Establishment of High Court in India

Company kept judicial and executive functions separate since year 1793. But this system was not perfect; the appointment procedure of judges was faulty. Executive became judge and judge became executive vice versa because of lack of experience judiciary suffered as executive failed to do justice to judiciary. In 1868, company officers pointed out that native judges and pleaders who had received a regular legal education at the Calcutta University had a better knowledge than the civilian, executive judges.

Therefore Bengal officers proposed the establishment of a separate judicial service. Sir Henry Maine in 1868 condemned the [British] district judges as shamefully inefficient. In year 1872 Law member Stephen supported the idea of a separate judicial service but nothing happened. In 1924, the Rankin committee disfavored appointment of civilian as district judges, saying that the subordinate judges got more knowledge than civilian judges as subordinate judges got experience and legal education. But nothing happened.

The Indian High Courts Act 1861 – The Indian High Courts Act was passed by the British Parliament on the 6th August, 1861 and was titled as an act for establishing high courts of judicature in India. This legislation contained only 19 sections only. Its main function was to abolish the supreme courts and the Sadar Adalats in the three Presidencies and to establish the high courts in their place. The records and document of the various courts became the records and documents of the High Court concerned.

It gave power authority in Her Majesty to issue letters patent under the great seal of the United Kingdom, to erect and establish High courts of judicature at Calcutta, Madras and Bombay. Each High court was to consist of a chief justice and as many puisne judges not exceeding fifteen as her majesty might think to fit to appoint. Who became the high court judge or who was eligible to become the high court judge? Judges were selected out of the following categories of persons 1.

Barrister must have 5 years or more experience 2. members of the covenanted civil service of not less than ten years standing who should have served as Zillah judges for at least three years of that period 3. Persons who shall have held judicial office not inferior to that of principal sadar amen or judge of small cause court for a period of not less than five years. 4. Person who have been pleaders of a Sadar court or high court for a period of not less than ten years. But the rule was made that, not less than one third of the judges in a High court, including chief justice were to be barristers and not less than one-third of the judges were to be members of the covenanted civil service.

The judges of the High court were to be held office during her majesty’s pleasure. Each high court was to have and exercise all such civil and criminal admiralty and vice-admiralty, testamentary, intestate and matrimonial jurisdiction and original and appellate The High Court was to have superintendence over all courts subject to its appellate jurisdiction. It got power, authority to call for return, to transfer any suit or appeal from one court to another and to make and issue general rules for regulating the practice and proceedings of such courts.

The charter for the Calcutta high court was issued on May 14, 1862 and was published in Calcutta on the 1st July 1862 establishing the high court from the next day. The charter for the high courts of Bombay and Madras were issued on June 26, 1862 and these courts were inaugurated on the 14th and 15th august 1862. The Indian High Courts Act 1861 was a permissive legislation and gave power to the crown to establish High Courts in India. The charter for Calcutta high court was issued on May 14, 1862 and was published in Calcutta on the 1st July, 1862 establishing the High Court from the next day.

No law is perfect, as per this common natural rule, later it was found that charter of 1862 got the defects, problems thus the new charter was issued on 28th December 1865 with few modifications in the charter of 1862. The provisions of charter of Calcutta High Court – 1. The High court of Calcutta was constituted into a court of record. 2. The court was to have an ordinary original civil jurisdiction within the local limits Calcutta or within such local limits as may from time to time be declared and prescribed by any law by any competent legislative authority in India. 3.

High court took the place of Supreme Court which was abolished. 4. The High court even got the power to exercise try matrimonial causes of the non Christians on the civil side. 5. The High court got power under extraordinary original civil jurisdiction under which it was authorized to remove and try any suit pending in any court subject to its superintendence whenever it thought proper to do so, either on the agreement of the parties, or for the purpose of justice. This way High court got power to try cases of other courts when if High court felt that the lower court may not be able to do justice in that particular case.

6. Where plaintiff had several causes of action against a defendant such causes not being for immoveable property and if the High court had original jurisdiction in respect of one of such causes, the court could call on the defendant to show cause why the several causes of action be not joined together in one suit and the court could make such order for trial of such causes as it deemed fit. 7. The high court got power to hear appeals from civil courts subordinate to it, which is appellate civil jurisdiction.

8. A new provision was added in this appellate power, it was that whenever in a civil court judgment one of the judge or from division bench whenever such judges were equally divided in opinion, these types of appeals were known as letters patent appeals as they are based not on any law but on the specific clause in the charter. Under this provision the court could hear an appeal from its original civil jurisdiction. 9. Appeals in other civil cases lay from the High court to the Privy Council 10.

The high court enjoyed extraordinary original criminal jurisdiction over all persons residing in places within the jurisdiction of any court subject to its superintendence. 11. The High court got power, authority to try at its discretion any person brought before it on charges preferred by the advocate general or by any magistrate or any other officer specially empowered by the government in that behalf. The main purpose behind this provision was to enable the high court to hold trials for offences committed out of the presidency town.

12. High court got power to hear appeals as well as be a court of reference and revision from the subordinate criminal courts. 13. High court got power to transfer criminal cases or appeal from one court to another. 14. The High court was required to apply the Indian Penal code 1860 while acting as court of original criminal jurisdiction or a court of appeal, reference or revision. Point to be noted today also we Indians use the British India made laws. 15. High court was given jurisdiction as an insolvency court. 16.

High court got power to try all civil , criminal and maritime jurisdiction [ court of Admiralty ] 17. High court also enjoyed testamentary and intestate jurisdiction. 18. High court was supposed to follow civil procedure code 1859 and criminal procedure code 1861. With the establishment of High court in Presidency towns, it unified the Supreme Court and sadar diwani adalat. Supreme Court got power from the crown and sadar adalat got power from company, but establishment of High court unified both systems of law. This way first time all courts were brought under the one superior high court.

Before this Supreme Court and sadar adalat clashed with each other, but High court solved this problem. All the other High courts established in other Presidency towns enjoyed same powers with little difference Part 26 - Indian Legal History – Creation of Allahabad High court and The Indian High Courts act 1911 Reality views by sm – Wednesday, August 04, 2010 The Indian High courts act 1861 gave power, authority to her majesty to issue letters patent to establish a high court for any area, territories not included within the local jurisdiction of another High court. Meaning of Letters Patent –

Letters patent is a type of legal instrument in the form of an open letter issued by monarch or government ,granting an office , right , monopoly, title or status to a person or to some entity such as corporation. Letters patent are used for the creation of corporations or government offices. In the United Kingdom letters patent are issued under the prerogative powers of the head of state, royal prerogative, this is a type of legislation without the consent of the parliament. Letter patent may be used to grant assent to legislation. Majesty meaning – Majesty means –

• A royal personage. • The greatness and dignity of a sovereign • Supreme authority or power: the majesty of the law. Majesty is Used with His, Her, or Your as a title and form of address for a sovereign. The territorial jurisdiction of the Calcutta high court was confined to Bengal, Bihar and Orissa and did not extend to the North western Provinces where Sadar adalats continuded to function as usual. On March 17 Queen Victoria issued a charter and a High Court was established at Agra for the North Western Provinces which abolished the sadar diwani adalat and the sadar nizamat adalat.

The court started its working on June 11, 1886 and was shifted to Allahabad in 1875 which was known as High court of Judicature at Allahabad. The powers of this High court were similar to the high court of Calcutta. In 1865 in Oudh a non- regulation territory a judicial commissioners court was established. Oudh civil courts act 1877 declared a judicial commissioners court as highest court of appeal for Oudh. In 1925, U. P. Legislature passed the Oudh Courts act 1925 and gave status of chief court to the judicial commissioner’s court as per the demand of Oudh talukdars and population.

That time Utter Pradesh was known as united provinces. That time 2 separate courts of appeal functioned one at Allahabad and other at Lucknow. After Independence on July 26, 1948, the territorial jurisdiction of the Allahabad High court was augmented by the amalgamation of the Oudh chief court with it. The Allahabad High Court however maintains a bench at Lucknow also. The Indian High courts act 1911 modified few provisions of the Indian high courts act 1861. The act of 1861 fixed the number of High court judges at 15 excluding the chief justice.

The act of 1911 increased the number of High court judges at 20 including chief justice. The act of 1861 allowed establishing another High court in an area which does not come under the local jurisdiction of the other High court. The act of 1911 modified this provision and gave power to the crown to establish additional or High courts in any territory within his majesty’s dominions in India which changed the local jurisdiction of High court. The act also fix that the salaries of the Judges or temporary judges were to be paid out of the revenues of India.