Legal History

Macaulay suggested enhancing the power of Supreme Court in India

The powers of the Supreme Court should be enhanced

Macaulay- 1833

[11a] With a view to the prevention of this evil, we propose to give to the Supreme Government the power of legislating for Europeans as well as for natives. We propose that the regulations of the Government shall bind the King’s Court as they bind all other courts, and that registration by the Judges of the King’s Courts shall no longer be necessary to give validity to those regulations within the towns of Calcutta, Madras, and Bombay.

[11b] I could scarcely, Sir, believe my ears when I heard this part of our plan condemned in another place. I should have thought that it would have been received with peculiar favour in that quarter where it has met with the most severe condemnation. What, at present, is the case? If the Supreme Court and the Government differ on a question of jurisdiction, or on a question of legislation within the towns which are the seats of Government, there is absolutely no umpire but the Imperial Parliament. The device of putting one wild elephant between two tame elephants was ingenious: but it may not always be practicable. Suppose a tame elephant between two wild elephants, or suppose that the whole herd should run wild together. The thing is not without example. And is it not most unjust and ridiculous that, on one side of a ditch, the edict of the Governor General should have the force of law, and that on the other side it should be of no effect unless registered by the Judges of the Supreme Court? If the registration be a security for good legislation, we are bound to give that security to all classes of our subjects. If the registration be not a security for good legislation, why give it to any? Is the system good? Extend it. Is it bad! Abolish it. But in the name of common sense do not leave it as it is.

It is as absurd as our old law of sanctuary. The law which authorises imprisonment for debt may be good or bad. But no man in his senses can approve of the ancient system under which a debtor who might be arrested in Fleet Street was safe as soon as he had scampered into Whitefriars. Just in the same way, doubts may fairly be entertained about the expediency of allowing four or five persons to make laws for India; but to allow them to make laws for all India without the Mahratta ditch, and to except Calcutta, is the height of absurdity.

[11c] I say, therefore, that either you must enlarge the power of the Supreme Court, and give it a general veto on laws, or you must enlarge the power of the Government, and make its regulations binding on all Courts without distinction. The former course no person has ventured to propose. To the latter course objections have been made; but objections which to me, I must own, seem altogether frivolous.

[11d] It is acknowledged that of late years inconvenience has arisen from the relation in which the Supreme Court stands to the Government. But, it is said, that Court was originally instituted for the protection of natives against Europeans. The wise course would therefore be to restore its original character.

[11e] Now, Sir, the fact is, that the Supreme Court has never been so mischievous as during the first ten years of its power, or so respectable as it has lately been. Everybody who knows anything of its early history knows, that, during a considerable time, it was the terror of Bengal, the scourge of the native population, the screen of European delinquents, a convenient tool of the Government for all purposes of evil, an insurmountable obstacle to the Government in all undertakings for the public good; that its proceedings were made up of pedantry, cruelty, and corruption; that its disputes with the Government were at one time on the point of breaking up the whole fabric of society; and that a convulsion was averted only by the dexterous policy of Warren Hastings, who at last bought off the opposition of the Chief Justice for eight thousand pounds a year.

It is notorious that, while the Supreme Court opposed Hastings in all his best measures, it was a thoroughgoing accomplice in his worst; that it took part in the most scandalous of those proceedings which, fifty years ago, roused the indignation of Parliament and of the country; that it assisted in the spoliation of the princesses of Oude; that it passed sentence of death on Nuncomar. And this is the Court which we are to restore from its present state of degeneracy to its original purity. This is the protection which we are to give to the natives against the Europeans. Sir, so far is it from being true that the character of the Supreme Court has deteriorated, that it has, perhaps, improved more than any other institution in India. But the evil lies deep in the nature of the institution itself. The judges have in our time deserved the greatest respect. Their judgment and integrity have done much to mitigate the vices of the system. The worst charge that can be brought against any of them is that of pertinacity, disinterested, conscientious pertinacity, in error.

The real evil is the state of the law. You have two supreme powers in India. There is no arbitrator except a Legislature fifteen thousand miles off. Such a system is on the face of it an absurdity in politics. My wonder is, not that this system has several times been on the point of producing fatal consequences to the peace and resources of India;–those, I think, are the words in which Warren Hastings described the effect of the contest between his Government and the Judges;–but that it has not actually produced such consequences. The most distinguished members of the Indian Government, the most distinguished Judges of the Supreme Court, call upon you to reform this system. Sir Charles Metcalfe, Sir Charles Grey, represent with equal urgency the expediency of having one single paramount council armed with legislative power. The admission of Europeans to India renders it absolutely necessary not to delay our decision. The effect of that admission would be to raise a hundred questions, to produce a hundred contests between the Council and the judicature. The Government would be paralysed at the precise moment at which all its energy was required. While the two equal powers were acting in opposite directions, the whole machine of the state would stand still. The Europeans would be uncontrolled. The natives would be unprotected. The consequences I will not pretend to foresee. Everything beyond is darkness and confusion.


“Government of India”

A SPEECH DELIVERED IN THE HOUSE OF COMMONS ON THE 10TH OF JULY 1833

by

Thomas Babington Macaulay (1800-1859)

Synopsis

One-The East India Company’s affairs are extremely complex
Two-The Company’s commercial and political functions have always been intermingled
Three-The Government has proposed a reasonable compromise
Four-The Company should be retained as an organ of government in India
Five-The Company is often blamed for things over which it has no control
Six-It’s true that the Company’s early behavior included many shameful abuses
Seven-But nowadays its affairs are much improved and still improving
Eight-It’s thus more appropriate to reform the Company than to abolish it
Nine-Company positions should be filled through competitive examinations
Ten-Europeans should be allowed to settle freely in India
Eleven-The powers of the Supreme Court should be enhanced
Twelve-A uniform code of laws should be developed
Thirteen-We must look forward to a time when Indians will hold high offices


 

Categories: Legal History, Supreme Court

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