CONTENTS

1. The History of Indian High Courts

2. The Indian High Court Act, 1861
3. Constitution
4. Jurisdiction
5. Appeals
6. Procedure
7. Establishment Of other High Courts
8. Conclusion
9. Bibliography

THE HISTORY OF INDIAN HIGH COURTS

Prior to the passing of Indian High court Act, 1861, there existed dual system of
Courts in India, namely, the Crowns Courts and the Companys Courts. The
Supreme Courts established in the Presidency towns of Calcutta, Madras and
Bombay were the Courts of the British crown while the Adalats established in the
Mofussil areas were the Courts of the East India Company. The Courts had two
different sets of organizations jurisdictions and power. The functioning of Courts
in the presidency towns was different from that of the Mofussils of which they
were capitals. The existence of two parallel sets of Courts namely, the Supreme
Court and the Sadar Adalats in the Presidency Towns created great confusion and
uncertainty about their respective jurisdictions. The Crowns Courts and the
Companys Courts mainly differed in following aspects.
1. The Supreme Court consisted of professional lawyers as Judges and only
those who were Barristers of at least five years standing could be appointed
as a judge of this court but the judges of the Companys Adalats were mostly
lay persons without any professional or legal experience.
2. The Judges appointed in the Supreme Court held office during Crowns
pleasure whereas the Judges appointed in Companys Adalats held office
during Companys pleasure.
3. There was no hierarchy of Courts in Crowns Court but there was a regular
hierarchy of civil and criminal Courts in the Companys judicial
arrangement. The Sadar Diwani Adalat and the Sadar Nizamat Adalat of the
Company had only appellate jurisdiction but the Supreme Court had both,
original and appellate jurisdiction.
4. The laws applied by the two sets of Courts were different. The Supreme
Court applied English law in deciding civil and criminal cases. The
Companys Court applied native laws for deciding cases relating to
inheritance, succession, contract etc. However, consequent to the passing of
the Charter Act of 1833, the Supreme Court was also bound by the
regulations passed by the Governor-General-in-Council. Thus both the sets
of Courts were administering justice according to the laws and regulations
by the Governor General-in-Council after 1833.
5. The supreme court mostly followed English law of evidence as far as
possible whereas the Companys Court mostly followed the customary law
of evidence as derived from Hedaya and applied Anglo-Mohammedan law
in deciding criminal cases.

The uncertainty about the jurisdiction and the law applicable by these two
sets of Courts created conflict and confusion. Therefore, it was necessary to
merge these Courts into one single judicial system. In 1829, Sir Charles E.
Grey, the Chief Justice of the Supreme Court at Calcutta emphasized the
need for the fusion of these two rival Courts functioning in the Presidency
towns. The need for the amalgamation of these Courts was further
highlighted by Sir Metcalfe. The process of unification was, however,
completed in three distinct phases as mentioned below.
As a first step toward amalgamation of Crowns Court and the Companys
Court into a single judicial system, a Central Legislative Council was
established in India under the Charter Act of 1833. The laws and regulations
passed by the council were equally binding on all the Courts. Whether
established by the crow or the company. The result was that the Supreme
Court of the presidencies lost its privileged position. The act of 1833 also
provided for the appointment of a law commission to work out a uniform
system of laws and police for the country. Thus the act marks the beginning
of condification of laws in India.
In the second phase of unification of the Supreme Court and the Sadar
Adalats, the law commission stressed on the need for a codified procedural
law before such fusion. The bill for the fusion of these two sets of codes was
finally introduced by Sir Charles Worel in 1853. Consequently, a codified
civil procedure was enacted in 1859 and the Penal code was enacted in 1860.
In the third and the last stage, the East India Company was dissolved by the
Crowns Act of 1858, and the responsibility of the entire Government of
India, passed on to the British Crown. Finally Indian High Courts Act was
passed by British Parliament on August 16, 1861, by which the Supreme
Court and Sadar Adalats of presidency towns were merged together to be
knows as High Court of Judicature at Calcutta, Madras and Bombay.

THE INDIAN HIGH COURT ACT, 1861:

The Indian High Courts Act 1861 authorized the British Crown to establish
a High Court in each of the presidency towns. Thereupon, a Charter, was
issued by the British Crown in May 1862 to establish a High Court at
Calcutta and the Crown again issued a Charter in June 1862 for
establishment of a High Court at Madras and Bombay.
With the establishment of the High Court of Judicature at Fort William
(Kolkata), the existing Supreme Court and Sadar Adalats (Sadar diwani
adalat and Sadar Nizamat adalat) were abolished and their jurisdiction and
powers were transferred to the newly created High Court.

CONSTITUTION
Each High Court was to consist of a Chief Justice and not more than fifteen
puisne Judges, of whom not less than one-third were to be barristers of
minimum five years standing and one-third to be members of Companys
Civil Service having nit less than ten years standing including a minimum
experience of three years as a Zila Judge. The remaining Judges could be
either from the Bar or the civil services i.e. persons who had practiced as
pleaders in the Sadar Adalat or the Supreme Court for at least ten years or
persons who had judicial office not inferior to that of Principal Sadar Ameen
ar a Judge of a Small Cause Court for not less than Five years.
It was further, provided that the Judges of the Supreme Court and the Sadar
Adalats were automatically to become the Judges of the newly created High
Court without the necessity of a specific appointment and the Chief Justice
of the Supreme Court was to be Chief Justice of the High Court of Kolkata.
The Judges of the High Court were to hold office during Her Majestys
pleasure.

JURISDICTION:

The High Court was to be a Court of Record. It was to have original and
appellate jurisdiction over civil, criminal, admiralty, testamentary, intestate and
matrimonial causes. It was also to exercise power to superintendence over all
subordinate Courts. One of the Judges of the High court was to hold a separate
court for relief to in solvent debtors.
The original jurisdiction of the High Court was similar to that of the jurisdiction
exercised by the Supreme Court before the establishment of the High court.
However, unlike the earlier Supreme Court, its jurisdiction was limited to the local
limits of the Presidency Town. It was given the power to try and determine suits in
which the cause of action arose within the local limits of Kolkata or at the time of
commencement of the suit the defendant resided or carried on business or worked
for gain within the limits of Calcutta. It could decide all civil suits excepting those
in which the subject-matter involved was less the Rs. 100/- in value which were
triable by the Small Cause Court.
The High Court had original criminal jurisdiction over all persons residing within
the Presidency Town of Calcutta. It also had criminal jurisdiction over all
Britishers and Europeans residing in place within the jurisdiction of any court
which was subject to its superintendence.
The High Court was given appellate jurisdiction over civil as well as criminal cases
decided by the Courts subordinate to it. It was also to be court of reference and
revision for the subordinate criminal Courts which were subject to its
superintendence. In addition, it could transfer any criminal case from one court to
another court.
The High Court was also empowered to admit and enroll Advocate and Vakils. It
could also take disciplinary action against them. The qualification necessary for
advocates, pleaders and Attorneys were to be laid down by the High Court.

APPEALS:

The decision of the High Court was final in appeals from criminal cases and no
further appeal lay to any other court. However, in civil cases appeal from the
decision of the High Court lay to the Privy Council provided the pecuniary value
of the suit was not less than Rs. 10,000/- or the High Court certified the case as fit
one for appeal to the Privy Council. Besides, an appeal to the Privy Council was
allowed from any decision or order of the High Court made in exercise of its
original jurisdiction or in any case where any point of law was involved and the
case was certified fit to be taken to Privy Council.

PROCEDURE:
The charter establishing the High Court at Calcutta (now Kolkata) authorized the
High Court to make rules and orders for regulating all the proceedings including
civil, maritime, testamentary, intestate and matrimonial cases. However, in making
such rules and orders, it was to be guided by the Code of Criminal Procedure,
1859. In the exercise of its original criminal jurisdiction, it was to adopt the same
procedure as was followed by the Supreme Court immediately preceding it, and in
other criminal cases, the Code of Criminal Procedure, 1861, was to guide the
proceedings.

ESTABLISHMENT OF OTHER HIGH COURTS:

By the Crowns Letters Patent of June 26, 1862, the High Court of Bombay and
Madras were established in pursuance of the High Courts Act, 1861. The High
Courts Act, 1865 empowered the governor General-in-Council to alter the local
limits of the jurisdiction of the High Courts established under the High Courts Act
of 1861. This power of the Governor-General was subject to the approval of the
crown. The British Crown further issued a Letters Patent on March 17, 1866 under
the High Courts Act of 1861 establishing a High Court at Agra which was later
shifted to Allahbad in 1875. This High Court was not conferred any original civil
jurisdiction and jurisdiction in insolvency cases. It also did not have admiralty
jurisdiction. A Hig Court ws established at Patna in 1916 which was given
admiralty jurisdiction also. In 1919, a High Court was established at Lahore.

CONCLUSION:

The Indian High Courts Act of 1861 (24 & 25 Vict. c. 104) was an act of the
Parliament of the United Kingdom to authorize the Crown to create High Courts in
the Indian colony.[1] Queen Victoria created the High Courts in Calcutta, Madras,
and Bombay by Letters Patent in 1865. These High Courts would become the
precursors to the High Courts in the modern day India, Pakistan, and Bangladesh.
The Act was passed after the Indian Rebellion of 1857 and consolidated the
parallel legal system of the Crown and the East India Company. The Act abolished
the Supreme Courts at Calcutta, Madras, and Bombay; the Sadar Diwani Adalat
and the Sadar Nizamat Adalat at Calcutta; Sadar Adalat and Faujdari Adalat at
Madras; Sadar Diwani Adala and Faujdari Adalat at Bombay

BIBLIOGRAPHY:
1. Criminal Justice India Series: Punjab, 2002. Allied Publishers. 2002. p. 233.
ISBN 978-81-7764-490-6.
2. Wikipedia.com
3.

Indian Legal and Constitutional History: By Dr. N. V. Paranjape. Central

Law Agency, Allahbad p.133 ISBN 978-93-84852-00-9