Indian High Courts Act 1861

By Indian High Courts Act 1861, the Supreme & Sadar Diwani Adalat were amalgamated. The
Indian High Court Act of 1861, vested in Queen of England to issue letters patent to erect and
establish High Courts of Calcutta, Madras and Bombay.

The High Courts of Calcutta, Madras and Bombay were established by Indian High Courts Act
1861. Indian High Courts Act, 1861 did not by itself create and establish the High Courts in
India. The objective of this act was to effect a fusion of the Supreme Courts and the Sadar
Adalats in the three Presidencies and this was to be consummated by issuing Letter Patent. The
jurisdiction and powers exercised by these courts was to be assumed by the High Courts.1

Letters patent establishing High Courts

On the authority of the 1861 Act, letters patents were issued establishing High Courts at Calcutta,
Bombay and Madras.

1. The Calcutta High Court:

This is the first high court in India. The Calcutta High Court is the oldest High Court in India. It
was established on 1st July, 1862 under the High Courts Act, 1861. It has jurisdiction over the
state of West Bengal and the Union Territory of the Andaman and Nicobar Islands.

The seat of the High Court is Kolkata, capital of West Bengal. It also has a permanent Circuit
Bench in Port Blair, the capital of the Andaman and Nicobar Islands. The court has a sanctioned
judge strength of 72.2

Jurisdiction and Powers: The jurisdiction of this court was ordinary original civil jurisdiction.
The Act 15 of 1919 defined its limits. This Jurisdiction of the small causes court was distinct and
separate.

Procedure: As regards procedure, the High Court was given the power to make rules and orders
in order to regulate all proceding civil and criminal which were brought before it.

2. The High Courts of Bombay:

1 http://www.gktoday.in/indian-high-courts-act-1861/
2 Landmarks in Indian Legal & Constitutional History_ B. M. Gandhi_ Tenth Edition_ Page no:189
By letters patent issued on 26 June 1862, the Queen establishment the High Court of Judicature
at Bombay. It abolished the existing Supreme Court, Sadr Diwani Adalat and Sadr
Nizamat(Faujdari) Adalat.

The Bombay High Court was one of the three High Courts in India established at the Presidency
Towns by Letters patent granted by Her Majesty Queen Victoria, bearing date June 26, 1862. It
was inaugurated on August 14, 1862 under the High Courts Act, 1861.3

The High Courts of Madras:

By letters patent issued on 26 June 1862, the Queen establishment the High Court of Judicature
at Madras, and on its establishment the chartered Supreme Court the Sadar Diwani Adalat and
Sadr Nizamat( Faujdari) Adalat were abolished at Madras.

Jurisdiction and Powers: There jurisdiction and powers were transferred to the High Court at
Madras. The jurisdiction and powers of the Madras High Court to be similar to the jurisdiction
and powers of the Calcutta and Bombay High Court.4

Composition of the High Court(s)

The Indian High Courts Act 1861 had also spelled the composition of the High Court.

Each High Court was to consist of a Chief Justice and not more than 15 regular judges.

The chief Justice and minimum of one third regular judges had to be barristers and
minimum one third regular judges were to be from the covenanted Civil Service.

All Judges were the be in the office on the pleasure of the Crown. The High Courts had
an Original as well as an Appellate Jurisdiction the former derived from the Supreme
Court, and the latter from the Sadar Diwani and Sadar Foujdari Adalats, which were
merged in the High Court.5

The Charter of High Court of Calcutta was issued on 14th May, 1862 and Madras and
Bombay was issued on June 26, 1862.

3 Landmarks in Indian Legal & Constitutional History_ B. M. Gandhi_ Tenth Edition_ Page no:190
4 Landmarks in Indian Legal & Constitutional History_ B. M. Gandhi_ Tenth Edition_ Page no:190
5 http://www.gktoday.in/indian-high-courts-act-1861/
 So,the Calcutta High Court has the distinction of being the first High Court and one of
the three Chartered High Courts to be set up in India, along with the High Courts of
Bombay, Madras.

High Court at Calcutta which was formerly known as High Court of Judicature at Fort
William was established on July 1, 1862. Sir Barnes Peacock was its first Chief Justice.

Under this power, a High Court was established in 1866 at High Court of Judicature for
the North-Western Provinces at Agra on 17 March 1866 by the Indian High Courts Act of
1861 replacing the Sadr Diwani Adalat.

On 2nd February, 1863, Justice Sumboo Nath Pandit was the first Indian to assume office
as a Judge of the Calcutta High Court.

The Bombay High Court was inaugurated on 14th August ,1862.

Indian High Court Act 1861 also gave power to set up other High Courts like the High
Courts of the Presidency Towns with similar powers.

Sir Walter Morgan, Barrister-at-Law was appointed the first Chief Justice of the High
Court of North-Western Provinces. However it was shifted to Allahabad in 1869 and the
name was correspondingly changed to the High Court of Judicature at Allahabad from 11
March 1919.6

Jurisdiction, powers and control of Indian High Court

Original Jurisdiction-

The High Court has original or exclusive jurisdiction (i.e. to hear in first stance) in matters that
are as follows

Matters of admiralty, will, marriage, divorce, company laws and contempt of court.

Any election dispute in relation to Parliament and State legislature;

Disputes in relation to revenue matters;

Enforcement of FRs of citizens;

Any matter in relation to interpretation of constitution pending in lower courts;

6 http://www.gktoday.in/indian-high-courts-act-1861/
 The four high courts (Delhi, Bombay, Calcutta and Madras) have original civil
jurisdiction in cases of higher value.

Till 1973, 3 high courts (Calcutta, Bombay and Madras) had original criminal jurisdiction
but abolished by CrPC, 1973.

Writ Jurisdiction:

The Writ Jurisdiction of High Court is provided under Article 32 of the Constitution. The
constitutional writs such as Habeas Corpus, Mandamus, Prohibition, Quo Warranto or
Certiorari are tools for enforcement of Fundamental Rights and for any other purpose.

Any other purpose includes any ordinary legal right of a citizen. So High Court can
issue writs to any person, authority and govt for enforcement of an ordinary right of a
citizen. This power to issue writ is not limited to state where seat of High Court resides
but can extend to other state or territory if cause of action arises in its territorial
jurisdiction.

Appellate Jurisdiction:

The High Court is the highest court of appeal in concerned State and enjoys wide appellate
jurisdiction in cases:-

Civil Matters:

First appeal from orders of dist, additional dist and other subordinate courts on both
questions of law and fact if amount of fine exceed a pre defined limit.

Second appeal from orders of dist, additional dist and other subordinate courts only on
question of law (not includes fact).

The Calcutta, Bombay and Madras High Courts have provision for intra court appeal. It means if
any judgment or order is delivered by single judge bench then appeal for such case lies to
division bench of same high court.

Criminal Matters:

Appeals from order or decision of session and additional session court judge lie to High
Court if sentence of imprisonment is more than 7 yrs. But death sentence shall get
approval of High Court whether an appeal made by convict or not.
 Appeals from decision of assistant session, metropolitan or other judges lie to High Court
in some specified cases other than petty cases as under section 374, 376, 376G of CrPC
(1973)

Indian High Court Act of 1865 and 1911

1) The High Court Act, 1865

2) The High Court Act, 1911

The High Court Act, 1865:

The governor general in council was authorized by the High Court Act, 1865 to make necessary
alteration in the territorial jurisdiction of the chartered High Court which were established under
the High Court Act, 1865. The power of the governor general was made subject to the approval
of the Crown.

The High Court Act, 1911:

The Indian High Court Act, 1911 empowered to established High Courts in any territory within
the Indian dominions. Under the Act of 1911, a High Court could be established for any territory
whether or not included within the limits of another High Court. The Act of 1911 raised the
maximum number of judges in each High Court from 16 to 20, which included the chief justice
also.7

High court Established During 1947 to 1950

During the period of 15 August 1947 to 26 January 1950, when the Constitution of India came
into force, seven High Court were established in different place-

1) High Court for Punjab

2) High Court for Assam

3) High Court for Orissa

4) High Court for Rajasthan

5) High Court for Kerala

7 Landmarks in Indian Legal & Constitutional History_ B. M. Gandhi_ Tenth Edition_ Page no:192
 6) High Court for Mysore

7) High Court for Jammu and Kashmir

The High Court(s) after the Constitution of India

The Constitution of India, contains many specific provisions regulating the independent working
of the High Courts. Some important provisions are as follows:

Constitution of High Courts

The Constitution of India recognized all the existing High Courts. According to Article 214 of
the Constitution of India, a High Court is provided for each Province of India. The Parliament is
also empowered to establish a common High Court for two or more provinces or Union
territories.8

Power and Functions of High Court(s)

The Constitution of India has not made any clear and detailed description of the powers and
functions of the High Court as it has done in the case of the Supreme Court. The Constitutions
says that the Jurisdiction of the High Court shall be the same as immediately before the
commencement of the Constitution, subject to the provisions of the constitution and the laws
made by the appropriate legislature.9

The powers and functions of the High Court can be divided as follows:

Original Jurisdiction:

Original jurisdiction in relation to high court refers to the authority of the high court to hear and
decide cases for the first time.

8 Landmarks in Indian Legal & Constitutional History_ B. M. Gandhi_ Tenth Edition_ Page no:196
9 http://www.importantindia.com/12418/powers-and-functions-of-high-court-in-india/
All matters relating to revenues are included in the original jurisdiction of the High court.
Besides, civil and criminal cases are also supposed to belong to the original jurisdiction. But only
the High Courts at Kolkata, Mumbai and Chennai can have the first trial in civil and criminal
cases. The original criminal jurisdiction of the High Court has, however, been abolished by the
Criminal Procedure code, 1973. At present the criminal cases are tried in the city sessions Courts
in Kolkata, Mumbai and Chennai.

Appellate Jurisdiction:

Appellate jurisdiction in relation to High Court refers to the power of the High Court to review
the decisions of Lower courts. The High Court is the highest court of appeal in the state. It has
appellate jurisdiction in civil and criminal cases.

i) In civil cases, appeal can be made to the High Court against the decisions of the District
Judges and the Subordinate Judges.

ii) Again, when any court subordinate to the High Court decides an appeal from the decision of
an inferior court, a second appeal can be made to the High Court only on question of law and
procedure.

iii) Besides, appeal from the decision of a single Judge of the High Court itself also lies to the
High Court. In criminal cases appeals against the decisions of :

A Sessions Judge or an Additional Sessions Judge, where the sentence is of imprisonment

exceeding 7 years; or

Assistant Sessions Judge, Metropolitan Magistrate or other Judicial Magistrates in certain

specified cases other than petty cases can be made to the High Court.

Powers of issuing Directions, Order or Writs:

The High Court has been empowered to issue writs of habeas corpus, mandamus, and prohibition
certiorari and quo warranto for the enforcement of the fundamental rights and for other
purposes. The Supreme Court can issue the writs only for the enforcement of fundamental rights
and not for other purposes. The power of the High Court to issue writs in the nature of habeas
corpus cannot be curtailed even during emergency.
Administrative Jurisdiction:

The officers and servants (employees) of the High Court are under its total control. They are
appointed by the Chief Justice or any other Judge or officer of the High Court, as he may direct
(Article 229). However, the High Court may be required by the Governor of the state to consult
the Public Service Commission while appointing the officers and staff of the High Court.

The Chief Justice has the power to suspend or dismiss any of the officers or servants of the High
Court. He or any other Judge of the High Court authorized by him, shall determine the service
conditions of its officers and staff subject to any act of the state legislature. The administrative
expenses of the High Court are charged upon the Consolidated Fund of the State. These are non-
vote-able.

Judging the validity of laws:

In the original Constitution the High Courts were given powers of judging the validity of the
Central and the State laws. But the 42nd Amendment of the Constitution took away the powers
of the High Courts to determine the validity of the central laws and put various conditions on
their powers of judging the validity of the State laws. However, the 43rd Constitutional
(Amendment) Act, 1978 has restored these powers to the High Courts.

Powers of superintendence:

Every High Court has a general power of superintendence over all the lower courts and tribunals
within its jurisdiction except military courts and tribunals. By virtue of this power the High Court
can call for returns from such courts; make an issue general rules and prescribe forms for
regulating the practice and proceedings of such courts; and prescribe forms in which books,
entries and accounts shall be kept by the officers of any such court.

Powers of taking up cases:

If a case is pending before a sub-ordinate court and the High Court is satisfied that it involves a
substantial question of the constitutional law, it can take up the case and decide it itself.
Control over sub-ordinate courts:

The High Court can control the subordinate courts in the State. It is to be consulted by the
Governor in the matter of appointing, posting and promoting district judges. The High Court
plays an important role in the appointment, promotion, etc. of the staff of the subordinate courts
including the District Court.

A Court of Record:

The High Court is a Court of Record. Its decisions are binding for all Subordinate Courts. The
decisions and proceedings of the High Court have evidentiary value and no Subordinate Court
can challenge them.

Other powers:

Besides the above powers, the High Court performs some other functions:

i) Like the Supreme Court, the High Court also acts as a Court of Record.

ii) It has the power to punish for contempt of itself.

iii) The High Court can frame the required rules to carry out its judicial functions.

Qualifications of judges to be appointed in the High Court(s)

Article 217 of the Constitution of India is followed to appoint the judges of the High Court. The
procedure of appointing the Judges of the High Courts in India is slightly different from the
appointment of the Judges of the Supreme Court. As per article 217, the chief Justice of the high
court is appointed by the President in consultation with the Chief justice of India as well as the
Governor of the state in question. A collegiums system has evolved over the years in which a
Collegiums headed by the CJI makes recommendation to the government for appointment of
judges. The Collegiums recommends the names to the law ministry which after scrutinizing send
the paper to the president. The president either approves the names or returns the names for
reconsideration of the Supreme Court. If still the Supreme Court sends the same names president
appoints the persons recommended. To become a High Court Judge, a person_

i) Should be a citizen of India

ii) Should have held a judicial office in the territory of India for ten years

iii) Should have been an advocate of high court(s) for ten years.

There is no minimum age fixed for high Court judges, and unlike in Supreme Court, there is no
provision for appointment of a distinguished jurist as a judge of a high court.10

Retirement of judges of a High Court

The judge of a High Court retires at the age of 62 years. He can retire earlier also by submitting a
written registration.11

Removal of the Judge of a High Court

A Judge of the High Court can be removed from office only for proven misbehavior or
incapacity and only in the same manner in which a Judge of the Supreme Court is removed. The
President of India can remove a Judge of the High Court, from his office only if each house of
the parliament passes a resolution by a two third majority of its members present and voting in
each house requesting him to remove the Judge.12

Total High Courts at the present time in India

The Madras High Court in Chennai, Bombay High Court in Mumbai, Calcutta High
Court in Kolkata and Allahabad High Court in Allahabad are the oldest four High Courts in
India.

The following are the 24 High Courts of India sorted by name, year established, Act by which it
was established, jurisdiction, headquarters, benches, the maximum number of judges sanctioned
and the presiding Chief Justice of the High Court.13

10 http://www.gktoday.in/blog/high-courts-appointments-of-judges-terms-salary-of-judges/
11 Landmarks in Indian Legal & Constitutional History_ B. M. Gandhi_ Tenth Edition_ Page no:196
12 http://www.gktoday.in/blog/high-courts-appointments-of-judges-terms-salary-of-judges/
13 http://www.wikiwand.com/en/List_of_High_Courts_of_India
Court Act, Under which
Established Jurisdiction Judges Chief Justice
name established

Allahab 11 June Indian High Courts Act Uttar Pradesh 82 Justice Dilip Babasaheb
-ad 1866 1861 Bhosale
High
Court

Chennai 15 August Indian High Courts Act Pondicherry, Tamil 56 Justice Huluvadi G Ramesh
High 1862 1861 Nadu (Acting)
Court

Chhattis 1 November Madhya Pradesh Chhattisgarh 10 Justice Pritinker Diwaker

-garh 2000 Reorganisation Act, (Acting)
High 2000
Court

Delhi 31 October Delhi High Court Act, National Capital 38 Justice G. Rohini
High 1966 1966 Territory of Delhi
Court

Gauhati 1 March Government of India Arunachal 17 Justice Ajit Singh

High 1948 Act, 1935 Pradesh, Assam, M
Court izoram, Nagaland

Gujarat 1 May 1960 Bombay Gujarat 31 Justice R. Subhash Reddy

High Reorgansisation Act,
Court 1960

High 5 July 1954 Andhra State Act, 1953 Andhra Pradesh, 27 Justice Ramesh
Court of Ranganathan
Judicatu Telangana
-re at [8][9](Acting)
Hyderab
-ad

Himach 1971 State of Himachal Himachal Pradesh 09 Justice Mansoor Ahmad Mir
-al Pradesh Act, 1970
Pradesh
High
Court

Jammu 28 August Letters Patentissued by Jammu and 09 Justice N. Paul

and 1928 then Maharaja of Kashmir Vasanthakum-ar
Kashmir Kashmir
High
Court Act, Under which
Established Jurisdiction Judges Chief Justice
name established

Court

Jharkha- 15 Bihar Reorganisation Jharkhand 13 Justice Pradeep Kumar

nd High November Act, 2000 Mohanty (Acting)
Court 2000

Karnata 1884 Mysore High Court Act, Karnataka 29 Justice Subhro Kamal
-ka 1884 Mukherjee
High
Court

Kerala 1956 States Reorganisation Kerala, 36 Justice

High Act, 1956
Court Lakshadweep Thottathil B. Radhakrishnn

(Acting)

Kolkata 2 July 1862 Indian High Courts Act Andaman and 37 Justice Nishita Nirmal
High 1861 Nicobar Mhatre
Court Islands, West
Bengal (Acting)

Madhya 2 January Government of India Madhya Pradesh 38 Justice Rajendra Menon

Pradesh 1936 Act, 1935 (Acting)
High
Court

Manipur 25 March North-Eastern Areas Manipur 03 Justice Rakesh Ranjan

High 2013 (Reorganisatio-n) and Prasad
Court Other Related Laws
(Amendment) Act, 2012

Meghal 23 March North-Eastern Areas Meghalaya 03 Justice Dinesh Maheshwari

aya 2013 (Reorganisatio-n) and
High Other Related Laws
Court (Amendment) Act, 2012

Mumbai 14 August Indian High Courts Act Goa, Dadra and 62 Justice Manjul-a Chellur
High 1862 1861 Nagar
Court Haveli, Daman and
Diu,

Maharashtra
Court Act, Under which
Established Jurisdiction Judges Chief Justice
name established

Odisha 3 April 1948 Orissa High Court Odisha 18 Justice Vineet Saran
High Ordinance, 1948
Court

Patna 2 September Letters Patent issued by Bihar 30 Justice Hemant Gupta

High 1916 the Crown (Acting)
Court

Punjab 15 August Punjab High Court Chandigarh, Harya 46 Justice Shiavax Jal Vazifdar
and 1947 Ordinance, 1947 na, Punjab
Haryana
High
Court

Rajastha 21 June Rajasthan High Court Rajasthan 33 Justice Kalpesh Satyendra

-n High 1949 Ordinance, 1949 Jhaveri (Acting)
Court

Sikkim 16 May The 36th Amendment to Sikkim 02 Justice Satish Kumar

High 1975 the Indian Constitution Agnihotri
Court

Tripura 26 March North-Eastern Areas Tripura 03 Justice Tinlianthang Vaiphei

High 2013 (Reorganisation) and
Court Other Related Laws
(Amendment) Act, 2012

Uttarak 9 November Uttar Pradesh Uttarakhand 07 Justice K. M. Joseph

hand 2000 Reorganisation Act,
High 2000
Court