person thoroughly understood Sanskrit until Sir William Jones; it needed to be elucidated by religious commentators who were well-versed in the lore and application.
• In 1781, Hastings founded Madrasa ‘Aliya‘.
• In 1784, Hastings supported the foundation of the Bengal Asiatic Society (now the Asiatic Society of Bengal), by the oriental scholar Sir William Jones; it became a storehouse for information and data pertaining to the subcontinent.
• Hastings’ legacy has been somewhat dualistic as an Indian administrator: he undoubtedly was able to institute reforms during the time he spent as governor there that would change the path that India would follow over the next several years.
  • He did, however, retain the strange distinction of being both the “architect of British India and the one ruler of British India to whom the creation of such an entity was anathema.” He respected Indian customs but was loyal to the British mission.
• In 1784, after ten years of service, during which he helped extend and regularise the nascent Raj created by Clive, Hastings resigned.

Judicial System

Background:

• The grant of diwani in 1765 gave the East India Company the right to collect revenue in Bengal, Bihar and Orissa, but the nawabi administration and the Mughal system remained in place.
• The judicial administration of the subah remained initially in the hands of the Indian officers between 1765 and 1772 and the Mughal system was followed in both civil and criminal justice.
• Clive appointed Muhammad Reza Khan to represent the Company’s civil jurisdiction; as Naib Nazim he also administered the criminal jurisdiction of the nawab.
• The Mughal system was never centrally organised and depended to a large extent on the local faujdars and their executive discretion.
  • Although the sharia or the Islamic law was referred to for legitimation, its application varied widely depending on the seriousness of the case and the interpretation of the muftis and kazis.
  • The focus of this system was more on mutual resolution of conflict rather than punitive justice (except in cases of rebellion), and punishment when meted out often depended on the status of the accused.

British criticism of the system:

• Many Company officials attributed this system to an eighteenth century degeneration when the zamindars and revenue farmers had allegedly usurped judicial authority.
• These people were thought to be driven more by considerations for pecuniary benefit than justice.
• This led to the complaint about the “venality” of the justice system.
• It was therefore argued by 1769 that there was need for some sort of direct or overt European supervision to ensure a “centralization of the judicial prerogative” retrieved from the hands of the zamindars and revenue farmers, and thereby to assert Company’s sovereignty.

How system evolved?

• When Warren Hastings took charge as governor in 1772, he decided to take full control of the justice system.
• Reza Khan was arrested and Hastings pleaded with the Company directors not to restore him to his former position.
• Under the new system of 1772, each district was to have two courts:
  • a civil court or diwani adalat 
  • a criminal court or faujdari adalat,
• Thus the Mughal nomenclature was retained, and the laws to be applicable were Muslim laws in criminal justice and the Muslim or Hindu laws in adjudicating personal matters, such as inheritance, marriage etc.
• This division of the topics of law was evidently in accordance with the English system, which left such matters as marriage, divorce, property, religious worship or excommunication, in the jurisdiction of the Bishops’ courts, where the law applicable was the ecclesiastical law.
• The civil courts in India were to be presided over by the European District Collectors, and they were to be assisted by maulvis and Brahman pundits interpreting indigenous laws for their understanding.
• There would be an appeal court in Calcutta, which too would be presided over by the president and two members of the council.
• The criminal courts were to be under a kazi and a mufti, but they were to be supervised by the European collectors.
• The appeal court, the Sadar Nizamat Adalat, was removed from Murshidabad to Calcutta.
• Failure of the system
  • In reality, Hastings personally supervised the criminal justice system until 1774, when he finally acknowledged his failure to improve law and order situation.
  • He reluctantly accepted the Court of Directors’ decision to reappoint Reza Khan at the head of the nizamat adalat, which was once again moved back to Murshidabad.

Further changes:

• In civil justice system further changes took place between 1773 and 1781,
  • partly in response to the demands of revenue collection and
  • partly in deference to the Whig principle of separating executive functions from the administration of justice.
• According to the plans worked out by Hastings and Sir Elijah Impey, the chief justice of the Calcutta High Court, district collectors were divested of their judicial duties.
• In the area of civil justice, instead of district courts, initially six provincial courts, later replaced by eighteen mofussil courts were created and they were to be presided over by only the European covenanted officers of the Company.
• For some time the new Supreme Court, created by the Regulating Act of 1773, acted as an appeal court.
• The Code of 1781 prescribed specific rules and regulations to be followed in all the civil courts down to the lowest level and all judicial orders were henceforth to be in writing.

Problem that remained:

• The major problem that hindered certainty and uniformity in the system was that of conflicting and varying interpretations of indigenous laws.
  • Brahman pundits, for example, often gave divergent interpretations of the various schools of dharmashastra and sometimes their opinions on the same law varied widely from case to case.
• To reduce this element of uncertainty, a committee of eleven pundits compiled, at the behest of Hastings, a digest of Hindu laws in 1775, and it was translated into English by N.B. Halhed in 1776 for the purpose of lessening the dependence of European judges on their indigenous interpreters.
• A code of Muslim laws was also compiled by 1778.
• With this standardisation of law, the practice of law now needed professional expertise that could only be expected from a specially trained group of people, the ‘lawyers’.

Thus, in its effects, the reforms of the Hastings era “tended to centralise judicial authority, and reduce administration to a system.

Changes by Cornwallis

• Civil Justice:
  • It was Lord Cornwallis and his Code of 1793 that finally set the rule of separating revenue collection from administration of civil justice as a safeguard for property rights against abuse of power by revenue officials and their agents.
  • The new system provided for a hierarchy of courts from zillah (district) and city courts to four provincial courts and the Sadar Diwani Adalat with appellate jurisdiction.
  • All the courts were to be headed by European judges, with provision for appointment of ‘native commissioners’.
• Criminal Justice:
  • The criminal justice system was also completely overhauled, as the district magistrates complained to Cornwallis about the anomalies of Islamic laws and the corrupt practices at the criminal courts.
  • Also, it was felt that such an important branch of administration could no longer be left in charge of an Indian.
  • The faujdari adalats, which until then functioned under Naib Nazim Reza Khan, were therefore abolished and replaced by courts of circuit, headed by European judges.
  • The office of the Naib Nazim itself was abolished and the Sadar Nizamat Adalat was brought back to Calcutta and placed directly under the supervision of the Governor-General-in-Council.
  • The entire judicial reform of Cornwallis therefore saw a total exclusion of Indians from the whole system, which became less ambiguous in its authoritarian and racially superior tone.

Extension of Judicial System:

• The Cornwallis regulations were extended to the province of Banaras in 1795 and to the Ceded and Conquered Provinces in 1803 and 1805 respectively.
• But the Bengal system based on the assumptions of a permanent settlement with the zamindars, faltered seriously in Madras, where it was introduced because of Lord Wellesley.
• By 1806 it was clear that in a Ryotwari area, where the collector had to function also as a Settlement Officer and assess revenue, and where there was no such powerful class as the zamindars of Bengal, the separation of revenue collection and magisterial and judicial powers posed serious problems.
• On Thomas Munro’s insistence, the Court of Directors in 1814 therefore proposed a different system for Madras, which included provisions for greater Indianisation of the system at the lower levels (village panchayats, district and city courts) and the union of magisterial, revenue collection and some judicial powers in the office of the collector.
• Fully introduced in Madras by 1816, it was later extended to Bombay by Elphinstone in 1819.

Certain unresolved issues:

• Certain unresolved issues remained in the area of judicial  administration however.
• Apart from the question of lndianisation, there was the issue of codification of laws, which would establish a uniform judicial administration and civil authority throughout British India.
• These issues were not raised until the governor-generalship of Lord Bentinck and the Charter Act of 1833.

Charter Act of 1833:

• The act threw open judicial positions to Indians and provided for the appointment of a law commission for codification of laws.
• The law commission appointed under Lord Macaulay completed the task of codification by 1837, but it had to wait until after the revolt of 1857 for full implementation.
• The Code of Civil Procedure was introduced in 1859, the Indian Penal Code in 1860 and the Criminal Procedure Code in 1862.

Limitations:

• This institutionalised justice system was to be applicable only in British India.
  • In the vast regions that remained within the princely states, whose size and efficiency varied widely, the judicial administration was usually run by a motley amalgam of British Indian laws and personal decrees of the princes, who also acted as the highest judicial appellate authority.
• In British India, however, the judicial administration now looked significantly different from what it was under the Mughal rule, and these changes the ordinary Indians found hard to comprehend.
• The judicial interpretations made the laws often look very different and incomprehensible to the indigenous people.
• Justice now became distant:
  • Physically, because of the geographical distance from the district courts,
  • psychologically, as the indigenous people did not understand the complex judicial procedures, dominated by a new class of lawyer.
• As a result, justice also became expensive.
  • As the huge number of court cases started piling up, for most people justice became inordinately delayed, sometimes even by fifty years.
• In most cases the way Hindu personal laws were interpreted by Brahman pundits that these only benefited the conservative and feudal elements in Indian society.
• The concept of equality before law often did not apply to the Europeans.
• And there were significant domains of activity, for example, those of the police and the army, which remained unaffected by this colonial definition of the ‘Rule of Law’.