High Courts 1860

Topic-7 High Courts

Causes which led to the establishment of High Courts 

Dual system of Courts and its defects:-

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Crown’ss Courts and Crown’ an d Company's courts

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SC’s judges-barristers judges-barristers

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Mofussil-not trained

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Appointment of judges

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Hierarchy of the courts

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Application of laws

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 Native-British

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Procedure

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Authority

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Conflict between the two courts

Indian High Courts Act, 1861 

The Indian High Courts Act was passed by British  parliament on 6th August 1861

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Title – An Act for establishing High Courts of Judicature in India

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Consisted of 19 sections

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Purpose to abolish Supreme Court and Sadar Adalats and to establish high courts in 3 presidencies

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Her Majesty’s authority

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It authorized Her Majesty to establish High Courts by issuing latter patent to Presidency towns where ever and whenever she deemed fit.

Constitution 

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Each High Court was to consist of one Chief justice and other fifteen judges Qualifications required for a judge:  

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Barristers of not less than five year’s standing Members of civil service of not less than ten years’ experience and out of that three years’ experience as a Zila judge  Not less than five years’ experience as Sadar Ameen or judge of small causes court Ten years’ experience as pleaders of a Sadar Court or High Court

 Not less than one third of judges in HC, including CJ, were to  be barristers

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 Not less than one third of judges in HC were to be members of the civil service

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The judges held their office during the  pleasure of her majesty

Jurisdiction 

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The jurisdiction of each High Court depended on the letters patent issued by Her Majesty Civil Criminal Admiralty Testamentary Intestate Matrimonial Original and appellate jurisdiction

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Her Majesty by letters patent could impose directions and limitations as to the exercise of original, civil, criminal jurisdiction beyond the limits of the  presidency towns.

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These courts were authorized to perform all functions of the courts which had been abolished.

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Power to superintend all courts subject to its appellate  jurisdiction- e.g . to transfer any suit or appeal from one court to the other court and to make and issue rules for regulating the practice and proceedings of such courts

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Her majesty was authorized-:

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To establish a High Court in and for any portion of territories within her dominion in India, not included in the local jurisdiction of another high court with similar jurisdiction

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To transfer from time to time any territory or place from the jurisdiction of one High Court to another 

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To alter and determine the territorial limits of the  jurisdiction of HC

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The High Courts were given supervisory  powers over all courts subject to their appellate jurisdiction

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All laws relating to the Supreme courts or to the  judges of those courts shall be applicable to the said High Courts and the judges thereof respectively so far as the laws may be consistent with the provisions of this Act of 1861 and regulations of G.G. and letter  patents of the crown

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The original jurisdiction of the High courts were derived from the supreme courts and the appellate  jurisdiction was derived from the Sadar courts

Original jurisdiction  

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Civil- two types ordinary and extra ordinary. Ordinary jurisdiction was extended to the local limits as prescribed by the law. All civil suits of the value of more than Rs.100 Original jurisdiction could be invoked only if – the immovable property was situated within the Presidency town or local limit - the cause of action wholly or partly arose in the Presidency town or  -the defendant was dwelling, or carrying on business or working for gain in the Presidency town.

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Extra ordinary jurisdiction- the High Courts could withdraw any suit lying in the courts to its superintendence and try it itself if the  justice so. His jurisdiction could be exercised in a case where the parties agreed to such exercise or the High Court thought it proper to impart justice.

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Criminal jurisdictionOriginal-over all persons residing within Calcutta and beyond the local limits of Calcutta it was to exercise such jurisdiction over the Britishers and the Europeans as well Extra ordinary criminal jurisdiction- the High Court could hear any criminal case against any person within the cognizance of any court, which was subject to the superintendence of the High Court, if such case was referred to the High Court by any magistrate.

Appellate jurisdiction  

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Appellate jurisdiction was of two types: Civil- jurisdiction to hear appeals from the decisions given by the civil Courts subordinate to it. Hear appeals in cases which were subject to appeal to the High Court by virtue of any law or regulations in force. Could hear appeals against the judgment of a single judge of the High Court or a Division Bench of the High Court in which the views of the judges were equally divided. In other cases appeals from the High Courts could lay to th Privy council in England.

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Criminal Jurisdiction- the High Court has criminal  jurisdiction in all cases decided by the courts subordinate to it. It was a court of reference and revision It could hear and determine all cases referred to it by subordinate courts Could revise the proceedings of the courts subject to its superintendent Could transfer any criminal case from one court to another court.

Appeals to the Privy Council 

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Appeal was allowed in all matters, except criminal cases, from the final judgment of the High Court provided the valuation of the suit was not less than Rs.10,000 or the High Court certified that the case was a fit one for appeal to the Privy Council Appeal was allowed from any judgment or order of the High Court made in exercise of the original criminal jurisdiction or In any criminal case where any point of law had been reserved for the opinion of the High Court by anther court of original jurisdiction provided the HC certified that the case was a fit one for appeal to the Privy Council.

Application of law 

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Original jurisdiction-same as applied by Supreme Court in similar matters High court was also authorized to apply the  principles of equity, justice and good conscience In criminal law, the position was settled by the Indian Penal Code of 1860 which became the law of the land for all cases.

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The procedural law observed in the civil matters- Civil Procedure Code 1859 and Rules and Regulations made by the Court.

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In Criminal matters-in original side-same as followed by the Supreme Court, and in other matters-followed the procedure given in the Code of Criminal Procedure, 1861.

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The High Courts would in matters of inheritance and succession to lands, rents and goods, as also in matters of contract and dealing between party and party, apply personal law or custom having the force of law when both parties were subject to the same law or custom.

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As regards the procedure, the High Court was empowered to make rules and orders for regulating all its proceedings in civil cases following the Civil Procedure Code 1859

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In ordinary original jurisdiction it would follow SC and in other criminal matters it would follow Criminal Procedure Code 1861.

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Salary of the judges was fixed.

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Appeal from HC to privy council

Calcutta High Court 

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The High Court at Calcutta, known as the High Court of Judicature at Fort William, William, was brought into existence by the Letters Patent dated 14th May, 1862, issued under the High Court's Act, 1861 The High Court of Judicature at Fort William William was formally opened on 1st July, 1862, with Sir Barnes Peacock as its first Chief Justice. Appointed on 2nd February February,, 1863, Justice Sumboo Nath Pandit was the first Indian to assume office as a Judge of the Calcutta High Court The Calcutta High Court has the distinction of being the first High Court and one of the three Chartered High Courts to be set up in India, along with the High Courts of Bombay Bombay,, Madras.

The Bombay High Court 

The Bombay High Court was inaugurated on 14th August, 1862. The High Court Cou rt had an original as well as appellate jurisdiction.

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Madras High Court was established on June 26, 1862 as one of the three High Courts of India (others at Bombay and Calcutta) established at Presidency Towns Towns by Letters Patent granted by Queen Victoria. Victoria. The jurisdiction of the Madras High Court extends to Tamil Tamil  Nadu and Pondicherry Pondicherry.. Although the name of the city was changed from Madras to Chennai in 1996, the Court as an institution did not follow suit and remained as the Madras High Court. Each High Court was to exercise power over the Presidency Towns as well as the Mofussil of the Presidency concerned. In each Presidency town one unified legal system was established

Analysis 

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In 1858, the Company transferred its territorial power to the Crown and after this transfer it became an absurdity to retain this judicial system. In the three years following this transfer the Civil and Criminal Procedure Codes, and Indian Penal Code were placed on the Statute Books. The High Courts Act of 1861 In Act of 1861 importance was given to barristers. It indicated the  predominance of the English law in the new arrangement. Judges have to hold office during her Majesty’s pleasure. Judges can be removed without any reason for his removal being assigned. There was no legal or Constitutional guarantee for independence of  judiciary but the well established English tradition was the safeguard.

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Positive aspects:

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One Unified line of Control was established

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Harmony was established within a judicature

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Improvements in the lower Courts

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Uniformity in the procedure

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Simplicity, Harmony and efficiency in the administration of justice.

Indian High Courts Act 1911 

1. Ceiling on the number of judges in a High Court was raised.

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2. Authorized the Crown to establish additional High courts.

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3. Governor General could appoint additional  judges.

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4. Salaries of the judges or temporary judges were to be paid out of the revenues of India.

Government of India Act 1915 

July 29, 1915 British Parliament passed this Act to consolidate and reenact the existing statutes relating to the Government of India.

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It reenacted all the provisions made by the Indian High Courts Acts of 1861 & 1911.

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 No High Court would exercise original jurisdiction in matter of revenue – (it was a repetition of the  provision of the Act of 1781 which debarred the SC from exercising such jurisdiction.

1935 

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In 1935 the British Parliament enacted the Government of India Act. It provided the base for the Constitution of India after the Independence. Some important provisions of the Act of 1935 Number of Judges It dropped the numerical ceiling and gave authority to the King-In Council to fix the number of judges for each High Court from time to time. Flexibility was introduced keeping in view the load of work in each high court.

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Her Majesty by warrant under the Royal Sign Manual could appoint a judge of High Court. The Governor General had power to appoint additional judges temporarily for maximum period of two years when a judge or Chief Justice of a High Court was unable to function or when their offices fell vacant or in case of temporary increase in the  business of a High Court. The total number of judges in a High Court should not exceed the limit prescribed by the King in Council.

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Appointment The judges of the High Court were appointed and removed by the Crown and they held office during the pleasure of the Crown. Act of 1935 sought to achieve the principle of independence of judiciary and so it provided that a High court judge would hold office up to the age of sixty years. He could be removed earlier by the Crown only on the ground of misbehavior or of infirmity of mind or body. For this Her Majesty would refer the matter to the Privy Council and on the report of the Privy Council the judge could be removed.

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The rigid quota system was avoided. The rule fixing the percentages for some categories of persons for appointment as High Court judge was removed by the Act of 1935.

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A member of Civil Service of ten years’ standing was also qualified to be appointed as judge of High Court and if he remained judge for three years, he was declared qualified for holding the office of the Chief Justice of a High Court.

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Chief Justice

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1861- Chief Justice of High Court should be always barrister 

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1915- Either barrister or an advocate.

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So a civilian judge could not become a judge

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1935 – a civilian judge could become Chief Justice.

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Jurisdiction Same as before and the matters relating to revenue could not be decided by the High Courts even after the Act of 1935 Salaries Act of 1935 provided that the salaries, allowances and pensions of the High Court would be fixed by His Majesty- in Council upon their appointment and that these could not be varied to the disadvantage of a judge after his appointment.

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Administrative Control

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The administrative Control of the High Court was placed in the Provincial Government.

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Appeals

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The Act of 1935 made a provision for an appeal to the Federal Court from any  judgment, decree or order of a High Court.

High Courts after the Constitution of India 

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The constitution of India recognized all the existing High Courts The High Courts stands at the Head of a State’s  judicial administration. Each high Court comprises of a Chief Justice of India and such other judges as the President may, from time to time appoint The Chief Justice of a High Court is appointed by the President in consultation with the Chief Justice of India and the Governor of the State. They hold office until the age of 62 years.

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Qualification of to be a High Court Judge:

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A citizen of India

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Have held judicial office in India for ten years or must have practiced as a judge for ten years or must have practiced as an advocate of a high court or two or more such courts in succession for a similar period.

Jurisdiction 

The jurisdiction of the High Courts, the law administered by them and the power to make rules of the Court are allowed by the Constitution of India to Continue the same as were immediately before the commencement of the constitution

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The jurisdiction and power of the High Courts is subject to the provisions of the Constitution of India and provisions of any law of the appropriate legilstature.

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The status quo is maintained by the Constitution in order to maintain Historical Continuity

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The constitution removes the bar to the original jurisdiction of the High Courts in revenue matters.

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This restriction was imposed in 1935 by the Govt. of India Act 1935.

Powers 

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Every High Court is given the power of superintendence over all courts and tribunals in relation to which it exercises jurisdiction Make and issue general rules and prescribe forms for regulating the practice and  proceedings of such Courts and prescribe forms in which books, entries and accounts shall be kept by officers of any such courts.

Privy Council 

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Has played important role in the development of the judicial system of India In course of hearing appeals from India introduced the law in India The jurisdiction of the Privy Council to hear appeals from India ceased to exist from 10th Oct. 1949 and thus till 10th Oct. 1949 the Privy Council in England was the supreme appellate Tribunal of India.

Appeals to the Privy Council during 1726- 1860 

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Appeals form three Crowns’ courts to the Privy Council The appeals from the Mayor’s courts were to  be heard by the Governor and Council and appeals from the Governor and Council were allowed to the Privy Council in all cases of value of more than 1000 pagodas. The Charter of 1726 – first time granted a right to appeal to the Privy Council in England

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Charter of 1753 retained the same provisions for appeals.

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The provisions relating to appeals to the Privy Council continued till the passing of the Regulating Act 1773.

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Regulating Act 1773 empowered the Crown to establish a Supreme Court by issuing a Charter of 1774.

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1774 – supreme Court was established in Calcutta Charter of 1774 superseded the provisions of the Charter of 1753 Charter of 1774- appeals from the judgments of the Supreme Court could be made to the Privy Council in civil cases if the subject matter in dispute exceeded 1000 pagodas, it should be made within six months

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In criminal cases – appeal could be made to the Privy Council with the permission of the Supreme Court but in such cases the Supreme Court had full power and absolute discretion to allow or deny the permission for such appeals.

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In 1797 – Crown issued a Charter to establish a Recorder’s Court at each of the two towns Madras and Bombay.

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Same provisions as appeals from the Supreme Court to Privy Council

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Supreme Court was established in Madras and Bombay-with same provisions

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Two kinds of appeals from the Crown’s Court Appeals as a matter of right when the  prescribed conditions were fulfilled

Appeals by special leave of the Privy Council

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Appeals from the Company’s courts

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Before 1781- no provision for appeals , the decisions of the Sadar Adalats were final.

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Act of Settlement, 1781 allowed appeals to the privy council from the decisions of the Sadar Diwani Adalats where the value of the subject matter of the dispute is 5000 pounds or more

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Limitation of only amount and no limitation of time for filing appeals

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Judicial Committee Act 1833-this Act was passed to regulate the system of appeals to the privy Council One order was issued under this Act in 1838 which  provided that appeal from the judgment, decree or order of the Supreme Courts or Sadar Diwani Adalats in India could be filed in Privy Council within six months from the date of such judgment, decree or order, if the valuation of suit was more than Rs. 10,000 First time uniformity in rules

Appeals to the Privy Council during 1861 to 1949 

Indian High Courts Act-1861-in civil matters the appeal from any final judgment, decree or order of the High Court was allowed to the Privy Council of the if the valuation of suit as Rs. 10,000 or more or the High Court certified that the case was fit one for appeal to the Privy Council.

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Besides, appeal to the Privy Council was allowed from any judgment or order of the High Court made in the exercise of original criminal jurisdiction or in any criminal cases where any point of law had been reserved for the opinion of the High Court exercising original jurisdiction, provided the High Court certified that the case was a fit one for appeal to the Privy Council.

Appeals from the Federal Court 

Appeals were allowed to the Privy Council form the decisions of the Federal Court given in the exercise of its original jurisdiction without leave and in any other case, by leavee of the Federal Court or of his Majesty in Council

Abolition of the Jurisdiction of the Privy Council 

The jurisdiction of the Privy Council to hear appeals from India was Completely abolished in 1949 by the Abolition of the Privy Council Jurisdiction Act, 1949.

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Pending appeals were transferred to the Federal Court

Role of Privy Council in the development of Law in India 

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Unique Contribution to the development of law in India Judges were having legal learning and experience its decisions were of high quality Even today they form the fountain source of law in India. It moulded Indian law and the method of administration of justice in India importing into its  jurisprudence concepts which they had imbibed from their training in English Law

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The Privy Council acted as channel through which English Legal concepts came to be assimilated with the fabric of the Indian Law Served as bridge between the Indian and English legal systems over which legal ideas travelled from England to India. In course of time of Common Law of England came to be accepted-helped in the codification of Indian Law

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Privy Council was a unifying force in the  judicial administration in India

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A connecting link between the Sadar Adalats and Supreme Court

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The Privy Council played an important role in ascertaing laws and settling the legal  principles