The Common Law in India - College of Social Sciences and ...

The Rise of the Common Law 51arbitrary power and excludes the existence of arbitrarinessof prerogative or even of wide discretionaryauthority on the part of the government." 55 It wasthe common law which brought about the acceptanceas unquestionable of " the principle that anyone—whether a private citizen or high official—who interfereswith the person or property of another can bemade to answer for his actions before a court oflaw." 56We have seen how as far back as 1772 it wasannounced at the inauguration of the court of justicein Bombay that no government servant, that noteven the Governor himself was to be above the law.We may also recall Regulation III of 1793 whichsubjected the executive officers of the government,acting beyond the law in the discharge of their officialduties, to the jurisdiction of the courts. Englishpractice and tradition gradually developed the principleof the supremacy of the law in India. TheTanjore case early laid down the principle that whileacts of state done by a sovereign power cannot beexamined in municipal courts if the act professes tobe done under municipal law, the courts will havejurisdiction to examine its validity. 57 The establishedprinciple enunciated by the Judicial Committee thatthe phrase (" act of state ") " as applied to acts ofthe executive directed to subjects . . . can give noimmunity from the jurisdiction of the court to inquire55 Dicey, Introduction to the Study of the Law of the Constitution,9th ed., p. 202.5 « Lord Kilmuir, " The Migration of the Common Law " (1960)76 L.Q.E. p. 43.« Secretary of State v. Kamachee (1859) 7 M.I.A. 476.