1.

INTRODUCTION

The Indian High Courts Act of 1861 was enacted by the British Parliament to allow the
Crown to establish High Courts in the Indian colony. By a Letters Patent issued in 1862,
Queen Victoria established the High Courts of Calcutta, Madras, and Bombay. These High
Courts would go on to become the forerunners of today's High Courts of India, Pakistan, and
Bangladesh. The Act was passed after the First War of Independence in 1857, and it merged
the Crown's and the East India Company's legal systems.

It is important to note that though the High Courts in these presidencies were established by
the Indian High Courts Act of 1861 but an attempt had been made to administer the local
inhabitants by a British Court way back in 1672. This was followed by the establishment of a
corporation and mayor's court in 1686 in Madras. Initially, trained lawyers were dispatched
from England to staff these two courts. However, this practice eventually faded, and the
Company's servants began to act as judges. These people have little or no knowledge of the
nuances of the English Law due to which they were reluctant to expose themselves to the not
unreal dangers that might well result from any flaw in the proceedings.

This confusion was resolved by the grant enabling the establishment of the mayors’ court in
the presidency towns of Bombay, Madras and Calcutta. These courts have full civil
jurisdiction and power to punish for each kind of offence except for the offence of treason.
This significant step established uniform jurisdiction over both Indians and Europeans, as
well as the first authoritative introduction of English law into India. However, when charter
was modified in 1753, this led to some kind of unrest due to which Indians were exempted
from certain kinds of the courts' jurisdiction save in certain contractual cases.

The historic victory of Britain in the Battle of Plassey pressed them to restore law and order
in all the provinces of Bengal. In Bengal, the East India Company was the holder of Diwani
and thus were responsible for civil justice in entire provinces whereas de facto rulers were
morally responsible for criminal justice.

2. DEFINING HIGH COURTS 

The High Court is the highest court of appeal in the state, having the authority to interpret the
Constitution. It is the defender of citizens' fundamental rights. It also includes supervisory
and consultative duties. The High Courts of India are the highest judicial courts in each state
and union territory in India. The provisions of the High Courts are outlined in Articles 214 to
237 of the Indian Constitution. 

Article 214 addresses the formation of High Courts in all states. If the subordinate courts are
not authorised by law to take up the subject owing to a lack of financial or geographical
jurisdiction, the High Courts have the authority to exercise their original civil and criminal
jurisdiction in any situation. India has a total of 25 High Courts.

3. JUSTICE DELIVERY SYSTEM BEFORE THE ESTABLISHMENT OF HIGH

COURTS
When the British took control of Bengal in the mid-eighteenth century, the Nawab of Bengal
presided over the legal system, which was overseen by Nawb Nzim, the main law officer,
who dealt with cases requiring capital punishment. The ordinary lawsuits belonged to the
jurisdiction of a hierarchy of court officials consisting of faujdārs, muhtasils, and kotwāls. In
the rural areas, or the Mofussil, the zamindars, the rural overlords with the hereditary right to
collect rent from peasant farmers also had the power to administer justice.

The British had been in India for a century and a half, and their presence in the three
presidential towns of Madras, Bombay, and Calcutta was growing. In 1683, King Charles II
granted the Company the ability to establish "courts of judicature" in whatever area it chose,
with each court consisting of a lawyer and two merchants. This right was reaffirmed in the
charters of 1686 and 1698, respectively. The Company, however, believed that more
customary justice was required for European citizens in the presidency towns, and petitioned
the King to establish Mayor's Courts in 1726. The petition was approved, and Mayor's courts,
each consisting of a mayor and nine aldermen, were established, each with jurisdiction in a
different part of the city.

As the Company's first Governor-General of the Company's Indian dominions, Warren

Hastings arrived in Calcutta determined to restructure the Company's organisation,
particularly its administration. In the interior, or Mofussil, diwani adālats, or a civil court of
first instance, were constituted in each district; these courts were presided over by European
Zilā 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 Amīns and Munsifs, were appointed. These, in turn,
were overseen by provincial civil courts of appeal, each of which consisted of four British
judges. Similarly, in the interior, Mofussil nizamat adalats, or Provincial courts of criminal
judicature, were established; these, too, were made up of Indian court officers (pandits and
qazis) who were supervised by Company officials.

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 Adālats(both Diwāni and Nizāmat) 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 Adālats, 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 Adālats 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 Adālats and all subsidiary courts of the
Company. Furthermore, it headed off future legal turf wars by prohibiting the Supreme Court
from any jurisdiction in matters of revenue (Diwāni) or Regulations of the Government
enacted by the British Parliament.

4. THE INDIAN HIGH COURTS ACT OF 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. Its principal objective was to demolish the supreme courts and
Sadar Adalats in the three Presidencies and replace them with high courts. The individual
courts' records and documents become the records and documents of the High Court
concerned. It gave power authority to 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.

All civil and criminal admiralty and vice admiralty, testamentary, intestate, and matrimonial
jurisdiction, as well as original and appellate authority, were to be exercised by each high
court. All courts subject to the High Court's appeal jurisdiction were to be under its
supervision. It was given the jurisdiction to order a return, transfer any matter or appeal from
one court to another, and to create and issue general rules to govern the practice and
procedures 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 charters 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.

The country's first High Court, "The High Court of Judicature at Fort William," also known
as the "High Court of Calcutta," was founded by the Letters Patent dated 14th May 1862,
which was given under the Indian High Courts Act, 1861. In June 1862, the Bombay and
Madras High Court Charters were issued. The Queen of England was given the authority to
grant charters/letters patent to create and establish High Courts in Calcutta, Bombay, and
Madras under the Act. In 1862, Sir Barnes Peacock became the first Chief Justice of the
Calcutta High Court. Later, Shri Sambhunath Pandit became the first Indian to be appointed
as a judge of the Calcutta High Court, sitting from 1863 until 1867.

4.1. THE N.W.P. HIGH COURT CHARTER

The 17th of March, 1866, marked the beginning of a new era in the administration of justice
in this state. The Royal Charter created a High Court of Judicature for the North Western
Provinces, consisting of Chief Justice Sir Walter Morgan and five additional justices. The
position that was secured in the North Western Provinces on the eve of this momentous day a
century ago was not dissimilar to the ones that prevailed in the Presidency.

4.2. PURPOSE OF THE ESTABLISHMENT OF THE HIGH COURT 

The Indian High Courts Act of 1861 abolished two sets of courts that dispensed justice in
India. The dual system of courts with independent jurisdictions was founded by the King's
and Company's Courts. Attempts to bring the two sets of courts together began well before
1861. The East India Company was abolished in 1858, and the Crown's acceptance of direct
responsibility for India's government made the task of bringing two sets of courts together
much easier. The Uniform Penal Code, Civil and Criminal Procedure Codes were passed, and
the Supreme Courts and Sadar Adalats were merged as the next step in bringing uniformity to
the administration of justice.
4.3. REASONS FOR THE ENACTMENT OF THE INDIAN HIGH COURTS ACT,
1861 

East India Company control was dissolved in India during the First War of Independence in
1857, and was replaced by Crown direct rule in 1858.

The Indian High Courts Act, 1861 was enacted in response to the Second Law Commission's
proposal. Prior to the Act's implementation, India had a dual system of justice administration:
on the one hand, the British Crown Courts, and on the other, the Company Courts. The
Supreme Courts were founded by the British Crown in the Presidency Towns of Madras,
Bombay, and Calcutta.

The Mofussil Courts and the Diwani Adalats were the corporate courts. This caused several
issues since the jurisdictions of the corporate courts and the Supreme Court were not clearly
defined. There was also no evident connection between these courts.

As a result, if the parties disagreed on jurisdiction, the government would be in a difficult

situation.

The fundamental motivation for enacting the Indian High Courts Act was to create
independent judicial bodies for each state. As a result, the British government opted to
replace the then-existing Sadar Adalat and Supreme Court with High Courts.

Furthermore, there were two established judicial systems for dispensing justice in the three
Presidency towns of Calcutta, Madras, and Bombay, namely the Supreme Court and the
Sadar Diwani and Sadar Nizamat Adalat. This type of judicial administration was
inconvenient for the people who lived in the Presidency. In reality, it frequently clashed,
resulting in contradictory outcomes. The British Parliament eventually settled this issue by
passing the Indian High Courts Act in 1861. Thus, by the enactment of the Indian High
Courts Act of 1861, the British Parliament unified the judicial system of India.

5. SALIENT FEATURES OF THE INDIAN HIGH COURTS ACT, 1961

 The Indian High Courts Act of 1861 gave The Crown the authority to create High
Courts in India.
 The High Courts of Calcutta, Madras, and Bombay were established as a result of this
Act.
 The Act was passed during the First War of Independence in 1857, and it united the
Crown's and the East India Company's rival legal and justice systems.
 The Secretary of State, Sir Charles Wood, introduced the Indian High Courts bill on
June 6, 1861, and it was enacted on August 6, 1861.
 There were 19 sections in the Act.
 All existing courts in Calcutta, Madras, and Bombay were disbanded.
 A Chief Justice and up to 15 justices might make up each High Court.
 Barristers (5 years of experience), civil officials (10 years of experience, including 3
years as a zillah judge), judges of small cause courts (5 years of experience), or
Pleaders of High Courts might be chosen as judges (5 years of experience).
 The Chief Justice and at least one-third of the Regular Judges were to be Barristers,
and at least one-third of the Regular Judges were to be Civil Service employees.
 All Judges served at the discretion of the Crown.
  The high court followed the same legal principles as the Supreme Court, namely
English law.
 On the appellate side, the High Courts were also empowered to apply the principles of
justice, equity, and good conscience.
 In terms of criminal law, it adhered to the Indian Penal Code (1860).
 The High Court adhered to civil and criminal rules.

5.1. JURISDICTION OF THE HIGH COURTS

The jurisdiction of each high court is determined by the letters patent given by her Majesty.
She may delegate authority to them to exercise all civil, criminal, intestate, testamentary,
admiralty, and marital jurisdiction. She may also delegate to them original and appellate
jurisdiction, as well as all powers and authorities in the administration of justice under the
presidency that she saw proper. As a result, the High Courts were assigned the following
original and appellate jurisdiction.

 Original jurisdiction: The court held original jurisdiction in both Civil and Criminal
Jurisdiction.
 Civil Jurisdiction: The court's original civil jurisdiction was of two types: - 
 Common Civil Jurisdiction: Ordinary Civil Jurisdiction was extended to the
cities of Calcutta, Madras, and Bombay, as well as any other municipal limits
as determined by a legislature from time to time. Ordinary civil jurisdiction
could be exercised only if and only if the following conditions were met:

- The transportable property was located in the cities of Calcutta, Madras, and
Bombay.

- The cause of action originated entirely or partially in Calcutta, Madras, and

Bombay.

- The defendant was doing business or labouring for a living in Calcutta,

Madras, and Bombay.

 Extraordinary Civil Jurisdiction: The Extraordinary Civil Jurisdiction allows

the High Court to convene a matter pending in any subordinate court subject
to its superintendence restrictions and produce the verdict itself. This
jurisdiction might be used if the parties agreed to it ahead of time.
 Criminal Jurisdiction: The court's original criminal jurisdiction was divided
into two categories: – 
 Ordinary Original Criminal Jurisdiction: In exercising its Ordinary Original
Criminal Jurisdiction, the High Court was empowered to trial all people
brought before it in due course of law. This jurisdiction was over the native
population and offences committed inside the confines of the presidential
towns. It also included British and Europeans.
 Extraordinary Original Criminal Jurisdiction: The High Courts were supposed
to have Extraordinary Original Criminal Jurisdiction, which the High Court
did not have. Under the Extraordinary Original Criminal Jurisdiction, the
Court hears any criminal case against any person within the jurisdiction of any
court subject to the supervision of the High Court only if such a case was
referred to the court by the advocate general/any magistrate/any other officer
specially empowered for that purpose.
  Appellate Jurisdiction: The High Court had two forms of appellate jurisdiction: –
 Civil Jurisdiction: The High Court has the authority to consider appeals in any
case authorised by law or regulation.
 Criminal Jurisdiction: In all matters resolved by lower courts, the High Court
possessed criminal jurisdiction. In criminal matters, an appeal to The Privy
Council lay from the High Court's judgement if the High Court certified that
the case was appropriate for appeal to The Privy Council or if it felt so while
exercising its Original Jurisdiction Powers.
 Revenue Jurisdiction: By the Act of Settlement, 1781, the High Court was given the
authority to settle Revenue issues that did not fall under the jurisdiction of the
Supreme Court.
 Admiralty Jurisdiction: The Supreme Court granted Admiralty and Vice-Admiralty
Jurisdiction.
 Testamentary and Other Authority: The High Courts were given comparable
testamentary, intestate, and probate jurisdiction as the Supreme Court.
 In criminal matters, an appeal to The Privy Council lay from the High Court's
judgement if the High Court certified that the case was appropriate for appeal to The
Privy Council or if it felt so while exercising its Original Jurisdiction Powers.
 Although the High Court was the highest court in India, The Privy Council did exist.
However, approaching the Privy Council entailed significant financial and time
investment on the part of the plaintiffs.
 The Government of India Act, 1935, was approved by the British Parliament. It called
for the formation of a Federal Court in India. As a result, the federal court was
founded in 1937. The court's seat was in Delhi.
 The Federal Court was a record court.
 The Federal Court also saved the litigants' time and money.

5.2. QUALIFICATION OF JUDGES OF HIGH COURT

A person may be appointed to the High Court if he is:

 A Barrister with at least five years' experience;

 A member of the Covenanted Civil Service with at least ten years' service who has
served as a Zila Judge for at least three years during that time;
 A person who has served as a Judicial Officer not below the rank of Principal Ameen
or a Judge of a Small Cause Court for at least 5 years;
 A person who has served as a Pleader of a Sadar or High Court for at least ten years.

5.3. COMPOSITION OF HIGH COURT 

At least one-third of the judges on a High Court, including the Chief Justice, had to be
barristers, while the remaining one-third had to be civil servants. The judges served at the
discretion of the Queen. She might delegate all civil, criminal, admiralty and vice-admiralty,
testamentary, intestate, and marriage authority to them.

The High Court was also to be a court of record, with superintendence over all subordinate
courts. The Queen might also grant original and appellate jurisdiction, as well as all other
rights and authority to dispense justice as she saw fit. The Letters Patent might limit the
courts' initial jurisdiction to the Presidency Towns.
The High Courts were given supervisory authority over all courts within their appellate
jurisdiction. They might order returns from any courts subject to them, transfer any litigation
or appeal from one court to another, and create general rules governing lower court practice.

6. THE GOVERNMENT OF INDIA ACT, 1935

The Government of India Act of 1935 By passing the Government of India Act, 1935, the
British Parliament established a new constitution to govern the activities of India's legislature,
executive, and judiciary. The Act included several provisions governing the foundation,
constitution, jurisdiction, and powers of the High Courts. Some key sections of the Act
pertaining to High Courts are summarised below.

The Act of 1935 stated that every High Court shall be a Court of Record, consisting of a
Chief Justice and additional Judges nominated by His Majesty from time to time. The clause
in the Act of 1911 that set the maximum number of judges at twenty was repealed, and the
Act of 1935 authorised the King in Council to establish the number of judges for each High
Court from time to time.

Another significant element of the act was that the Judge was likely to be dismissed if the
Privy Council approved it in response to a request from His Majesty. This clause established
and recognised the notion of judiciary independence from the executive. The Judges of the
High Courts were supposed to serve during his Majesty's reign before 1935. In terms of the
basic requirements for a person to be appointed as a Judge, the Act stated that barristers and
advocates with 10 years of experience were qualified for High Court Judgeship. It was also
stated that a ten-year member of the Indian Civil Service was competent to be appointed to
any High Court in India.f the 1935 Act concerned the appointment and dismissal of High
Court Judges. The Act stated that the Judge of a High Court would be chosen by His Majesty
in accordance with the Royal Sign Manual. The Governor General in Council had the
authority to appoint new Judges of the High Court. A Judge of the High Court might be
removed earlier by His Majesty only for misbehaviour or infirmity of mind or body.

The authority of the existing High Courts, the law administered in it, and the powers of the
Judges remained unchanged under the Act of 1935. The restriction imposed on the three
Presidency High Courts in 1915 on taking cognizance of any subject pertaining to revenue
was permitted to persist.

The Act of 1935 provided particular provision for the wages, allowances, and pensions of
High Court Judges, which shall be determined by His Majesty upon their appointment. It was
further stipulated that none of these would be amended to the detriment of a Judge after his
appointment. This crucial clause safeguarded the judiciary's independence from governmental
meddling.

The administrative control of the High Courts was transferred to the Provincial Government
by the Act of 1935. Though it was a highly contentious topic, the Statutory Commission
recommended that the Central Government exercise administrative authority.

To answer the main request of the Statutory Commission, the Art of 1935 took enough care
to guarantee the judicial independence of the Judges and to protect them from any political
influences. It may therefore be argued that the Government of India Art, 1935 developed a
strong judiciary and strengthened the independence of the judiciary by safeguarding the
service affairs of the Judges of the High Courts.
7. EFFECTS OF ESTABLISHMENT OF HIGH COURT IN INDIA IN THE POST-
INDEPENDENCE ERA

There has been tremendous change in the Indian Legal System after the passing of the Indian
High Courts Act of 1861. 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. At present there are 25 High Courts in India. The present Constitution of India
makes a number of provisions concerning the High Courts. The Constitution of India has
conferred on the High Court’s 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.

8. CONCLUSION

High Courts are said to have broad powers since they can issue writs not only for violations
of citizens' basic rights, but also for violations of other legal rights. It is a court of record,
similar to the Supreme Court. When a citizen's rights are violated, he or she can go straight to
the High Court. Except in the case of the Armed Forces, the High Courts have authority over
the lower courts and tribunals.

9. BIBLIOGRAPHY