ACT OF 1861 & ESTABLISHMENT OF HIGH COURTS

Submitted to: - Submitted by:

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Ms. Shraddha Sanjeev Mrigank Singh
(19213036)
School of Law
Indian Councils Act 1861

Introduction

In order to associate the people of the Indian subcontinent with the law-making process, the British
Government passed the Indian Councils Act 1on 1st August 1861. It was “an act to make better provisions
for the Constitution of the Council of the Governor-General of India and for the local government of
several presidencies and provinces of India, and for the temporary Government of India in the event of
vacancy in the office of the Governor-General”.
Lord Canning2, who was the Governor-General and Viceroy at the time, introduced the portfolio system 3.
In this system, each member was assigned a portfolio of a particular department. He nominated three
Indians to the Council in 1862 namely, the Raja of Benares, the Maharaja of Patiala and Sir Dinkar Rao.

Provisions

According to this act the ‘Executive Council of the Governor General’ was enlarged. Now there were 5
members for home, military, law, revenue and finance (the fifth member was a jurist). There was also
a sixth member for public works who was added in 1874 and the total number of members was assumed
not to be more than 12. These members were called ‘Additional Members’ of the Executive Council.
They were appointed by the Governor-General for a period of 2 years. Out of these, at least half of the
additional members were to be non-official (British or Indian). Their functions were essentially related to
legislative matters.
The Commander-in-Chief was appointed as an Extraordinary Member. In the absence of the Governor
General, the Senior Ordinary Member was empowered to preside over the meetings. The Additional
Members, however, could neither raise questions nor move any resolution in the Executive Council.
Any bill related to public revenue or debt, military, religion or foreign affairs could not be passed without
the Governor-General’s assent. The Governor-General also had the power to promulgate ordinances
without the council’s concurrence during emergencies. The Secretary of State for India in Britain could
also dissolve any act passed by the Governor-General’s Council. Finally, the Viceroy 4 had the power to
overrule the council if necessary.

Impacts of the Act on the Presidencies

This Act restored the legislative powers of the Governor-in-Councils of the Presidencies of Madras and
Bombay (which was taken away by the Charter Act of 1833). The legislative council of Calcutta had
1
https://www.britannica.com/topic/Indian-Councils-Act-of-1909
2
https://economictimes.indiatimes.com/topic/Lord-Canning
3
https://www.bankexamstoday.com/2018/01/viceroys-and-important-events.html
4
http://archive.spectator.co.uk/article/13th-april-1861/15/the-new-viceroy-of-india
extensive power to pass laws for the whole of British India. A provision was also made for the formation
of legislative councils in other provinces. Now, new provinces could be created for legislative purposes
and Lieutenant Governors be appointed for them. Legislative councils were formed in other provinces in
Bengal in 1862, North West Frontier Province (NWFP) in 1886 and Punjab and Burma in 1897.
The act also provided limited powers to the Presidencies of Bengal and Madras and the Governor-General
was authorized to create similar Councils for the Provinces of Frontier and the Punjab. But the assent of
the Governor-General was required for all the bills and regulations passed by the Provincial Council. The
Governor General was authorized to issue ordinances, while the Crown had the power to disallow any law
and regulation if it was considered as invalid by reason and/or affected the prerogative of the Crown.
Before the Indian Council Act of 1861, the Executive Council at Calcutta behaved like a ‘petty
parliament’. This Act enabled the Secretary of State for India to limit the powers of Calcutta council.

Drawbacks

The Act of 1861 had certain drawbacks including the selection and role of the Additional Members who
were just handpicked but ineligible to participate in the discussions. The Additional Members nominated
to the Imperial Legislative Council 5were also ineffective as all of them were Indian princes, big
landlords, rich merchants or retired officers,; inept to be called as the representatives of the Indians at
large since they showed no eagerness to the meetings of the Council. Most of the bills were passed
without discussion and often at a single sitting. For instance, in 1978 the ‘Vernacular Press Bill 6’ wasn’t
opposed by any Indian member on the floor of the Council though it was highly condemned and criticized
throughout India as a ‘Black Act7’.

Conclusion

However, despite all its limitations the Indian Councils Act of 1861 was a milestone in the constitutional
history of India because once the Indians were admitted into the Legislative Councils the demand to
enhance their number as well as powers naturally arrived on the scene. This Act was institutionalized to
serve the necessities of cooperation of Indians in the administration of the country. It also restored the
power of the government and the composition of the Governor-General’s council for executive &
legislative purposes. It was the first instance in which the portfolio of Council of Governor-General was
incorporated.

Indian High Courts Act 1861

Introduction

5
https://ipfs.io/ipfs/QmXoypizjW3WknFiJnKLwHCnL72vedxjQkDDP1mXWo6uco/wiki/I
6
http://indohistory.com/vernacular_press_act.html
7
https://en.wikisource.org/wiki/Black_Act
By the Indian High Courts Act 1861, the Supreme & Sadar Courts were amalgamated. The ‘Indian High
Court Act’ of 1861, vested in Queen of England to issue letters patent to erect and establish High Courts
of Calcutta, Madras, and Bombay.
The High Courts of Calcutta, Madras, and Bombay were established by the Indian High Courts Act 1861.
Its worth note that the Indian High Courts Act, 1861 did not by itself create and establish the High Courts
in India. The objective of this act was to effect a fusion of the Supreme Courts and the Sadar Adalats in
the three Presidencies and this was to be consummated by issuing Letter Patent. The jurisdiction and
powers exercised by these courts were to be assumed by the High Courts8.
The Charter of High Court of Calcutta was issued on 14th May 1862 and Madras and Bombay was issued
on June 26, 1862. So, the Calcutta High Court has the distinction of being the first High Court and one of
the three Chartered High Courts to be set up in India, along with the High Courts of Bombay, Madras.
High Court at Calcutta which was formerly known as the High Court of Judicature at Fort William was
established on July 1, 1862. Sir Barnes Peacock as its first Chief Justice. Indian High Court Act 1861 also
gave the power to set up other High Courts like the High Courts of the Presidency Towns with similar
powers. Under this power, a High Court was established in 1866 at High Court of Judicature for the
North-Western Provinces at Agra on 17 March 1866 by the Indian High Courts Act of 1861 replacing the
Sadar Diwani Adalat.

Composition

The Indian High Courts Act 1861 had also spelled the composition of the High Court. Each High Court
was to consist of a Chief Justice and NOT more than 15 regular judges. The chief Justice and minimum of
one-third regular judges had to be barristers minimum one-third regular judges were to be from the
companies Civil Service”. All Judges were in the office on the pleasure of the Crown.
The High Courts had an Original as well as an Appellate Jurisdiction the former derived from the
Supreme Court, and the latter from the Sadar Diwani and Sadar Foujdari Adalats, which were merged in
the High Court.
Sir Walter Morgan, Barrister-at-Law was appointed the first Chief Justice of the High Court.

Jurisdiction

The high court was to be a court of record and had all the powers of the supreme court .Under article 9 of
the Act, each High Court had "all such powers and authority for and in relation to the administration of
justice" including original and appellate jurisdiction over civil, criminal, admiralty, vice-admiralty,
testamentary, intestate, and matrimonial matters .The States High Courts like the Supreme Court has the
power of Judicial Review. A High Court has the power to strike down any law of the State or any order of
the executive if it violates any provision of the constitution or curtails or takes any of the Fundamental
Rights of the people. The State High Court performs many administrative functions within its Territorial
Jurisdiction. It exercises the power of superintendence and control over all courts and tribunals
throughout the territory except the military tribunals.9

8
 "Indian High Courts Act 1861". GKToday. 17 October 2011. Retrieved 20 March  2017.
9
 Criminal Justice India Series: Punjab, 2002. Allied Publishers. 2002. p. 233. ISBN 978-81-7764-490-6.
Appeals

The decision from the high court was final in criminal cases and no further appeal could be done in civil
cases, appeal could be done to the privy council but the case must not be of less than rupees 10, 000 or a
certificate from high court that the case was fit for appeal

Conclusion (Present Scenario)

There are 25 High Courts at the State level (including new Andhra Pradesh HC). Article 141 of the
Constitution of India mandates that they are bound by the judgements and orders of the Supreme Court of
India by precedence. These courts have jurisdiction over a state, a union territory or a group of states and
union territories. 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.

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
authorised 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.

However, primarily the work of most High Courts consists of Appeals from lower courts and writ
petitions in terms of Article 226 of the Constitution of India. Writ Jurisdiction is also the original
jurisdiction of the High Court. The precise territorial jurisdiction of each High Court varies

Judges in a high court are appointed by the President after consultation with the Chief Justice of India,
Chief Justice of High Court and the governor of the state. The number of judges in a court is decided by
dividing the average institution of main cases during the last five years by the national average, or the
average rate of disposal of main cases per judge per year in that High Court, whichever is higher.

The Calcutta High Court is the oldest High Court in the country, established on 2 July 1862, whereas the
Allahabad High Court is the largest, having a sanctioned strength of judges at 160.

High courts that handle a large number of cases of a particular region have permanent benches (or a
branch of the court) established there. For litigants of remote regions, 'circuit benches' are set up, which
work for those days in a month when judges visit.