INDORE INSTITUTE OF AW

F L
LAW UTE O
(AFFILIATED TO D.A.V.V. ANDNBCI STI T
, NEW
DELHI) RE I
N DO
SUBJECT – LEGAL HISTORY
D I , I
I M O
www.indoreinstituteoflaw.org

H U R
Presented by Madhuri Modi
A D
M
 LAW
F
B.A.L.L.B. IV(A&B) TI T UTE O
IN S
UNIT-III
IN DO RE
DI ,
I MO
UR
M
LAW
A DH AND ADMINISTRATION IN
THE SUPREME COURT
 AW
CHAPTER - 20 TE O F L
TI T U
IN S
RE
, I N DO
The ODI
Government act 1935
RI M
DH U
MA
 INTRODUCTION
The Government of India Act 1935 was originally LA W
E O F
passed in August 1935 and is said toThave
I U T been the
longest (British) Act of ParliamentIN STever enacted by
O RE
that time. This can be, I N D
termed as the old version of
O D I
present Indian
I M Constitution as most of the
H U
provisionsRin the Indian constitution is borrowed
A D
M this Act of 1935. It was the British version of
from
Indian Constitution
  The most significant aspects of the Act were:
LA W
O
The introduction of direct elections, thus increasing
E F the
I
franchise from seven million to thirty-five T U T
million people
IN ST
O E
a partial reorganization of theRprovinces, Sindh was
separated from Bombay, , I N D
Bihar and Orissa was split into
O D I
R I M
separate provinces of Bihar and Orissa, Burma was
H
completely
D U separated from India, Aden was also
M A
detached from India, and established as a separate
Crown colony. 
Membership of the provincial assemblies was altered so
as to include more elected Indian representatives, who W
F LA
were now able to form majorities and be appointed
TE O to
form governments the establishmentTof I TaUFederal
IN S
Court. However, the degree of
O REautonomy introduced at
the provincial level was, I N D
subject to important
O D I
limitations: the
I M provincial Governors retained important
reserve H U R
powers, and the British authorities also
A D
M
retained a right to suspend responsible government.
The parts of the Act intended to
establish the Federation of India never LAW
E O F
came into operation, due to I T UT
opposition
IN ST
from rulers of the princely
O RE states. The
, I N D
remainingMparts
O I
D of the Act came into
U R I
force
A DHin 1937, when the first elections
M
under the Act were also held.
Indians had increasingly been demanding a
greater role in the government of their countryAW
F L
since the late 19th century. The Indian TE O
TI T U
contribution to the British warNeffort
I S during the
First World War meantDthat O REeven the more
I , I N
O D
conservative elements in the British political
R I
establishment M felt the necessity of constitutional
D H U
M A
change, resulting in the Government of India Act
1919.
That Act introduced a novel system of
government known as provincial "dyarchy", Ai.e., W
F L
certain areas of government (such asTE O
education) were placed in the TI T
hands
U of
IN S
ministers responsible O
to R E
the provincial
, I N D
legislature, while
O DIothers (such as public order
R I M
D H U
and finance) were retained in the hands of
M A
officials responsible to the British-appointed
provincial Governor.
While the Act was a reflection of the demand for a greater
role in government by Indians, it was also very much a
reflection of British fears about what that role might mean L AW in
practice for India (and of course for British interests E O F
I T U T
there).The act of 1935 in provided for the
I N S T federal structure,
distribution of powers, provincial
O R E
autonomy, responsible
, I
form of government, bicameral N D legislature, emergency power
of Governor General.O I
DThe experiment with dyarchy proved
R I M
D H U
unsatisfactory. A particular frustration for Indian politicians
A
M that even for those areas over which they had gained
was
nominal control, the "purse strings" were still in the hands of
British officialdom.
The intention had been that a review of India's
constitutional arrangements and those princely statesW
F LA
that were willing to accede to it. However, division
T E O
between Congress and Muslim representatives
T I T U proved
IN S
to be a major factor in preventing
O RE agreement as to
much of the important , I N D
detail of how federation would
O D I
work in practice.
I M Against this practice, the new
H U R
Conservative-dominated National Government in
A D
M
London decided to go ahead with drafting its own
proposals (the white paper).
A joint parliamentary select committee, chaired
by Lord Linlithgow, reviewed the white paperLAW
proposals at great length. On the basisTof E O F
this
I T U
T Bill was
white paper, the GovernmentIN ofSIndia
framed. At the committee O R E
stage and later, to
, I N D
D I
appease the diehards,
O the "safeguards" were
R I M
DH U
strengthened, and indirect elections were
M A
reinstated for the Central Legislative Assembly
(the central legislature's lower house).
The bill duly passed into law in August 1935. As a
result of this process, although the Government
L A W
of India Act 1935 was intended to go some E O F
way
I T UT
towards meeting Indian demands,
IN S T both the detail
RE
of the bill and the lackDofOIndian involvement in
I , I N
O D
drafting its contents meant that the Act met with
a lukewarmR I M
response at best in India, while still
DH U
M A
proving too radical for a significant element in
Britain.
 DEFINITION OF HIGH COURT BY THE
GOVERNMENT OF INDIA ACT 1935 W
F L A
O
1.Every High Court shall be a court of record andE shall
T
T U
consist of a chief justice and such otherTIjudges as His
Majesty may from time to timeRE N S
I it necessary to
deem
appoint: Provided that ItheN D O
judges so appointed together
I ,
Djudges appointed by the Governor-
with any additional
I M O
GeneralHinU Raccordance with the following provisions of this
A D
M
chapter shall at no time exceed in number such maximum
number as His Majesty in Council may fix in relation to
that court.
2. Every judge of a High Court shall be appointed by His
Majesty by warrant under the Royal Sign Manual and shall
A
hold office until he attains the age of sixty years : Provided
L W
that- E O F
I T UT
a)a judge may by resignation under his hand
N ST addressed to the
Governor resign his office ; RE I
b)a judge may be removed N D O
from his office by His Majesty by
D I , I
warrant under the
I M O Royal Sign Manual on the ground of
U R
misbehaviour
H or of infirmity of mind or body, if the Judicial
A D
Committee of the Privy Council, on reference being made to
M
them by His Majesty, report that the judge ought on any
such ground to be removed.
3. A person shall not be qualified for appointment as
a judge of a High Court unless he-
LA W
a)is a barrister of England or Northern Ireland,
E O F of at
least ten years standing, or a member I T UTof the
IN ST
Faculty of Advocates in Scotland
RE of at least ten
years standing ; orI, IND
O
O D
b)is a member
R I Mof the Indian Civil Service of at least
U
DH standing, who has for at least three years
tenAyears
M
served as, or exercised the powers of, a district
judge; or
c)has for at least five years held a judicial office in British
India not inferior to that of a subordinate judge, or judge of
LAW
a small cause court;
E O F
d)has for at least ten years been a pleader of U
I T T
any High Court,
or of two or more such Courts in PART
IN S T
IX. succession -cont.
Provided that a person shall O R
not,Eunless he is, or when first
, I N
appointed to judicial Ioffice
Dwas, a barrister, a member of
O D
the Faculty of
R I M
Advocates or a pleader, be qualified for
H U
appointment
D as Chief Justice of any High Court constituted
M A
by letters patent until he has served for not less than three
years as a judge of a High Court.
d)In computing for the purposes of this subsection the
standing of a barrister or a member of the Faculty of
Advocates, or the period during which a person has been L AWa
pleader, any period during which the person has E O F
held judicial
I T UT
IN ST
office after he became a barrister, a member of the Faculty
of Advocates, or a pleader, as the
O R Ecase may be, shall be
included. , I N D
O D
4.Every person appointed
I to be a judge of a High Court shall,
R I M
before HheUenters upon his office, make and subscribe before
A D
M Governor or some person appointed by him an oath
the
according to the form set out in that behalf in the Fourth
Schedule to this Act.
MAIN FEATURES OF THE ACT ON
HIGH COURT FLAW
E O
 In 1935, the British parliament enacted the Government
T of
T I T U
IN S
India Act which sought to remodel the constitution of the
Country on federal lines. The act O R E
contained a number of
provisions regulating the , I N D
composition, constitution and
O D I
R M
working of the IHigh Courts. While the Act provided generally
D H U
that jurisdiction of the High Courts would continue to be the
A
M as it had been before its commencement, nevertheless,
same
it affected certain notable changes in the constitution of High
Courts.
According to this Act, courts shall in relation to British India be
deemed to be High Courts for the purposes of this Act, that is to say,
the High Courts in Calcutta, Madras, Bombay, Allahabad, Lahore, LAW
E O
and Patna, the Chief Court in Oudh, the Judicial Commissioner's
F
I T U T
I N ST
Courts in the Central Provinces and Berar, in the North-West
Frontier Province and in Sind, any other
O R E court in British India
N
constituted or reconstitutedIunder
, D this chapter as a High Court, and
any other comparable O I
D in British India which His Majesty in
court
Council mayU R I
declareM to be a High Court for the purposes of this Act :
A D
Provided H
that, if provision has been made before the
M
commencement of Part III of this Act for the establishment of a High
Court to replace any court or courts mentioned in this subsection,
Under the section 220 of this Act, every High Court
shall be a court of record and shall consist of a chief W
justice and such other judges as His Majesty may F LA
from
TE O
time to time deem it necessary to appoint:
TI T U Provided
that the judges so appointedRtogetherIN S with any
O E
additional judges appointed
, I N D by the Governor-General
in accordanceM O
with
I
Dthe following provisions of this
U R
chapterHshall
I at no time exceed in number such
A D
M
maximum number as His Majesty in Council may fix in
relation to that court.
 NUMBER OF JUDGES
The Indian High Courts Act, 1911, has fixed the F LAW
maximum number of the judges in a HighUCourt T E O at 20.
The Act of 1935 dropped this numerical ST I T ceiling and gave
E IN
O
authority to the king-in-council
D R to fix the number of
I , I N
judges for each High
O D Court from time to time. In this
way, a kindR I
of M
flexibility was introduced regarding the
H U
D of judges which could be fixed for High Court 
A
number
M
from time to time keeping in view the load of work
therein.
 A judge of High Court was to be appointed by His
Majesty by warrant under the Royal Sign Manual, butW
power was given to the Governor-General-in –Council F LA
T E O
to appoint additional judges temporarily
T I T U
for a
maximum period of two years Ewhen I S
N a judge or Chief
D O R
Justice of a High CourtIN was unable to function, or the
I ,
Dor the office of the Chief Justice fell
I M O
office of the judges
U
vacant,Hor Ra High Court was not, however, to exceed the
A D
M
maximum fixed for the Court by the King-in-Council as
mentioned.
 APPOINTMENT OF JUDGES
LAW
Till 1935, The judges of the High Court were
E O F
appointed by the letters Patent issued I T UTby the
IN ST
Sovereign in England and Rused
O E to hold the office
during His Majesty’s , I N D
pleasure.  There was no
O DI
statutorilyR I M
fixed age of retirement but under the
termsD H U
of their appointment the judges used to
M A
retire at the age of sixty.
In England, it is very well established principle of
Constitutional law that the judges hold their office during
good behaviour and that they cannot be removed by F theLAW
Crown except only when both Houses of the Parliament T E O
TI T U
I S
present an address to that effect. TheNprinciple was
established in England by the Act O R E
of Settlement by the Act of
, I N D
Settlement,1701. The Act
O DI of 1935, however sought to
R M
formalise the Iconvention of judicial independence by giving it
H U
a legalDtenor, and this constituted the major change in the
A
M position.it was now laid down that a High Court judge
existing
would hold his office up to the age of sixty years.
He could be removed earlier by His Majesty
only on the ground of misbehaviour or of LAW
E O F
infirmity of mind or body, if the Privy
I T UT Council,
on reference made to it byE HisI ST
N Majesty,
DO R
reported that theI,judges
I N ought to be removed
O D
on any such
R I M
ground. In this way, the High
CourtDH U
judges got a security of tenure in words
M A
as well as in essence. 
Every judge of a High Court shall be appointed by His Majesty
by warrant under the Royal Sign Manual and shall hold office
until he attains the age of sixty years, Provided that- F L A W
a)a judge may by resignation under his hand addressedT E O to the
T I T U
Governor resign his office ;
IN S
b)a judge may be removed from O R E
his office by His Majesty by
, I N D
warrant under the Royal
O D I Sign Manual on the ground of
misbehaviour
R I Mor of infirmity of mind or body, if the Judicial
H
Committee
D U of the Privy Council, on reference being made to
M A
them by His Majesty, report that the judge ought on any
such ground to be removed.
 A person shall not be qualified for appointment as a judge of a
High Court unless he is a barrister of England or Northern
Ireland, of at least ten years standing, or a member ofFthe LA W
Faculty of Advocates in Scotland of at least ten TE O
years standing
TI T U
or is a member of the Indian Civil Service IN S of at least ten years
standing, who has for at least three O R Eyears served as, or
exercised the powersD N D
of,I,aI district judge or has for at least five
I M
years held a judicialO office in British India not inferior to that of
H U R
A D
a subordinate judge, or judge of a small cause court or has for
at M
least ten years been a pleader of any High Court, or of two
or more such Courts . succession -cont.
Provided that a person shall not, unless he is, or when first
appointed to judicial office was, a barrister, a member of the
Faculty of Advocates or a pleader, be qualified for LA W
appointment as Chief Justice of any High Court T E O F
constituted by
T
letters patent until he has served for notSlessI T U
than three years
E
as a judge of a High Court. In computingIN for the purposes of
DO R
this subsection the standing
I , I N of a barrister or a member of the
O
Faculty of Advocates, Dor the period during which a person has
R I M
D H U
been a pleader, any period during which the person has held
A
M office after he became a barrister, a member of the
judicial
Faculty of Advocates, or a pleader, as the case may be, shall
be included.
Every person appointed to be a judge of a High Court shall,
before he enters upon his office, make and subscribe before
the Governor or some person appointed by him an oathLAW
O
according to the form set out in that behalf in theEFourth F
I T U T
IN ST
Schedule to this Act. The judges of the several High Courts
O E
shall of judges be entitled to suchRsalaries and allowances,
I N
including allowances for expenses
, D in respect of equipment and
O D I
travelling upon appointment, and to such rights in respect of
R I M
D H U
leave and pensions, as may from time to time be fixed by His
A
Majesty
M in Council: Provided that neither the salary of a judge,
nor his rights in respect of leave of absence or pension, shall be
varied to his disadvantage after his appointment.
Since 1861, the position had been that
while barristers of five year ‘ standing LAW
E O F
were qualified to be appointed I T UTas High
IN ST
Court judges, advocates O RE only of ten
, I N D
years’ standingO I
D could be so appointed.
R I M
ThisDH U
was illogical and constituted
M A
discrimination against the lawyers.
The Act of 1935 did away with this dichotomy
and introduced the rule that barristers and LAW
advocates of ten years’ standing were TtoE be O F
I T U
qualified for the appointmentIN asSTHigh Court
judges. A rule had prevailedO REsince the inception
, I N D
DI  not less than one-third of
of High Courts,Othat
the judgesR I M
of a High Court must be barristers, and
DH U
A
M least one-third of the judges must be civil
at
servants.
 APPOINTMENT OF ADDITIONAL JUDGES
 If the office of any other judge of a High Court becomes vacant, or
if any such judge appointed to act temporarily as a chief F L A W
justice, or
T
is by reason of absence, or for any other reason, unableE O to
TI T U
IN S
perform the duties of his office, the Governor- General may in his
discretion appoint a person dulyO R E for appointment as a
qualified
I
judge to act as a judge ofI,thatN D
court, and the person so appointed
O D
R I M
shall, unless the Governor-General in his discretion thinks fit to
D U
revoke hisHappointment, be deemed to be a judge of that court
A
Msome person appointed by His Majesty to the vacant office
until
has entered on the duties thereof; or until the permanent judge
has resumed his duties.
If by reason of any temporary increase in the business
of any High Court or by reason of arrears of work in any W
such court it appears to the Governor- GeneralOthat F A
L the
U TE
number of the judges of the court should
STI T be for the
time being increased, the Governor-
E IN General in his
O R
discretion may, subjectIN toDthe foregoing provisions of
D I ,
this chapter with
I M Orespect to the maximum number of
judges,H U R persons duly qualified for appointment
appoint
A D
asMjudges to be additional judges of the court for such
period not exceeding two years as he may specify.
 CHIEF JUSTICE
LA W
The Indian High Courts Act 1861, had laid E F
down
O
that the Chief Justice of a High Court I T U T
should
IN ST
always be a barrister or an O RE
advocate. The
underlying idea was , I N
to
Dhave a trained lawyer as
O DI
I M A civilian judge could not thus
the Chief RJustice.
DH U
be
M A
appointed as the Chief Justice of a High Court,
howsoever senior he might be.
 To ensure independence of the High Courts
from any executive interference in India, LAW
the
E O F
Act of 1935 provided that the Tsalaries,
I T UT
IN S
allowances, and pensions O R Eof High Court
judges would be , I N
fixed
D by His Majesty-in-
O D I
Council, R I M
upon their appointment, and that
DH U
A
these
M could not be varied to disadvantage of
a judge after  his appointment .
If the office of chief justice of a High Court becomes
vacant, or if any such chief justice is by reason of W
absence, or for any other reason, unable to perform F LAthe
T E O
duties of his office, those duties shall, until
T I T U some person
I
appointed by His Majesty to theE vacant S
N office has
DO R
entered on the duties thereof,
I , I N or until the chief justice
has resumed his O D as the case may be, be
duties,
R I M
performed
DH U by such one of the other judges of the court
A
asMthe Governor-General may in his discretion think fit
to appoint for the purpose.
The prohibition imposed in 1951 on the original jurisdiction
of the three High Courts to take cognisance of any matter
L AW
concerning revenue was continued by the act of 1935.
E O F Thus,
the historical anachronism which had come U
I T T
into being in
N S
1781 due to a clash of jurisdiction between
I T the companies
adalats and the Supreme Court, O R E
was continued even after
, I N D
180 years when all such
O D I chances of conflict had vanished.it
R I M
was in the nature of an antiquated fossil continued on the
statueD H U
book even though it was extremely anomalous and
M A
for which any historical justification had completely
disappeared  
 POWERS OF HIS MAJESTY
LA W
if the Chamber or Chambers of the LegislatureOof any
E F
Province present an address in that behalf I T U Tto the
IN S T
O E
Governor of the Province forRsubmission to His
Majesty by letters patent
, I N Dconstitute a High Court for
that ProvinceM O D I
or any part thereof or reconstitute in
UR I
A DH
like manner any existing High Court for that Province
M
or for any part thereof, or, where there are two High
Courts in that Province, those can be amalgamated.
It also say that, where any Court is reconstituted, or two
Courts are amalgamated, as aforesaid, the letters W
F L A
patent shall provide for the continuance in their
T E O
respective offices of the existing judges,T I T U
officers and
I N S
servants of the Court or Courts,
O R E and for the carrying on
before the reconstituted, I N D
Court or the new Court of all
O DI
pending matters,
I M and may contain such other provisions
as may H U R
appear to His Majesty to be necessary by reason
A D
Mthe reconstitution or amalgamation.
of
OTHER FEATURES OF HIGH COURT UDER
GOVERNMENT OF INDIA ACT 1935LAW
E O F
This Act provides that all the proceedings in the
I T U THigh Court
shall be in English. The administrative IN S T
expenses of a High
Court, including all salaries, D O R E
allowances and pensions payable
to or in respect of the I , I N
officers and servants of the court and
O D
I
the salaries and
R Mallowances of the judges of the court shall be
D
charged H U
upon the revenues of the Province, and any fees or
A
M moneys taken by the court shall form part of those
other
revenues.
 The Governor shall exercise his individual judgment as
to the amount to be included in respect of such W
expenses as aforesaid in any estimates of expenditure F LA
T E O
laid by him before the Legislature. Any T I T U
judge appointed
IN S
before the commencement ofRPart
O E III of this Act to any
High Court shall continue
, I N D
in office and shall be deemed
O D
to have been appointed
I under this Part of this Act, but
R I M
D H
shall not U
by virtue of this Act be required to relinquish
A
Moffice at any earlier age than he would have been
his
required so to do, if this Act had not been passed. 
Where a High Court exercises jurisdiction in relation to more than
one Province or in relation to a Province and an area not forming
part of a Province, references in this chapter to the Governor LA W
in
relation to the judges and expenses of a High Court E O
and
F
U T
IT be construed as
references to the revenues of the ProvinceST shall
references to the Governor and the E IN
revenues of the Province in
DO R
I , I N
which the Court has its principal seat, and the reference to the
O D of rules, forms and tables for
approval by the Governor
subordinate R I M
courts shall be construed as a reference to the
H U
D thereof by the Governor of the Province in which the
A
approval
M
subordinate court is situate, or, if it is situate in an area not
forming part of a Province, by the Governor-General.
Subject to the provisions of this Part of this Act, to the
provisions of any Order in Council made under this or any
other Act and to the provisions of any Act of the appropriateLA W
E O F
Legislature enacted by virtue of powers conferred
I T UT on that
Legislature by this Act, the jurisdictionNof,
I ST and the law
administered in, any existing HighO R E
Court, and the respective
, I N D
O D I
powers of the judges thereof in relation to the administration
of justice in the
R I M
court, including any power to make rules of
court D H
and Uto regulate the sittings of the court and of members
A
M sitting alone or in division courts, shall be the same as
thereof
immediately before the commencement of Part III of this Act.
 ADMINISTRATION CONTROL
OVER HIGH COURT OF LAW
U T E
A very controversial question which came up
S TI T for the time of
enactment of the Government of E I N
India, 1935, was whether
the administrative control overDO R
the High Courts should be
I , I N
vested in the Federal
O DGovernment or the provincial
Government. R I
UpMto the Act of 1935, administrative control
H U
overAaDHigh Court was vested with the provincial
M
Government. Act of 1935 also states that every High Court
shall have superintendence over all courts in.
India for the time being subject to its appellate
jurisdiction, and may do any of the following things, L AW
call for returns, to make and issue generalTrules E F
O and
T
prescribe forms for regulating the SpracticeI T U and
E IN
proceedings of such courts,
D O R
to prescribe forms in
which books, entries I , I N
and accounts shall be kept by
O D
the officers
R I M
of any such courts, to settle tables of fees
toAbe
U
DHallowed to the sheriff, attorneys, and all clerks
M
and officers of courts :
Provided that such rules, forms and tables shall
not be inconsistent with the provision of any LAW
E O F
law for the time being in force, and I T UT
shall require
the previous approval of the IN ST
Governor. Nothing
O RE
in this section shall, Ibe
N Dconstrued as giving to a
O D I
High CourtI any
M jurisdiction to question any
H
judgmentU R of any inferior court which is not
A D
M
otherwise subject to appeal or revision.
Because of the historical reasons, the position
of the Calcutta High Court and the W
F LA
government of India insofar as decisions T E O
concerning the Court’s strength T I T
and
U its
IN S
establishment and N O R E
itsDfinancial requirements
I , I
D other purposes rested with
for buildingsMand
O
UR I
the Central
DH Government, while the extra
M A
expenditure involved by such decisions fell
upon Bengal Government
 CONCLUSION
The Act of 1935 carried out the committee’s suggestion
LA W
and placed the administrative control of the High E O F
Court in
I T U T
the concerned Provincial Government.
IN STNevertheless, the
R
Act took adequate care to safeguard
O E judicial
independence of the High , I N D
Courts and to immunize them
O D I
R I M
from local political pressures. It thus laid down that the
expenseDHofUa High Court would be charged upon the
M A
Provincial revenue.
The governor, in his individual judgement, was to assess
the expenditure of the High court which was to be W
F
included in the provincial budget and the legislative LA
T E O
could not reduce the same. Thus, theTHighI T U Court’s
IN S
O E
expenses were not subject toRlegislative vote. The Act
N
further laid down that, InoDdiscussion could take place in
the legislatureM O D
with
I
respect to the conduct of a High
R I
U in the discharge of his duties. These
H
CourtDjudge
A
M
safeguards along with the security to tenure and salary,
mentioned above.
 The Government of India Act, 1935, thus, conferred a very
dignified status on the High Courts. Their independence was
adequately safeguarded. It ensured that they be in aFpositionL AW
to discharge their judicial functions impartially TE O
and without
I T U
fear or favour. Since appointment ofIN ST Courts was in the
High
hands of the Crown, power D R E
toOconfer jurisdiction on the High
I
Court was divided between , I N centre and the provinces, and
O D
administrative
R I M
control over a High Court was vested in the
D
provincialH U
Government concerned, it would be correct to say
M A
that the High Courts were neither fully federalized nor fully
provincialized.
 LAW
. E O F
I T UT
IN ST
RE
, I N DO
O DI
R I M
.
DH U
MA