ESTABLISHMENT OF HIGH COURTS

By | December 31, 2016

ESTABLISHMENT OF HIGH COURTS

In one thousand eight hundred sixty one, the British Parliament passed the Indian High Courts Act which provided for the establishment of the High Courts at the Presidency Towns. The Act also authorised the Crown to establish more High Courts by Letters Patent whenever the Crown (the Queen) deemed fit. The constitutions of the judges and their number etc., were laid down in the Act itself. As the provisions of the Act, any one whether Englishman or an Indian could be appointed a judge of the High Court provided he fulfilled the qualifications laid down therein. Thus for the first time, channels “were opened to the natives to become judges of the highest court in India. Prior to this Act, no Indians was ever allowed to sit as a judge of Supreme Courts at the Presidency Towns of Calcutta Madras and Bombay.

After the establishment of the High Courts at the three Presidency towns, the Act of 1861 did not specify or clarify their power to issue the prerogative writs. It simply stated that the powers of the erstwhile Supreme Courts would vest in the High Courts.

In 1858 the administration of the country had passed on to the Crown -who became responsible for governing the country through the Secretary of State of India. The distinction between Indian subjects and the British subjects or the Crown’s subjects came to an end for all Indians automatically became British subjects. What happened to the High Court’s power to issue writs outside the local limits of the presidency town? Some High Courts asserted that since the administration had come under Crown, so their power to issue writs was extended to the mofussil areas also.

In 1935, In Re National Corbon Company, Calcutta High Court issued a writ of prohibition to the Controller of Patents and Designs. The Court held that it had the power to issue the writ because it had, vide clause 4 of the Charter, inherited the powers vested in the judges of the erstwhile Supreme Court. The judges of the Supreme Court enjoyed the power like the judges of the King’s Bench.

In the Matter of Ameer Khan, the Calcutta High Court issued the writ of habeas corpus even beyond the local limits of the town. The High Court held that since the power of governance had been transferred from the Company to the Crown, the power to issue writs against the Company’s servants was now extended to the servants of the Crown throughout the province. After the transfer of power, there was now no limit on the power to issue writs.

In re Govindan Nair, 1922, the Madras High Court followed the Calcutta precedent and issued the writ of habeas corpus directing the government officials to release the man detained illegally.

In Indumati Chowdhurani Versus Bengal Courts of Wards, the Calcutta High Court issued the writs of certiorari and prohibition to the Bengal Courts of Wards at Calcutta which had declared the applicant a disqualified proprietor.

In a Bombay case Alcock & Company Ltd. Versus Chief Revenue Authority of Bombay, the Privy Council held that the Bombay High Court had the jurisdiction and power to issue writs directing the Revenue Authority to perform a duty under the Income Tax Act.

In the Banwari Lal Roy case the Calcutta High Court held that it had the power to issue the writ of quo warranto to the Administrator of the Howrah Municipality although it was outside the local limits of the presidency town. The facts of the case were as follows,

The Government by an order superseded the Howrah Municipality and appointed an administrator to carry out the functions of the municipality. A petition was filed in the High Court praying for a writ of quo warrant to question the validity of the appointment of the administrator. The High Court before issuing the writ went into the question whether it had the power to do so even when the cases arose outside the local limits of the town.

It was stated that in 1858 power of the Company stood transferred to the Crown. This transfer also changed the status of the Indians as now they all became the subjects of the Crown. Earlier there was a clear distinction between the subjects of the Crown, the servants of the Company and the natives. The Supreme Court was empowered to issue the prerogative writs to the subjects of the Crown and the persons in the service of the Company throughout the provinces of Bengal, Bihar and Orissa or the Mofussil areas, but in the case of the natives the power to issue the writs was restricted to the local limits of the town. This distinction was no more. As all Indians had become the subjects of the Crown, the power of the Court to issue writs was enlarged to cover the mofussil areas.

But on appeal to the Privy Council the case Hamid Husian Versus Banwari Lal Roy the judicial committee held that the High Court had no power to issue the writ, because its original civil jurisdiction did not extend beyond the local limits of the presidency town. In the opinion of their Lordships, with the transfer of the governmental functions of the Crown the earlier distinction between the subjects of the Crown and the natives was blurred. The distinction could now be interpreted as between the British Nationals and the Indian nationals although all were now British subjects. The power of the High Court to issue writs would still extend to the mofussil in the case of the British nationals, but in the case of the Indians, this power was limited to the local limits of the presidency towns. And as the Howrah municipality was beyond the local limits of the town, the High Court had no power to issue the writ.

In 1943, the Privy Council finally clinched the issue. The case before their Lordships was Ryots of Garbandho Versus Zamindar of Parlakimedi (appeal case). The facts of the case were follow, The appellants were the ryots of three villages in Ganjam District of Madras province. Sometimes before 1943 the revenue of those villages was enhanced and the Board of Revenue approved the enhancement. The ryots sought to quash the order of the Revenue approving the enhancement of the land rent, by a writ of certiorari. Their Lordships held that Madras High Court had no power to issue the wit merely on the basis of the location of the office of the Revenue Board. If it were so, the jurisdiction of the High Court could be avoided by changing the location of the office. The cause of action arose in Ganjam District which was outside the local limits of the Presidency town of Madras. The power of the High Court to issue writs did not extend beyond the local limits. , Note, The appellants had to go in for appeal because the Madras High Court, although it held that it had power to issue the writ, had refused to issue the it because in its opinion the Revenue Board had not exceeded its authority.

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Mayank Shekhar
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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