Indian High Courts Act of 1861

Theoretical overview

Before the 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 The SC established in the presidency towns of Calcutta in 1774 Madras in 1901, and Bombay in 1823 were the courts of the Brush Crown while the Adalat’s established in the Mofussil area were the Couns of the East India Company. The courts had two different sets of organization jurisdiction and powers. The functioning of courts in the presidency towns was different from that of the Mofussil of which they were the capital. The existence of two parallel sets of courts, the Supreme Court and the Sadar Adalat’s in the Presidency towns created great confusion and uncertainty about their respective jurisdictions The uncertainly about the jurisdiction and the law applicable by these two sets of courts created conflicts and confusion. Therefore, it was most essential to merge these courts into one single judicial system.

By the Crown’s Act of 1858 the responsibility of the entire Governance of India, passed on to the British Crown The Indian High Courts Act was passed by the British Parliament in 1861 by which the SC and the Sadar Adalat’s of the presidency towns were merged together to be known as the High Court of Judicature at Calcutta, Madras and Bombay.

The Act of 1861 authorized the British Crown to establish a High Court in each of the Presidency towns. There after a Charter was issued by the British Crown in May 1862 to establish a High Court at Calcutta and the Crown again issued a charter in June 1862 for establishment of a high court at Madras and Bombay With the establishment of the High Court of Judicature in Fort William (Calcutta) the existing Supreme Court and Sadar Adalat’s (Sadar Diwani Adalat and Sadar Nizamat Adalat) were abolished and their jurisdictions and powers were transferred to the newly created High count. Each High Court was to consist of:

• A Chief justice and not more than 15 other judges One third were to be barristers of minimum 5 yrs of standing (5)
• One third were to be members of the Company’s Civil service having not less than 10 years standing including 3 years as a Zila Judge (5)
• The remaining judges could be either from the Bar or the Civil Services
• Persons who had practiced as pleaders in the Sadar Adalat or the S.C for at least 10 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 5 years.

The judges of the HC were to hold office during her Majesty’s Pleasure.

Powers, Supervisory Control of High Courts

The powers, supervisory control and jurisdiction of a HC depended upon the Letters patent granted by the Queen These High Courts were to replace all the existing courts in the presidency towns and were to exercise civil criminal, admiralty, testamentary and matrimonial jurisdiction both original and appellate. 

The High Courts were empowered to exercise supervisory control over the inferior courts from which such High Courts would hear all appeals The HC was given the power to withdraw any case from the lower court to itself or transfer a case from lower itself or transfer a case from one court to another or to itself and they were to frame their own Rules and Regulations including procedure in respect of both civil and criminal matters.

The territorial jurisdiction of a HC could be increased beyond the limit of presidency town by fresh letters patent

The Letters Patent granted for the establishment of the HC at Calcutta, Madras and Bombay contained similar provisions.

Original Jurisdiction: In civil cases, at was of 2 types, ordinary and extraordinary. The ordinary civil jurisdiction was limited to the territorial limits of the presidency town thus

• all civil suits arising within the presidency limits whose value was Rs 100 or more could be filed before the RC Ordinary civil jurisdiction could be applicable only where the property in dispute etc. was situated within the limits of the presidency town or
•  The cause of action wholly or partly arose in the presidency town,
• The defendant was residing or carrying on business or working for gain within the territorial limits of a presidency town.

Extraordinary Civil Jurisdiction: The HC could with draw a case pending before any lower court supervisory control and could decide the same itself.

Criminal Jurisdiction: The criminal jurisdiction of the HC was similar to the criminal jurisdiction of the SC which the Act abolished, and it extended to all the territories to which the civil jurisdiction extended Under its extraordinary criminal jurisdiction the HC could hear any criminal case against any under its supervisory control provided such a case was refers to it by the Advocate General or by any magistrate or any other especially empowered in this regard. This extraordinary criminal jurisdiction was not available earlier to the S.C

Revenue Jurisdiction: The Act of Settlement, 1781 had removed the jurisdiction of the S.C on all revenue cases Jurisdiction in revenue matters was again restored by the Act of 1861 Now the HC could decide all the revenue cases.

Testamentary and Miscellaneous Jurisdiction: The HCs were given testamentary jurisdiction like the SC They could decide all cases pertaining to probates of wills The HC worked as courts of words for the administration of the estate of persons who were declared to be of unsound mind, or lunatics or idiots or were minors.

Admiralty Jurisdiction: Under this jurisdiction the HC could entertain and decide all admiralty cases

Appellate Jurisdiction: The HC had appellate jurisdiction in civil and criminal matters. In civil matters it could hear appeals from all inferior courts and there was a provision for a letters patent appeal from within the HC where the case had been decided by a single judge or by Division Bench Such cases come before Division Bench or a Full Bench in Letters patent appeal. Appeal from the decision of a division bench would be entertain able only if the judges were equally divided

The HC could bear all appeals in criminal cases decided by the inferior courts under them, and could hear references. The HC could also revise the decision or a judgment given by an inferior court

Appeal: The decision of the HC was final un appeals from criminal cases and no further appeal lay tony other court. However, in civil cases appeal from the decision of the HC lay to the privy council provided the pecuniary value of the suit was not less than Rs 10,000.       

Points to remember

1. Before the 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 The SC established in the presidency towns of Calcutta in 1774 Madras in 1901, and Bombay in 1823 were the courts of the Brush Crown while the Adalat’s established in the Mofussil area were the Couns of the East India Company.
2. The courts had two different sets of organization jurisdiction and powers.
3. By the Crown’s Act of 1858 the responsibility of the entire Governance of India, passed on to the British Crown The Indian High Courts Act was passed by the British Parliament in 1861.
4. The Act of 1861 authorized the British Crown to establish a High Court in each of the Presidency towns.
5. a Charter was issued by the British Crown in May 1862 to establish a High Court at Calcutta and the Crown again issued a charter in June 1862 for establishment of a high court at Madras and Bombay With the establishment of the High Court of Judicature in Fort William (Calcutta) the existing Supreme Court and Sadar Adalat’s (Sadar Diwani Adalat and Sadar Nizamat Adalat) were abolished and their jurisdictions and powers were transferred to the newly created High court.
6. High Court was to consist of:

• A Chief justice and not more than 15 other judges One third were to be barristers of minimum 5 yrs of standing (5)
• One third were to be members of the Company’s Civil service having not less than 10 years standing including 3 years as a Zila Judge (5)
• The remaining judges could be either from the Bar or the Civil Services
• Persons who had practiced as pleaders in the Sadar Adalat or the S.C for at least 10 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 5 years.