The Vulture is a patient bird

Supreme Court
Supreme Court

With the Supreme Court already under a critical glare over the handling of various issues, the Solicitor General’s remarks in court referring to the critics as "vultures" and "prophets of doom" drew sharp criticism from certain sections of the society, but not from the Court.

No doubt, in this highly charged but polarised polity, seeking a neutral perspective is like finding a needle in the haystack and like all other divisive phenomena, this also cleaves the judiciary and the officers of the court.

Few from the Bench seemingly defended their passive approach, which if not symptomatic of collusion with the executive, is against the conservative grain in not permitting the court to be used as a platform to plead, nay espouse the cause of the executive.

But judges are also flesh and bone and the institution they represent has often come under a cloud on account of these men who matter. Ironically, those who bring infamy and those who bring glory both find their place in history. A quick look at the pages of history shows that such situations are not infrequent.

It would be interesting to recount an incident of 1775, when the first Chief Justice Elijah Impey of the newly set up Supreme Court at Fort William in 1774 was at the helm of affairs.

Under Warren Hastings, the new Governor General, the news of loot, pillage and rampant corruption in the ranks reached the Crown Monarch. The British government, determined to have a control over the affairs of the East India Company, promulgated the Regulating Act of 1773. As a result, the Company would accountable to Parliament as well as to profits.

The Act of 1773 provided for the establishment of the Supreme Court making “His Majesty’s subjects” amenable to its jurisdiction. The judges were to be appointed by the Crown and it would come to be known as the King’s Court and not a Company Court. Pursuant to the Act, a Royal Charter dated March 26, 1774 was granted, under which the Supreme Court of Calcutta was established. As a court of record, it was authorised to try suits between inhabitants of Bengal, Bihar and Orissa. India was thus given its first taste of Anglo-Saxon jurisprudence as the Supreme Court was not only constituted as a Court of Chancery, but also a Court of Equity in England.

Chief Justice Elijah Impey’s proximity with Warren Hastings predated their friendship from the school days. Good for Hastings one might say, but for the fact that Impey was not expected to be privy to such canoodling, being an overseer of ‘blind justice’ in the region. The native Indians, however, saw the courts as docks of political power and an embodiment of a parallel government.

Lord Macaulay, himself wrote of the reign of the Supreme Court:

"Of terror heightened by mystery; for even that which was endured was less horrible than that which was anticipated. No man knew what was next to be anticipated from this strange tribunal; it came from beyond the black water, as the people of India, with mysterious horror called the sea; it consisted of judges not one of whom was familiar with the usages of the millions over whom they claimed boundless authority, its records kept in unknown characters; its sentences were pronounced in unknown sounds."

The Regulating Act, 1773, in order to curb the powers of the Company, enthused fresh members into already existing Supreme Council. Inter-personal rivalries between the new members of the Supreme Council and the ones aiding the Governor General made Hastings sense erosion of his authority. The new incumbents in the Council were quick to launch an investigation into the affairs of Hastings in the Rohilla War, suspecting bribery in initiating the conflict. Many of the policies implemented by Hastings were reversed, giving a clear indication that the freshly inducted members wanted him out.

On March 11, 1775, Francis Clavering presented a letter in the Supreme Council from a Bengali Administrator turned whistle blower named Raja Nanda Kumar, claiming that Hastings had accepted two bribes, one for a sum of Rs. 1,04,105 to have his son appointed the Nawab of Bengal’s Administrator, and one for Rs. 2,50,000 to appoint one Munni Begum as the minor Nawab’s guardian.

Nanda Kumar nursed a grudge against Mr. Hastings, the latter having replaced him with one Reza Khan as the Collector of taxes for Burdwan, Nadia and Hooghly. As the Council heard the evidence against the personal corruption of Warren Hastings, he along with the Chief Justice Impey worked to ensure that the new guard did not succeed.

Raja Nanda Kumar, almost certain of the end of Hastings’ reign, remained utterly oblivious to his and Chief Justice Impey’s machinations. Hastings managed to involve Nanda Kumar in a case of forgery of a bond supposedly executed by one Bulaki Das, by then deceased. Raja Nanda Kumar was charged with the offence of forgery in 1775. The magistrate sent him to the lock up for one night before the complainant Mohan Prasad signed a bond for the case to be tried before the Supreme Court as per prevalent procedure.

The trial of Nanda Kumar was presided over by Chief Justice Impey with three other puisne judges. The marathon session lasted eight days wherein the witnesses as well as the accused were put to a gruelling cross examination, not by the lawyers but by Impey himself. Unaware of the intricacies of the English law of procedure, Nanda Kumar’s fate was sealed at the hands of the judges, who convicted him under the English Act of 1729 for forgery and pronounced the death sentence on June 16, 1775. The appeal to the King-in-Council was also rejected and he was hanged. The trial was hailed asjudicial murder by some including, Lord Macaulay.

The intrigue and the romance of the Supreme Council and the Supreme Court did not go unnoticed. The British Parliament passed the Regulating Act, 1781 and curbed the powers of the Supreme Court to a considerable extent. The civil and criminal provincial courts were given recognition by the Parliament to exist independent of the Supreme Court, allowing the Governor General and the Supreme Council to draft regulations for these courts. This would mark the foundation of the complete system of Anglo-Indian jurisprudence that continues till date.

Warren Hastings (read executive) succeeded in removing the thorn in his flesh resulting in a weakened Supreme Court and all this made possible with the active collaboration of Chief Justice Impey. Nanda Kumar’s trial was a manifestation of this diabolical cocktail of connivance between the then executive and the judiciary. Unashamedly, Impey was rewarded by Hastings in the award of lucrative contracts through one Archibald Fraser, his cousin. Impey was then drafted as a Chief of the new court system called the ‘Sudder Dewany Adalat’. In this way, he assumed control of every civil court in Bengal. When the controversy around Impey’s dealings gathered steam, he denied any wrongdoing but wrote “my office naturally raises me many enemies”, a familiar refrain even now for those facing accusations today.

History has an uncanny way of repeating itself. In the first year of inception of the Supreme Court, the role of its Chief Justice raised several eyebrows. One may argue in Impey’s defence that except for a conflict with ethics and dharma, there was nothing deplorable about his conduct. Today, however, such an argument is unavailable and would fly in the face of the Constitution whose framers mandated an independent judiciary, to reduce the chances of a pliant judicial institution. Hence, if the institution wilts today, it will not be able to cover the nakedness of its actions even with a fig leaf.

If the populace at the time of Impey perceived the Supreme Court as a patron of political power, one could hardly have faulted them for it. Rather, they were proved right by Nanda Kumar’s trial which even the “fair-minded” British found it unpalatable. Today our Constitution and sound judicial precedents provide the scheme of separation of powers with judicial independence, an established norm. Any conduct of the men who matter in the judiciary sullying such a settled perception, can’t lay the blame on the doors of the “vultures and prophets of doom”, who may be in wait to erupt in criticism, for the vulture is said to be a patient bird.

Justice Mahesh Grover is a former judge of the Punjab and Haryana High Court. Abhilaksh Grover is an advocate practicing at the Punjab and Haryana High Court.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Bar & Bench.

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