Indian High courts Act, 1861 – salient features

The Indian High Courts Act of 1861– Salient Features

  • The Indian High Courts Act of 1861, was an act that authorized The Crown to establish High Courts in India.
  • This Act created the High Courts in Calcutta, Madras, and Bombay.
  • The Act was passed after the First War of Independence of 1857 and merged the parallel Legal and Justice Systems of the Crown and the East India Company.
  • The Indian High Courts bill was moved by the Secretary of State Sir Charles Wood on 6th June 1861 and was passed on 6th August 1861.
  • The Act consisted of 19 sections.
  • It dissolved all the existing courts located at Calcutta, Madras and Bombay.
  • Each High Court could consist of a Chief justice and up to 15 judges.
  • The Judges could be selected from barristers (5 years of experience), civil servants (10 years of experience including 3 years as a zillah judge), judges of small cause courts (5 years of experience), or Pleaders of High Courts (5 years of experience).
  • The Chief Justice and Minimum of one-third of The Regular Judges were to be Barristers and Minimum of one third Regular Judges were to be from the Civil Service.
  • All Judges held office during the pleasure of the Crown.
  • The law which the high court applied was the same as applied by the Supreme Court i.e., The English law.
  • The High Courts were also permitted 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 High Court’s followed civil and criminal codes.
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  • The High Courts had an Original as well as an Appellate Jurisdiction the former derived from the Supreme Court, while the latter was derived from the Sudder Diwani and Sudder Foujdari Adalat’s, which were all merged into The High Court.
  • The Jurisdiction of each high court was dependant on the Letters Patent issued by her Majesty.
  • She could give them the power to exercise civil, criminal, intestate, testamentary, admiralty and matrimonial jurisdiction.
  • She could also confer on them original and appellate jurisdiction and all such powers and authority for the administration of justice in the presidency, as she deemed necessary.
  • Original jurisdiction: The court had original jurisdiction in Civil Jurisdiction and Criminal Jurisdiction
  • Civil Jurisdiction: The Original Civil Jurisdiction of the court was of two types: –
    • Ordinary Civil Jurisdiction: The Ordinary Civil Jurisdiction extended to the town of Calcutta, Madras and Bombay and any such local limit as defined from by a legislature from time to time. The Ordinary civil Jurisdiction could be invoked only if:
      1. The movable property was situated within the town of Calcutta, Madras and Bombay.
      2. The cause of action wholly or partly arose in Calcutta, Madras and Bombay.
      3. The defendant was carrying on business or working for profit in Calcutta, Madras and Bombay.
    • Extra Ordinary Civil Jurisdiction: The Extra Ordinary Civil Jurisdiction provides that the High Court could call a case pending in any lower court subject to its superintendence limits and could produce the judgement itself. This jurisdiction could be exercised in a case where the parties agreed to before-hand.
  • Criminal Jurisdiction: The Original Criminal Jurisdiction of the court was of two types: –
    • 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 over the native people and the crimes committed within the local limits of the presidency towns. It also extended to The Britishers and Europeans.
    • 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 The Extra Ordinary Original Criminal Jurisdiction, the Court hear any criminal case against any person within the limits of any court which was subject to the supervision of the High Court, only If such a case was referred to the court by the advocate general /by any magistrate/any other officer specially empowered for that purpose.
  • Appellate Jurisdiction: The appellate jurisdiction of the High Court was of two types: –
    • Civil Jurisdiction: The High Court could hear appeals in all cases authorised by any law or regulation.
    • Criminal Jurisdiction: The High Court had criminal jurisdiction in all cases decided by the subordinate courts to it. An appeal to The Privy Council lay from the judgement of High Court in Criminal cases if the High Court certified that the case is a fit one for appeal to The Privy Council or if it felt so while using it’s Original Jurisdiction Powers.
  • Revenue Jurisdiction: The High Court was given The Jurisdiction to settle Revenue cases which were not in the jurisdiction of the Supreme Court by the Act of Settlement, 1781.
  • Admiralty Jurisdiction: The Admiralty and Vice-Admiralty Jurisdiction were given to the high court.
  • Testamentary and Miscellaneous Jurisdiction: The High Courts were also given similar testamentary, intestate and probate jurisdiction as was enjoyed by the Supreme Court.
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  • An appeal to The Privy Council lay from the judgement of High Court in Criminal cases if the High Court certified that the case is a fit one for appeal to The Privy Council or if it felt so while using it’s Original Jurisdiction Powers.
  • Although the High Court was the Highest in India, A court by the name of The Privy Council did exist. However, the problem was that to approach the Privy Council required huge expenses and time of the litigants.
  • The British Parliament passed The Government of India Act, 1935. It provided for the establishment of a Federal Court in India. Thus in 1937, the federal court was established. The seat of the court was in Delhi.
  • The Federal Court was a Court of record.
  • The Federal Court also saved the time and expenses of the litigants.

Author: Samar Jain,

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