High Courts in India: Second half of the 19th Century
Abolition of dual judicial system
The company’s government in British India was replaced by the direct rule of the Crown in 1858. Now, the efforts were made to abolish the dual system of courts which was defective in many respects. The respective jurisdiction of the Company’s Courts (i.e. Sadar Adalats) and the Supreme Courts was not clearly marked out nor a clear relationship was established between the two sets of courts. One followed the English law and the other followed the regulations made by the Company. Therefore, the dispute with respect to jurisdiction frequently arose which put the parties and the Government in awkward position.
Very often the two courts would assume jurisdiction on the same persons/subject-matter and would even give conflicting judgments. In Morton v Mehdi Ali Khan, for instance, the plaintiff, a resident of Calcutta, brought a suit against Khan, a resident of Oudh, in the Supreme Court for recovery of certain debts alleged to have been contracted by Khan’s servants at Calcutta. Khan was subjected to Court’s jurisdiction and his goods and properties in Calcutta seized. The Court assumed jurisdiction on the basis of ‘constructive inhabitancy’ which meant that if the person resident in mofussil had some property, agent or commercial transaction in Calcutta he was held to be a ‘constructive inhabitant’ of the town and thus amenable to the jurisdiction of Supreme Court in addition to that of adalats.
In 1829, Sir Metcalfe advocated merger of the two systems. Lord Bentick observed: ‘existence of two concurrent jurisdictions with the same limits is an anomaly which was productive of very considerable inconvenience as there had been cases in which opposite decisions had been come to by the Sadar Diwani Adalat and the Supreme Court on the same rights, supported by the same evidence’.
Sir Grey, Chief Justice of Calcutta Supreme Court said: ‘Lamentable as it is that such a feeling should exist, the exercise of the powers of one system is viewed with jealousy by those who are connected with other’.
In 1834, the Court of Directors observed: ‘A judicature utterly uncontrollable by the Government and on the contrary controlling the Government, recognizing the highest authorities of the State only as private individuals, and the tribunals which administer justice in all its forms to the great body of the people only as foreign tribunals, is surely an anomaly in the strictest sense of the word’.
Thus, opinion was slowly building up that in the interest of better administration of justice in India, it was desirable to consolidate the two judicial systems into one so that the legal knowledge of the English lawyers might be united with the intimate knowledge of the customs, habits and laws of the natives possessed by the judges of the adalats. Process of codification and the resultant Indian Penal Code, Cr. P.C., and Civil Procedure Code paved the way for unification of the two systems.
In 1858, the Second Law Commission was authorised to examine the judicial system working in India and to make suggestions to establish a uniform judicial system by amalgamating the dual system of courts. On the recommendation of the Commission, the Parliament passed the Indian High Courts Act, 1861, providing for the establishment of High Courts in the three presidencies (Bombay, Madras and Calcutta) in place of Supreme Courts and the Sadar Adalats.
The High Courts Act 1861
The Act titled as “an act for establishing High Courts of judicature in India”, authorized Her Majesty the Quern of England to establish High Courts by issuing Letters Patent to presidency town wherever and whenever she deemed fit.
Each High Court was to consist of a Chief Justice and as many puisne judges, not exceeding 15. The qualifications required to be a judge of High Court were-
(i) A barrister of not less than 5 years standing, or,
(ii) A nember of the covenanted Civil Services of at least 10 years standing and should have served as Zila judge for at least 3 years in that period, or,
(iii) A person having held judicial office rot inferior to that of principal sadar ameen or judge of a small cause court for at least 5 years, or,
(iv) A person who has been a pleader of a Sadar Court or High Court for at least 10 years.
It was, however, laid down that not less than one-third of the judges in a High Court, including the Chief Justice, were to be barristers, and not less than one-third of the judges were to be members of the covenanted civil services. This mean that out of a total 15, 10 persons would invariably be British, because Indians were hardly appointed to covenanted civil services and rarely went to England to become barristers. Nevertheless, for the first time, channels were opened to the natives to become judges of the highest courts in India. Prior to the Act, no Indian was ever allowed to sit as a judge of Supreme Court.
The judges of the High Courts were to hold office during Her Majesty’s pleasure. Each High Court was to have and exercise all such civil, criminal, admiralty, testamentary, intestate and matrimonial jurisdiction (original and appellate), and all such powers and authority for and in relation to the administration of justice in the presidency, as Her Majesty might grant.
The High Court was to have supervisory power over all courts subject to its appellate jurisdiction. It was to have power to call for returns, to transfer any suit or appeal from one court to another and to make for regulating the practice and proceedings of such courts. It was to be Court of Record.
Jurisdiction of High Courts
The High Court was given following original and appellate jurisdiction:-
(A) Original jurisdiction
Original Jurisdiction was of several types.
(1) Civil jurisdiction – It was either ordinary or extra-ordinary. The ordinary civil jurisdiction was limited to the local limits of the Presidency town. The High Court was empowered to try suits of every description except those which fell within the jurisdiction of small cause court and in which the suit value did not exceed Rs. 100. But the jurisdiction could be invoked only when the immovable property was situated within the town of Calcutta, or the cause of action wholly or partly arose in Calcutta, or the defendant was dwelling, or carrying on business, or working for gain in Calcutta.
In comparison to the Supreme Court, the High Court’s jurisdiction was limited, because Supreme Court possessed
jurisdiction over certain classes of persons (e.g. British Subjects) outside the limits of Presidency town. However, the High Court’s original civil jurisdiction was liberalized as compared to that of the Supreme Court. The High Court could try revenue cases, while the Supreme Court could not. Further, the High Court could take cognizance of cases of every description, and to apply a remedy to every wrong, even to the extent of entertaining matrimonial causes of the non-Christians. The original civil jurisdiction of the High Court was thus placed on the same footing as the mofussil Adalats.
Under its extraordinary civil jurisdiction, 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- The criminal jurisdiction of the High Courts was similar to the criminal jurisdiction of the Supreme Courts and it extended to all the territories to which the civil jurisdiction extended. However, extra-ordinary jurisdiction given to the High Courts was not available to the Supreme Court. Under it, the High Court could hear any criminal case against any person within the cognizance of any court, which was subject to the superintendence of High Court, if such case was referred to the High Court by the Advocate-General or by any magistrate specially empowered for that purpose.
(3) Revenue jurisdiction – The High Courts, unlike Supreme Courts, could hear revenue cases.
(4) Admiralty jurisdiction – It could hear all civil, criminal, and maritime cases.
(5) Miscellaneous jurisdiction The court was given testamentary, intestate and probate jurisdiction enjoyed by the Supreme Court.
(B) Appellate jurisdiction
(1) Civil jurisdiction It could hear appeals from all inferior courts, there was a provision for a letter patent appeal from within the High Court where the case had been decided by a single
judge or by a division bench.
(2) Criminal jurisdiction-It could hear appeals from all inferior courts.
Law 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 Penal Code, 1860. The procedural laws which the High Court followed were Civil and Criminal Procedure Codes.
An appeal to Privy Council lay from judgment of High Court in civil cases: When the amount involved was Rs. 10,000 or more, or, if the High Court certified that the case is fit one for appeal; criminal cases: from its original jurisdiction, or, if the High Court certified that the case is fit one for appeal. In addition, the Privy Council could entertain appeal by Special Leave.
Gradually, more and more High Courts were established- Allahabad (1875), Patna (1916), Lahore (1919) and Nagpur (1936).
The Indian High Courts Act,, 1911, increased the number of judges from 15 to 20. In 1915, the Government of India Act prohibited the jurisdiction of High Courts relating to to revenue matters.
The Government of India Act, 1935, contained provisions for the High Courts-
(i) Limitations on the number of judges was done away, the number of judges could be increased from time to time by the Governor- General.
(ii) Quota system for the appointment of judges from different categories persons was abolished.
(iii) The age of retirement for the judges was fixed at 60.
(iv) Indian advocates with 10 year’s practice were declared qualified to be the judge of High Court.
(v) High Courts were placed under the administrative control of provincial governments, but these governments could not make any rule or law affecting the position or service conditions of a High Court judge unless such law was given prior assent by the Governor-General.
Thus the Act provided security of tenure to High Court judges and also the discriminatory qualifications for barristers and advocates were dispensed with.
Evaluation of the working of High Courts
The creation of one judicial institution replacing the dual system of courts was the fulfilment of a long cherished ambition in the interest of simplicity, harmony, convenience and efficiency for those who sought justice. The historical anomaly of over 90 years, thus, came to an end.
While in the area of criminal law, total uniformity was achieved with the application of I.P.C. and Cr. P.C. by all courts in British India; the substantive civil law continued to be differently applied by the High Courts.
On the original civil side, English law was to be applied (as was done by the Supreme Court), and on the appellate side the court was to apply the same law and equity as the mofussil court did as the court of first instance. It was only in due course of time, with the gradual progress in codification that the disparities in law on original and appellate sides of the High Court were removed.
High Courts (direct successor to Mayor’s Court) occupy a place of pride in the administration of justice in the country. And since the law and practice governing the High Courts admits of little doubt, the Constitution of India, 1950 does not incorporate detailed provisions relating to these.