The High Courts under the Government of India Act 1915

Compare the Act of 1861, which fixed the maximum at fifteen. The number has grown, and it goes on growing: the Indian High Courts Act 1911 had raised it, and article 216 of the Constitution abandons a fixed maximum altogether.

101(3): a judge must be one of four:

• a barrister of England or Ireland, or a member of the Faculty of Advocates in Scotland, of not less than five years' standing;
• a member of the Indian Civil Service of not less than ten years' standing, who has for at least three years served as, or exercised the powers of, a district judge;
• a person who has held judicial office not inferior to that of a subordinate judge or a judge of a small cause court for not less than five years;
• a person who has been a pleader of a high court for not less than ten years.

101(4): not less than one third of the judges, including the chief justice but excluding additional judges, must be barristers or advocates, and not less than one third members of the Indian Civil Service.

Set that beside section 2 of the Act of 1861 and the continuity is exact: the same four classes, the same two thirds rule, with "Covenanted Civil Service" become "Indian Civil Service", "zillah judge" become "district judge", and "Principal Sadar Ameen" become "subordinate judge". The vocabulary of the Company has been replaced by the vocabulary still used in Indian district courts.

101(5): the High Court for the North-Western Provinces may be styled the High Court of Judicature at Allahabad, and the High Court at Fort William in Bengal is referred to in the Act as the High Court at Calcutta.

Sections 102 to 105: tenure, precedence, salary, vacancies

102: every judge holds office during His Majesty's pleasure, and may resign, in the case of Calcutta to the Governor-General in Council and otherwise to the local Government.

103: the chief justice has rank and precedence before the other judges; the others rank according to the seniority of their appointments, unless their patents provide otherwise.

104: the Secretary of State in Council may fix and alter the salaries, allowances, furloughs, retiring pensions and equipment and voyage expenses of the judges, but an alteration shall not affect the salary of a judge appointed before it. The remuneration is to be "the whole profit or advantage which he shall enjoy from his office", which is a rule against a judge taking anything else from the position. The section also provides for payments to the representatives of a judge who dies on the voyage out or within six months of arrival, and of one who dies in office thereafter.

Section 104 is worth pausing on, because it contains, in 1915, two of the guarantees that Module III will discuss as marks of judicial independence: a salary that cannot be reduced during a judge's tenure, and a rule that the office yields nothing but the salary. Compare article 125 of the Constitution.

105: on a vacancy or absence in the office of chief justice, the Governor-General in Council for Calcutta and the local Government elsewhere shall appoint one of the other judges to perform his duties until His Majesty appoints; and on a vacancy or absence of any other judge, or where a judge is acting as chief justice, an acting judge with the same qualifications may be appointed, until His Majesty appoints, or the absent judge returns, or the appointment is cancelled.

Section 106: what a High Court is, and the revenue exclusion

106(1): the several High Courts are courts of record and have such jurisdiction, original and appellate, including admiralty jurisdiction in respect of offences committed on the high seas, and all such powers and authority over or in relation to the administration of justice, including power to appoint clerks and other ministerial officers and power to make rules regulating the practice of the court, as are vested in them by letters patent; and, subject to those patents, all such jurisdiction, powers and authority as were vested in them at the commencement of the Act.

106(2): the High Courts have not and may not exercise 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.

Section 106(2) is a hundred and thirty-four years old when it is enacted. It is the Settlement Act of 1781's exclusion of revenue from the Supreme Court, carried forward through the letters patent into a consolidating statute, and it is carried forward again into section 226 of the Government of India Act 1935. A student who can trace one rule from Cossijurah in 1780 to a section of a statute in 1935 is doing exactly what a history paper is for.

Section 107: superintendence

Each High Court has superintendence over all courts for the time being subject to its appellate jurisdiction, and may:

• call for returns;
• direct the transfer of any suit or appeal from any such court to any other court of equal or superior jurisdiction;
• make and issue general rules and prescribe forms regulating the practice and proceedings of those courts;
• prescribe the forms of books, entries and accounts kept by their officers; and
• settle tables of fees allowed to the sheriff, attorneys, clerks and officers,

provided that such rules, forms and tables are not inconsistent with any Act in force and have the required previous approval.

That is section 15 of the Act of 1861 with two additional heads, and it is the direct ancestor of article 227 of the Constitution.

Sections 108 to 114: the remaining provisions

• 108: exercise of jurisdiction by single judges or division courts, as the court's own rules provide, which is section 13 of the Act of 1861.
• 109: power of the Governor-General in Council to alter the local limits of a High Court's jurisdiction.
• 112: the law to be administered in cases of inheritance and succession, which carries the personal-law rule forward.
• 113: power to establish additional High Courts, which is section 16 of the Act of 1861.
• 114: appointment and powers of the Advocate-General.

A worked example

An advocate is being considered for a High Court judgeship at Madras in 1920. Is he eligible, and what will his position be?

• Eligibility. He is a pleader of the High Court of ten years' standing, so he qualifies under section 101(3)(d). He is not a barrister and not in the Indian Civil Service, so his appointment must leave at least a third of the bench in each of those two categories.
• Appointment. By His Majesty, under section 101(2); or, if the appointment is temporary, by the Governor-General in Council as an additional judge for not more than two years under the first proviso, or as an acting judge under section 105.
• Tenure. During His Majesty's pleasure, section 102. He may resign to the local Government.
• Salary. Fixed by the Secretary of State in Council under section 104, and it cannot be reduced to his disadvantage after his appointment.
• What he may hear. Whatever the Letters Patent of 1865 give the Madras High Court, section 106(1), except an original revenue matter, section 106(2).

What beginners get wrong

"The Act of 1915 created the High Courts." It consolidated the law about them. They were and remained courts established by letters patent, and section 101(1) says so.

"It changed the qualifications for judges." It restated them. The four classes and the two thirds rule are those of section 2 of the Act of 1861, with the vocabulary updated.

"The maximum number of judges was fifteen." Fifteen was the Act of 1861. By 1915 it is twenty, including the chief justice and additional judges.

"High Courts could hear revenue cases." Not on their original side: section 106(2) forbids it, as the Settlement Act of 1781 had done. Revenue matters could reach them on appeal from the courts below.

Limits and criticism

Consolidation is a modest virtue and this Act has it. Its limitations are the limitations of what it consolidated.

The judges still held office during His Majesty's pleasure, which is the weakest tenure any of the instruments in this book confers, and it was not improved until the Government of India Act 1935 gave High Court judges a fixed retiring age and removal only on specified grounds.

The High Courts' jurisdiction still came from letters patent, so a statute that was meant to state the law had to define its most important institutions by reference to documents outside itself.

And the courts below the High Courts were still governed by the Regulations and the local Acts, unmentioned in Part IX except through the superintendence in section 107. India's judiciary was, in 1915, a statutory summit on an unconsolidated base.

Quick revision

• Government of India Act 1915 (5 & 6 Geo. V c. 61), a consolidating Act of 135 sections. Part IX, ss.101 to 114, is the High Courts.
• s.101: High Courts are those established by letters patent; a chief justice and such judges as His Majesty appoints; additional judges by the Governor-General in Council for up to two years; maximum twenty; four classes of eligible person; one third barristers, one third Indian Civil Service; Allahabad and Calcutta named.
• s.102: office held during His Majesty's pleasure. s.103: precedence by seniority.
• s.104: salaries fixed by the Secretary of State in Council, not alterable to the disadvantage of a sitting judge, and the remuneration is the whole profit of the office.
• s.105: acting chief justice and acting judges.
• s.106: courts of record, with the jurisdiction their letters patent give them, including admiralty for offences on the high seas; no original jurisdiction in revenue matters.
• s.107: superintendence over subordinate courts: returns, transfer, general rules and forms, books and accounts, tables of fees. The ancestor of article 227.
• ss.108, 109, 112, 113, 114: single judges and division courts; local limits; the law of inheritance and succession; additional High Courts; the Advocate-General.

Test yourself

1. What kind of Act was the Government of India Act 1915, and what did it change about the High Courts? A consolidating Act, which re-enacted the existing law in one statute without altering it. In principle it changed nothing about the High Courts; Part IX restates the law as it stood.

2. Who could be appointed a High Court judge under section 101(3), and what was the two thirds rule? A barrister of England or Ireland or an advocate of Scotland of five years' standing; a member of the Indian Civil Service of ten years' standing with three as a district judge or exercising like powers; a person who had held judicial office not inferior to a subordinate judge or judge of a small cause court for five years; or a pleader of a High Court of ten years' standing. Not less than one third of the judges, including the chief justice but excluding additional judges, had to be barristers or advocates, and not less than one third members of the Indian Civil Service.

3. State two provisions of section 104 that Module III will recognise as guarantees of judicial independence. That an alteration of salaries shall not affect the salary of a judge appointed before it, so a sitting judge's pay cannot be reduced; and that the remuneration fixed shall be the whole profit or advantage the judge enjoys from the office.

4. Trace section 106(2) backwards and forwards. Backwards to the Settlement Act of 1781, which excluded revenue matters from the Supreme Court after the Kamaluddin and Cossijurah disputes, and which reached the High Courts through the letters patent; forwards to section 226 of the Government of India Act 1935, which re-enacts the same exclusion.

5. What was the maximum number of judges of a High Court under the Act of 1861 and under the Act of 1915? Fifteen under the Act of 1861; twenty under section 101(2) of the Act of 1915, including the chief justice and additional judges.