High Courts 1860

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Topic-7

High Courts

(2)

(3)

Causes which led to the establishment

of High Courts



 Dual system of Courts and its defects:-Dual system of Courts and its

defects:-

 Crown’Crown’s Courts ans Courts and Company's d Company's courtscourts



 SC’s judgesSC’s judges-barristers-barristers



 Mofussil-not trainedMofussil-not trained



 Appointment of judgesAppointment of judges

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 Hierarchy of the courtsHierarchy of the courts



(4)

  Native-British Native-British   ProcedureProcedure   AuthorityAuthority 

(5)

Indian High Courts Act, 1861

 The Indian High Courts Act was passed by British

parliament on 6th August 1861

 Title – An Act for establishing High Courts of

Judicature in India

 Consisted of 19 sections

 Purpose to abolish Supreme Court and Sadar Adalats

and to establish high courts in 3 presidencies

(6)

 It authorized Her Majesty to establish High

Courts by issuing latter patent to Presidency towns where ever and whenever she deemed fit.

(7)

Constitution

 Each High Court was to consist of one Chief justice and other

fifteen judges

 Qualifications required for a judge:

 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

(8)

 Not less than one third of judges in HC were

to be members of the civil service

 The judges held their office during the

(9)

Jurisdiction

 The jurisdiction of each High Court depended on

the letters patent issued by Her Majesty

 Civil  Criminal  Admiralty  Testamentary  Intestate  Matrimonial

(10)

 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.

 These courts were authorized to perform all functions

of the courts which had been abolished.

 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

(11)

 Her majesty was authorized-:

 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

 To transfer from time to time any territory or place

from the jurisdiction of one High Court to another

 To alter and determine the territorial limits of the

(12)

 The High Courts were given supervisory

powers over all courts subject to their appellate jurisdiction

(13)

 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

 The original jurisdiction of the High courts were

derived from the supreme courts and the appellate jurisdiction was derived from the Sadar courts

(14)

Original jurisdiction

 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

(15)

 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.

(16)

 Criminal

jurisdiction- Original-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

(17)

Appellate jurisdiction

 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

(18)

 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

(19)

Appeals to the Privy Council

 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.

(20)

Application of law

 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.

(21)

 The procedural law observed in the civil

matters- Civil Procedure Code 1859 and Rules and Regulations made by the Court.

 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.

(22)

 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.

 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

 In ordinary original jurisdiction it would follow SC and in other

criminal matters it would follow Criminal Procedure Code 1861.

 Salary of the judges was fixed.  Appeal from HC to privy council

(23)

Calcutta High Court



 The High Court at Calcutta, known as the High Court ofThe High Court at Calcutta, known as the High Court of

Judicature at Fort W

Judicature at Fort William, was brought illiam, was brought into existence by theinto existence by the

Letters Patent dated 14th May, 1862, issued under

Letters Patent dated 14th May, 1862, issued under the Highthe High

Court's Act, 1861



 The High Court The High Court of Judicature at of Judicature at Fort WFort William was formallyilliam was formally

opened on 1st July, 1862, with Sir Barnes Peacock as its first

Chief Justice. Appointed on 2nd

Chief Justice. Appointed on 2nd FebruaryFebruary, 1863, , 1863, JusticeJustice

Sumboo Nath Pandit was the first

Sumboo Nath Pandit was the first Indian to assume office as aIndian to assume office as a

Judge of the Calcutta High Court



 The Calcutta High Court has the distinction of being the firstThe 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

set up in India, along with the High Courts of with the High Courts of BombayBombay,,

Madras.

(24)

The Bombay High Court



 The Bombay High Court was inaugurated onThe Bombay High Court was inaugurated on

14th

14th August, 1862. The High CouAugust, 1862. The High Court had anrt had an

original as well as appellate jurisdiction.

(25)



 Madras High Court was established on June 26, Madras High Court was established on June 26, 1862 as one1862 as one

of the three High Courts of India (others at Bombay and

Calcutta) established at

Calcutta) established at Presidency TPresidency Towns by owns by Letters PatentLetters Patent

granted by

granted by Queen VQueen Victoria.ictoria.



 The jurisdiction of The jurisdiction of the Madras High the Madras High Court extends to TCourt extends to Tamilamil

Nadu and P

Nadu and Pondicherryondicherry..



 Although the name of the city was changed from Madras toAlthough 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 PresidencyEach 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 In each Presidency town one unified legal system waslegal system was

established

(26)

Analysis

 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

(27)

 Positive aspects:

 One Unified line of Control was established  Harmony was established within a judicature  Improvements in the lower Courts

 Uniformity in the procedure

 Simplicity, Harmony and efficiency in the

(28)

Indian High Courts Act 1911

 1. Ceiling on the number of judges in a High

Court was raised.

 2. Authorized the Crown to establish

additional High courts.

 3. Governor General could appoint additional

judges.

 4. Salaries of the judges or temporary judges

(29)

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.

 It reenacted all the provisions made by the Indian

High Courts Acts of 1861 & 1911.

 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.

(30)

1935

 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.

(31)

 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.

(32)

 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.

(33)

 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.

 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.

(34)

 Chief Justice

 1861- Chief Justice of High Court should be

always barrister

 1915- Either barrister or an advocate.

 So a civilian judge could not become a judge  1935 – a civilian judge could become Chief

(35)

 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.

(36)

 Administrative Control

 The administrative Control of the High Court

was placed in the Provincial Government.

 Appeals

 The Act of 1935 made a provision for an

appeal to the Federal Court from any

(37)

High Courts after the Constitution of

India

 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.

(38)

 Qualification of to be a High Court Judge:  A citizen of India

 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.

(39)

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

 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

(40)

 The status quo is maintained by the

Constitution in order to maintain Historical Continuity

 The constitution removes the bar to the

original jurisdiction of the High Courts in revenue matters.

 This restriction was imposed in 1935 by the

(41)

Powers

 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.

(42)

Privy Council

 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.

(43)

Appeals to the Privy Council during

1726- 1860

 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

(44)

 Charter of 1753 retained the same provisions

for appeals.

 The provisions relating to appeals to the Privy

Council continued till the passing of the Regulating Act 1773.

 Regulating Act 1773 empowered the Crown

to establish a Supreme Court by issuing a Charter of 1774.

(45)

 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

(46)

 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

(47)

 In 1797 – Crown issued a Charter to establish

a Recorder’s Court at each of the two towns Madras and Bombay.

 Same provisions as appeals from the Supreme

Court to Privy Council

 Supreme Court was established in Madras and

(48)

 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

(49)

 Appeals from the Company’s courts

 Before 1781- no provision for appeals , the decisions

of the Sadar Adalats were final.

 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

 Limitation of only amount and no limitation of time

(50)

 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

(51)

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

(52)

 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.

(53)

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

(54)

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.

 Pending appeals were transferred to the

(55)

Role of Privy Council in the

development of Law in India

 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

(56)

 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

(57)

 Privy Council was a unifying force in the

judicial administration in India

 A connecting link between the Sadar Adalats

and Supreme Court

 The Privy Council played an important role in

ascertaing laws and settling the legal principles

(58)

(59)

(60)

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(62)