BLS LLB - HISTORY OF COURTS - CHAPTER NO. 5

CHAPTER – 5

Conflicting arising out of the dual judicial system – tendency for amalgamation of the two systems of courts, the Indian HC act 1861, High Court under the Government of India Act 1915, High court under Government of india act 1935 and High court under the Indian Constitution.

CONFLICT ARISING OUT OF THE DUAL JUDICAI SYSTEM :

            Just before the passing of the Indian High Court Act 1861 there were two types of courts

1)    The Crown Courts

2)    Company’s Court.

The Supreme Court established in Calcutta, Bombay and Madras were the courts of the British Crown where the Adalats established in the Mufassil were the courts of the east india company. These two sets of the courts formed the dual system of courts. These courts had two different set of organization, jurisdiction and powers.

DIFFERENCE BETWEEN CROWNS COURT (SUPREME COURT) AND COMPANY COURT.

SR NO.	CROWNS COURT (SUPREME COURT)	SR NO.	COMPANY’S COURT
1.	The supreme court consisted of the judges who were to be barristers of 5 years standing.	1.	The judge of company’s Adalats did not necessarily have the legal knowledge and training.
2.	The judges of supreme court were appointed by the British Crown and held office during the crown’s pleasure.	2.	The judges of the companys courts were appointed by the company’s government and held office during its pleasure.
3.	In each presidency towns a crowns court known as the supreme court was established.	3.	In the province beyond the presidency towns the company had established an hierarchy of civil and criminal courts. In each province the sardar Diwani Adalat and Sardar Nizamat Adalat were the highest court of the company.
4.	The supreme court applied English law both civil and criminal	4.	The company’s court in the Mufassil area were mainly for natives and they were apply Hindu and Mohammedan Laws.
5.	Supreme Court adopted the procedure of English courts. As regards the Law of evidence they followed English law of evidence.	5.	The company court had no uniform and definite procedure.
6.	The supreme court derived their authority from British Crown.	7.	Company courts derived their authority from the company.

                                                                                                                                                    

                            The dual system of courts came into existence, the relation between the crowns court and the company’s courts was very tense and conflicting. The main cause of the conflict was the uncertain jurisdiction of the supreme court and the company’s court. Then after realized that the merger of the company’s court and the supreme courts was the only remedy to avoid the confusion and conflict. But there were many difficulties in their merger on account of disparities between the two sets of the courts in respect of law and procedure. It was realized that necessary changes must be introduced in the administration of justice to create on atmosphere. For the unification. In 1833 on all India Legislature was create. The laws made it were binding on all courts whether the crowns court or the company’s court. The charter Act of 1833. Which created this all India Legislature specifically provided that the Acts passed by the Legislature would be binding on the crowns court as well as on the company’s courts. Thus in the matter of law uniformity was maintained between the company courts & crowns courts. The another step taken to bring about the uniformity in respect of law to be applied by these courts was the introduction of the provision in the charter Act of 1833. For the appointment of law commission for the codification of India Law. In 1858 the East India Company was dissolved and the government of India wa taken over by the British crown and consequently distinction between the company’s court and crowns court came to end.

INDIAN HIGH COURT ACT 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. Its main function was to abolish the supreme courts and the Sadar Adalats in the three Presidencies and to establish the high courts in their place. The records and document of the various courts became the records and documents of the High Court concerned. It gave power authority in 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.

Each High court was to consist of a chief justice and as many puisne judges not exceeding fifteen as her majesty might think to fit to appoint. Who became the high court judge or who was eligible to become the high court judge.

Judges were selected out of the following categories of persons.

1)    Barrister must have 5 years or more experience.

2)    Member of covenanted evil service of not less than 10 years standing who should have served as Zillah judges for at least 3 years.

3)    Person who shall have held judicial office

Each high court was to have and exercise all such civil and criminal admiralty and vice-admiralty, testamentary, intestate and matrimonial jurisdiction and original and appellate

The High Court was to have superintendence over all courts subject to its appellate jurisdiction. It got power, authority to call for return, to transfer any suit or appeal from one court to another and to make and issue general rules for regulating the practice and proceedings 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 charter 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.