Tan Yong Jin Jonathan ©
Class of 2014
State & Company Research Paper – For Reference Only
Habeas Corpus: The Writ of Indian Liberty or
Parliament Restraining Company Sovereignty?
4,157 Words
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Tan Yong Jin Jonathan ©
Class of 2014
State & Company Research Paper – For Reference Only
I.
Introduction
In 2008, the US Supreme Court in Boumediene v Bush1examined “whether foreign nationals,
apprehended and detained in distant countries [viz, Guantanamo Bay] during a time of serious
threats to [US‟s] security may assert the privilege of the writ of habeas corpus and seek its
protection”.2 To answer this issue, the court adopted, inter alia, a historical inquiry into why
the writ of habeas corpus extended beyond England and into India. A bare majority of the
court, led by Chief Justice Kennedy simply reasoned that the court which issued the writs, viz,
the Supreme Court of Judicature seated in Calcutta, was a “special court set by [the British]
Parliament to monitor certain conduct during the British Raj” (emphasis added).3
However, this vague allusion begs several questions. First, in what way was the Supreme
Court of Judicature a “special court” in contradistinction to the US Supreme Court or any
other court? Was its oversight function its distinguishing feature? Second, whose “conduct”
was monitored? Third, what was the “conduct” monitored? Fourth, did the court‟s oversight
function or its “special” nature justify the introduction of the habeas corpus writ in India?
Regrettably, no answer was proffered by the US Supreme Court.
In this regard, this paper traces the rise, exercise and demise of the writ of habeas corpus ad
subjiciendum4 in India, viz from 1773 to 1781, and interrogates the following issue: to what
extent was habeas corpus the writ of Indian liberty or the writ of the British Parliament
restraining the East India Company‟s (the “Company”) exercise of sovereignty? Contrary to
Whig history, which posits the legal fiction that habeas corpus is a writ of liberty5, this paper
argues that habeas corpus was a writ of power – this writ was largely an embodiment of the
British Parliament‟s restraint of the Company‟s exercise of its sovereign powers in India,
especially in its arbitrary administration of (in)justice. In the rise, exercise and demise of
habeas corpus in India, the entitlement of Indians to individual liberty hardly featured in the
minds of British parliamentarians or judges.
1
553 U.S. 723.
Ibid., at 746.
3
Ibid.
4
This is a specific habeas corpus writ which examines the lawfulness of person‟s detention with a view to an
order releasing the person. See Vladeck, The New Habeas Revisionism, Harv.L.Rev. 941, at 942.
5
Ibid.
2
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The argument is threefold. First, the statute which arguably introduced the writ of habeas
corpus into India, viz the Regulating Act of 17736, clearly evinced Parliament‟s intention to
clean up the Company‟s governance of India. No mention was made of the liberty of Indians.
Neither could such a reference be implied. Second, a close reading of habeas corpus judicial
decisions reveal that the judges were men on a mission to carry out Parliament‟s intention to
use the writ of habeas corpus to check the Company‟s arbitrary exercise of sovereign power.
Third, the Judicature Act of 1781 abrogated habeas corpus for Indians largely because
parliamentarians realised that habeas corpus had become an excessive clog on the
Company‟s governance of India. That the entitlement to petition for a writ habeas corpus was
retained for British residents of India only serves to confirm that habeas corpus was never
about the individual liberty of Indians.
One preliminary conceptual objection to this thesis is that it posits a false dichotomy. In
restraining the Company‟s exercise of sovereignty, the unlawfully detained Indian is liberated.
They are not mutually exclusive options. However, this objection ignores a conceptual
distinction. While the effect of a successful habeas corpus petition was to liberate the
prisoner, this paper argues that this was not the intention of Parliament, the institution to
whom the introduction of habeas corpus in India could be attributed. Neither was this the
intention of judges as evidenced in their reasoning in judicial decisions dealing with petitions
for the habeas corpus writ. Rather, habeas corpus embodied Parliament‟s predominant
intention to restrain the Company‟s arbitrary exercise of sovereign powers in India.
II.
Regulating Act of 1773 – Regulating the Company’s Exercise of Sovereignty
The Regulating Act, which arguably introduced the writ of habeas corpus into India, clearly
manifested Parliament‟s intention for the writ of habeas corpus to be used as a restraint on
the Company‟s arbitrary exercise of sovereign powers in India. First, the Regulating Act was
enacted in the wake of Parliament‟s realisation that the Company had abused its sovereign
powers. This realisation arose because in 1772, the Company, on the verge of financial ruin,
had approached Parliament for a loan, and thus the House of Commons convened a Secret
Committee to examine the Company‟s governance in India. 7 Unsurprisingly, in all its reports,
the Secret Committee lambasted the Company‟s abuse of its sovereign powers. Particularly,
in its Seventh Report, the Secret Committee exposed the stark picture of how the Company
6
7
26 Geo. III., c.16. Accessible at http://www.fordham.edu/halsall/mod/1773indiaact.asp.
Jain, M.P., Outlines of Indian Legal History (5th Ed., 1993), at 65.
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had become a law unto itself in its administration of civil (in)justice in its Mayor‟s Courts8.
The quorum of the Mayor‟s Courts comprised the Mayor and 2 Alderman, all of whom were
company servants appointed by the Company‟s Council in India.9 As their tenure depended
on the Company, 10 these „judges‟ could not help but be biased towards the Company. In fact,
these judges often intimidated and dismissed lawyers who sued the Company or its
servants.11 Quintessentially, all these damning reports convinced Parliament that any loan to
the Company had to come at a price – increased Parliament‟s regulation and oversight of the
Company‟s exercise of its sovereign powers. As then-Prime Minister Lord North declared,
since the Company “was so ill-administered by Directors incapable of governing it”, it would
be “better administered by the Crown”.12
Second, that Parliament‟s objective of enacting the Regulating Act was to end the Company‟s
free reign in the exercising of its sovereign powers became patently clear in the long title to
the Regulating Act – an “Act for establishing certain regulations for the better management of
the affairs of the East India Company in India as well as in Europe”.13 Further, the preamble
to the Regulating Act noted that the regulations were intended “to prevent various abuses
which have prevailed in the government and administration of the affairs of the said united
company, as well at home as in India”.14 Nowhere in the Regulating Act or the Charter of
1774 is it mentioned that the objective of checking the Company‟s abuses of its sovereign
powers was to ensure that the individual liberty of Indians is not unlawfully denied.
Third, via the Regulating Act, Parliament directed the Crown to establish by charter
Parliament‟s own watchdog in India, the Supreme Court of Judicature seated at Calcutta, and
to endow it with extremely broad supervisory jurisdiction to effectively check and constrain
the Company‟s arbitrary exercise of its sovereign powers. The Charter of 177415 empowered
the Supreme Court of Judicature with “the like jurisdiction and authority as may be executed
8
Ibid., at 36. Under the Charter of 1726, each Presidency Town, viz Calcutta, Madras and Bombay, had its own
Mayor‟s Court.
9
Jain, supra note 7, at 51.
10
Ibid., at 54.
11
Ibid..
12
Ford, Hansard’s Catalogue and Breviate of Parliamentary Papers 1696-1834 (1953), at 201.
13
Regulating Act, supra note 6.
14
Ibid.
15
Charter For Erecting A Supreme Court of Judicature at Fort William, in Bengal (1774), in A Collection of
Statutes of the East India Company, at xlv [“Charter of 1774”], cited in Halliday, The Suspension Clause:
English Text, Imperial Contexts, and American Implications, at 653.
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by the chief justice and other justices of His Majesty‟s Court of King‟s Bench”. 16 To curb the
Company cronyism endemic in the Mayor‟s Courts, the Mayor‟s Courts were “subject to the
order and control of the Supreme Court”.17 The Court‟s subject matter jurisdiction included
“all complaints of any crimes, misdemeanours or oppressions” and its personal jurisdiction
not only “extended to all British subjects who reside...in the protection of the said united
Company” but also any person “employed by or being directly or indirectly in the service of
the Company”.18 To ensure that the Supreme Court of Judicature was an effective watchdog
of Parliament, independent of any undue influence from the Company, the judges were
appointed by the Crown and their tenure was terminable at the Crown‟s discretion.19
Since the Supreme Court of Judicature was the institution which issued the writs of habeas
corpus (see Part III), Parliament‟s empowerment of the Supreme Court of Judicature with an
expansive supervisory jurisdiction and independence from the Company shows that
Parliament clearly intended for habeas corpus to plug any impunity gaps which previously
existed when the Company arbitrarily exercised its sovereign powers. Further, by framing the
Court‟s personal jurisdiction in terms which envisaged the Company as the „perpetrator‟ of
the wrong, viz “all British subjects who reside...in the protection of the said united Company”,
and not in terms of the “victims” of the wrong, viz the Indians, it implies that Parliament was
less concerned about the rights and liberties of the Indians as opposed to curbing the
Company‟s arbitrary exercise of power.
However, it is difficult to clearly ascertain Parliament‟s intention solely based on the wording
of the Regulating Act. First, on a literal reading of the Regulating Act, it was unclear whether
Parliament had conferred blanket immunity upon unlawful conduct of the Company‟s
servants in connection with the collection of revenue as diwan of the Moghul Emperor.20
Section VII of the Regulating Act provided that the Governor-General and the Company
Council were entitled to order and manage revenues “in like manner to all intents and
purposes whatever as the same now are or at anytime might have been exercised by the
President and Council”. 21 Arguably, this provision sanctioned and rendered exempt from
judicial review all unlawful practices of the Company‟s servants in the collection of revenue.
16
Ibid.
Ibid.
18
Section XIV, Regulating Act, supra note 6.
19
Charter of 1774, supra note 14.
20
Jain, supra note 7, at 76.
21
Regulating Act, supra note 6.
17
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On the other hand, section XIV of the Regulating Act simultaneously vested the Supreme
Court of Judicature with the jurisdiction to hear “all complaints against his Majesty‟s subjects
for any crimes, misdemeanours or oppressions”. Therefore, it was unclear whether Parliament
had intended that a writ of habeas corpus could not be used to check the unlawful conduct of
the Company‟s servants in matters relating to the exercise of the Company‟s main sovereign
power in India, viz the collection of revenue as diwan.
Second, on a literal reading of the Regulating Act, it was unclear whether Parliament had
introduced the writ of habeas corpus into India via the Act. The Charter of 1774, which was
based on the Regulating Act, had analogised the authority of the Supreme Court of Judicature
to the authority of the King‟s Bench in England, which would include the authority to issue a
writ of habeas corpus. However, the list of prerogative writs provided in the Charter did not
include habeas corpus. It only included “writs of mandamus, certiorari, procedendo, and
error”22. Thus, by omitting habeas corpus from the list of prerogative writs the Supreme
Court of Judicature was empowered to issue, the Regulating Act is arguably inconclusive
evidence of whether the writ of habeas corpus (which was subsequently issued by the Court)
embodied Parliament‟s intention to constrain the Company‟s arbitrary exercise of its
sovereign powers. However, one counterargument based on a purposive interpretation may
be that Parliament had intended to confer on the Supreme Court of Judicature the power to
issue all prerogative writs. In this regard, the mere failure to include habeas corpus is
superfluous. Thus, all prerogative writs, including habeas corpus, should be viewed as
embodying Parliament‟s intention to check the Company‟s arbitrary exercise of its sovereign
powers.
III.
Habeas Corpus – Righting the Company’s Administration of (In)justice
Nevertheless, these two difficulties were squarely confronted and resolved by the Supreme
Court of Judicature in two judicial decisions. Both cases, examined in detail below, concern
the imprisonment of Indians by various Councils of the Company for failure to pay debts due
and owing to the Company. In both cases, the imprisonment was found to be unlawful and
thus, the prisoners were released. Significantly, both cases speak with one voice, though at
different „volumes‟ (as the later case of Commaluddin was less unequivocal than the earlier
case of Saroopchand in its justification of habeas corpus) – that the writ of habeas corpus
22
Charter of 1774, supra note 14.
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embodied Parliament‟s intention to constrain the Company‟s arbitrary exercise of its
sovereign powers. The Company‟s administration of injustice by unlawfully imprisoning
Indians could not be condoned by Parliament‟s watchdog, the Supreme Court of Judicature.
i. The Case of Saroopchand
Saroopchand was a guarantor of a debt to pay the revenue of a district located in the Indian
province of Dacca to the Company‟s Dacca Provincial Council (“Dacca Council”). 23 As
10,000 rupees was still owed to the Dacca Council under the principal debt, the Company
demanded payment from Saroopchand. 24 However, when Saroopchand disputed his liability
as guarantor, the Dacca Council imprisoned him “until such time as he shall have paid the
amount”.25 When the Supreme Court of Judicature confronted this case after Saroopchand
petitioned for a writ of habeas corpus, the Court granted the writ and held that Saroopchand
should be granted bail. According to Justice Lemaistre, who delivered the judgment of the
court, “there appeared no cause whatsoever” to imprison Saroopchand.26 Although habeas
corpus was omitted from the list of prerogative writs the Supreme Court of Judicature was
empowered to issue27, Justice Lemaistre arguably adopted a purposive interpretation to imply
the Court‟s power to issue the writ of habeas corpus when he reasoned that the preamble of
the Regulating Act, which provided the Court‟s jurisdiction and powers, stated the Act‟s
objective as being “manifestly remedial” of the Company‟s “abuses”.28
Justice Lemaistre also decried “as the most arbitrary abuse of a power” the practice of
Company servants “exercising a ministerial power of imprisonment, without bail or
23
Report of the Committee to whom the Petition of Touchet and Irving, Agents for the British Subjects residing
in the Provinces of Bengal, Orissa and Bahar...were Severally Referred (1781), at app. 9 [Touchet Report], cited
in Jain, supra note 7, at 88.
24
Ibid.
25
Ibid.
26
Touchet Report, supra note 22, cited in Halliday, supra note 14, at 656.
27
See the Charter of 1774, supra note 14. The Charter only included “writs of mandamus, certiorari,
procedendo, and error”.
28
Touchet Report, supra note 22, cited in Halliday, supra note 14, at 656.
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mainprise” in collecting revenue.29 Thus, Justice Lemaistre vehemently rejected the Dacca
Council‟s argument that section VII of the Regulating Act, which provides that the GovernorGeneral and the Company Council were entitled to order and manage revenues “in like
manner to all intents and purposes whatever as the same now are or at anytime might have
been exercised by the President and Council” 30, condoned this method of revenue collection
as lawful because this method was already in practice prior to the enactment of the
Regulating Act.31
ii. The Case of Commaluddin
The facts concerning the case of Commaluddin are broadly similar to the case of
Saroopchand. While Saroopchand was a guarantor, Commaluddin, a farmer in Hidglee, was
the principal debtor owing payment of revenue to the Company‟s Calcutta Revenue Council
(“Revenue Council”).32 When Commaluddin refused to pay, the Revenue Council imprisoned
him and denied him bail. When the Supreme Court of Judicature confronted this case on
Commaluddin‟s petition for a writ of habeas corpus, the Court granted the writ and ordered
the Revenue Council to release Commaluddin on bail.33 Just as in Saroopchand, the Court in
Commaluddin rejected the Revenue Council‟s argument that section VII of the Regulating
Act condoned this method of revenue collection as lawful because this method was already in
practice prior to the enactment of the Regulating Act.34 However, the judgment of the Court,
delivered by Chief Justice Impey, was slightly less condemnatory of Revenue Council‟s
conduct in imprisoning Commaluddin without bail. Chief Justice Impey premised the grant of
the writ of habeas corpus on two grounds, both of which essentially relate to the Revenue
Council‟s unwarranted deviation from its established practices. First, the Revenue Council
had departed from its practice in such cases to release the prisoner on bail. Second, the
Revenue Council failed to comply with its established practice of demanding rent from the
undertenant before demanding or imprisoning the farmer. 35 Chief Justice Impey carefully
explained that the judges had taken “great pains to acquire the most authentic information
29
Ibid.
Regulating Act, supra note 6.
31
Jain, supra note 7, at 89.
32
Jain, supra note 7, at 87.
33
Ibid.
34
Ibid.
35
Ibid.
30
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concerning the customs and laws of the collection as a guide to our conduct, in cases of
complaint against the officers” and that “the Court have only compelled the officers of the
government to act conformable to those usages”. 36 Nevertheless, Chief Justice Impey
cautioned that the Court‟s failure to “take cognisance of violence and oppression used in the
collection of revenue” would amount to a “breach of trust”.37
Ostensibly, two objections may be raised to using Commaluddin‟s case as evidence that the
writ of habeas corpus embodied Parliament‟s intention to constrain the Company‟s arbitrary
exercise of its sovereign powers. The first objection is that while this intention of Parliament
was made clear in Justice Lemaistre‟s fiery castigations and reasoning in Saroopchand’s case,
Chief Justice Impey did not similarly do so in his muted criticisms of the Company in the
later case of Commaluddin. However, this objection simply does not hold water. The absence
of express clarification per se that habeas corpus embodied Parliament‟s intention to
constrain the Company‟s arbitrary exercise of its sovereign powers in the later case of
Commaluddin does not necessarily negate this express clarification made by Justice
Lemaistre in the earlier case of Saroopchand. Nowhere in Commaluddin does Chief Justice
Impey overrule his fellow judge‟s reasoning in Saroopchand.
The second objection is that contrary to Justice Lemaistre in Saroopchand’s case, Chief
Justice Impey ostensibly viewed habeas corpus as a writ of Indian liberty when he remarked
that the Court‟s failure to “take cognisance of violence and oppression used in the collection
of revenue” would amount to a “breach of trust”.38 However, this objection is weak. Chief
Justice Impey did not clarify to whom the Supreme Court of Judicature owed the “trust”.
Prima facie, it is equivocal whether the “trust” was owed to the Indians, the British
Parliament or even someone else. Further, Chief Justice Impey arguably clarified that the
purpose of granting the writ of habeas corpus was to check the Company‟s exercise of
sovereign powers when, in an extra-judicial letter to the Company Council and the GovernorGeneral Warren Hastings when he made clear, he stated that the issuance of habeas corpus in
Commaluddin was to prevent the Company‟s officers from “being guilty of most aggravated
injustice under the colour of legal proceedings”. 39
36
Ibid., at 88.
Ibid.
38
Jain, supra note 7, at 88.
39
Ibid.
37
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Therefore, as gleaned from the judicial decisions of Saroopchand and Commaluddin, it is
pre-eminently clear that the writ of habeas corpus embodied Parliament‟s intention to
constrain the Company‟s arbitrary exercise of its sovereign powers. The Company‟s
administration of injustice by unlawfully imprisoning Indians could not be condoned by
Parliament‟s watchdog, the Supreme Court of Judicature.
IV.
Demise of the “Dreadful Clog” of Habeas Corpus
That habeas corpus embodied Parliament‟s intention to check the Company‟s arbitrary
exercise of its sovereign powers not only accounted for the rise or introduction of habeas
corpus in India, but also explained its demise or abrogation.
First, when habeas corpus became an undue clog on the Company‟s exercise of its sovereign
powers in India, and Parliament saw the need to scale back on the degree of restraint on the
Company‟s exercise of its sovereign powers in India, Parliament enacted the Judicature Act40
in 1781 to almost completely abrogate habeas corpus in India. In 1777, the Company began
complaining to Parliament that habeas corpus had unduly impeded the Company‟s ability to
collect revenues. Governor-General Warren Hastings went so far as to rebuke it as a
“dreadful clog on the government”.41 Although the judges of the Supreme Court of Judicature
countered that the writ was granted only where the Company‟s methods of collecting revenue
had resulted in unlawful imprisonment42, this riposte fell on deaf ears. In 1781, Parliament
enacted the Judicature Act, almost completely abrogating the writ of habeas corpus in India.
By prohibiting the Supreme Court of Judicature from exercising “jurisdiction in any matter
concerning the revenue, or concerning any act ordered or done in the collection thereof”43,
this Act effectively conferred on the Company blanket immunity from habeas corpus in its
activities relating to the collection of revenue.
Second, Parliament only abrogated the entitlement of Indians to the writ of habeas corpus,
and still retained habeas corpus as an entitlement for the British in India. Section II of the
Judicature Act effectively abrogated habeas corpus for Indians imprisoned by the Company
when the section provided that “anyone sued in the Supreme Court for a deed performed on
order of the Company‟s Council” need only “produce a written copy of that order as
40
21 Geo. 3, c. 70 [“Judicature Act”].
Jain, supra note 7, at 81.
42
Halliday, supra note 14, at 660.
43
Jain, supra note 7, at 97.
41
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sufficient legal justification for that act”.44 Further, by stating that when the plaintiff was “any
British subject, the Court shall retain full and competent jurisdiction as if this Act had never
been made”, 45 section III of the Judicature Act retained habeas corpus as an entitlement for
the British residents in India. Therefore, this confirms that habeas corpus was never about
safeguarding the liberty of Indians.
However, one objection may be raised. Arguably, it was not that the liberty of Indians never
crossed the minds of British Parliamentarians as a function of habeas corpus writs. Rather,
when push came to shove, the efficiency of the Company‟s governance, especially in its
collection of revenue for the benefit of the British state, was the paramount concern which
trumped Indian liberty. Admittedly, there is some force to this objection. British
Parliamentarian John Courtenay was concerned that the Indians, “who, by a former Act [viz,
the Regulating Act], was thought worthy of some attention and protection”, would be
deprived of such protection if the Judicature Act was enacted to safeguard the Company‟s
revenue collection
46
. However, this objection overlooks the fact that some British
parliamentarians never even envisaged the liberty of Indians and the efficiency of the
Company‟s collection of revenue as competing interests. Some parliamentarians even saw the
liberty conferred by granting a writ of habeas corpus as antithetical to Indian culture and
behaviour. Notably, Sir Edmund Burke argued that the Indian‟s “dispositions were inimical
to freedom” and that the Indians were predisposed to “a system of rule more despotic”.47
V.
Conclusion
In tracing the rise, exercise and demise of the writ of habeas corpus in India, viz from 1773 to
1781, it becomes evident that the writ of habeas corpus was largely an embodiment of the
British Parliament‟s restraint of the Company‟s exercise of its sovereign powers in India,
especially in its arbitrary administration of (in)justice. The entitlement of Indians to
individual liberty hardly featured in the minds of British parliamentarians or judges. The
argument is threefold. First, the statute which arguably introduced the writ of habeas corpus
into India, viz the Regulating Act of 1773, clearly evinced Parliament‟s intention to clean up
44
Judicature Act, supra note 35, cited in Halliday, supra note 14, at 665.
Ibid.
46
Cobbett, The Parliamentary History of England from the Earliest Period to 1803, at col. 556, cited in
Halliday, supra note 14, at 664
47
Cobbett, The Parliamentary History of England from the Earliest Period to 1803, at col. 549, cited in
Halliday, supra note 14, at 663
45
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the Company‟s governance of India. No mention was made of the liberty of Indians. Neither
could such a reference be implied. Second, a close reading of habeas corpus judicial
decisions reveal that the judges were men on a mission to carry out Parliament‟s intention to
use the writ of habeas corpus to check the Company‟s arbitrary exercise of sovereign power.
Third, the Judicature Act of 1781 abrogated habeas corpus for Indians largely because
parliamentarians realised that habeas corpus had become an excessive clog on the
Company‟s governance of India. That the entitlement to petition for a writ habeas corpus was
retained for British residents of India only serves to confirm that habeas corpus was never
about the individual liberty of Indians. Therefore, contrary to Whig history48, habeas corpus
was not the great writ of liberty for Indians. This is a legal fiction as shown in the rise,
exercise and demise of the writ in India. Rather, habeas corpus was a writ of power – this
writ embodied Parliament‟s restraint on the Company‟s exercise of its sovereign powers in
India.
48
See generally, Vladeck, supra note 4, at 942.
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