Main provisions of Indian High Court Act 1861

Judicial System in India Existing before, 1861

Prior to the passing of the Indian High Courts Act, 1861, there were two rival sets of judicial institutions in India, namely, the Crown’s Courts and the Company’s 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 organisations jurisdiction and powers. The functioning of courts in the Presidency towns was different from that of the Mofussils of which they were the capitals.

The existence of two parallel sets of courts viz, the Supreme Court and the Sadar Adalats in the Presidency towns created great confusion and uncertainty about their respective jurisdictions.

The Crown’s Courts and the Company’s Courts mainly differed in the following aspects

1. The Supreme Court consisted of professional lawyers as Judges but the Judges of the Company’s Adalats were mostly lay persons without any professional or legal experience.

2. The Judges appointed in the Supreme Court held office during Crown’s pleasure whereas the Judges appointed in Company’s Adalats held office during Company’s pleasure.

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

4. The laws applied by the two sets of court were different. The Supreme Court applied English law in deciding civil and criminal cases. The Company’s Courts applied native laws for deciding cases relating to inheritance, succession, contract etc.

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

Thus, it is clear that there existed two different and parallel judicial systems which differed fundamentally from each other; in character and nature. This system continued upto 1857 when Indian freedom struggle took place in 1858. In 1858 Govt. of India was taken over by Crown who in 1861 united two judicial systems into one by enacting Indian High Courts Act, 1861.

Necessity for passing the Indian High Court Act, 1861

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 viz,

(i) The first step towards amalgamation of Crown’s Courts and the Company’s 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 Crown or the Company.

(ii) 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 courts 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.

(iii) In the third stage, the East India Company was dissolved by the Crown’s Act of 1858 and the responsibility of the entire government of India, passed on to the British Crown.

Provisions of Indian High Courts Act, 1861

Finally, the Indian High Courts. Act was passed by the British Parliament on August 16,1861 by which the Supreme Court and the Sadar Adalats of the Presidency towns were merged together to be known as the High Court of Judicature at Calcutta, Madras and Bombay.

1. Constitution of High Court-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 were to be members of the Company’s Civil service having not less than ten years standing including a minimum experience of three years as a Zilla Judge. The remaining Judges could be either from the Bar or from the civil service i.e., pérsons who had practised as pleaders in the Sadar Adalat or the Supreme Court for at least ten years or persons who had held judicial office not inferior to that of Principal Sadar Ameen or a Judge of a Small Cause Court for not less than five years. Again, it was 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 the Chief justice of the  High Court of Calcutta. The Judges of the High Court were to hold office during Her Majesty’s pleasure.

2. Jurisdiction of the High Court – 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 of superintendence over all subordinate courts. One of the Judges of the High Court was to hold a separate court for relief to insolvent 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 could decide all civil suits excepting those in which the subject-matter involved was less than 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 beyond the local limits of Calcutta. It had extra-ordinary jurisdiction to try and determine the offences committed by persons residing in places 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.

3. Appeals from the Decision of High Courts – 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.

4. Law and Procedure to be enforced by High Courts – The charter  establishing the High Court at Calcutta authorised 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.

Importance of Indian High Court Act, 1861

1861 is the year which constitutes a landmark in the History of Judicial Institutions in India. During this year High Courts were established in three Presidency towns of Calcutta, Madras and Bombay. High Courts provided unification in judicial system in the provinces of Bengal, Bombay and Madras. The High Courts which were established in 1861 continued to gain momentum, which resulted in creation of many other High Courts in other territories also. Today High Courts command high respect in the judicial hierarchy of this country. Thus, the High Court Act, 1861 was a momentous step to improve the administration of law and justice in this country. It made possible the long contenplated fusion of the two rival institutions, viz., Supreme Court and Sadar Courts and creation of a single superior tribunal to exercise original and appellate jurisdiction over matters arising in Presidency towns and appellate jurisdiction over there arising in the Mofussil and thus to cut out the evils of clash of jurisdiction between the two parallel judicial systems.



Q.:- What were the two rival sets of judicial institutions before the passing of the Indian High Courts Act of 1861′? State briefly the changes affected by the High Courts Act, 1861.


Q.:- Describe in brief the provisions of Indian High Court Act, 1861 and indicate its importance.


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