INDIAN HIGH COURTS ACT,1861 :AN ANALYSIS

Submitted by
JUNIA K.R. LINDSEY
Reg. No. BC0180026

Name of the Guide

Dr. M. BRITTO STALIN, Ph.D.,
Assistant Professor

TAMIL NADU NATIONAL LAW UNIVERSITY

(A University established by Act No. 9 of 2012)
Tiruchirappalli
Tamil Nadu – 620 027

NOVEMBER – 2019
1|Page
M. BRITTO STALIN, Ph.D.

Assistant Professor in History

Tamil Nadu National Law University

Tiruchirappalli

Tamil Nadu – 620 009

CERTIFICATE

This is to certify that the project work entitled “INDIAN HIGH COURTS ACT,1861 :

AN ANALYSIS” is a bonafide record of the research work done by JUNIA K.R.

LINDSEY, under my supervision and guidance. It has not been submitted by any other

University for the award of any degree, diploma, associateship, fellowship or for any

other similar recognition.

Place: Tiruchirappalli
Date:
Signature of the Guide

2|Page
 DECLARATION
I, JUNIA K.R. LINDSEY, do hereby declare that the project entitled
“INDIAN HIGH COURTS ACT,1861 : AN ANALYSIS”submitted to
Tamil Nadu National Law School in partial fulfillment of requirement
for award of degree in Under Graduate in Law to Tamil Nadu National
Law School, Tiruchirappalli, is my original research work. It and has
not been formed basis for award of any degree or diploma or fellowship
or any other title to any other candidate of any university.

Counter Signed Signature of the Candidate

Project Guide

3|Page
 ACKNOWLEDGEMENT
At the outset, I take this opportunity to thank my Professor (DR.M. BRITTO

STALIN) from the bottom of my heart who have been of immense help during moments

of anxiety and torpidity while the project was taking its crucial shape.

Secondly, I convey my deepest regards to the Vice Chancellor (DR. KAMALA

SHANKARAN) and the administrative staff of TNNLS who held the project in high

esteem by providing reliable information in the form of library infrastructure and

database connections in times of need.

Thirdly, the contribution made by my parents and friends by foregoing their

precious time is unforgettable and highly solicited. Their valuable advice and timely

supervision paved the way for the successful completion of this project.

Finally, I thank the Almighty who gave me the courage and stamina to confront all

hurdles during the making of this project. Words aren’t sufficient to acknowledge the

tremendous contributions of various people involved in this project, as I know ‘Words are

Poor Comforters’. I once again wholeheartedly and earnestly thank all the people who

were involved directly or indirectly during this project making which helped me to come

out with flying colours.

JUNIA K.R. LINDSEY

BC0180026

4|Page
 CONTENT
Title Page

INTRODUCTION 6

HISTORY OF HIGH COURTS IN INDIA 7

ESTABLISHMENT OF HIGH COURTS IN 8

INDIA :WHEN AND HOW

COMPARISION BETWEEN THE THEN HIGH 9

COURTS AND MODERN DAY HIGH COURTS

JURISDICTION AND POWERS OF THE HIGH 11

COURTS

CONCLUSION 15

BIBLIOGRAPHY 15

5|Page
 INTRODUCTION :

The Indian High courts Act,1861 was first started by the British Parliament on August

16,1861. This Act gave the British Monarchy the power to build up courts in Calcutta,

Madras and Bombay rather than Supreme courts and Sardar Adalats. The principle objective

behind this was to expel the twofold arrangement of courts. The Calcutta High court was the

first high court set up on 2nd July,1862. The High Court in Calcutta was formerly called as

High Court Of Judicature. It was built majestically on Fort Williams. Sir Barnes Peacock

was the first Chief Justice of the High Court of Calcutta. This Act was authorized by the

Parliament of United Kingdom which made the Queen to sign permission for setting up High

Courts in the Indian colony as the British East India Company had invaded majority of India

and wanted the full power and control of India. Queen Victoria signed the permission

through the Letters Patent in 1862 to set up High Courts in Calcutta, Madras and Bombay.

These High Courts were the forerunners for the present modern day courts in Pakistan,

Bangladesh and other High Courts in India. The High Courts Act, 1861 was passed after the

uprising of Indian Rebellion, 1857. This Act brought together the legal systems of the Crown

and The East India Company together. This Act led way to the end of Supreme Courts In

Madras, Calcutta and Bombay. “This Act also abolished the Sadar Diwani Adalat and

the Sadar Nizamat Adalat at Calcutta; Sadar Adalat and Faujdari Adalat at Madras; Sadar

Diwani Adalat and Faujdari Adalat at Bombay”. Each High Court Consisted of One chief

Justice and not more than 15 Judges. All Judges were placed on the pleasure of the Crown.

6|Page
HISTORY OF HIGH COURTS IN INDIA:

The High courts of Bombay, Madras and Calcutta celebrated it’s centenary anniversary on

1962.The High Court at Calcutta, which was formerly known as the High Court of Judicature

located at Fort William, was brought into existence by the Letters Patent dated 14 th May,

1862, issued under the High Court's Act, 1861, which gave the jurisdiction and powers of the

High Court were to be characterized by Letters Patent. The High Court of Judicature at Fort

William was officially started on 1st July, 1862, with Sir Barnes Peacock as its first Chief

Justice. Delegated on 2nd February, 1863, Justice Sumboo Nath Pandit was the first Indian to

expect office as a Judge of the Calcutta High Court, followed by lawful illuminating

presences, like, Justice Dwarka Nath Mitter, Justice Ramesh Chandra Mitter, Sir Chunder

Madhab Ghosh, Sir Gooroodas Banerji, Sir Ashutosh Mookerjee and Justice P.B.

Chakravartti who became the first Indian to become the permanent chief justice of the

Calcutta High Court. The Calcutta High Court has the distinction of being the premier High

Court and one of the three Chartered High Courts to be set up in India, alongside the High

Courts of Bombay, Madras.1

The High Court of Judicature at Madras, one of the three High Courts in India established at

the Presidency Towns by Letters Patent approved by Her Majesty Queen Victoria, bearing

date 26th June 1862, is the most astounding Court in the State of Tamil Nadu, practicing

Original Jurisdiction over the City of Madras and Appellate Jurisdiction over the whole State

1
Calcutta Court, Calcutta High Court-History, www.calcuttahighcourt.gov.in

7|Page
just as extra-standard Original Jurisdiction, Civil and Criminal, under the Letters Patent and

Special Original Jurisdiction for the issue of writs under the Constitution of India. 2

The High Court of Bombay, which is the chartered High Court and one of the most

established High Courts in the Country. It has Appellate Jurisdiction over the State of

Maharashtra, Goa, Daman and Diu and Dadra and Nagar Haveli. Notwithstanding the

Principal Seat at Bombay, it has seats at Aurangabad, Nagpur, Panaji(Goa). 3

ESTABLISHMENT OF HIGH COURTS IN INDIA : WHY AND HOW

The high courts in India were established under the British rule, signed by Queen Victoria,

by letter patents, which brought the colonies of India under the British East India Company.

The system of High courts abolished the systems of the“Sadar Diwani Adalat and the Sadar

Nizamat Adalat at Calcutta; Sadar Adalat and Faujdari Adalat at Madras; Sadar Diwani

Adalat and Faujdari Adalat at Bombay.” Sadar Diwani Adalat was the Supreme Court of

Revenue in British India established at Calcutta by Warren Hastings in 1772. The Sadar

Nizamat Adalat was courts of criminal justice in Mughal and British India. These legal

systems were practiced under the hindu and muslim laws existing in India. The British

mainly wanted to take full control of India and therefore took law into its hand. The High

Courts Act, 1861 led way to the establishment of various other high courts in the state and

also in various countries such as Pakistan and Bangladesh. Under Section 5 of the Act,

judges served at the pleasure of Her Majesty. The chief justice had precedence over judges,

whereas judges had seniority based on appointment. “High courts may also enjoy original

2
Madras Court, Madras High court | History, www.hcmadras.tn.nic.in
3
Bombay court, Bombay High court – History, bombayhighcourt.nic.in

8|Page
jurisdiction in certain matters, if so designated specifically in a state or federal law.”The high

courts have both original and appellate jurisdiction which were derived from the supreme

court and the Sardar Diwani and Sardar Foujdari adalats. High court was established at the

high court of judicature for the north-western provinces at Agra on 17th march, 1866 by the

Indian High courts Act of 1861. This system replaced the then sardar diwani Adalat. Sir

Walter Morgan, Barrister at law was appointed as the first Chief Justice of the High Court of

the North western Provinces. This was shifted to Allahabad on 1869. This later came to be

known as “High Court of Judicature at Allahabad from 11th march, 1919.

COMPARISION BETWEEN THE MODERN DAY HIGH COURTS AND THE

EARLIER HIGH COURTS :

India has the oldest Judiciary in the world; no other legal system has such an old and ancient

legal systems or practices. The major factors that have changed from the then high courts and

now are the infrastructure, the religious views, and the main changes which can be seen are

related to the religious views of the then community and now. Earlier the land was governed

where the kings where the supreme authority and whatever the king said would be the final

decision. It was in a monarchy form of Rule. The judgments were given with accordance to

the religious views suggested by the King’s priests and counsels. It was merely based upon

hindu and muslim views which the English east india company wanted to eradicate. The

infrastructures of the then high courts were very aesthetic and gave legal vibes. When seen

today with modern developments the high courts today have become first class and have

adapted to the changes very well. Very few High courts such as Madras high court, Calcutta

High court are retaining its roots by not changing the exterior and by maintaining it how it
9|Page
was created 100 plus years ago. But even in these high courts the modern developments can

be seen where the way of functioning, the general rules change with accordance to time.

The old high courts were ruled with the pleasure of the Queen Victoria and were done

according to the wishes of the English East India Company. High courts today are fully

under the control of the central Government of India. On the whole the modern High courts

are not a sudden appearance; it is the evolution of the High courts since 1861 which has

paved way for the modern high courts now. When taken how the punishments were provided

earlier “Punishment was prescribed for causing damage to trees in city parks, to trees

providing shades, to trees bearing flowers and fruits and to trees in holy places.4” Now a

day’s Punishments even for heinous crimes are not that very effective. The concept of Justice

was taken from Dharma in Hindu religion, after the formation of high courts the judgments

were fully based upon the English law and even today even though the English law is fully

not used its roots can be seen in present day judgments. On the whole the olden high courts

and modern day high courts have its own pros and cons and one cannot completely decide if

modern day high courts are better than the earlier high courts or vice-versa.

The earlier high courts have adapted to the modern world and thus the modern day high

courts.

4
S.S. Shilwant, Legal and Constitutional History of India, New Delhi: Sanjay Prskashan, 2003, p.341.

10 | P a g e
 JURISDICTION OF THE HIGH COURTS IN INDIA :

The High courts in India have four types of Jurisdiction :

 Original Jurisdiction

 Writ Jurisdiction

 appellate Jurisdiction and

 Supervisory Jurisdiction.

The High court has advisory functions on matters relating to law or the constitution, if the

state government or the governor wishes so. The Powers of the High courts are classified

as :

 The powers of superintendence

 Powers to transfer cases to the high court

 Control over its officers and employees

The Jurisdiction of the high courts of India, Under article 9 of the Act, each High Court

has "all such powers and authority for and in relation to the administration of justice"

including original and appellate jurisdiction over civil, criminal, admiralty, vice-

admiralty, testamentary, intestate, and matrimonial matters.5

5
A.C. Banerjee, English law in india 237(abhinav publications)

11 | P a g e
 JURISDICTIONS:

 ORIGINAL JURISDICTION :

“There is no detailed description of the original jurisdiction of the high courts in India

however it has been accepted that the original jurisdiction is used by issuing writs to

anyone or any authority including the Government.” Article 266 talks about the

powers vested in the high courts to issue writs. It states, “Notwithstanding anything in

Article 32, every High Court shall have power, throughout the territories in relation to

which it exercises jurisdiction, to issue to any person or authority, including in

appropriate cases any Government, within those territories directions, orders or writs

including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto

and certiorari, or any of them for the enforcement of any of the rights conferred by part

III and for any other purpose”6

The original jurisdiction of the high courts also deals with issues relating to matrimonial

and contempt of court. High courts can punish for its own contempt.

 APPELLATE JURISDICTION :

The appellate Jurisdiction of high courts are valid for both civil and criminal cases.

When taken in civil cases the jurisdiction extends to the cases taken for trial in courts

of munsifs and district judges. For criminal cases it extends to the cases trialed by the

sessions and add. Seesions judges. The jurisdiction can be extended by the parliament

and the state legislature. The appellate jurisdiction of the high courts can also legislate

on matters in the concurrent list, however the union law prevails in case of conflict.

6
Article 266, Constitiution of India

12 | P a g e
  WRIT JURISDICTION :

“Article 226 enables the High Court with writ jurisdiction for the implementation of

fundamntal rights same as some other issue inside the domain.” The only major

difference between the supreme court and the high court is that the supreme court can

only issue writs with respect to fundamental rights whereas the high court can issue

writ with respect any matters.

 SUPERVISORY JURISDICTION :

High court has the power of superintendence over all courts and councils inside its

regional jurisdiction aside from military courts or tribunals. This jurisdiction also

has the power to transfer the cases from subordinate courts to itself (277).

POWERS :

POWER OF SUPRINTENDENCE:

“The high court has the power of suprintendence over all other courts and tribunals

except those which deals with the armed forces in the states.”The high court can call for

returns from the courts and tribunals. The high courts can prescribe forms , may issue

general rules and regulations for the proper functioning of such courts. This power has

majorly made the High court responsible for the maintaining of justice in the state. The

supreme court does not have the same powers as the high courts.

POWER TO TRANSFER CASES TO HIGH COURT :

“If the high court decides that any cases pending in any subordinate court includes a

question of law as to interpreting the constitution then the high court may dispose the
13 | P a g e
case or answer the said question of law then return the case to the subordinate court, with

the copy of any judgment and the subordinate court will thereof proceed to dispose the

case.” By giving high court these powers the law makers of our nation have played it safe

by saving the constitution by its interpretation at the subordinate levels.

The high courts also have to power to summon the records of any subordinate court if

necessary.

CONTROL OVER THE OFFICERS AND EMPLOYEES:

“The high court has the power to control its officers and the employees, the appointments

of the officers and the employees are made by the chief justice or other such judges with

the direction of the chief justice.” At times the governor appoints the employees and

officers for the high court. This power also has the power to suspend or dismiss any

officer or employee. The expenses, salaries, allowances and pensions are all charged with

the consolidated fund of the particular state.

On the whole the High court is a court of records therefore the decision taken by High

courts will be binded upon the subordinate courts also, the subordinate courts cannot

question the decisions of the high courts and must abide by whatever the high court says.

Some high courts have jurisdiction over the union territories, to make it effective few

rules and regulations are imposed to merge with that jurisdiction. If the high court has

power of jurisdiction over the union territories then the said state has no power to

decrease increase or abolish the jurisdiction of that particular high court. The high court

also has the powers to take up any cases from subordinate courts and to send any cases to

14 | P a g e
the lower courts and it can also question and examine the validity of the constitutional

interpretation.

CONCLUSION :

The high courts in India has its roots from time immemorial dating back to the mid 19th

century, the time when the British started invading India through the English east India

company. From then till now many high courts have come up in all the states in India

which is still successful in delivering its judgments in a very effective way. When seen

the history of high courts in India it can be seen that the British with the permission of

Queen Victoria the British east india company successfully established courts in India.

The jurisdiction of the high court holds the highest power in the country which holds the

responsibility of handling all the cases relating to the cases which questions the

constitutionality of the legal system. It also has the powers to take up and give away

cases from and to the Lower courts. Finally The high courts in India can be called as a

blend of ancient and modern legal systems which respects the age old tradition but is also

in par with the modern changes.

BIBLIOGRAPHY

 C. J. B. Larby. The International and Comparative Law Quarterly, Vol. 12, No. 3 (Jul.,

1963), pp. 1044-1048

 Prema Natarajan. Proceedings of the Indian History Congress, Vol. 39, Volume II (1978),

pp. 691-699

 AMIYA K. CHAUDHURI. The Indian Journal of Political Science, Vol. 38, No. 4 (Oct.-

Dec. '77), pp. 494-505

15 | P a g e
  Rameshwar Dayal. Journal of the Indian Law Institute, Vol. 4, No. 4 (Oct.-Dec., 1962),

pp. 537-551

16 | P a g e