The Letters Patent, and the First High Courts

In one line

The Act of 1861 created nothing; the Letters Patent of 1862 created the High Courts, and the Letters Patent of 1865 replaced them.

In the wording a student can write in an exam: under section 1 of the Indian High Courts Act 1861 Letters Patent were issued in 1862 establishing High Courts at Calcutta, Madras and Bombay; the Indian High Courts Act 1865 extended the time within which the Crown might revoke and re-grant those patents, and fresh Letters Patent were issued in 1865, which are the patents in force; a fourth High Court was established at Allahabad for the North-Western Provinces in 1866 under section 16 of the Act of 1861.

Why "the Letters Patent" is not one document

Because there are two sets and a student who says "the Letters Patent" without a date is being ambiguous in a way that matters.

The Letters Patent of 1862 established the High Courts at Calcutta, Madras and Bombay under section 1 of the Act of 1861. They fixed each court's constitution, its original and appellate jurisdiction, its criminal jurisdiction, its power to make rules and the law it was to apply.

The Letters Patent of 1865 revoked and replaced them. Section 17 of the Act of 1861 had allowed the Crown, within three years of 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 others, or without revoking to grant additional and supplementary powers. Three years proved too short. The Indian High Courts Act 1865, 28 & 29 Vict. c. 15, of 7 April 1865, was passed to extend the time and to make further provision about territorial jurisdiction. Fresh patents were then issued in 1865.

The Indian High Courts Act 1865, section by section

It is six sections long and each of them does something, so it is worth taking in full rather than describing.

Section 1 extends the time fixed by section 17 of the Act of 1861 for granting fresh Letters Patent to the first day of January 1866. That is the whole reason the Act exists, and it is why the patents of 1865 are valid.

Section 2 repeals sections 10 and 18 of the Act of 1861. That matters and is easy to miss. Section 10 had continued the Supreme Courts' jurisdiction over inhabitants of parts of India outside the local limits of the letters patent, and section 18 had given Her Majesty power by Order in Council to transfer territory between High Courts. Both are gone in 1865, and section 3 replaces the second with something quite different.

Section 3 makes it lawful for the Governor-General of India in Council, by order, from time to time, to transfer any territory or place from the jurisdiction of one High Court to another; and to authorise and empower any High Court to exercise all or any portion of the jurisdiction and powers conferred on it by Letters Patent beyond the limits of the Presidency for which it is established, and also to exercise such jurisdiction in respect of Christian subjects of Her Majesty resident within the dominions of Indian Princes and States in alliance with Her Majesty, as the Governor-General in Council may determine.