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The Emergence And Evolution Of High Courts In India Before The Constitution Of India Came Into Effect

The history of High Courts in India traces back to the period of British Raj. The Britishers came to India as traders but soon established foothold over the Indian mainland and consequently became involved in the administration of the country.

East India Company Rule was abolished in India after the First War Of Independence in 1857, after which it was substituted by the direct Rule of the Crown in 1858.
Before the commencement of the Act, a double system of administration of Justice prevailed in India: on the one hand, there were the British Crown Courts and, on the other hand, the Company Courts.

The promulgation of Regulating Act of 1773 by the King of England paved the way for establishment of the Supreme Court of Judicature at Calcutta. The Letters of Patent was issued on March 26, 1774 to establish the Supreme Court of Judicature at Calcutta, as a Court of Record, with full power & authority to hear and determine all Complaints for any crimes and also to entertain, hear and determine any Suits or actions against any of His Majesty's subjects in Bengal, Bihar and Orissa. The Supreme Courts at Madras and Bombay was established by King George – III on 26 December 1800 and on 8 December 1823 respectively.

The Company Courts were the Mofussil Courts and the Diwani Adalats. This created many problems as the jurisdictions of the Company Courts and the Supreme Court were not clearly demarcated. Nor was there a clear relationship between these Courts.

Often, even the procedures and laws applied by these Courts were different; the Crown Courts followed English Laws while the Company Courts followed customs and local regulations made by the Company.

Hence, if a dispute concerning jurisdiction arose between the parties, the Government found itself in a challenging position. By the recommendation of the Second Law Commission, The India High Courts Act, 1861 was enacted to create High Courts for various provinces and abolished Supreme Courts at Calcutta, Madras and Bombay and also the Sadar Adalats in Presidency towns. These High Courts had the distinction of being the highest Courts for all cases till the creation of Federal Court of India under the Government of India Act 1935.

The Federal Court had jurisdiction to solve disputes between Provinces and Federal States and hear Appeal against Judgements from High Courts. After India attained independence in 1947, the Constitution of India came into being on January 26, 1950. The Supreme Court of India also came into existence and its first sitting was held on January 28, 1950.

Establishment Of The Indian High Courts / Indian High Courts Act, 1861
In the three Presidency towns of Calcutta, Madras and Bombay there were two existing Judicial systems for administering Justice i.e. the Supreme Court and the Sadar Diwani and Sadar Nizamat Adalat. This sort of Judicial administration was inconvenient for the inhabitants of the Presidencies. In fact, it often clashed and it resulted in conflicting decisions. Ultimately, this problem was resolved by the British Parliament by enacting the Indian High Courts Act, 1861.

The Indian High Courts Bill was moved by the Secretary of State Sir Charles Wood in the House of Commons on 6th June, 1861 and finally the Indian High Courts Act was passed by the British Parliament on 6th August, 1861. It was titled as:
An Act For Establishing High Courts Of Judicature in India". The Act consists of 19 Sections only. The Indian High Courts Act, 1861, abolished the Supreme Court and Sadar Adalat's in the Presidencies and the Act also empowered the Crown to issue Letter's Patent under the great Seal of the United Kingdom, to erect and establish High Court of Judicature at Calcutta, Madras and Bombay.

It further provided that the High Courts were to come into existence at such time as her Majesty might deem fit. Thus, on the establishment of the High Court, the Supreme Court, the Sadar Diwani Adalat and Sadar Nizamat Adalat at the concerned Presidency were to be abolished and the records and documents of these Courts so abolished were to become the records and documents of High Courts concerned.

The First High Court in British India was the High Court of Judicature at Fort William, also known as the High Court of Calcutta; it was established by the Letters Patent dated May 14, 1862, issued under the Indian High Courts Act, 1861. The Charters of the Bombay and Madras High Courts were ordered in June 1862.

The Three Charters contained identical provisions and established the High Courts' with similar powers and jurisdictions.
Each High Court consisted of a Chief Justice and other Puisne Judges not exceeding 15 in number.

Qualification Of Judges Of High Court:
A person could be appointed Judge of High Court if he was either:

  1. A Barrister of not less than Five Years Standing;
  2. A Member of the Covenanted Civil Service of at least 10 Year's Standing who had served as Zila Judge for at least 3 Years in that period;
  3. A Person having held Judicial Officer not inferior to that of Principal Ameen or Judge of a Small Cause Court for at least 5 Years;
  4. A Person who had been A Pleader of A Sadar Court or a High Court for at least 10 Years.

At least One Third of the Judges of the High Court, including the Chief Justice had to be Barristers and the other One Third of the Judges had to be members of the covenanted Civil Service. The Judges hold their Office during the pleasure of her Majesty.

Laws To Be Applied
The law which the High Court applied was same as applied by the Supreme Court i.e. English law. However, the High Court was allowed to use the principles of Justice, Equity and Good Conscience on the Appellate Side. In Criminal Law, it followed the Indian Panel Code, 1860. So far as procedural laws are concerned the High Court's followed Civil and Criminal Codes.

Jurisdiction Of The High Court's
The Jurisdiction of each High Court depends on the Letters Patent issued by her Majesty. She could give them power to exercise all Civil, Criminal, Intestate, Testamentary, Admiralty and Matrimonial Jurisdiction. She could also confer on them Original and Appellate Jurisdiction and all such powers and authority with respect to the administration of Justice in the Presidency, as she thought fit. Thus High Courts were given the following Original and Appellate Jurisdiction.

  1. Original Jurisdiction: The Court had Original Jurisdiction in the following matters:
    1. Civil Jurisdiction:
      The Original Civil Jurisdiction of the Court was of two types:
      1. Ordinary Civil Jurisdiction: The Ordinary Civil Jurisdiction extended to the town of Calcutta, Madras and Bombay and such local limit as from time to time could be prescribed by Law of a Competent Legislature in British India. All Suits of the value of Rs. 100 or more and which were not cognizable by the Small Court at Calcutta, Madras and Bombay were cognizable under High Courts.

        Further, the Ordinary Civil Jurisdiction could be invoked only if:
        • The movable property was situated within the town of Calcutta, Madras and Bombay;
        • The cause of action wholly or partly arose in Calcutta, Madras and Bombay;
        • The Defendant was carrying on business or working for gain in Calcutta, Madras and Bombay.
      2. Extra Ordinary Civil Jurisdiction
        Extra Ordinary Civil Jurisdiction provides that the High Court could call a case pending in any Lower Court subject to its superintendence and could decide that case itself. This Jurisdiction could be exercised in a case where the parties agreed to such exercise or the High Court thought it proper to impart Justice.
    2. Criminal Jurisdiction
      It is of two types also:
      1. Ordinary Original Criminal Jurisdiction:
        In exercise of its Ordinary Original Criminal Jurisdiction the High Court was empowered to try all persons brought before it in due course of law. This Jurisdiction was made available over the native criminals and crimes committed with the local limits of the Presidency towns and beyond this limit over the Britishers and Europeans as the Supreme Court used to enjoy the jurisdiction over them before the establishment of the High Court.
      2. Extra Ordinary Original Criminal Jurisdiction:
        The High Courts were to have extra Ordinary Original Criminal Jurisdiction which was not enjoyed by the High Court. Under this jurisdiction the High Court 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 the Advocate General or by any Magistrate or any other Officer specially empowered for that purpose.
  2. Revenue Jurisdiction
    The High Court was given Jurisdiction to hear Revenue Cases also which were precluded from the Jurisdiction of the Supreme Court by the Act of Settlement, 1781.
  3. Admiralty Jurisdiction
    The Admiralty and Vice-Admiralty Jurisdiction was also given to the High Court.
  4. Testamentary And Miscellaneous Jurisdiction
    The High Courts were given similar Testamentary, Intestate and Probate Jurisdiction as was enjoyed by the Supreme Court. It also worked as the Court of Words for the administration of the Estate and Persons (Lunatics, Idiots and Minors).
  5. Appellate Jurisdiction
    The Appellate Jurisdiction of the High Court was of two types:
    1. Civil Jurisdiction: The High Court could hear appeals in all cases authorised by any law or regulation.
    2. Criminal Jurisdiction: The High Court had Criminal Jurisdiction in all cases decided by the Subordinate Courts to it. It could also entertain Revisions against the decision of the Lower Court and Reference from them.

Appeals From High Court
An Appeal to Privy Council lay from Judgement of High Court in Civil Cases when the amount involved is Rs. 10, 000/- or more or if the High Court certified that the case is fit one for Appeal. And in case of Criminal Cases from its Original Jurisdiction or if the High Court certified that the case is fit one for Appeal.

The High Court was also to be a Court of Record; it was to exercise powers of superintendence over all Subordinate Courts. The Queen could also confer Original and Appellate Jurisdiction, and all such powers and authority to adjudicate Justice, as she thought fit. The Letters Patent could restrict the Original Jurisdiction of the Courts to the Presidency Towns.
The High Courts were given supervisory powers over all Courts subject to their Appellate Jurisdiction. They could call for returns from any Courts Subordinate to them or transfer any Suit or Appeal from one Court to another, and make General Rules for regulating the procedure of Lower Courts.

The British Monarchy was authorised to establish High Courts beyond the Presidency limits and could transfer any territory from the Jurisdiction of one High Court to another High Court.

The Ordinary And Extraordinary Jurisdictions Of The Calcutta High Court
While exercising Original jurisdiction, the High Court of Calcutta had the power to entertain Suits in which the cause of action arose within the local limits of Calcutta, or if at the time of institution of the Suit, the Defendant resided or carried on business or work for gain within the local limits of Calcutta.

The High Court could decide Suits that dealt with subject matters of dispute that were valued at not less than Rs. 100/-, as such matters were to be adjudicated by the Small Causes Courts. The High Court also had Original Criminal Jurisdiction to try cases involving persons residing within the Presidency Towns of Calcutta.

The High Court also had Extraordinary Jurisdiction to try offences committed by persons residing within the local limits of any Courts it had superintendence over. It had Appellate Jurisdiction over Criminal and Civil cases adjudicated by the Courts Subordinate to it; it also had the power to enrol and admit Advocates and Vakils, and was empowered to determine necessary qualifications for Pleaders, Advocates, and Vakils.

In Criminal Appeals, The Decision Of The High Court Was Final As There Was No Provision To Appeal Against Its Decisions.

However, in Civil matters, an Appeal would go to the Privy Council against a decision of the High Court if the value of the subject matter in dispute involved or exceeded Rs. 10, 000/-, or if the High Court certified the case as one fit for Appeal to the Privy Council. In addition to this appellate provision, an Appeal would lie before the Privy Council against any Decision or Order made by the High Court while exercising its Original Jurisdiction.
Subsequent Changes And The Government of India Act, 1915

Eventually, several other High Courts were established in the country. A High Court was established in Agra on March 17, 1868, which was ultimately shifted to Allahabad in 1875.
After the Indian High Courts Act, 1911 was passed, one significant change was that the number of Judges in the High Court was increased from 15 to 20. The Act also authorised the establishment of more High Courts, wherever and whenever it was deemed fit. It also empowered the Governor-General in Council to appoint additional Judges to the other High Courts for a period of two years.

On July 27, 1915, the British Parliament passed the Government of India Act, 1915. By this Act, some earlier provisions were repealed, and several changes relating to the composition and Jurisdiction of the High Courts were announced. The Act introduced a restriction on the Jurisdiction of the High Courts of Calcutta, Madras, and Bombay, laying down that they may not exercise any Original Jurisdiction in any matter concerning revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force. No reason was assigned for the introduction of this restriction.

All High Courts were to remain Courts of Record and had the power of superintendence over all Courts subject to their Appellate Jurisdiction. High Courts also had the power to frame Rules and Regulations penetrating the Subordinate Courts' functioning.

In case of disputes between the natives, the High Courts were to apply customary or personal law while deciding matters concerning succession and inheritance.

In case the parties were subject to different customs and personal laws, the Suit was to be adjudicated according to the Defendant's laws. The Act of 1915 also provided immunity to the Governor-General, Lieutenant Governor, Chief Commissioners, and the Government's Executive Council members from the Original Jurisdiction of the High Courts' if they did anything in their respective Official capacities. However, the persons mentioned above were not immune from liability in the event they committed offences of felony or treason.

In February 1916, a High Court at Patna was established; in the same year, a High Court at Nagpur was inaugurated. Then, in March 1919, a High Court at Lahore was instituted.
Jurisdictional And Procedural Changes Following The Government of India Act, 1935

With the enactment of the Government of India Act, 1935, all earlier enactments were repealed. Under this Act, each High Court was to be a Court of Record. Every High Court consisted of a Chief Justice and as many charges as prescribed by the British Monarchy. The Governor-General in Council appointed Judges of the High Court, and he was also empowered to appoint additional Judges. These Judges were to hold Office until they attained the age of 60 years. A Judge of a High Court could be removed from his post on grounds of incapacity of mind or body or misbehaviour only on the recommendation of the Privy Council.

Earlier, only English Barristers or Advocates of Scotland could become the Chief Justice of a High Court, but now, Indian Judges who had served the High Court for not less than Three Years could be appointed as its Chief Justice. Hence, finally, Indian members of the Bar had the chance to become the Chief Justice of a High Court.

The salaries and pensions of the Judges were to be fixed by the King, and it could not be allotted to their disadvantage without his approval.

The Jurisdiction of the High Courts' remained unchanged; they did not have Original Jurisdiction in Revenue matters. They were conferred the power to transfer cases suo moto from any of their Subordinate Courts on application by the parties.

Under the 1935 Act, appeals from the decisions of High Courts could be referred to a Federal Court provided that the relevant High Court certified that the case involved a 'Substantial Question Of Law'. Also, decisions of the High Court could be referred to a Federal Court without the Certificate of Fitness of the High Court if the value of the subject matter of a Civil Suit and dispute was not less than Rs. 50, 000/-.

Pre-Constitutional Writ Jurisdiction Of The High Courts
Before the enactment of the Constitution of India, all High Courts had the power to issue the Writ of Habeas Corpus throughout territories falling under their Original and Appellate Jurisdictions.

Only the High Courts of Calcutta, Madras and Bombay had the power to issue Other Writs. The Presidency High Courts' powers to issue Writs were limited to the territorial limits of Ordinary Civil Jurisdiction connected to matters which fell within that jurisdiction.

After the enactment of the Constitution of India, by virtue of Article 226, the High Courts are now empowered to issue writs against the State and its instrumentalities.

The Federal Court Of India
Reasons for the Establishment of Federal Court:
High Court was the highest Court in India, over it there was Privy Council but to approach the Privy Council required huge expenses and time of the litigants. Hence the establishment of the Federal Court was made necessary. Accordingly, in November, 1934, the Joint Select Committee of both the Houses of British Parliament in its Report recommend for the establishment of one Federal Court.

Thus, the British Parliament passed the Government of India Act, 1935. The Section 200 said Act provided for the establishment of a Federal Court in India. On October 01, 1937, the Federal Court came into being. The seat of the Court was the Chamber of Princes in the Parliament Building in Delhi. It was a Court of Record. Sir Maurice Gwyer was the 1st Chief Justice and the other Two Puisne Judges were Sir Mohammad Sulaiman and M.R. Jayakar. The Federal Court saved time and expenses of the litigants. It was also a convenience to the Indian's. Therefore, the Federal Court lessened the work load of the Privy Council.

Jurisdiction of the Federal Court
Under the Government of India Act, 1935 the Federal Court was given three kinds of jurisdiction:

  1. Original;
  2. Appellate;
  3. Advisory.

Authority Of the Law Laid Down By Federal Court
Section 212 of the Government of India Act, 1935 provided that, the Law declared by the Federal Court and any Judgement of the Privy Council will be binding on all the Courts in British India. Thus, the High Court and Subordinate Courts in British India were absolutely bound by the decision of the Privy Council and the Federal Court.

Expansion of Jurisdiction
In December, 1947 the Federal Court (Enlargement of Jurisdiction) Act, 1947 was passed. Its aim was to meet the growing national demand and satisfy public opinion in India. It enlarged the Appellate Jurisdiction of the Federal Court so as to hear Civil/Criminal Appeals from the High Courts to the Privy Council.

Abolition of Federal Court
Federal Court worked for a short period of 12 years. In place of Federal Court the Supreme Court of India was established on January 25, 1950 by the Abolition of the Privy Council Jurisdiction Act, 1949.

Written By: Dinesh Singh Chauhan, Advocate - J&K High Court of Judicature, Jammu.
Email: [email protected], [email protected]

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