Privy council and federal court

Theoretical overview

FEDERAL COURT UNDER THE GOVERNMENT OF INDIA ACT, 1935

The Government of India Act, 1935 was an elaborate Act and established a federal system of Government in India A federal Government consisting of provinces as its component units was formed. The Act also contained a provision for voluntary accession of native princely States to the federation. A Federal Court was established as a Supreme Tribunal to act as an interpreter and guardian of the Act and to settle the justifiable disputes between the center and the federating units or between the units themselves.

Constitution: The federal court consisted of a Chief Justice of India and not more than six puisne judges, all of them appointed by His Majesty, and were to hold office until the age of 65 years. The number of judges of the FC. could be increased. A judge could resign or be removed on the ground of misbehaviour or infirmity of mind or body

The qualifications of the judges of the F.C. were as follows-

• A person must have been a judge of the H.C. of British India or a Federating State for at least five years or
• Barrister or an Advocate of 10 years of standing
• A pleader in a H.C. or Courts for 10 yrs.

Jurisdiction: The FC had original, appellate and advisory jurisdiction-

• Original Jurisdiction: It was a truly federal court and decided disputes between the center and the states or the states inter se,
• Appellate Jurisdiction: The appellate jurisdiction of The Federal Court extended to the appeals from High Courts in British India as also the appeals from the HC of the federating provinces.

The H. C. concerned should issue a certificate that the case involved a “substantial question of law” as to the interpretation of the Act.

Under certain circumstances, an appeal from a judgment, decree or final order of the H.C. could be taken to the FC even without certificate of the H.C. if the subject matter of the dispute was not less than 50,000 or the value of the property was of the like sum, and special leave to appeal from the federal court was obtained.

Advisory Jurisdiction: The Governor General could refer to the court any point of law and seek its advice on it.

The Federal Court was also a court of record. All civil and judicial authorities throughout the federation were to act under the order of the F.C. It was empowered to make rules for its practice and procedure with the approval of the General Governor on all the subordinate courts in British India and the State Courts.

Appeals to Privy Council: Appeals from the decision of the F.C. lay to the P.C. in cases where-

1. The judgment was given by the F.C. in exercise of the original jurisdiction without leave; or
2. In any other case, by leave of the F.C. or special leave to appeal by the Privy Council. After the passing of the Abolition of the P.C. Jurisdiction Act, 1949 complete judicial autonomy was given to the Indian judiciary Appeals from the Indian Courts ceased to be taken to the Privy Council.

The F.C. functioned up to the coming into force of the Indian Constitution from 26th Jan 1950, when it gave way to the S.C. of India.

THE PRIVY COUNCIL

The P.C. played a very significant role in shaping the administration of justice prior to Indian Independence.

Historical Perspective

The history of P.C. dates back to the Normans who conquered England in 1066 AD They introduced a strong central govt. which handled the legislative, executive and judicial functions of the government. A small council the Curia Regis consisting of lords was formed to advise the king in administrative and legal matters. In fifteenth century, the Curia Regis or the King’s inner council was later known as the Judicial Committee of the PC. The British empire having acquired many colonies overseas during the 17th century, it was necessary for the King-in-Council to adjudicate upon the appeals from those colonies. Consequently, this function was entrusted to the PC.

The jurisdiction of the PC to entertain appeals was based on the Royal prerogative of the sovereign as the fountain of justice. But with the expansion of the British Empire, the right to appeal became the privilege of the King’s subjects and the appeals of this nature were termed as “Appeals as of right”.

Composition of the Judicial Committee of P.C

A permanent Judicial committee of P.C. was setup under the Parliamentary Act of 1833. The committee was composed of the President of the PC, Lord High Chancellor. Other members were named as-

1. The first Lord Commissioner of the Great Sea of Great Britain,

2. Chief Justice or the Judge of the King’s Bench Council.

3 Master of Rolls

4.Vice Chancellor of England.

5. Chief Justice or the Judge of the Court of Common pleas.

6. Chief Baron of the Court of Exchequer

7. Judge of Prerogative Court of Lord Archbishop of Canterbury.

8. Judge of the H.C. of Admiralty, and

9. Chief judge of the Courts of Bankruptcy etc.

In addition, the King could also provided two other privy councilors, to be the members of the judicial committee. The quorum was fixed at four. Two members of the privy council who held judicial offices in India or any of the Dominions could be appointed as Assessors without right to vote on a salary of $400 per annum. The entire appellate jurisdiction of the King in-council was to be exercised by the judicial committee of the Privy Council.

Appeals to P. C. as of Right

1. Appeals from Mayor’s courts of 1726 :Appellate jurisdiction of the PC was made available forth first time to Indians by the Charter of 1726 by which Mayor’s Court were established in three presidencies in India. The first appeal from the Mayor’s Court lay to the General-Governor in Council. The decision of the G in C to be final up to 1,000 pagodas. More than 1,000 a further appeal from G in C lay to the King- in-Council within a period of 14 days from the date of the judgement.
2. Appeals From the S.C. Under Regulating Act, 1773:This charter made provisions for SC at three presidencies in place of Mayor’s court. An appeal from the SC could be taken to King-in council in cases of 1000 pagodas or more. The SC was directed not to allow any such appeal unless it is preferred within 6 months from the date of pronouncing the judgment. In criminal cases, the SC had the discretion to allow or deny an appeal to the P.C.
3.  Appeals From the Recorders Court Under the Act of 1797 :The Mayor’s Court at Madras, and Bombay gave place to the Recorders Courts in 1799. In 1800 a SC was established in Madras in place of Recorders Court with the provisions of appeal to the PC. similar to those of the SC at Calcutta
4.  Appeals to PC from Sadar Adalat’s :Before the Act of Settlement of 1781 there was no provision for appeal to the King-in-Council. The Act of Settlement, 1781 conferred a right of appeal to King-in- Council from S.A. which involved $500 or more in 1797. The limitation period of six month was provided for filing the petition of appeal in S.A
5. Appeals from the Indian H.C. :After the passing of Indian High Court Act of 1861 the SC’s and S.A.’s were abolished and in there place the HC was established in presidency towns. In civil cases against any final judgement, decree, or order of the HC if the value of the case was not more then Rs.10,000/- or the HC declared that the case was fit one for such appeal to the Pectin criminal cases an appeal lie to the PC from any judgment or sentence (Punishment) made in exercise of its original jurisdiction or in any case where a point of law had been reserved, or the HC certified that the case is fit for appeal to PC.
6.  Power to Grant Special Leave to Appeal (SLP) :By PC in those cases which did not qualify to come before it as of right under stipulated conditions. It could grant SLP even where the HC refused to grant necessary certificate or leave in civil or criminal cases.

Points to remember

• The Government of India Act, 1935 was an elaborate Act and established a federal system of Government in India A federal Government consisting of provinces as its component units was formed
• The federal court consisted of a Chief Justice of India and not more than six puisne judges, all of them appointed by His Majesty, and were to hold office until the age of 65 years. The number of judges of the FC. could be increased. A judge could resign or be removed on the ground of misbehaviour or infirmity of mind or body
• The P.C. played a very significant role in shaping the administration of justice prior to Indian Independence.
• The history of P.C. dates back to the Normans who conquered England in 1066 AD They introduced a strong central govt. which handled the legislative, executive and judicial functions of the government. A small council the Curia Regis consisting of lords was formed to advise the king in administrative and legal matters. In fifteenth century, the Curia Regis or the King’s inner council was later known as the Judicial Committee of the PC. The British empire having acquired many colonies overseas during the 17th century, it was necessary for the King-in-Council to adjudicate upon the appeals from those colonies. Consequently, this function was entrusted to the PC.