The Indian High Courts Act 1861

And there is a proviso: not less than one third of the judges, including the Chief Justice, must be barristers, and not less than one third must be members of the Covenanted Civil Service.

This section is the amalgamation in miniature, and it repays reading twice.

Class 1 is the Supreme Court's bench: English barristers. Class 2 is the Sadar Adalat's bench: the Company's covenanted servants who had served as zillah judges. The Act puts them on the same bench and requires a third of each, so that neither tradition can be excluded.

Classes 3 and 4 are the ones a student should notice. Class 3 admits Indian judicial officers, because Principal Sadar Ameen was an office Indians held. Class 4 admits pleaders, and a pleader of a Sadar Court was very often an Indian. The Act therefore opened the High Court bench to Indians, by two routes, in 1861. That is why topic 4.2.5 in Module IV, on the legal profession under the High Courts Act, belongs with this section.

Section 3: nobody was dismissed

Section 3 provides that the persons who at the time of the establishment of a High Court are judges of the Supreme Court and permanent judges of the Sadar Diwani Adalat or Sadar Adalat of the same Presidency shall become judges of the High Court without further appointment, and that the Chief Justice of the Supreme Court shall become the Chief Justice of the High Court.

So the merger was not an abolition of two benches and the appointment of a new one. The two existing benches were poured into one, and the senior of the two chief justices, the Supreme Court's, took the head of it.

Section 4: tenure

Section 4 provides that all the judges shall hold office during Her Majesty's pleasure, with liberty to resign to the Governor-General of India in Council or the Governor in Council of the Presidency.

"During Her Majesty's pleasure" means removable at will, and it is a much weaker tenure than English judges had enjoyed since 1701. A student writing about the independence of the judiciary in Module III should notice that Indian High Court judges did not have security of tenure in 1861, and should contrast article 217 of the Constitution.

Sections 5 to 7: precedence, salaries and acting appointments

Section 5 fixes rank and precedence. The Chief Justice ranks before the other judges of the same court; those judges who were transferred to it from the Supreme Court on its establishment rank before the judges not so transferred; and otherwise the judges rank according to the seniority of their appointments, unless their patents provide otherwise. The provision is a small monument to the merger: for a generation, a High Court bench carried its two ancestries in its own order of precedence.

Section 6 deals with salaries and pensions. A Chief Justice or judge transferred from the Supreme Court was to receive the like salary, retiring pension and advantage as he would have been entitled to for service in the Supreme Court had that court continued, his service in the High Court being reckoned as service in the Supreme Court. Except as aforesaid, it was lawful for the Secretary of State in Council of India to fix, and from time to time to alter, the salaries, allowances, furloughs, retiring pensions and, where necessary, expenses for equipment and voyage of the Chief Justices and judges; provided always that such alteration shall not affect the salary of any judge appointed prior to the date of it.

That proviso is worth noticing beside section 4. A judge held office during Her Majesty's pleasure, so he had no security of tenure; but his salary could not be cut by a later alteration. Article 125 and article 221 of the Constitution now protect both, and it is the tenure, not the salary, that 1861 left unprotected.

Section 7 is the acting-appointment provision, and it is worth a sentence because it is the ancestor of articles 223 and 224A of the Constitution. On a vacancy in the office of Chief Justice, or during his absence, the Governor-General in Council or the Governor in Council, as the case may be, shall appoint one of the judges of the same High Court to perform the duties of Chief Justice until Her Majesty has appointed somebody who has entered on the office, or until the Chief Justice returns. On a vacancy in the office of any other judge, during his absence, or where a judge is appointed to act as Chief Justice, it is lawful for the Governor-General in Council or the Governor in Council to appoint a person with the qualifications required for appointment to the High Court to act as a judge, and that person may sit and perform a judge's duties until Her Majesty appoints somebody who enters on the office, until the absent judge returns, or until the acting appointment is cancelled.

Notice the two verbs. For the Chief Justice's office the executive shall appoint an acting Chief Justice from among the judges of that court; for a puisne judge's it may appoint anybody who has the qualification. Article 223 keeps the first idea in the President's hands and drops the second.

Sections 8 to 12: the abolition and the inheritance

On the establishment of a High Court in a Presidency, the Supreme Court and the Sadar Diwani Adalat and Sadar Nizamat Adalat of that Presidency were abolished, and their jurisdiction and every power and authority vested in them was vested in the High Court (s.9).

Section 10 provided that, until the Crown otherwise provided, all jurisdiction then exercised by the Supreme Courts over inhabitants of parts of India not comprised within the local limits of the letters patent should be exercised by the High Courts.

Section 11 provided that all provisions of Acts of Parliament, Orders in Council, Charters and Acts of the Indian legislature applicable to the Supreme Courts or their judges should be taken to apply to the High Courts and their judges, so far as consistent with the Act and the letters patent, and subject to the legislative power of the Governor-General in Council.

Section 12 provided that the High Court should have jurisdiction over all proceedings pending in the abolished courts, which should be dealt with as if had in the High Court, save that they might be continued as nearly as circumstances permitted according to the practice of the abolished courts.

Put those four together and the design is clear. Nothing was lost. Every jurisdiction, every rule, every pending case and every judge of both systems passed into the new court, and the two bodies of practice were allowed to continue side by side within it until they merged. That is why the Indian High Courts have an original side and an appellate side to this day: the original side is the Supreme Court's inheritance, the appellate side is the Sadar Adalat's.

Sections 13, 14 and 15: how the court works

Section 13: subject to any laws or regulations made by the Governor-General in Council, a High Court may by its own Rules provide for the exercise, by one or more judges or by Division Courts of two or more judges, of the original and appellate jurisdiction vested in it, in such manner as appears convenient for the due administration of justice.

Section 14: the Chief Justice shall from time to time determine what judge shall sit alone and what judges, with or without him, shall constitute the several Division Courts.

Section 15: each High Court shall have superintendence over all courts subject to its appellate jurisdiction, shall have power to call for returns, to direct the transfer of any suit or appeal from any such court to any other of equal or superior jurisdiction, and to make and issue general rules for regulating the practice and proceedings of those courts.

Section 15 is the ancestor of article 227 of the Constitution, and section 14 is why the Chief Justice of an Indian High Court is called the master of the roster today. Both are worth naming in an answer.

Sections 16 to 19: expansion, revocation and definitions

Section 16 empowered Her Majesty, if she thought fit, by Letters Patent to erect and establish a High Court for any portion of the territories in India not included within the local jurisdiction of another High Court, with a Chief Justice and such judges, of the same qualifications, as she might appoint. That is the section under which the High Court of the North-Western Provinces at Allahabad was created.

Section 17 empowered Her Majesty, within three years after the establishment of any High Court, to revoke the whole or any part of the letters patent by which it was established and to grant such other powers and provisions as she thought fit, or without revocation to grant additional or supplementary powers. That is the section under which the Letters Patent of 1862 were replaced in 1865.

Section 18 empowered Her Majesty by Order in Council to transfer any territory or place from the jurisdiction of one High Court to another, and generally to alter the territorial limits. Note that sections 10 and 18 were repealed four years later by section 2 of the Indian High Courts Act 1865, and that section 3 of that Act gave the power of transfer to the Governor-General in Council instead of to Her Majesty in Council. A student who says the Act of 1861 governs the transfer of territory between High Courts is right for four years only.

Section 19 is the interpretation clause: the word "barrister" in the Act includes barristers of England or Ireland and members of the Faculty of Advocates in Scotland, and "Governor-General and Governor" includes the officer administering the government.

A worked example

Trace one appeal across the change.

1860, Bengal. A suit about a zamindari is decided by a zillah court. The appeal goes to the Sadar Diwani Adalat at Calcutta. If the value is £5,000 or more, a further appeal lies to Her Majesty in Council. A quite separate suit between two English merchants of Calcutta is tried by the Supreme Court on its original side, with an appeal to the Queen in Council.

1863, Bengal. The Sadar Diwani Adalat and the Supreme Court no longer exist. The zamindari appeal goes to the High Court at Fort William on its appellate side; the merchants' suit is tried by the same High Court on its original side; and the judges who hear them are, by section 3, the very same men who sat in the two abolished courts. Appeals go from both to Her Majesty in Council.

One court, two sides, the same judges, and the question that had been unanswerable since 1774, which court has authority, no longer arises.

Distinctions worth having straight

What beginners get wrong

"The Act of 1861 established the High Courts." It authorised Her Majesty to establish them by letters patent, and they were established by the Letters Patent of 1862. Same relationship as the Regulating Act and the Charter of 1774.

"The High Court replaced the Supreme Court." It replaced both the Supreme Court and the Sadar Adalats, and inherited the jurisdiction of both. Saying only the first misses the entire point of the Act.

"Only barristers could be High Court judges." Four classes were eligible, including persons who had held judicial office not inferior to Principal Sadar Ameen and pleaders of ten years' standing. Not less than one third had to be barristers and not less than one third members of the Covenanted Civil Service.

"High Court judges had security of tenure." They held office during Her Majesty's pleasure. Security of tenure for Indian judges comes much later, and article 217 of the Constitution is where a student should look for the contrast.

Limits and criticism

The Act deserves its reputation, and the criticisms of it are real.

What it achieved. It ended a conflict that eighty years of litigation and two Acts of Parliament had failed to resolve, and it did so by the only method that could work: removing the duality rather than adjudicating it. It put Indian judicial officers and Indian pleaders on the same bench as English barristers, by statute, in 1861. And it created the institution that is still, in each State, the highest court below the Supreme Court of India.

What it did not do. It did not give the judges security of tenure. It did not touch the courts below the High Court, which remained as the Regulations had left them, so the reform stopped at the top. It applied only to the three Presidencies, leaving the rest of India to section 16 and to the slow creation of further High Courts. And by preserving the practice of the abolished courts under section 12, it preserved the distinction between the original and appellate sides, which is a survival of the dual system inside a single court and is with Bombay, Calcutta and Madras still.

Quick revision

• 24 & 25 Vict. c. 104, 6 August 1861. Nineteen sections.
• s.1: Her Majesty may by Letters Patent erect High Courts at Fort William, Madras and Bombay, at such times as she thinks fit.
• s.2: Chief Justice and not more than fifteen judges, from four classes: barristers of 5 years; Covenanted Civil Service of 10 years who served 3 as zillah judges; holders of judicial office not inferior to Principal Sadar Ameen or judge of a Small Causes Court for 5 years; pleaders of a Sadar Court or High Court of 10 years. One third barristers, one third covenanted service.
• s.3: existing Supreme Court and Sadar Adalat judges become High Court judges; the Supreme Court's Chief Justice becomes Chief Justice.
• s.4: office held during Her Majesty's pleasure.
• s.5: precedence: Chief Justice first, then the judges transferred from the Supreme Court, then by seniority of appointment. s.6: transferred judges keep their Supreme Court salary and pension; otherwise the Secretary of State in Council fixes and alters them, but no alteration affects a judge appointed before it. s.7: acting appointments: the executive shall appoint one of the court's own judges to act as Chief Justice on a vacancy or absence, and may appoint a qualified person to act as a judge, until Her Majesty appoints or the absent judge returns.
• ss.9 to 12: the Supreme Courts and Sadar Adalats abolished; all their jurisdiction, all applicable law and all pending proceedings pass to the High Court, which may continue them under the old practice.
• s.13: exercise of jurisdiction by single judges and Division Courts, by the court's own rules. s.14: the Chief Justice decides who sits where.
• s.15: superintendence over all courts subject to its appellate jurisdiction, returns, transfer, and general rules. The ancestor of article 227.
• s.16: further High Courts elsewhere. s.17: letters patent revocable within three years. s.18: transfer of territory. s.19: "barrister" defined.

Test yourself

1. What did the Act of 1861 actually enact, and what created the High Courts? It empowered Her Majesty to erect and establish High Courts by Letters Patent under the Great Seal at Fort William, Madras and Bombay, at such times as she thought fit. The courts themselves were created by the Letters Patent issued under that power.

2. State the four classes from which High Court judges could be selected, and the two thirds rule. Barristers of at least five years' standing; members of the Covenanted Civil Service of at least ten years who had served three as zillah judges or with like powers; persons who had held judicial office not inferior to Principal Sadar Ameen or judge of a Small Causes Court for at least five years; and pleaders of a Sadar Court or High Court of at least ten years. Not less than one third of the judges, including the Chief Justice, had to be barristers, and not less than one third members of the Covenanted Civil Service.

3. What happened to the judges of the abolished courts? By section 3 the sitting judges of the Supreme Court and the permanent judges of the Sadar Adalat became judges of the High Court without further appointment, and the Chief Justice of the Supreme Court became Chief Justice of the High Court.

4. Why do Indian High Courts still have an original side and an appellate side? Because the Act merged a trial court, the Supreme Court, with an appellate court, the Sadar Adalat, and section 12 allowed pending proceedings to be continued according to the practice of the abolished courts. The two bodies of practice survived inside the single court.

5. Which section is the ancestor of article 227 of the Constitution, and what does it say? Section 15: each High Court shall have superintendence over all courts subject to its appellate jurisdiction, with power to call for returns, to direct the transfer of suits and appeals, and to make and issue general rules regulating their practice and proceedings.