Part 24 – Indian Legal History - Indian High courts act 1861

Part 24 – Indian Legal History - Indian High courts act 1861



Company kept judicial and executive functions separate since year 1793.
But this system was not perfect; the appointment procedure of judges was faulty.

Executive became judge and judge became executive vice versa because of lack of experience judiciary suffered as executive failed to do justice to judiciary.

In 1868, company officers pointed out that native judges and pleaders who had received a regular legal education at the Calcutta University had a better knowledge than the civilian, executive judges.
Therefore Bengal officers proposed the establishment of a separate judicial service.

Sir Henry Maine in 1868 condemned the [British] district judges as shamefully inefficient.
In year 1872 Law member Stephen supported the idea of a separate judicial service but nothing happened.

In 1924, the Rankin committee disfavored appointment of civilian as district judges, saying that the subordinate judges got more knowledge than civilian judges as subordinate judges got experience and legal education.
But nothing happened.

The Indian High Courts Act 1861 –

The Indian High Courts Act was passed by the British Parliament on the 6th August, 1861 and was titled as an act for establishing high courts of judicature in India.

This legislation contained 19 sections only.

Its main function was to abolish the supreme courts and the Sadar Adalats in the three Presidencies and to establish the high courts in their place.

The records and document of the various courts became the records and documents of the High Court concerned.

It gave power authority in Her Majesty to issue letters patent under the great seal of the United Kingdom, to erect and establish High courts of judicature at Calcutta, Madras and Bombay.

Each High court was to consist of a chief justice and as many puisne judges not exceeding fifteen as her majesty might think to fit to appoint.

Who became the high court judge or who was eligible to become the high court judge?
Judges were selected out of the following categories of persons

1. Barrister must have 5 years or more experience 

2. members of the covenanted civil service of not less than ten years standing who should have served as Zillah judges for at least three years of that period

3. Persons who shall have held judicial office not inferior to that of principal sadar amen or judge of small cause court for a period of not less than five years.

4. Person who have been pleaders of a Sadar court or high court for a period of not less than ten years.

But the rule was made that, not less than one third of the judges in a High court, including chief justice were to be barristers and not less than one-third of the judges were to be members of the covenanted civil service.

The judges of the High court were to be held office during her majesty’s pleasure.

Each high court was to have and exercise all such civil and criminal admiralty and vice-admiralty, testamentary, intestate and matrimonial jurisdiction and original and appellate

The High Court was to have superintendence over all courts subject to its appellate jurisdiction.
It got power, authority to call for return, to transfer any suit or appeal from one court to another and to make and issue general rules for regulating the practice and proceedings of such courts.

The charter for the Calcutta high court was issued on May 14, 1862 and was published in Calcutta on the 1st July 1862 establishing the high court from the next day.
The charter for the high courts of Bombay and Madras were issued on June 26, 1862 and these courts were inaugurated on the 14th and 15th august 1862.

Suggested Reading –

Part 25 - Indian Legal History - Charter of Calcutta High Court 1865


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Monday, July 19, 2010

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