CONTENTS

Introduction……………………………………………………………….2

Government of India Act, 1935…………………………………………..4

Other High Courts established…………………………………………..11

i. At Nagpur……………………………………………………………………11

ii. At Punjab…………………………………………………………………….11

iii. At Delhi………………………………………………………………………11

iv. At Orissa……………………………………………………………………..12

v. At Andhra Pradesh…………………………………………………………..12

Conclusion………………………………………………………………….13

Bibliography………………………………………………………………..14
 INTRODUCTION

In 1935, British Parliament enacted the government of India act to bring the constitution of the
country on federal lines. This act contained many provisions regulating the composition,
constitution and working of the High courts. The Government of India Act 1935 was passed
during the "war Period" and was the last pre-independent constitution of India.
In 1947, a relatively few amendments in the Act made it the functioning interim constitutions of
India.
The Act was originally passed in August 1935, and is said to have been the longest
(British) Act of Parliament ever enacted by that time. Because of its length the Act was
retroactively split by the Government of India (Reprinting) Act 1935 into two separate Acts:
1.The Government of India Act 1935
2.The Government of Burma Act 1935
One of the main features of the Act is that the British rulers had promised a federation in
India which would comprise of provinces and states. The act was made not to be operational
until and unless a specified number of rulers of states had signed the Instruments of Succession.
Since this did not take place, only a part of the Act was made operational. Another important
characteristic of this Act was that the head of the central administration was the Governor
General and he had immense powers of concerning administration, finance and legislation.
Without his permission no finance bill could be placed in the Central Legislature. Thirdly, The
Federal Legislature consisted of two houses- the Upper House or Council of State and Lower
House or Federal Assembly. The Federal Assembly constituted of three hundred and seventy five
members. The Central Legislature possessed the right to pass any bill but the bill needed the
approval of the Governor General before it could be applied as a law. The Governor General had
the power to build ordinances. It is very important to note that the Secretary of State was
hindered from interfering in matters that the Governor dealt with, with the help of Indian
ministers. Also all the provinces were given autonomy with respect to the subjects who were
delegated to them. Diarchy, which had been established in the provinces by the Act of 1919, was
to be established at the Center. However it came to an end in the provinces. It was through the
Government of India Act that the provinces of Sindh and Orrisa were created. Also, The Reserve
Bank of India was established. Lastly, Burma and Aden were separated from India.

The Indian High Courts Act, 1861 had empowered the Crown to establish, High Courts Of
Judicature in the Presidency towns of Calcutta, Bombay and Madras, thereby abolishing the
Supreme Courts and the courts of the Sardar Diwani Adalat and the Sardar Nizamat Adalat. The
jurisdiction and powers of the High Court were to be fixed by the Crown. The Crown also had
the power to establish High Courts in the North-Western provinces. Section two and three of the
Act makes provisions for the members of judges, their qualification, tenure etc.

Each High Court was empowered to have supervision over all the courts which were subject to
its appellate jurisdiction. The High Court could also call for returns, to transfer any suit or appeal
from one court to another and to make a general uniform procedure of rules and regulation.
 THE GOVERNMENT OF INDIA ACT, 1935

The British Parliament by enacting the above mentioned Act gave rise to a new constitution
which would regulate the functions of the legislature, executive and judiciary of India, The Act
contained many provisions in respect to the establishment, constitution, jurisdiction and powers
of the High Courts.

The following courts shall in relation to British India be deemed to be High Courts for purposes
of this act, that is to say, the high Courts in Calcutta, Madras, Bombay ,Allahabad, Lahore and
Patna, The chief Court in Oudh, the judicial Commissioner’s Courts in the Central provinces and
Berar in the North-West Frontier Province and in Sind, any other Courts in British India
constituted or reconstituted under this as a High Court, and any other comparable Court in
British India which His Majesty in Council may declare to be a High Court for the purpose of
this Act:

Provided that, if provision has been made before the commencement of Part III of this Act for
the establishment of the new court this section shall effect as if the new court were mentioned
therein in lieu of the court or courts so replaced. The provisions of this chapter shall apply to
every High Court in British India.

CONSTITUITON OF HIGH COURT:

Every High Court shall be a Court shall be a court of record and shall consist of a chief justice
and such other judge’s ass his Majesty may from time to time deem it necessary to appoint:

Provided that the judges so appointed together with any additional judges appointed by the
Governor-General in accordance with the following provisions of this chapter shall at no time
exceed in number such maximum number as His Majesty in Council may fix in relation to that
court.
(2) Every judge of a High Court shall be appointed by His Majesty by warrant under the Royal
Sign manual and shall hold office until he attains the age of sixty years:

Provided that—

A judge may by resignation under his hand addressed to the Governor resign his office;

A judge may be removed from his office by His Majesty

By warrant under the Royal Sign Manual on the ground of misbehaviour or of infirmity of mind
or body, if the Judicial Committee of the Privy Council, on reference being made to them by His
Majesty, report that the judge ought on any such ground to be removed

(3) A person shall not be qualified for appointment as a judge of a High Court unless he-

(a) is a barrister of England or northern Ireland, of at least ten years standing, or a member of the
faculty of Advocates in Scotland of at least ten years standing; or

(b) is a member of the Indian Civil Service of at least ten years standing, who has for at least
three years served as, or exercised the powers of , a district judge; or

(c) has for at least five years held a judicial office in British India not inferior to that of a
subordinate judge, or judge of a small cause court; or

The new court were mentioned therein in lieu of the court or courts so replaced

(2) The provisions of this chapter shall apply to every High Court in British India

Some important provisions of the Act have been explained below:

THE NUMBER OF JUDGES:

The Indian High Courts Act, 1911, had insisted that the maximum number of judges in the High
Court would be twenty. However, the Act of 1935 had cancelled this numerical and gave
complete authority to the King in Council to fix the number of judges for each of the High
Courts from time to time. This induced a certain type of flexibility with regard to the number of
judges which could be fixed for a High Court. A judge of the High Court was to be appointed by
the King through a warrant, but the power to appoint the additional judges temporarily for a
maximum period of two years when a judge or the Chief Justice fell vacant, or there was a
temporary increase in the business of a High Court was given to the Governor General. The total
number of judges in a High Court was not, however, to exceed the maximum fixed period for the
Court by the King in Council

APPOINTMENT:
Before the period of 1935, the judges were appointed by Letters Patent issued by the Sovereign
in England. There was no fixed period of tenure that existed for the judges, but the judges used to
retire at the age of sixty. It is a well known fact, that under the Constitutional Law, judges hold
their office during good behavior and they can’t be removed by the Crown except when both the
houses of Parliament present an address to the effect. This principle was established through the
Act of Settlement, 1701. The main aim of this principle is to seek independence between the
judiciary and the executive. However, this principle was never adapted by the Indian laws. The
judges held their office in accordance with the pleasure of the Crown. This indicated that the
High Court judges could be removed at any point of time. It is important to note, however, that
there has been no known case till date of a High Court judge ever having being removed from his
office in exercise of the Crown’s pleasure. The Act of 1935 tried to formalize the judicial
independence and gave it a new legal tenor. Hence it has now been laid down that a High Court
judge would hold hid office until he attains the age of sixty. 1 He can only be removed by the
Crown on the grounds of misbehavior or of infirmity of mind or body. It was in this way that the
High Court Judges got a security of tenure as well as in their prestige.

Right since 1861, only the barristers of five years standing were qualified to be appointed as
High Court judges and the advocates of ten years could also be appointed. This process was seen
to be very illogical and discriminating towards many of the Indian lawyers. The Act however,
abandoned this rule and improvised it, through which, barristers and advocates of ten years
standing were qualified for the appointment of high Court judges. Earlier, there existed a rule

1
Chapter VIII
wherein not less than one third of the judges of a High Court must be barristers and at least one
third of the judges must be civil servants. But this caused a great deal of administrative
inconvenience and weakened the possibility of appointing learned and educated to fill in as
judicial offices of trust. If there happened to be a vacancy, then the place was to be filled with a
barrister, although there might exist of a number of well educated civil servants who could have
been appointed. The correct quota system came in the way of a proper selection of High Court
judges. It was also observed that if there were quota system for the barristers and civil servants
then there would be no reason why there should not e a quota system for the Indian lawyers as
well who deserved it like any other individual. But then again, his would create a lot more
difficulties in the way of selecting the right persons to be appointed as High Court judges.

The appointing authority would could now select a suitable person from any of the qualified
categories for appointment of High Court judges. The Indian public opinion seemed to be that
they were very unhappy with the view that civil servants could be appointed as High Court
judges. The main issue that arose against them was that since they had already been executive
officers, they the mind and thoughts of that of an executive which they could not do away with
even after being appointed as a High Court judge. Consciously or unconsciously, they had a bias
in favor of the executive. In England, the judges are recruited from the bar and no civil servant
shall ever sit as a judge. There seemed to exist a good deal of criticism against the institution of
civilian judges. The British Government however was in no mood to accept this position. The
government did not want to deprive the Indian Civil Service of one of its glares and charms. The
Joint Committee had refused to be impressed with the arguments that the recruitment of civilian
judges in any way promoted close affinity or connection between the Bench and the executive or
that they have an executive mind. The committee in fact appreciated the judicial work of the
civilian judges. The system of thus having civilian judges on the High Court’s was thus
continued.

CHIEF JUSTICE:
The Indian High Courts Act had laid down that that the Chief Justice of a High Court must
always be a barrister. However, after 1915 he could either be a barrister or he could be an
advocate. The basic thought was to have a trained lawyer as a Chief Justice. Hence, this goes to
say that a civilian judge shall not be appointed as a Chief Justice of the High Court however
senior he may be. The Joint Committee thought of this is to be an “invidious decision” based on
“no reason” which altered with the King’s freedom of choice. Therefore this restriction was
cancelled, through the Act of 1935. Now, the civilian judges were allowed to be appointed as
Chief Justices of the High Courts. This step however should not be considered as wrong because
if a civilian could be appointed as a High Court Judge, there is no reason for not promoting him
to the position of a Chief Justice as well. The Indian public didn’t approve of this change.

The prohibition which was imposed on the original jurisdiction of the three High Courts to
take cognizance of all matters with regard to revenue was continued through the Act of 1935. No
chance was effected in the jurisdiction of and the law administered by any High Court, and the
powers of the judges to the administration of justice in the High Court. To ensure independence
of the judiciary from the executive, the Act provided that the salaries, allowances and pensions
of the High Courts would be fixed by the King upon their appointment and this could not be
changed to the disadvantage of the judge after his appointment.

ADMINISTARTIVE CONTROL OVER HIGH COURTS:

During the enactment of the Government of India Act, 1935, a very controversial question had
come up in the process of discussion. The question arose as to whether the administrative control
over the High Courts should be vested in the Federal Government or the Provincial Government.
Before the existence of this Act the administrative control over the High Courts was vested with
the Provincial Government. Due to certain historical reasons, the position of the Calcutta High
Court was a little different as compared to the other High Courts. There existed a connection
between the Calcutta High Court and the Government of India with regard to the Courts strength
and its financial requirements for buildings and other purposes rested with the Central
Government, while the extra expenditure that was involved fell upon the Bengal Government.
There was one rule which had favored the Central control so that there may be a complete
severance between the Court and the Provincial Government. It was said that the High Court
would thus be free from any kind of political influences which would inspire greater public
confidence in their impartiality. The other view was that the Provincial Autonomy implied that
the Provincial judiciary would be under the Provincial control. However, the Statutory
Commission favored the first view that the administrative control over the High Courts should be
vested under the Central Government. The Joint Committee had however gone in favor of the
second view. It said that the High Court being a Provincial institution should be under the
Provincial Government. The Act of 1935 carried out the Committee’s suggestion and placed the
administrative control of the High Court in the concerned Provincial Government. The Governor
was to, in his individual judgment assess the expenditures of the High Court which was to be
included in the Provincial Budget and the legislature had no right to reduce it at any cost. The
Act had further laid down that no discussion could take place in the legislature with respect to
the conduct of a High Court judge in the discharge of his duties. Since the Act had distributed the
powers between the Centre and the Provinces, it provided that that the jurisdiction could be
conferred on a High Court with respect to a matter by the legislature competent to the legislate
thereon.

The Government of India Act, 1935, thus had conferred upon the High Court’s a very
dignified status. Their independence was adequately safeguarded. It was ensured that they be in a
position to discharge their judicial functions impartially and without any fear or favor. It is
therefore seen that since the appointment of the High Court judges were in the hands of the
Crown and the power to confer jurisdiction on the High Courts was divided between the Centre
and the Provinces, and the administrative control over the Court was vested with the Provincial
Government concerned, it would be right to conclude and say that the High Courts were neither
fully federalized nor were they fully provincialized.

APPEALS:
The Act had also made a provision for an appeal to the Federal Court from any judgment, decree
or final order of the High Court. It empowered the King to issue letters patent constituting a High
Court or reconstituting an existing High Court for that Province or part of it.2
2
Landmarks in Indian Legal and Constitutional History, V.D Kulshrestha
 OTHER HIGH COURTS ESTABLISHED

i. High Court at Nagpur:

The Judicial Commissioner’s Court for Central Provinces was replaced by the High Court at
Nagpur. The King had established it y letters patent dated 2nd January, 1936 under the
Government of India Act, 1935. Its jurisdiction and powers were similar to those of the
Allahabad High Court. After the reorganization of states in India, Nagpur was merged with
Maharashtra. The Madhya Pradesh High Court was shifted to Jabalpur with the bench at Gwalior
and Indore.

ii. High Court at Punjab:

Due to the partition of India into India and Pakistan the Lahore High Court was lost to India. To
meet the needs of the East Punjab Province, a new High Court was created under the High Court
order which was issued by the Government of India. The Court enjoyed similar powers and
jurisdiction as the Lahore High Court. This Court was later designated as the High Court of
Punjab and Haryana.

iii. High Court at Delhi:

Although Delhi is a Union Territory, being the capital of India it has its own importance. It is a
huge centre of trade and commerce in North India. Earlier Delhi fell under the jurisdiction of the
Punjab High Court. Later a circuit bench of the above mentioned Court was establi8shed in
Delhi. It was under the Delhi High Court act that a separate High Court had been created for
Delhi. A special feature of this Court is that it has original jurisdiction in the civil cases with the
valuation of over one lakh rupees.3

iv. High Court at Orissa:

Orissa got separated from Bihar as a Province in 1936 but it still continued to be a subject to the
jurisdiction of the Patna High Court before 1948. Under the Orissa High Court Act, 1948, a
separate High Court was created for Bihar after independence.

v. High Court at Andhra Pradesh:

With the new creation of the state of Andra Pradesh, the new High Court of Andhra was
established from the 1st of January, 1956. The Court had the same jurisdiction of the Madras high
Court.

3
Outlines of Indian Legal and Constitutional History, M.P Jain.
 CONCLUSION

The present day jurisdiction of the High Court’s is such that subject to the provisions of this part
of this Act, to the provisions of any Order in Council made under this is any other Act and to the
provision of any Act of the appropriate Legislature enacted by the powers conferred on that
Legislature by this Act, the jurisdiction of, and the law administered in, in any existing high
Court, and the respective power of the judges thereof in relation to the administration of justice
in the court, including any power to make rules of court and to regulate the sittings of the court
and the members thereof sitting alone or in division courts, shall be the same as immediately
before the commencement of Part III of this Act.

Until otherwise provided by Act of the appropriate Legislature, no High Court shall have original
jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the
collecting thereof according to the usage and practice of the country or of the law for the time
being in force.

The Majesty also has the power to reconstitute the High Courts. His Majesty, if the Chamber or
Chambers of the Legislature of any Province present an address in that behalf to the Governor of
the Province for submission to His Majesty, may by letters Patent Constitute a High Court or that
Province or any other part thereof or reconstitute in like manner any existing High Court for that
Province or any other part thereof, or, if there are two High Courts in that Province, amalgamate
those courts.

Where any Court is reconstituted, or two Courts are Amalgamated, as aforesaid, the letters patent
shall provide for the continuance in their respective offices of the existing judges, officers and
servants of the Court or Courts, and for the carrying on before the reconstituted Court or the new
Court of all pending matters, and may contain such other provisions as may appear to His
Majesty by reason of the reconstitution or amalgamation.

BIBLIOGRAPHY

• Landmarks in Indian Legal and Constitutional History, V.D Kulshrestha, Ninth Edition.

• Outlines of Indian Legal and Constitutional History, M.P Jain, Sixth Edition, Reprinted in

2007.