The Emergence and Evolution of High Courts in India before Constitution Of India came into effect

15/10/2021

The history of High Courts in India traces back to the period of British Raj. The Britishers came to India as traders but soon established foothold over the Indian mainland and consequently became involved in the administration of the country. East India Company Rule was abolished in India after the First War Of Independence in 1857, after which it was substituted by the direct Rule of the Crown in 1858.
Before the commencement of the Act, a double system of administration of Justice prevailed in India: on the one hand, there were the British Crown Courts and, on the other hand, the Company Courts.
The promulgation of Regulating Act of 1773 by the King of England paved the way for establishment of the Supreme Court of Judicature at Calcutta. The Letters of Patent was issued on March 26, 1774 to establish the Supreme Court of Judicature at Calcutta, as a Court of Record, with full power & authority to hear and determine all Complaints for any crimes and also to entertain, hear and determine any Suits or actions against any of His Majesty's subjects in Bengal, Bihar and Orissa. The Supreme Courts at Madras and Bombay was established by King George - III on 26 December 1800 and on 8 December 1823 respectively.
The Company Courts were the Mofussil Courts and the Diwani Adalats. This created many problems as the jurisdictions of the Company Courts and the Supreme Court were not clearly demarcated. Nor was there a clear relationship between these Courts.
Often, even the procedures and laws applied by these Courts were different; the Crown Courts followed English Laws while the Company Courts followed customs and local regulations made by the Company.
Hence, if a dispute concerning jurisdiction arose between the parties, the Government found itself in a challenging position. By the recommendation of the Second Law Commission, The India High Courts Act, 1861 was enacted to create High Courts for various provinces and abolished Supreme Courts at Calcutta, Madras and Bombay and also the Sadar Adalats in Presidency towns. These High Courts had the distinction of being the highest Courts for all cases till the creation of Federal Court of India under the Government of India Act 1935. The Federal Court had jurisdiction to solve disputes between Provinces and Federal States and hear Appeal against Judgements from High Courts. After India attained independence in 1947, the Constitution of India came into being on January 26, 1950. The Supreme Court of India also came into existence and its first sitting was held on January 28, 1950.
Establishment Of The Indian High Courts/Indian High Courts Act, 1861: In the three Presidency towns of Calcutta, Madras and Bombay there were two existing Judicial systems for administering Justice i.e. the Supreme Court and the Sadar Diwani and Sadar Nizamat Adalat. This sort of Judicial administration was inconvenient for the inhabitants of the Presidencies. In fact, it often clashed and it resulted in conflicting decisions. Ultimately, this problem was resolved by the British Parliament by enacting the Indian High Courts Act, 1861. The Indian High Courts Bill was moved by the Secretary of State Sir Charles Wood in the House of Commons on 6th June, 1861 and finally the Indian High Courts Act was passed by the British Parliament on 6th August, 1861. It was titled as "An Act For Establishing High Courts Of Judicature in India". The Act consists of 19 Sections only. The Indian High Courts Act, 1861, abolished the Supreme Court and Sadar Adalat's in the Presidencies and the Act also empowered the Crown to issue Letter's Patent under the great Seal of the United Kingdom, to erect and establish High Court of Judicature at Calcutta, Madras and Bombay. It further provided that the High Courts were to come into existence at such time as her Majesty might deem fit. Thus, on the establishment of the High Court, the Supreme Court, the Sadar Diwani Adalat and Sadar Nizamat Adalat at the concerned Presidency were to be abolished and the records and documents of these Courts so abolished were to become the records and documents of High Courts concerned.
The First High Court in British India was the High Court of Judicature at Fort William, also known as the High Court of Calcutta; it was established by the Letters Patent dated May 14, 1862, issued under the Indian High Courts Act, 1861. The Charters of the Bombay and Madras High Courts were ordered in June 1862. The Three Charters contained identical provisions and established the High Courts' with similar powers and jurisdictions.
Each High Court consisted of a Chief Justice and other Puisne Judges not exceeding 15 in number. Sir Barnes Peacock became the First Chief Justice of Calcutta High Court in 1862.
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 Puisne 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 held the Office during the pleasure of the Crown. The High Court started with strength of 13 Judges and graduated to its strength of 58 Judges.
The High Court had an Original as well as Appellate Jurisdiction. The Former derived from the Supreme Court, and later from Sadar Diwani and Sadar Foujdari Adalats, which were merged in the High Court. Each High Court was to have and exercise all such Civil and Criminal, Admiralty & Vide Admiralty, Testamentary, Inestate and Matrimonial Jurisdiction.
The Federal Court Of India: High Court was the highest Court in India, over it there was Privy Council but to approach the Privy Council required huge expenses and time of the litigants. Hence the establishment of the Federal Court was made necessary. Accordingly, in November, 1934, the Joint Select Committee of both the Houses of British Parliament in its Report recommend for the establishment of one Federal Court. Thus, the British Parliament passed the Government of India Act, 1935. The Section 200 said Act provided for the establishment of a Federal Court in India. On October 01, 1937, the Federal Court came into being. The seat of the Court was the Chamber of Princes in the Parliament Building in Delhi. It was a Court of Record. Sir Maurice Gwyer was the 1st Chief Justice and the other Two Puisne Judges were Sir Mohammad Sulaiman and M.R. Jayakar. The Federal Court saved time and expenses of the litigants. It was also a convenience to the Indian's. Therefore, the Federal Court lessened the work load of the Privy Council.
Abolition of Federal Court: Federal Court worked for a short period of 12 years. In place of Federal Court the Supreme Court of India was established on January 25, 1950 by the "Abolition of the Privy Council Jurisdiction Act, 1949".
(Writer is a practising advocate at J&K High Court. Views expressed are personal.)

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