Legal Histroy (PRoject on High Court Act 1861)

CONTENTS 1. The History of Indian High Courts 2. The Indian High Court Act, 1861 3. Constitution 4. Jurisdiction 5. Appeals 6. Procedure 7. Establishment Of other High Courts 8. Conclusion 9. Bibliography

THE HISTORY OF INDIAN HIGH COURT’S Prior to the passing of Indian High court Act, 1861, there existed dual system of Court’s in India, namely, the Crown’s Court’s and the Company’s Court’s. The Supreme Court’s established in the Presidency towns of Calcutta, Madras and Bombay were the Court’s of the British crown while the Adalats established in the Mofussil areas were the Court’s of the East India Company. The Court’s had two different sets of organizations jurisdictions and power. The functioning of Court’s in the presidency towns was different from that of the Mofussil’s of which they were capitals. The existence of two parallel sets of Court’s namely, the Supreme Court and the Sadar Adalats in the Presidency Towns created great confusion and uncertainty about their respective jurisdictions. The Crown’s Court’s and the Company’s Court’s mainly differed in following aspects. 1. The Supreme Court consisted of professional lawyers as Judges and only those who were Barristers of at least five years standing could be appointed as a judge of this court but the judges of the Company’s Adalats were mostly lay persons without any professional or legal experience. 2. The Judges appointed in the Supreme Court held office during Crown’s pleasure whereas the Judges appointed in Company’s Adalats held office during Company’s pleasure. 3. There was no hierarchy of Court’s in Crown’s Court but there was a regular hierarchy of civil and criminal Court’s in the Company’s judicial arrangement. The Sadar Diwani Adalat and the Sadar Nizamat Adalat of the Company had only appellate jurisdiction but the Supreme Court had both, original and appellate jurisdiction. 4. The laws applied by the two sets of Court’s were different. The Supreme Court applied English law in deciding civil and criminal cases. The Company’s Court applied native laws for deciding cases relating to inheritance, succession, contract etc. However, consequent to the passing of the Charter Act of 1833, the Supreme Court was also bound by the regulations passed by the Governor-General-in-Council. Thus both the sets of Court’s were administering justice according to the laws and regulations by the Governor General-in-Council after 1833. 5. The supreme court mostly followed English law of evidence as far as possible whereas the Company’s Court mostly followed the customary law of evidence as derived from Hedaya and applied Anglo-Mohammedan law in deciding criminal cases.

The uncertainty about the jurisdiction and the law applicable by these two sets of Court’s created conflict and confusion. Therefore, it was necessary to merge these Court’s into one single judicial system. In 1829, Sir Charles E. Grey, the Chief Justice of the Supreme Court at Calcutta emphasized the need for the fusion of these two rival Court’s functioning in the Presidency towns. The need for the amalgamation of these Court’s was further highlighted by Sir Metcalfe. The process of unification was, however, completed in three distinct phases as mentioned below. As a first step toward amalgamation of Crown’s Court and the Company’s Court into a single judicial system, a Central Legislative Council was established in India under the Charter Act of 1833. The laws and regulations passed by the council were equally binding on all the Court’s. Whether established by the crow or the company. The result was that the Supreme Court of the presidencies lost its privileged position. The act of 1833 also provided for the appointment of a law commission to work out a uniform system of laws and police for the country. Thus the act marks the beginning of condification of laws in India. In the second phase of unification of the Supreme Court and the Sadar Adalats, the law commission stressed on the need for a codified procedural law before such fusion. The bill for the fusion of these two sets of codes was finally introduced by Sir Charles Worel in 1853. Consequently, a codified civil procedure was enacted in 1859 and the Penal code was enacted in 1860. In the third and the last stage, the East India Company was dissolved by the Crown’s Act of 1858, and the responsibility of the entire Government of India, passed on to the British Crown. Finally Indian High Court’s Act was passed by British Parliament on August 16, 1861, by which the Supreme Court and Sadar Adalats of presidency towns were merged together to be knows as High Court of Judicature at Calcutta, Madras and Bombay.

THE INDIAN HIGH COURT ACT, 1861:

The Indian High Court’s Act 1861 authorized the British Crown to establish a High Court in each of the presidency towns. Thereupon, a Charter, was issued by the British Crown in May 1862 to establish a High Court at Calcutta and the Crown again issued a Charter in June 1862 for establishment of a High Court at Madras and Bombay. With the establishment of the High Court of Judicature at Fort William (Kolkata), the existing Supreme Court and Sadar Adalats (Sadar diwani adalat and Sadar Nizamat adalat) were abolished and their jurisdiction and powers were transferred to the newly created High Court.

CONSTITUTION Each High Court was to consist of a Chief Justice and not more than fifteen puisne Judges, of whom not less than one-third were to be barristers of minimum five years standing and one-third to be members of Company’s Civil Service having nit less than ten years standing including a minimum experience of three years as a Zila Judge. The remaining Judges could be either from the Bar or the civil services i.e. persons who had practiced as pleaders in the Sadar Adalat or the Supreme Court for at least ten years or persons who had judicial office not inferior to that of Principal Sadar Ameen ar a Judge of a Small Cause Court for not less than Five years. It was further, provided that the Judges of the Supreme Court and the Sadar Adalats were automatically to become the Judges of the newly created High Court without the necessity of a specific appointment and the Chief Justice of the Supreme Court was to be Chief Justice of the High Court of Kolkata. The Judges of the High Court were to hold office during Her Majesty’s pleasure.

JURISDICTION:

The High Court was to be a Court of Record. It was to have original and appellate jurisdiction over civil, criminal, admiralty, testamentary, intestate and matrimonial causes. It was also to exercise power to superintendence over all subordinate Court’s. One of the Judges of the High court was to hold a separate court for relief to in solvent debtors. The original jurisdiction of the High Court was similar to that of the jurisdiction exercised by the Supreme Court before the establishment of the High court. However, unlike the earlier Supreme Court, its jurisdiction was limited to the local limits of the Presidency Town. It was given the power to try and determine suits in which the cause of action arose within the local limits of Kolkata or at the time of commencement of the suit the defendant resided or carried on business or worked for gain within the limits of Calcutta. It could decide all civil suits excepting those in which the subject-matter involved was less the Rs. 100/- in value which were triable by the Small Cause Court. The High Court had original criminal jurisdiction over all persons residing within the Presidency Town of Calcutta. It also had criminal jurisdiction over all Britishers and Europeans residing in place within the jurisdiction of any court which was subject to its superintendence. The High Court was given appellate jurisdiction over civil as well as criminal cases decided by the Court’s subordinate to it. It was also to be court of reference and revision for the subordinate criminal Court’s which were subject to its superintendence. In addition, it could transfer any criminal case from one court to another court. The High Court was also empowered to admit and enroll Advocate and Vakils. It could also take disciplinary action against them. The qualification necessary for advocates, pleaders and Attorneys were to be laid down by the High Court.

APPEALS:

The decision of the High Court was final in appeals from criminal cases and no further appeal lay to any other court. However, in civil cases appeal from the decision of the High Court lay to the Privy Council provided the pecuniary value of the suit was not less than Rs. 10,000/- or the High Court certified the case as fit one for appeal to the Privy Council. Besides, an appeal to the Privy Council was allowed from any decision or order of the High Court made in exercise of its original jurisdiction or in any case where any point of law was involved and the case was certified fit to be taken to Privy Council.

PROCEDURE: The charter establishing the High Court at Calcutta (now Kolkata) authorized the High Court to make rules and orders for regulating all the proceedings including civil, maritime, testamentary, intestate and matrimonial cases. However, in making such rules and orders, it was to be guided by the Code of Criminal Procedure, 1859. In the exercise of its original criminal jurisdiction, it was to adopt the same procedure as was followed by the Supreme Court immediately preceding it, and in other criminal cases, the Code of Criminal Procedure, 1861, was to guide the proceedings.

ESTABLISHMENT OF OTHER HIGH COURT’S: By the Crowns Letters Patent of June 26, 1862, the High Court of Bombay and Madras were established in pursuance of the High Court’s Act, 1861. The High Court’s Act, 1865 empowered the governor General-in-Council to alter the local limits of the jurisdiction of the High Court’s established under the High Court’s Act of 1861. This power of the Governor-General was subject to the approval of the crown. The British Crown further issued a Letters Patent on March 17, 1866 under the High Court’s Act of 1861 establishing a High Court at Agra which was later shifted to Allahbad in 1875. This High Court was not conferred any original civil jurisdiction and jurisdiction in insolvency cases. It also did not have admiralty jurisdiction. A Hig Court ws established at Patna in 1916 which was given admiralty jurisdiction also. In 1919, a High Court was established at Lahore.

CONCLUSION:

The Indian High Courts Act of 1861 (24 & 25 Vict. c. 104) was an act of the Parliament of the United Kingdom to authorize the Crown to create High Courts in the Indian colony.[1] Queen Victoria created the High Courts in Calcutta, Madras, and Bombay by Letters Patent in 1865. These High Courts would become the precursors to the High Courts in the modern day India, Pakistan, and Bangladesh. The Act was passed after the Indian Rebellion of 1857 and consolidated the parallel legal system of the Crown and the East India Company. The Act abolished the Supreme Courts at Calcutta, Madras, and Bombay; the Sadar Diwani Adalat and the Sadar Nizamat Adalat at Calcutta; Sadar Adalat and Faujdari Adalat at Madras; Sadar Diwani Adala and Faujdari Adalat at Bombay

BIBLIOGRAPHY: 1. Criminal Justice India Series: Punjab, 2002. Allied Publishers. 2002. p. 233. ISBN 978-81-7764-490-6. 2. Wikipedia.com 3.

Indian Legal and Constitutional History: By Dr. N. V. Paranjape. Central Law Agency, Allahbad p.133 ISBN 978-93-84852-00-9