Indian High Court Act 1861

The Government of India Act 1858 was an Act of

the Parliament of the United Kingdom (21 & 22
Vict. c. 106) passed on 2 August 1858. Its
provisions called for the liquidation of the British
Firstwas
of dependence East India Company (who had up to this point
been ruling British India under the auspices of
↑ Parliament) and the transference of its functions

ish
Indian Rebellion 105 to the British Crown.
of Indian High GustAct 1850
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Before passing of the Indian High Courts Act, 1861,

there existed dual system of courts in India, namely,
the Crown's Courts and the Company's Courts.

British Crown Court Company Court(EIC)

Supreme Court:- Sadar Nizamat Adalat

Calcutta,Bombay,madras Sadar Diwani Adalat
 British Crown Court Company Court(EIC)

Supreme Court:- Sadar Nizamat Adalat

Calcutta,Bombay,madras Sadar Diwani Adalat

The Supreme Court consisted of professional Judges of the Company's Adalats were
lawyers as Judges and only those who were mostly lay persons without any professional
Barristers of atleast five years standing could or legal experience.
be appointed as a Judge of this Court

There was no hierarchy of courts in there was a regular hierarchy of civil and criminal
Crown's Court courts in the Company's judicial arrangement.

but the Supreme Court had both, original The Sadar Diwani Adalat and the Sadar
and appellate jurisdiction. Nizamat Adalat of the Company had only
appellate jurisdiction

11/
The Supreme Court applied English law The Company's Courts applied native laws for
in deciding civil and criminal cases. deciding cases relating to inheritance,
succession, contract etc.

The Supreme Court mostly followed Company's Courts mostly followed the
English law of evidence as far as possible. customary law of evidence as derived from
Hedaya and applied Anglo-Mohammedan law in
deciding criminal cases.

Problem:- Supreme Court and Sadar Adalat created great confusion and conflict
Problem-solution:- Indian High Court Act 1861

Indian High Court Act 1861

The Indian High Courts Act of 1861 was an act of the Parliament of the United Kingdom
authorize the Crown to create High Courts in the Indian colony.

Queen Victoria created the High Courts in Calcutta, Madras, and Bombay by Letters Patent in 1862

• By Indian High Courts Act 1861, the Supreme & Sadar Diwani Adalat were amalgamated.

• The High Courts of Calcutta, Madras and Bombay were established by Indian High Courts Act 1861.

• Indian High Courts Act, 1861 did not by itself create and establish the High Courts in India.

The objective of this act was to effect a fusion of the Supreme Courts and the Sadar Adalats in the three
Presidencies and this was to be achieved by issuing Letter Patent.

• The jurisdiction and powers exercised by these courts was to be assumed by the High Courts.
 Constitution High Courts

The High Court’s was to consist of a Chief Justice and other puisne judges not
exceeding 15 in number as her Majesty might from time to time think fit to appoint.

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 Supreme 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 I.P.C, 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.

Original jurisdiction: The court had original jurisdiction in the following matters:
(a) Civil Jurisdiction and
(b) Criminal Jurisdiction

(a) Civil Jurisdiction: The Original Civil Jurisdiction of the court was of two
types:-
 i. 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.

ii. 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

(b) Criminal Jurisdiction: It is of two types also:-

i. 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.

ii. 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 supertendance 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.

Revenue Jurisdiction:
The High Court was given jurisdiction to here revenue cases also which were precluded from the jurisdiction of the
Supreme Court by the Act of Settlement, 1781.

Admiralty Jurisdiction:
The admiralty and vice-admiralty jurisdiction was also given to the high court.

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).

Appellate Jurisdiction: The appellate jurisdiction of the High Court was of two types:-
(a) Civil Jurisdiction: The High Court could hear appeals in all cases authorised by any law or regulation.

(b) 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.

FEATURES OF THE ACT

• The Charter of High Court of Calcutta was issued on 14th May, 1862 and Madras and
Bombay was issued on June 26, 1862.
• So, the Calcutta High Court has the distinction of being the first High Court and one of
the three Chartered High Courts to be set up in India, along with the High Courts of
Bombay, Madras.
• High Court at Calcutta which was formerly known as High Court of Judicature at Fort
William was established on July 1, 1862. Sir Barnes Peacock was its first Chief Justice.
• On 2nd February, 1863, Justice Sumboo Nath Pandit was the first Indian to assume office
as a Judge of the Calcutta High Court.
• The Bombay High Court was inaugurated on 14th August, 1862.
• Indian High Court Act 1861 also gave power to set up other High Courts like the High
Courts of the Presidency Towns with similar powers.
• Under this power, a High Court was established in 1866 at High Court of Judicature for
the North-Western Provinces at Agra on 17 March 1866 by the Indian High Courts Act of
1861 replacing the Sadr Diwani Adalat.
• Sir Walter Morgan, Barrister-at-Law was appointed the first Chief Justice of the High
Court of North-Western Provinces. However it was shifted to Allahabad in 1869 and the
name was correspondingly changed to the High Court of Judicature at Allahabad from 11
March 1919.
 High Courts Act, 1911

High Courts Act, 1911 was passed whereby the maximum number of
Judges in each High Court was raised from 16 to 20.

The Act also empowered His Majesty to establish additional High Courts
and gave power to the Governor General to appoint additional Judges
for a period of two years.

A High court was established at Patna in 1916.

A High court was established at Patna in 1919.