1.

The Indian High Courts Act of 1861

● Authorization and Establishment
● Authorized The Crown to establish High Courts in India.
● Created the High Courts in Calcutta, Madras, and Bombay.
● Merged the parallel Legal and Justice Systems of the Crown and the East India Company post-1857.
● Bill was moved by Secretary of State Sir Charles Wood on 6th June 1861, passed on 6th August 1861.
● The Act consisted of 19 sections.
● Dissolved all existing courts in Calcutta, Madras, and Bombay.
● Composition and Appointment of Judges
● Each High Court could have a Chief Justice and up to 15 judges.
● Judges could be selected from:
● Barristers (5 years of experience)
● Civil servants (10 years of experience including 3 years as a zillah judge)
● Judges of small cause courts (5 years of experience)
● Pleaders of High Courts (5 years of experience)
● Chief Justice and minimum one-third of regular judges to be barristers.
● Minimum one-third of regular judges to be from Civil Service.
● Judges held office during the pleasure of the Crown.
● Legal Framework and Jurisdiction
● Applied the same law as the Supreme Court, i.e., English law.
● Permitted to use principles of justice, equity, and good conscience on the appellate side.
● Followed the Indian Penal Code (1860) in criminal law.
● Followed civil and criminal codes.
● Jurisdiction
● Original and Appellate Jurisdiction derived from the Supreme Court and Sudder Adalats.
● Jurisdiction dependent on Letters Patent issued by Her Majesty.
● Powers included civil, criminal, intestate, testamentary, admiralty, and matrimonial jurisdiction.
● Could exercise original and appellate jurisdiction as conferred by Her Majesty.
● Original Jurisdiction
● Civil Jurisdiction
● Ordinary Civil Jurisdiction:
● Extended to the towns of Calcutta, Madras, and Bombay.
● Invoked if:
1. Movable property situated within these towns.
2. Cause of action arose wholly or partly in these towns.
3. Defendant conducting business or working for profit in these towns.
● Extra Ordinary Civil Jurisdiction:
● Could call cases from lower courts within its superintendence limits with parties' prior
agreement.
● Criminal Jurisdiction
● Ordinary Original Criminal Jurisdiction:
● Tried all persons brought before it, covering natives, British, and Europeans within
presidency towns.
● Extraordinary Original Criminal Jurisdiction:
● Heard criminal cases referred by advocate general/magistrate/specially empowered
officer.
● Appellate Jurisdiction
● Civil Jurisdiction
● Heard appeals in all cases authorized by law or regulation.
● Criminal Jurisdiction
● Heard appeals in all criminal cases decided by subordinate courts.
● Appeal to the Privy Council if the High Court certified the case fit for appeal.
● Additional Jurisdictions
● Revenue Jurisdiction
● Settled revenue cases not under the Supreme Court's jurisdiction by the Act of Settlement,
1781.
● Admiralty Jurisdiction
● Held Admiralty and Vice-Admiralty Jurisdiction.
● Testamentary and Miscellaneous Jurisdiction
● Similar testamentary, intestate, and probate jurisdiction as the Supreme Court.
● Appeals and Higher Courts
● Appeal to the Privy Council from High Court judgments in criminal cases if certified fit for appeal.
● Establishment of Federal Court in 1937 by the Government of India Act, 1935, with the seat in Delhi.
● The Federal Court saved time and expenses for litigants, acting as a court of record.

2. Provisions of the Indian Councils Act 1861

● Executive Council Expansion

● Added a fifth member to the Council, covering home, military, law, revenue, and finance.
● A sixth member for public works was added in 1874.
● Portfolio System
● Introduced by Lord Canning, the Governor-General and Viceroy.
● Each member was assigned a portfolio for a specific department.
● Legislative Council Enlargement
● Increased to 6-12 additional members, nominated by the Governor-General.
● Members were appointed for 2 years.
● At least half of the additional members had to be non-officials (British or Indian).
● Their functions were limited to legislative measures.
● Inclusion of Indians
● In 1862, Lord Canning nominated three Indians: the Raja of Benares, the Maharaja of Patiala, and Sir
Dinkar Rao.
● Legislation Restrictions
● Bills related to public revenue or debt, military, religion, or foreign affairs required the
Governor-General’s assent.
● The Viceroy had the authority to overrule the council if necessary.
● The Governor-General could promulgate ordinances without the council’s concurrence during
emergencies.
● The Secretary of State for India in Britain could dissolve any act passed by the Governor-General’s
Council.
 ● Restoration of Legislative Powers
● Restored legislative powers to the Governors-in-Council of Madras and Bombay, which were removed
by the Charter Act of 1833.
● The legislative council of Calcutta had the power to pass laws for the entire British India.
● Formation of Legislative Councils in Provinces
● Provided for the formation of legislative councils in other provinces.
● New provinces could be created for legislative purposes and Lieutenant Governors could be appointed.
● Formation of Legislative Councils
● Legislative councils were formed in Bengal (1862), North-West Frontier Province (1886), and Punjab
and Burma (1897).

Assessment of the Indian Councils Act 1861

● The legislative council had a limited role, primarily advisory.
● No discussion on finance was permitted.
● Inclusion of Indians was not a statutory requirement.
● Allowed decentralization of administration by vesting legislative power to the presidencies of Bombay and
Madras.
● The ordinance power gave the governor-general absolute authority.

3. Privy Council

Key Contributions (1726-1949)

● Judicial Influence: Pronounced 2,500 judgments, laying down essential principles of law for Indian courts.
● Binding Precedents: Privy Council's laws are still binding on Indian High Courts unless superseded by the
Supreme Court of India.
● Contributions to Hindu and Muslim Law: Significant, albeit with some faulty legislation.
● Reputation: Highly regarded by attorneys, judges, and the general public.
● Legal Contributions: Significant in statute law, personal law, business law, and criminal law.
● Adherence to Values: Supreme Court of India continues to follow the Privy Council’s values of honesty,
impartiality, independence, and the rule of law.

Origin and Establishment

● Historical Background: Origin traced to the Norman period of English history; central government established
in England in the 11th century.
● Curia Regis: Evolved into King-in-Parliament (Court of House of Lords) and King-in-Counsel (highest Court
of Appeal for British possessions).
● Establishment: Privy Council established in the mid-16th century, headquartered in London, and acted on
royal proclamations.

Formation of Judicial Committee

● Workload Increase: British Empire's expansion led to the need for legal expertise.
● Judicial Committee Act 1833: Formed a permanent committee of legal experts to hear appeals, officially
named the Judicial Committee of the Privy Council.
 Composition of Privy Council
● Early Composition: Initially composed of laymen and lacked permanent membership.
● Reformation: Judicial Committee Act 1833 set a quorum of four, including the Lord President and Lord
Chancellor; 1908 Act expanded membership to include experts in Indian law.

Procedure
● Advisory Role: Not a court of law, but an advisory group to His Majesty.
● Judgment Form: Appeals are addressed to the king and the committee reports their collective view.
● Confidentiality: Privy counselors must not reveal their advice.

Jurisdiction & Right to Appeal

● Jurisdiction: Final step in all prize matters, broad authority over property and personal rights.
● Right to Appeal: As explained in Nadan v. R (1926), appeals originated as petitions to the sovereign.

Peculiar Nature & Rules

● Nature: Advisory, not bound by precedents, represents the whole empire.
● Rules: Applies to both criminal and civil matters; intervention in criminal matters is restricted.

Appeals from India

● Charters of 1726 and 1753: Established the power to appeal from Indian courts to the Privy Council.
● Regulating Act 1773: Crown given authority to form Supreme Court in Calcutta, with appeals to the Privy
Council.
● High Courts Act 1861: Created High Courts with the right to appeal to the Privy Council in civil matters.
● Federal Court (1935): Established appellate jurisdiction to the Privy Council; abolished in 1949.

Abolition of Jurisdiction
● Steps Toward Independence: 1933 white paper proposed Supreme Court in India; 1948 Act expanded Federal
Court's authority.
● Abolition Act 1949: Ended the Privy Council's jurisdiction over Indian appeals, transferred to Federal Court.

Role and Legacy

● Legal System Development: Key in establishing the Rule of Law and Common Law principles in India.
● Judicial Standards: Emphasized high standards of justice and procedure.
● Influence on Modern Courts: Supreme Court of India still follows principles established by the Privy Council.

Drawbacks
● Staffing: Initially staffed entirely by Englishmen unfamiliar with Indian rules.
● Accessibility: Located in England, inconvenient for common Indian citizens.
● Perception of Slavery: Viewed as a symbol of colonial subjugation.
● Financial Barriers: Expensive and inaccessible for the poor in India.
4. Federal Court of India (1937-1950)

Origin and Establishment

● Established under: Government of India Act, 1935
● Operational Period: 1937-1950
● Location: Delhi
● Post-Partition: Separate Federal Court of Pakistan established in Karachi

Jurisdiction
● Original Jurisdiction: Disputes between provinces, between the center and provinces, constitutional
interpretation
● Appellate Jurisdiction: Appeals from provincial High Courts involving the interpretation of the Government
of India Act, 1935
● Advisory Jurisdiction: Advisory opinions to the Governor-General on legal matters of public significance

Need for Federal Courts

● Growing Indian opinion against appeals to the Privy Council
● Shift from a unitary to a federal system under the 1935 Act
● Cost and convenience of local appeals
● Reduction of Privy Council's workload

Establishment
● Date Established: October 1, 1937
● First Chief Justice: Sir Maurice Gwyer

Composition and Appointment of Judges

● Chief Justice and up to six puisne justices
● Appointment by: His Majesty
● Term: Until age 65
● Removal: On recommendation of the Privy Council's judicial committee for misbehavior or infirmity

Qualification Criteria for Judges

● High court judge with 15 years of experience
● Barrister or advocate with 10 years of experience
● High court pleader with 10 years of experience

Salary of Judges
● Chief Justice: Rs 7000 per month
● Other Judges: Rs 5000 per month
 Jurisdiction Details
● Original Jurisdiction: Limited to disputes between Dominion Units or the Dominion and units
● Appellate Jurisdiction:
● Constitutional matters: Appeals from High Court judgments involving substantial questions of law
related to the Government of India Act, 1935
● Civil matters: From 1948, civil appeals governed by the Federal Court Act of 1947
● Criminal matters: Expanded jurisdiction post-1948, following similar grounds as the Privy Council

Advisory Jurisdiction
● Opinions on significant legal issues provided to the Governor-General

Forms of Judgment
● Federal Court did not have its own enforcement mechanism
● Orders were sent back to respective high courts for implementation

Authority and Influence

● Superior to High Courts
● Binding precedent on all British Indian courts
● First adoption of the English theory of precedents in India

Expansion and Changes in Jurisdiction

● Pre-Independence (1937-1947): Limited appellate authority in constitutional matters
● Post-Independence (1947): Expanded to include civil and criminal cases, abolition of direct appeals to the
Privy Council

Abolition of the Federal Court

● Privy Council Jurisdiction Abolition Act (1949): Severed ties with the Privy Council
● Constituent Assembly Resolution (1949): Granted judiciary complete autonomy
● Final Transition: Supreme Court of India established on January 26, 1950