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Report No. 188

High Courts as on 26.1.1950:

At the outset, we have to refer to Article 225 of the Constitution of India, which in its turn takes us back to the previous operative provision of the law, namely, section 223 of the Government of India Act, 1935. That section, in its turn again takes us back much backwards to sections 106(1) and 108 of the Government of India Act, 1915. We shall presently refer to these provisions and to the decisions of the Supreme Court of India.

(a) Constitution of India

"Article 225: Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:

Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction."

(b) Government of India Act, 1935: In view of the words 'shall be the same as immediately before the commencement of this Constitution' used in Article 225, we have to refer to section 223 of the Government of India Act, 1935. That reads as follows:

"Section 223: Subject to the provisions of this Part of this Act, to the provisions of any order in Council made under this or any other Act, to the provisions of any order made under the Indian Independence Act, 1947, and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in division courts, shall be the same as immediately before the establishment of the Dominion."

(1) Until otherwise provided by Act of the appropriate Legislature, no High Court shall have any original jurisdiction in any matter concerning the revenue, or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force."

(c) Government of India Act, 1915

"Section 106(1): The several High Courts are courts of record and have such jurisdiction, original and appellate, including admirality jurisdiction, in respect of offences committed on the high seas, and all such powers and authority over or in relation to the administration of justice including power to appoint clerks and other ministerial officers of the court, and power to make rules for regulating the practice of the court, as are vested in them by letters patent, and, subject to the provisions of any such letters patent, all such jurisdictions, powers and authority as are vested in those courts respectively at the commencement of this Act."

"Section 108: (1) Each high court may by its own rules provide, as it thinks fit, for the exercise, by one or more judges, or by division courts constituted by two or more judges, of the high court, of the original and appellate jurisdiction vested in the court.

(2) The Chief Justice of each high court shall determine what judge in each case is to sit alone, and what judges of the court, whether with or without the chief justice, are to constitute the several division courts."

What is crucial here to note is the power vested by section 108(1) of the Government of India Act, 1915 in the High Court and by section 108(2) of that Act in Chief Justice of each High Court and these powers are continued under section 223 of the Government of India, Act, 1935 and further continued by Article 225 of the Constitution.

This is so far as the existing High Courts (as on 26.1.1950) are concerned. On or after 1.11.56, other High Courts have been carved out of existing High Courts by reason of the State Re-organisation Act, 1956, the Bombay Re-organisation Act, 1960, the Punjab Re-organisation Act, 1966 and other State Re-organisation Acts enacted by Parliament from time to time. In the case of these new High Courts, the powers of the High Court and of Chief Justice as in the parent High Courts are continued under the respective States Re-organisation Acts.



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