Topic-7

High Courts
Causes which led to the establishment
of High Courts
Dual system of Courts and its defects:-
Crowns Courts and Company's courts
SCs judges-barristers
Mofussil-not trained
Appointment of judges
Hierarchy of the courts
Application of laws
 Native-British
Procedure
Authority
Conflict between the two courts
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
Her Majestys authority
 It authorized Her Majesty to establish High
Courts by issuing latter patent to Presidency
towns where ever and whenever she deemed
fit.
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 years 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
 Not less than one third of judges in HC were
to be members of the civil service
The judges held their office during the
pleasure of her majesty
Jurisdiction
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
 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
 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
jurisdiction of HC
 The High Courts were given supervisory
powers over all courts subject to their
appellate jurisdiction
 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
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
or working for gain in the Presidency town.
 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.
 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
magistrate.
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
Privy council in England.
 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
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
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.
 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.
 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
Calcutta High Court
The High Court at Calcutta, known as the High Court of
Judicature at Fort 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 was formally
opened on 1st July, 1862, with Sir Barnes Peacock as its first
Chief Justice. Appointed on 2nd 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,
Madras.
The Bombay High Court
The Bombay High Court was inaugurated on
14th August, 1862. The High Court had an
original as well as appellate jurisdiction.
 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 by Letters Patent
granted by Queen Victoria.
The jurisdiction of the Madras High Court extends to Tamil
Nadu and 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
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 Majestys 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.
 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
administration of justice.
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
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.
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.
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.
 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.
 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.
 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.
 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
Justice.
 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.
 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
judgment, decree or order of a High Court.
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 States
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.
 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.
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
legilstature.
 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
Govt. of India Act 1935.
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.
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.
Appeals to the Privy Council during
1726- 1860
Appeals form three Crowns courts to the
Privy Council
The appeals from the Mayors 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
 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.
 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
 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.
 In 1797 Crown issued a Charter to establish
a Recorders 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
Bombay-with same provisions
 Two kinds of appeals from the Crowns Court
Appeals as a
matter of right Appeals by
when the special leave
prescribed of the Privy
conditions were Council
fulfilled
 Appeals from the Companys 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
for filing appeals
 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.
 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.
Pending appeals were transferred to the
Federal Court
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
from their training in English Law
 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
 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