The Act of 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 High Court’s was to consist of a Chief Justice and
other puisne judges not exceeding 15 in number as
her Majesty might from time to time think fit to
appoint.
A person could be appointed judge of High Court if he was either:
1. A Barrister of not less than five years standing;
2. A member of the Covenanted Civil Service of at least 10 year's
standing who had served as Zila judge for at least 3 years in that
period;
3. A person having held judicial officer not inferior to that of
principal Ameen or judge of a small cause court for at least 5
years;
4. A person who had been a pleader of a Sadar Court or a High
Court for at least 10 years.
At least one third of the judges of the High Court,
including the Chief justice had to be Barristers and
the other one third of the judges had to be members
of the covenanted Civil Service. The judges hold
their office during the pleasure of her Majesty.
The law which the high court applied was same as applied by the
Supreme Court i.e. English law. However, the High court was
allowed to use the principles of justice, equity and good
conscience on the appellate side. In criminal law, it followed the
I.P.C, 1860. So far as procedural laws are concerned the High
Court's followed civil and criminal codes.
The jurisdiction of each high court depends on the letters Patent
issued by her Majesty. She could give them power to exercise all
civil, criminal, intestate, testamentary, admiralty and matrimonial
jurisdiction. She could also confer on them original and appellate
jurisdiction and all such powers and authority with respect to the
administration of justice in the presidency, as she thought fit.
Thus High Courts were given the following original and appellate
jurisdiction.
The court had original jurisdiction in the following matters:
(a) Civil Jurisdiction and
(b) Criminal Jurisdiction
(a) Civil Jurisdiction: The Original Civil Jurisdiction of the court was of
two types:-
i. Ordinary Civil Jurisdiction: The Ordinary Civil Jurisdiction extended
to the town of Calcutta, Madras and Bombay and such local limit as
from time to time could be prescribed by law of a competent
legislature in British India. All suits of the value of Rs. 100 or more
and which were not cognizable by the small court at Calcutta, Madras
and Bombay were cognizable under High Courts.
Further, the ordinary civil jurisdiction could be invoked only if:
-The movable property was situated within the town of Calcutta,
Madras and Bombay;
-The cause of action wholly or partly arose in Calcutta, Madras
and Bombay;
-The defendant was carrying on business or working for gain in
Calcutta, Madras and Bombay.
Extra Ordinary Civil Jurisdiction provides that the High Court
could call a case pending in any lower court subject to its
superintendence and could decide that case itself. This
jurisdiction could be exercised in a case where the parties agreed
to such exercise or the High Court thought it proper to impart
justice.
It is of two types also:-
i. 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 made available over the native criminals
and crimes committed with the local limits of the presidency
towns and beyond this limit over the Britishers and Europeans as
the Supreme Court used to enjoy the jurisdiction over them
before the establishment of the High Court.
The High Courts were to have extra Ordinary Original Criminal
Jurisdiction which was not enjoyed by the High Court. Under this
jurisdiction the High Court hear any criminal case against any
person within the cognizance of any court which was subject to
the supertendance of the High Court. If such case was referred to
the high court by the advocate general or by any magistrate or
any other officer specially empowered for that purpose.
2. Revenue Jurisdiction: The High Court was given jurisdiction to
here revenue cases also which were precluded from the jurisdiction
of the Supreme Court by the Act of Settlement, 1781.
3. Admiralty Jurisdiction: The admiralty and vice-admiralty
jurisdiction was also given to the high court.
4. Testamentary and miscellaneous jurisdiction: The High
Courts were given similar testamentary, intestate and probate
jurisdiction as was enjoyed by the Supreme Court. It also worked as
the court of words for the administration of the estate and persons
(lunatics, idiots and minors).
The appellate jurisdiction of the High Court was of two types:-
(a) Civil Jurisdiction: The High Court could hear appeals in all
cases authorised by any law or regulation.
(b) Criminal Jurisdiction: The High Court had criminal
jurisdiction in all cases decided by the subordinate courts to it. It
could also entertain revisions against the decision of the lower
court and reference from them.
An appeal to Privy Council lay from judgement of High Court in
civil cases when the amount involved is Rs. 10,000 or more or if
the High Court certified that the case is fit one for appeal. And in
case of criminal cases from its original jurisdiction or if the High
Court certified that the case is fit one for appeal.