The High Courts under the Government of India Act 1935

Notice the change from 1915: no number in the statute. The maximum is fixed by Order in Council, court by court. Article 216 of the Constitution goes one step further and fixes no maximum at all.

220(2): every judge shall be appointed by His Majesty by warrant under the Royal Sign Manual and shall hold office until he attains the age of sixty years.

This is the most important sentence in the chapter. Under the Act of 1861 and the Act of 1915 a High Court judge held office during His Majesty's pleasure, that is, removable at will. Under the Act of 1935 he holds office until sixty. A retiring age is the second of the classic guarantees of judicial independence, after an irreducible salary, and this is where it enters Indian law. Compare article 217 of the Constitution, which fixes the age at sixty-two and adds removal only by the process in article 124(4).

Section 221: the salary

The judges are entitled to such salaries, allowances, leave and pensions as His Majesty in Council may fix, provided that neither the salary of a judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.

That is section 104 of the Act of 1915 restated, and it is article 125 of the Constitution in embryo.

Sections 222 to 223: continuity

222: if the office of chief justice becomes vacant or he is unable to act, the duties are performed by such other judge as the Governor-General in his discretion may appoint, until His Majesty appoints or the chief justice resumes.

223: subject to the Act, to any Order in Council and to any Act of the appropriate legislature, the jurisdiction of, and the law administered in, any existing High Court, and the powers of its judges in relation to the administration of justice, including the power to make rules of court and to regulate sittings and division courts, shall be the same as immediately before the commencement of Part III of this Act.

Section 223 is the hinge of continuity in this whole book. It carries the Letters Patent of 1865, and through them the jurisdiction of the Supreme Courts and the Sadar Adalats, into the constitutional statute of 1935; and article 225 of the Constitution carries the same thing forward again into independent India. A student who can say that the jurisdiction of the Bombay High Court today is preserved by article 225, which preserved what the Act of 1935 preserved, which preserved what the Letters Patent of 1865 gave, which was what the Act of 1861 merged out of the Supreme Court and the Sadar Adalat, has understood Module II.

Section 224: superintendence

224(1): every High Court shall have superintendence over all courts in India for the time being subject to its appellate jurisdiction, and may call for returns, direct transfers, make and issue general rules and prescribe forms for regulating their practice and proceedings, prescribe the forms of books, entries and accounts, and settle tables of fees.

This is section 107 of the Act of 1915, which was section 15 of the Act of 1861. Article 227 of the Constitution is drafted from this section, and when you study article 227 next year you will find the same list of powers.

Section 225: the constitutional case

Section 225 provides that if, on an application made in accordance with the section, a High Court is satisfied that a case pending in an inferior court is likely to involve the question of the validity of any Federal or Provincial Act, it shall transfer the case to itself for trial.

That provision exists because the Act of 1935 introduced, for the first time, a distribution of legislative powers under which a statute could be ultra vires, and a question of that kind was thought too important for a subordinate court. Nothing in Module I has a counterpart to it, because until 1935 no Indian legislature had limits a court could enforce in that way.

Section 226: revenue, again

226(1): until otherwise provided by Act of the appropriate legislature, no High Court shall have any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force.

226(2): a Bill or amendment to make such provision shall not be introduced without the previous sanction of the Governor-General or the Governor in his discretion.

The rule is the Settlement Act of 1781's, unchanged in substance after a hundred and fifty-four years, and now with a lock on the door: even the legislature cannot alter it without the Governor's discretionary sanction. If you want one example of how long a rule can survive in this subject, this is it: Kamaluddin's habeas corpus in 1775, the Cossijurah crisis of 1780, the Act of 1781, the letters patent, section 106(2) of the Act of 1915, and section 226 of the Act of 1935.

Sections 227 to 231: the rest

• 227: all proceedings in every High Court shall be in the English language.
• 228: the administrative expenses of a High Court, including all salaries, allowances and pensions of its officers, servants and judges, shall be charged upon the revenues of the Province, and fees taken by the court form part of those revenues. Expenditure "charged" on the revenues is not submitted to the vote of the legislature, which is a financial guarantee of independence and is article 229(3) of the Constitution today.
• 229: His Majesty may, on an address from the Chambers of a Provincial Legislature presented to the Governor for submission to him, by letters patent constitute a High Court for that Province or part of it, reconstitute an existing one, or amalgamate two High Courts in one Province.
• 230: His Majesty in Council may, if satisfied that an agreement has been made between the Governments concerned, extend the jurisdiction of a High Court to any area in British India not forming part of its Province.
• 231: judges appointed before the commencement of Part III continue in office and are deemed appointed under the Act, but are not required to retire earlier than they would have done had the Act not been passed.

Section 231 is the ordinary saving that accompanies a new retiring age, and it tells you that the sixty-year rule of section 220(2) was genuinely new.

A worked example

A judge is appointed to the Bombay High Court in 1938. Compare his position with a judge appointed in 1918.

What beginners get wrong

"The Act of 1935 created the High Courts." It deemed the existing courts to be High Courts, provided for their constitution, and allowed the Crown to constitute, reconstitute and amalgamate them by letters patent under section 229. The courts themselves ran on from 1862.

"High Court judges got security of tenure in 1861." They held office during His Majesty's pleasure from 1861 to 1935. The retiring age of sixty in section 220(2) is the first real tenure they had.

"Section 224 is about appeals." It is about superintendence: returns, transfers, rules, forms, books and fees. It is administrative and supervisory control over the courts below, and it is the ancestor of article 227, not of article 226 or 136.

"The 1935 Act ended the revenue exclusion." It re-enacted it in section 226 and added a requirement of the Governor's discretionary sanction before any Bill to alter it could even be introduced.

Limits and criticism

The chapter is the high point of judicial independence in British India and it is worth being exact about how far it went.

What it gave. A retiring age instead of removability at pleasure; a salary and pension that could not be reduced; a court's expenses charged on the revenues instead of voted; and a superintendence over subordinate courts stated in the constitutional statute rather than in letters patent.

What it withheld. Appointment remained with His Majesty, on the advice of ministers in London, with no Indian participation of any kind. There was no procedure for removal at all in the chapter, which sounds like security and in fact meant that the terms of removal were whatever the warrant and the Order in Council provided. And the whole apparatus sat inside an Act whose central federal scheme never came into force, so the High Courts operated under a chapter of a constitution that had not been completed.

The Constitution of 1950 closed each of those gaps: appointment under article 217 with consultation, removal only under article 124(4), and a retiring age raised to sixty-two.

Quick revision

• Part IX chapter II, ss.219 to 231, of the Government of India Act 1935.
• s.219: the courts deemed High Courts: Calcutta, Madras, Bombay, Allahabad, Lahore, Patna, the Chief Court in Oudh, and the Judicial Commissioners' Courts in the Central Provinces and Berar, the North-West Frontier Province and Sind.
• s.220: court of record; chief justice and such judges as His Majesty appoints up to a maximum fixed by Order in Council; appointment by warrant under the Royal Sign Manual; office held until the age of sixty.
• s.221: salary, leave and pension not variable to his disadvantage after appointment.
• s.223: jurisdiction and law administered continue as before. The ancestor of article 225.
• s.224: superintendence over courts subject to its appellate jurisdiction. The ancestor of article 227.
• s.225: a case involving the validity of a Federal or Provincial Act is transferred to the High Court.
• s.226: no original jurisdiction in revenue matters, alterable only by an Act introduced with the Governor's discretionary sanction.
• s.227: proceedings in English. s.228: administrative expenses charged on the Province's revenues.
• s.229: His Majesty may constitute, reconstitute or amalgamate High Courts by letters patent, on an address from the Provincial Legislature. s.230: extension of jurisdiction to other areas. s.231: existing judges saved.

Test yourself

1. What is the single most important change section 220(2) made? It gave High Court judges a retiring age of sixty in place of tenure during His Majesty's pleasure, which is the first real security of tenure Indian High Court judges had.

2. Trace section 224 backwards and forwards. Backwards to section 107 of the Act of 1915 and section 15 of the Act of 1861; forwards to article 227 of the Constitution, which is drafted from it.

3. What does section 223 preserve, and which article of the Constitution repeats the technique? The jurisdiction of, and the law administered in, each existing High Court, and its judges' powers including the power to make rules, as they were immediately before Part III commenced. Article 225 of the Constitution does the same thing again for independent India.

4. Why does section 225 exist, and why is there nothing like it before 1935? Because the Act of 1935 distributed legislative powers between the Federation and the Provinces, so that an Act could be beyond the powers of the legislature that passed it. Before 1935 no Indian legislature had limits enforceable in that way, so no such question could arise in a lower court.

5. What does it mean that the High Court's expenses were "charged upon the revenues of the Province"? That they were not submitted to the vote of the legislature, so the court's funding could not be used as a means of pressure on it. Article 229(3) of the Constitution makes the same provision today.