The Letters Patent, and the First High Courts

Two changes at once. The power to move territory between High Courts passes from Her Majesty in Council in London to the Governor-General in Council in India, which is a real transfer of authority. And the second half is the mechanism by which a High Court's writ could run into the territory of a Princely State, over British Christian subjects living there, which is how the courts of British India reached into places British India did not govern.

Section 4 is the check on that power. Whenever such an order is passed, the Governor-General in Council must transmit an authentic copy to the Secretary of State for India, and Her Majesty may signify her disallowance through the Secretary of State in Council. The disallowance annuls the order from the day the Governor-General makes known by proclamation, or signifies to his Council, that he has received notification of it. There is then a saving: all acts, proceedings and judgments done, taken or given by the High Courts under the order, and not set aside by a competent authority before the disallowance was promulgated, are deemed valid and effectual notwithstanding the disallowance.

That saving is the sort of provision students skim and examiners like, because it answers an obvious question: what happens to the cases a High Court decided under a jurisdiction that is afterwards annulled? The answer is that they stand. Compare it with the pattern in sections 36 and 37 of the Regulating Act, where a disallowed regulation became null and void: here the instrument dies and its fruits survive.

Section 5 provides that so much of the Act as relates to the jurisdiction of the High Court shall commence and come into operation as soon as it has been published by the Governor-General in Council.

Section 6 provides that nothing in the Act shall interfere with the powers of the Governor-General in Council at meetings for the purpose of making laws and regulations, that is, in its legislative capacity.

The patents of 1865 are the ones in force, and it is from them that the phrase "letters patent appeal", the appeal from a single judge of a High Court to a Division Bench of the same court, takes its name. When a Bombay lawyer says "clause 15 of the Letters Patent", the reference is to the patents of 1865.

What the patents contained

Since the Act said only that the Crown might erect High Courts, everything that makes a High Court a court had to be in the patents. Each patent dealt with the same subjects:

• the constitution of the court, its Chief Justice and judges, and the taking of the oath;
• its original civil jurisdiction, over the Presidency Town, inherited from the Supreme Court;
• its appellate civil jurisdiction, over the courts of the mofussil, inherited from the Sadar Diwani Adalat;
• its ordinary and extraordinary original criminal jurisdiction, and its criminal appellate and revisional jurisdiction;
• the law to be applied, which continued the personal-law rule for Hindus and Muslims;
• the power to make rules of practice, and the constitution of Division Courts under section 13 of the Act;
• appeals from a single judge to a Division Bench, which is the letters patent appeal;
• and the appeal to Her Majesty in Council.

Three separate patents were issued for the three courts, because the three Presidencies had three different histories, and differences between the Calcutta, Madras and Bombay High Courts descend from them. Bombay, for example, has an original side today because the patents gave it one; a High Court created later, in a province with no Presidency Town, does not.

The four first High Courts

Calcutta, Madras and Bombay in 1862, under section 1.

Allahabad in 1866, for the North-Western Provinces, under section 16, which empowered Her Majesty to erect a High Court for any portion of the Indian territories not within the local jurisdiction of another High Court. The Government of India Act 1915 later provided expressly, in section 101(5), that the High Court for the North-Western Provinces might be styled the High Court of Judicature at Allahabad, and that the High Court at Fort William in Bengal is referred to in that Act as the High Court at Calcutta.

Section 18 of the Act of 1861 allowed Her Majesty by Order in Council to transfer territory from the jurisdiction of one High Court to another and generally to alter their territorial limits, which is how the map was adjusted as provinces were created and rearranged.

A worked example

A litigant in Bombay in 1870 loses before a single judge of the High Court on its original side. What can he do?

1. Appeal to a Division Bench of the same High Court, under the clause of the Letters Patent of 1865 that provides for it. That is the letters patent appeal, and it exists because a High Court's original side is a trial court and its judges sit alone.
2. If he loses there, appeal to Her Majesty in Council, subject to the conditions in the patent.
3. Notice that his first appeal is to the same court that tried him, differently constituted. That is a peculiarity of the Presidency High Courts, it comes from the patents, and it does not exist in a court that has no original side.

What beginners get wrong

"The High Courts were established by the Act of 1861." They were established by the Letters Patent of 1862 issued under it. The Act authorises; the patents create; and the patents of 1862 were themselves replaced in 1865.

"The Act of 1865 created new High Courts." It extended the time within which the Crown could revoke and re-grant the letters patent, and made further provision about territorial jurisdiction. It created no court.

"A letters patent appeal is an appeal to the Supreme Court." It is an appeal from a single judge of a High Court to a Division Bench of the same High Court, under the clause of the Letters Patent that provides for it.

"All High Courts have the same powers." The three Presidency High Courts have an original side that later High Courts do not, because their patents gave it to them and because they inherited it from the Supreme Courts.

Limits and criticism

The two-instrument method, an Act that empowers and letters patent that create, had one practical merit and one lasting cost.

The merit is flexibility. Parliament did not have to legislate again to adjust a court's jurisdiction; the Crown could revoke and re-grant, which is exactly what happened in 1865, and could transfer territory by Order in Council under section 18.

The cost is that the constitution of the most important courts in India rested on instruments that were not statutes, that differed between the three Presidencies, and that most litigants and many lawyers never read. The Government of India Act 1915 recognised the difficulty in section 106(1), which describes the High Courts as having such jurisdiction and powers "as are vested in them by letters patent", and then adds "and, subject to the provisions of any such letters patent, all such jurisdiction, powers and authority as are vested in those courts respectively at the commencement of this Act". A statute defining a court by reference to documents outside itself is not an ideal way to constitute a judiciary, and the Constitution of 1950 did not repeat it: articles 214 to 231 state the constitution of the High Courts in the Constitution itself.

Quick revision

• Letters Patent of 1862: established the High Courts at Calcutta, Madras and Bombay under s.1 of the Act of 1861.
• s.17 allowed revocation and re-grant within three years; the Indian High Courts Act 1865 (28 & 29 Vict. c. 15) extended the time; fresh Letters Patent were issued in 1865 and are the ones in force.
• The patents contain the constitution, the original and appellate civil jurisdiction, the criminal jurisdiction, the law to be applied, the rule-making power, the appeal from a single judge to a Division Bench, and the appeal to Her Majesty in Council.
• Allahabad, 1866, under s.16, for the North-Western Provinces; s.101(5) of the Act of 1915 authorised the style "High Court of Judicature at Allahabad".
• s.18: territory transferable between High Courts by Order in Council.
• "Letters patent appeal" takes its name from these instruments.

Test yourself

1. What is the relationship between the Act of 1861 and the Letters Patent? The Act empowered the Crown to erect High Courts by Letters Patent; the Letters Patent of 1862 actually established them; and under section 17, as extended by the Act of 1865, fresh Letters Patent were granted in 1865, which are the patents in force.

2. What did the Indian High Courts Act 1865 do? It extended the time within which fresh Letters Patent might be granted for the High Courts in India, and made further provision respecting their territorial jurisdiction. It created no court.

3. What is a letters patent appeal? An appeal from the decision of a single judge of a High Court to a Division Bench of the same High Court, provided for by a clause of the Letters Patent. It exists in the courts whose patents gave them an original side.

4. Under which section was the Allahabad High Court created, and why was a separate section needed? Section 16, which empowered Her Majesty to erect a High Court for any portion of the Indian territories not within the local jurisdiction of another High Court. Section 1 covered only Fort William, Madras and Bombay.

5. What is the drafting criticism of constituting the High Courts by letters patent? That the constitution and jurisdiction of the most important courts in India rested on instruments outside the statute, differing between the three Presidencies. Section 106(1) of the Act of 1915 had to define the High Courts by reference to those documents, and the Constitution of 1950 did not repeat the method: articles 214 to 231 state the constitution of the High Courts directly.