A

PROJECT ON
ESTABLISHMENT OF HIGH COURTS AND THEIR FUNCTIONS UNDER HIGH
COURT ACT 1861
SUBMITTED TO:
DR. A.K. DUBEY
ASSISTANT PROFESSOR
CONSTITUTIONAL HISTORY
SUBMITTED BY:
SHIVANSH CHAUHAN
B.COM, L.L.B.

SEMESTER, IV

DATE OF SUBMISSION- 31.03.2016

SCHOOL OF LAW
GURU GHASIDAS UNIVERSITY, BILASPUR

TABLE OF CONTENT

Declaration
Certificate
Acknowledgement
Introduction

Justice delivery system before the establishment

Establishment of high courts pre and post independence

Establishmnet of different high courts in india

Powers and functions of high courts

Conclusion
Bibliography

Declaration

I, Shivansh Chauhan, B.COM, L.L.B Semester- IV of Guru Ghasidas University do hereby

declare that, this project is my original work and I have not copied this project or any part thereof
from any source without due acknowledgement. I am highly indebted to the authors of the books
that I have referred in my project as well as all the writers of the articles and the owners of the
information taken from website for it. It is only because of their contribution and proper
guidance of my faculty advisor Dr. A.K. Dubey, that I was able to gather light on the subject.

Shivansh Chauhan
B.COM, L.L.B Semester- IV

Certificate
I am glad to submit this Project Report on Establishment of high courts and their functions
under high court act 1861 as a part of my academic assignment. The project is based on
Research Methodology. It further Studies meaning, sources and methods of Research
Methodology and further discusses the Interview Method. I hope this would be significant for
academic purposes as well as prove information to all readers.
Here through I declare that this paper is an original piece of research and all the borrowed texts
and ideas have been duly acknowledged.

Shivansh Chauhan
B.COM L.L.B, Semester- IV

Faculty Signature:

Acknowledgement
I would like to express my earnest and deepest gratitude to, DR. A.K. DUBEY faculty for
Constitutional history for giving me this opportunity to do a project on such a valuable topic of
Establishment of high courts and their functions under high court act 1861. I am grateful
for the assistance, guidance and support that were extended during the course of excellent
research. I am also thankful to the college administration for providing the resources necessary
for the research work. I thank my parents and friends for their moral support and love throughout
my research work and project preparation. Above all I thank the God Almighty for blessing me
with the health and vitality to complete this project.

Shivansh Chauhan
B.COM L.L.B, Semester- IV

INTRODUCTION
India's unitary judicial system is made up of the Supreme Court of India at the national level, for
the entire country and the 24 High Courts at the State & Union territory level. These courts have
jurisdiction over a state, a union territory or a group of states and union territories. Each State has
its own judiciary which administers both union and State laws. It is set in hierarchical pattern. At
the apex of the State judiciary is the High Court, which is the highest court of appeal and
revision in the State for civil and criminal matters, including the wide powers, both
administrative and judicial, over the subordinate judiciary.Below the High Courts are a hierarchy
of subordinate courts such as the civil courts, family courts, criminal courts and various other
district courts. High Courts are instituted as constitutional courts under Part VI, Chapter V,
Article 214 of the Indian Constitution. Article 214 of The Constitution of India says There shall
be a High Court for each state.
The High Courts are the principal civil courts of original jurisdiction in the state along with
District Courts which are subordinate to the High courts. However, High courts exercise their
original civil and criminal jurisdiction only if the courts subordinate to the High court in the state
are not competent (not authorized by law) to try such matters for lack of pecuniary, territorial
jurisdiction. High courts may also enjoy original jurisdiction in certain matters if so designated
specifically in a state or Federal law. e.g.: Company law cases are instituted only in a High court.
The first High Court in India was established in July, 1862 at Calcutta in order to give justice to
the people of British India in the lights of equity and good conscience.

JUSTICE DELIVERY SYSTEM BEFORE THE ESTABLISHMENT OF

HIGH COURTS
The British gained control of Bengal in the mid-18th century, the system of justice there was
presided over by the Nawab of Bengal himself, who, as the chief law officer, Nawb Nzim,
attended to cases qualifying for capital punishment . His deputy, the Naib Nzim, attended to the
slightly less important cases. The ordinary lawsuits belonged to the jurisdiction of a hierarchy of
court officials consisting of faujdrs, muhtasils, and kotwls. In the rural areas, or the Mofussil,
the zamindarsthe rural overlords with the hereditary right to collect rent from peasant farmers
also had the power to administer justice.
In the mid-18th century, the British had completed a century and a half in India, and had a
burgeoning presence in the three presidency towns of Madras, Bombay, and Calcutta. Charles II
in 1683 issued a charter under which, the Company was given the power to establish "courts of
judicature" in locations of its choice, each court consisting of a lawyer and two merchants. This
right was renewed in the subsequent charters of 1686 and 1698 respectively. In 1726, however,
the Company felt that more customary justice was necessary for European residents in the
presidency towns, and petitioned the King to establish Mayor's Courts. The petition was
approved and Mayor's courts, each consisting of a Mayor and nine aldermen, and each having
the jurisdiction in lawsuits between Europeans, were created in Fort William (Calcutta), Madras,
and Bombay.
Warren Hastings arrived in Calcutta as the first Governor-General of the Company's Indian
dominions and resolved to overhaul the Company's organization and in particular its judicial
affairs. In the interior, or Mofussil, diwni adlats, or a civil courts of first instance, were
constituted in each district; these courts were presided over by European Zil judges employed
by the Company, who were assisted in the interpretation of customary Indian law by Hindu
pandits and Muslim qazis. For small claims, however, Registrars and Indian commissioners,

known as Sadar Amns and Munsifs, were appointed. These in their turn were supervised by
provincial civil courts of appeal constituted for such purpose, each consisting of four British
judges. Similarly for criminal cases, Mofussil nizmat adlats, or Provincial courts of criminal
judicature, were created in the interior; these again consisted of Indian court officers (pandits and
qazis), who were supervised by officials of the Company.
Around this time the business affairs of the East India Company began to draw increased
scrutiny in the House of Commons. After receiving a report by a committee, which condemned
the Mayor's Courts, the Crown issued a charter for a new judicial system in the Bengal
Presidency. The British Parliament consequently enacted the Regulating Act of 1773 under
which the King-in-Council created a Supreme Court in the Presidency town, i.e. Fort William.
The tribunal consisted of one Chief Justice and three judges; all four judges were to be chosen
from barristers. The Supreme Court supplanted the Mayor's Court; however, it left the Court of
Requests in place. Both the Act and the charter said nothing about the relation between the
judiciary (Supreme Court) and the executive branch (Governor-General); equally, they were
silent on the Adlats(both Diwni and Nizmat) created by Warren Hastings just the year before.
In the new Supreme Court, the civil and criminal cases alike were interpreted and prosecuted
accorded to English law; in the Sadr Adlats, however, the judges and law-officers had no
knowledge of English law, and were required only, by the Governor-General's order, "to proceed
according to equity, justice, and good conscience, unless Hindu or Muslim Laws was in point, or
some Regulation expressly applied."
There was a good likelihood, therefore, that the Supreme Court and the Sadar Adlats would act
in opposition to each other and, predictably, many disputes resulted. The appointment had to be
annulled in 1781 by a parliamentary intervention with the enactment of the Declaration Act. The
Act exempted the Executive Branch from the jurisdiction of the Supreme Court. It recognized
the independent existence of the Sadar Adlats and all subsidiary courts of the Company.
Furthermore, it headed off future legal turf wars by prohibiting the Supreme Court any
jurisdiction in matters of revenue (Diwni) or Regulations of the Government enacted by the
British Parliament.

ESTABLISHMENT OF HIGH COURTS PRE AND POST INDEPENDENCE

Pre Independence
Indian High Courts Act 1861, was passed to abolish two sets of courts which were administering
justice in India. The Kings Courts and the Companys Courts formed the dual system of courts
having their separate jurisdictions. Efforts to unite the two sets of Courts began much earlier than
1861. In 1858 the East India Company was abolished and the assumption of direct responsibility
of the Government of India by the Crown made the problem of uniting two sets of Courts much
easier. Uniform Penal Code, Civil and Criminal Procedure Codes were passed and the next step
was to implement uniformity in the administration of Justice to amalgamate the Supreme Courts
and Sadar Adalats. This object was achieved by the Indian High Courts Act passed by the British
Parliament in 1861.
The Indian High Courts Act was passed by the British Parliament on the 6th August, 1861 and
was titled as an act for establishing high courts of judicature in India. This legislation contained
only 19 sections only.
Its main function was to abolish the supreme courts and the Sadar Adalats in the three
Presidencies and to establish the high courts in their place. The records and document of the
various courts became the records and documents of the High Court concerned. It gave power
authority in Her Majesty to issue letters patent under the great seal of the United Kingdom, to
erect and establish High courts of judicature at Calcutta, Madras and Bombay.
Each High court was to consist of a chief justice and as many puisne judges not exceeding fifteen
as her majesty might think to fit to appoint. Who became the high court judge or who was
eligible to become the high court judge.
Each high court was to have and exercise all such civil and criminal admiralty and viceadmiralty, testamentary, intestate and matrimonial jurisdiction and original and appellate The
High Court was to have superintendence over all courts subject to its appellate jurisdiction. It got
power, authority to call for return, to transfer any suit or appeal from one court to another and to
make and issue general rules for regulating the practice and proceedings of such courts. The

charter for the Calcutta High Court was issued on May 14, 1862 and was published in Calcutta
on the 1st July 1862 establishing the high court from the next day. The charter for the High
Courts of Bombay and Madras were issued on June 26, 1862 and these courts were inaugurated
on the 14th and 15th August 1862.2

Post Independence
The present Constitution of India makes a number of provisions concerning the High Courts
though it is not the place to expound the full ramifications of these provisions as the matter falls
more appropriately within the realm of Constitution law.
The Constitution recognized all the existing High Courts. It provided a High Court for each
State. The Parliament is empowered to establish a common High Court for two or more States or
Union territories. The High Court is a court of record and as such can punish for its contempt. It
is not subject to the superintendence of any Court or authority, though appeals from its decisions
may lie to the Supreme Court. It consists of a Chief Justice and as many Judges as the President
of India may sanction.
The Constitution of India has conferred on the High Courts significant and effective powers to
administer justice, to promote Justice by the lower courts, to take prompt action when there is a
miscarriage of Justice, to secure the rights and liberties of the people and to ensure that the
administration functions within the limits of the law. The High Court thus occupies a high
position of respect, dignity and authority in the modern judicial system.

ESTABLISHMNET OF DIFFERENT HIGH COURTS IN INDIA

The High Courts in India were first established in 1862 since then 24 High Courts till now has
been established in different states. The High Courts in India before Independence were
established by High Courts Act 1861, Government of India Act 1915 or by various Acts passed
by The Maharaja of various states; whereas, the High Courts after Independence were made
under Article 214 of The Constitution of India, most of the High Courts formed after
Independence were because of state reorganization and the same state reorganization had the
provision for the same.

Powers and functions of high courts

The powers and functions of High Courts have not been described in detail in the constitution.
Before the present constitution was adopted, the High Courts with well defined powers, were
functioning in different states. Thus, the framers of the constitution did not feel the need of
describing in detail the jurisdiction of High Courts. On the other hand, the Supreme Court, being
a new creation, required a dear definition of its powers and jurisdiction. The powers and
functions of High Courts-maybe discussed under the following five heads:
l. Original Jurisdiction: In some matters cases can be directly filed in the High Courts. This is
Called the original jurisdiction of the High Court.
(a) Fundamental Rights: Our constitution has given Fundamental Rights to citizens. In any
democracy, fundamental or basic rights have a special place and it is the duty of the state to
ensure that the citizens enjoy fundamental rights without any fear or danger.
In our country, the judiciary has been given the power to protect the fundamental rights of
citizens. Under Article 32, the Supreme Court exercises this power to enforce fundamental rights.
Besides the Supreme Court, the High Courts also enjoy this power under Article 226. With this
power vested in the High Courts, it has been relatively easier for the citizens to fight against any
threat to their fundamental rights. In a vast country like India, it is not easy for an ordinary
citizen to rush to the Supreme Court for the defence of his fundamental rights.
Under Article 226, the High Court shall have the power issue any person or authority, directions,
orders or writs in nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari
or any of them for the enforcement of any of the fundamental rights and for any other purpose.
The phrase, for any other purpose was taken away by the 42nd Amendment Act. Further, this
Amendment said that the High Court could not issue any order or injunction unless the matter
was such that the loss or damage to the petitioner could not be compensated in money. The 42nd
Amendment also deprived the High Court of the power to decide the constitutional validity of

any Central Law. However, the High Court was restored these powers through the Forty Third
and Forty Fourth Amendments.
Now the High Court is empowered to entertain any petition for the redressal of any injury even
if, by or under any law, remedy for such redressal has been provided for. Election cases are
entertained by the High Court through this power.
According to D. D. Basu, the High Court has larger jurisdiction than the Supreme Court in
respect of issuing writs. The Supreme Court, under Article 32, can issue writs only where a
fundamental right has been infringed upon. But a High Court, under Article 226, can issue them
not only in such cases, but also where an ordinary legal right has been infringed upon, provided a
writ is a proper remedy in such cases.
(b) Election Cases: Cases relating to elections can be directly filed in the High Court.
(c) Marriage and Divorce: Cases relating to marriage/divorce can be directly entertained by the
High Court.
2. Appellate Jurisdiction: The High Court has appellate jurisdiction over both civil and criminal
cases. It can hear appeal on civil cases tried by the Courts of Munsifs and District Judges. In
criminal cases, the jurisdiction extends to cases tried by the Sessions and Additional Sessions
Judges. An appeal can be filed against the decision of a Session Judge if the accused has been
sentenced for 7 years or more. Capital punishment given by a sessions judge cannot be executed
unless it is confirmed by the High Court.
Civil cases refer to property, marriage, adoption etc. while criminal cases cover crimes like
murder, bribery, injury etc. The Forty Second Amendment disallowed the High Court to hear
appeals against Tribunals and the decisions of various Corporations established under the law of
the state. But this restriction on the High Courts appellate jurisdiction was removed by the Forty
Third Amendment.

3. Supervisory Jurisdiction: The High Court, under Article 227, has the power of
superintendence over all the Courts and Tribunals except those which deal with Armed Forces
located in the state. The High Court has the power to :
(a) call for return from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceeding
of such courts and
(c) prescribe forms in which books, entries and accounts are to be kept by the officers of such
courts.
The power of superintendence, vested in the High Court, is judicial as well as administrative in
nature. The High Court is thus in charge of the administration of justice in the state. It is
important to note that the Supreme Court has no similar power vis-a-vis the High Courts.
4. Administrative Jurisdiction: The officers and servants (employees) of the High Court are
under its total control. They are appointed by the Chief Justice or any other Judge or officer of
the High Court, as he may direct (Article 229). However, the High Court may be required by the
Governor of the state to consult the Public Service Commission while appointing the officers and
staff of the High Court.
The Chief Justice has the power to suspend or dismiss any of the officers or servants of the High
Court. He or any other Judge of the High Court authorized by him, shall determine the service
conditions of its officers and staff subject to any act of the state legislature.
The administrative expenses of the High Court are charged upon the Consolidated Fund of the
State. These are non-votable.
5. Power to Transfer cases from Subordinate Courts : If the High Court is satisfied that a case
pending in a Subordinate Court involves a substantial question oflaw as to the interpretation of
the constitution, it may withdraw the case to itself and do either of the following two :
(i) it will dispose of the case; or

(ii) it will determine the question of law and return the case to the concerned court along with its
judgement and direct tnat court to dispose of the case in conformity with this judgement.
The exercise of this power by this High Court serves a good purpose. It prevents multiple and
conflicting interpretations of tile constitutions by Subordinate Courts.
The High Court has also the power to call for any records from any Subordinate Court to
examine the orders passed by them. In exercising this power, the High Court seeks to ensure that
the orders passed by the Subordinate Courts are legal and correct.
6. A Court of Record: The High Court is a Court of Record.
Its decisions are binding for all Subordinate Courts. The decisions and proceedings of the High
Court have evidentiary value and no Subordinate Court can challenge them.
7. Miscellaneous Powers:
(a) The High Court has the power to send for the judgment of lower court. By exercising this
power, the High Court can examine the legal validity of this judgment.
(b) The High Court can punish any person or institution for contempt of court.

CONCLUSION
The High Court are established in each state with a view for speedy discharge of justice. The
total strength of the Judges in High Court is 906 which tell that there is only 1 judge per 1.34
million people. The situation in the country is even worse as one-third on the posts is lying
vacant. The basic purpose of the establishment of High Courts can only be filled if the number of
posts are increased anf the vacant are filled. Moreover, the time taken for disposal of cases
should also decrease so that early justice is provided.

BIBLOGRAPHY
Authorities

http://www.prsindia.org/uploads/media/North-Eastern%20Areas
%20(Reorganisation)/North-Eastern%20Areas%20(Reorganisation)%20and%20other
%20Related%20Laws%20(Amendment)%20Bill,%202012.pdf.

Order No.K-11018/9/2012-US.I dated 20th March, 2013, the Govt. of India, Ministry of
Law & Justice, Department of Justice, as published in the Extraordinary Gazette of India
dated 20th March, 2013.

Books and Articles

Historical Perspective of Sikkim Judiciary, by Honble Shri Justice A.P. Subba,Former

Judge, High Court of Sikkim, Gangtok.

http://admiraltypractice.com/chapters/1.htm

http://www.assamtribune.com/scripts/detailsnew.asp?id=mar2413/oth06

http://www.hindu.com/2000/10/28/stories/01280002.htm.