Indian High Courts Act 1861

The Indian High Courts Act of 1861 (24 & 25 Vict. c. 104) was an act of the Parliament of the United Kingdom to authorize the Crown to create High Courts in the Indian colony. Queen Victoria created the High Courts in Calcutta, Madras, and Bombay by Letters Patent in 1865. These High Courts would become the precursors to the High Courts in the modern day India, Pakistan, and Bangladesh. The Act was passed after the Indian Rebellion of 1857 and consolidated the parallel legal system of the Crown and the East India Company.

Abolishing Existing Courts

The Act abolished the Supreme Courts at Calcutta, Madras, and Bombay; the Sadar Diwani Adalat and the Sadar Nizamat Adalat at Calcutta; Sadar Adalat and Faujdari Adalat at Madras; Sadar Diwani Adalat and Faujdari Adalat at Bombay (§8).

Qualifications of High Court Judges

Each High Court could consist of a chief justice and up to 15 judges. Under §3 of the Act, judges could be selected from barristers (with 5 years of experience), civil servants (with 10 years of experience including 3 years as a zillah judge), judges of small cause courts or sudder ameen (with 5 years of experience), or pleaders of sudder courts or High Courts (with 10 years of experience).

The High Court of a State is the highest court of the State and all other courts of the State work under it. Normally there is one High Court in every State but there can be only one High Court for two or more States as well, according to the constitution. There is one High Court at Chandigarh for Punjab, Haryana and Union Territory of Chandigarh. Similarly there is one High Court at Guwahati which serves Assam, Arunachal Pradesh, Mizoram and Nagaland.

Composition:

In every High Court, there is a Chief Justice and many other judges whose number is defined by the President of India.

Appointment of the Judges: The Chief Justice of a High Court is appointed by the President with the consultation of the Chief Justice of the Supreme Court and the Governor of the State. The other judges are appointed by the will of President, Governor and the Chief Justice of High Court.

Qualifications for the Judges

(a) He should be a citizen of India.

(b) He should have been (I) a judge for 10 years of Subordinate court under the Judicial Service of the State or (ii) an Advocate for 10 years in a High Courts in India (Article 217).

Tenure: Originally the age of the retirement of the judges of the High Courts was fixed at 60 but it was raised to 62 in 1963 according to the 15th amendment of the Constitution.

Removal of the Judges: A judge may leave his office by resigning. He will send his letter of resignation to the President. His office would be considered to have been vacated if he is appointed as a judge of the Supreme Court or is transferred to some other High Court. A judge of a High Court may also be removed like a judge of the Supreme Court. A judge of High Court may be removed by the President if the Parliament passes a motion against him by an absolute majority and 2/3rd majority of the members present and voting, both the Houses sitting separately.

Salary:

The pay of the Chief Justice of a High Court is rupees 90,000/- per month and that of the other judges is rupees 85,000/- per month.

Powers and Functions

Original Jurisdiction:

The original jurisdiction of the High Court is restricted.

(a) Every High Court under Article 226 is empowered to issue writs, orders, directions including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-warranto and Certiorari or any of them to any person or authority with in its territory for the enforcement of the Fundamental Rights and for any other purpose.

(b) The original jurisdiction of High Court extends to matters of admiralty, matrimonial, contempt of court and cases ordered to be transferred to High Court by lower court.

(c) The High Courts of Mumbai, Kolkata and Chennai have original jurisdiction on hearing straightway cases involving the Christians and Parsies.

(d) The High Courts of Mumbai, Kolkata and Chennai exercise original civil jurisdiction when the amount involved is more than two thousand rupees.

Appellate Jurisdiction:

The appellate jurisdiction of the High Courts extends so:

(a) The High Court can hear appeals in civil cases if the amount involved in the case is at least Rs. 5000.

(b) The High Court in criminal cases hears the appeal in which the accused has been sentenced to four years imprisonment by the Sessions Judge. v

(c) The death sentence awarded by Sessions Judge is subject to approval by the High Court.

(d) The High Court hear the cases involving interpretation of the Constitution or Law.

(e) The High Court hears the cases on income tax, sales tax etc.

Power of Judicial Review:

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.

Administrative and Supervisory Power:

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.

Judicial Tenure and Seniority

Under §5 of the Act, judges served at the pleasure of Her Majesty. The chief justice had precedence over judges, whereas judges had seniority based on appointment. Under §14, the chief justice had the power to form divisions of two or more judges to hear cases.

Jurisdiction

Under §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.