Indian Legal History- Indian High Courts Act, 1861

Introduction

From 1772 to 1861 in Bengal, Bihar and Orissa, we had dual system of courts. What exactly is dual system ?

Regulating Act, 1773 established Supreme Court in Calcutta. Similar Court was established in other presidency towns. These court have jurisdiction over British Citizen, Company Servant etc. Their territorial jurisdiction extended to Presidency town of Calcutta i.e City Area.

Warren Hastings introduced Adalat System wherein there used to be a Mofussil courts at district level. Some provincial courts and division like Patna, Decca, Murshidabad and Calcutta. Highest court as Sadar Adalat at presidency down. These were the court of company.

These two systems were different in many respect. Below are certain differences.


Problems due to dual court system

Most common problem among them was conflict related to jurisdiction.

Take this example, Supreme court had jurisdiction over Calcutta. So people having property over Calcutta but residing in Mofussil areas or towns like Murshidabad, if such property is in dispute then which court exactly had jurisdiction. What do you think ?

Supreme court used to say that since property is situated in Calcutta, we have jurisdiction. Whereas Mofussil or Company's court used to say since person stays in Murshidabad and he is not inhabitant of Calcutta we have jurisdiction. These situation led to confusion over jurisdiction.
Another problem is related to different legal systems followed by these court. As mentioned in difference, Supreme Court used to follow English system, whereas Adalat Court used to follow Customs in some cases and English law in some cases. This created confusion and chaos.

Many times people used to exploit these differences by one person filing suite in Supreme Court, other person filing suite in Adalat Court and then both of them enjoying the show between Supreme Court and Adalat Courts.

Owing to these problems it was felt that somethings needs to be done.what they did then ?

Efforts Till 1861

Vice president of Bengal Council advocated merger of Adalat Court and Supreme Court as early as 1829.

Charter of 1833 created All India Legislature which would pass the law for Indians. It was stated that these laws would be binding on Crown's court as well as Adalat court.

Charter of 1853 provided for appointment of Second Law Commission who is to prepare the scheme related to merger of these courts.

Macaulay and team was working on codification on various laws. (And they completed IPC in 1860 which we still use) which would be applicable uniformly on all courts.

These were some minor efforts taken to reduce the conflict and vagueness as to law and jurisdiction.

Indian High Courts Act, 1861

In 1861, Indian High Courts Act was passed by the British Parliament. The object of the act was to merge Adalat system with Supreme Court and overcome certain problems which were discussed earlier. The act did not itself created High Court, but gave authority to British Crown to establish these courts(Whats the difference really ? ).

High Courts were established in each presidency town i.e Madras, Bombay and Calcutta.

Judges Composition is shown in below image. Judges tenure was to hold the office as to pleasure of Her Majesty, meaning Crown.


Jurisdiction

These courts have combined jurisdiction of earlier Supreme Court and Adalat Courts.

Civil Jurisdiction

This jurisdiction was similar to that of Supreme Courts civil jurisdiction in case of Calcutta and SadarAdalat Courts in case of other areas.

There were Small Cause Courts  which used to decide suits upto 100 Rs. In all other cases High Court had jurisdiction.

In Below case High Court had jurisdiction (Ordinary Jurisdiction)
  1. When property is situated in Calcutta
  2. Cause of Action arose in Calcutta
  3. At the time commencement of suit, person resided in Calcutta
  4. If person carried on business in Calcutta
Extraordinary jurisdiction is also give to High court. Extraordinary ?.  This involves High Court could withdraw any suit lying in the Courts subject to it's superitendence and try it itself if the justice so demanded. So in this way High Court could try cases outside it's limit.

Other matters Over which High court could exercise jurisdiction

  • Insane and lunatics
  • Insolvency matters 
  • Testamentary-Intestate,succession
  • Matrimonial
  • Revenue 
 All in all, were wide civil jurisdiction was granted to High Court.

Criminal Jurisdiction

High court was granted ordinary and extraordinary Criminal Jurisdiction.

Court used to exercise authority over all the person residing in limit of Calcutta. It also had jurisdiction over all Britishers and Europeans.

Appellate Jurisidction

High Court was conferred with appellate jurisdiction. It could hear appeal in Civil cases as well as criminal Cases.

Other Aspects of High Courts Act 

High Court was given admiralty jurisdiction, meaning it can try offenses committed on high seas or crimes related to piracy

High court was given testamentary and intestate jurisdiction meaning they could decide suits related to succession.

High Court had power to make rules and regulation for themselves and subordinate courts to them.

Conclusion

Two kinds of system i.e Company's Court and Supreme Courts were merged under this act and for first time High Courts were established. 

It offered definitive jurisdiction of courts and do away with vagueness. It also provided for appointment of legal professionals. 

It helped in bringing certain uniformity in applicability of law.

just for info, famous High Court of Allahabad was established under this act. Earlier there was High Court of Agra established in 1866 which was moved Allahabad in 1875.

 

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