K V ANANTHAKRUSHNAN Vs. REGISTRAR HIGH COURT

JUDGEMENT

(1.) THE writ petition was preferred by petitioner for a declaration that the Letter Patent dated 28th Dec. , 1865, issued under Acts 24 and 25 of Victoria Chapter 104 containing 45 clauses forming part of the Rules of the High court, Madras (Original Side) as null and void and for appropriate orders.

(2.) BEFORE discussing the stand taken by the petitioner, it is pertinent to note that by the amended Letters Patent dated 28th Dec. , 1865, the High Court of Judicature at madras was established, as evident from the preamble to the letters Patent in question and quoted below and, thereby, the petitioner has practically challenged the establishment of the High Court before the same High Court :

(3.) LEARNED counsel for the petitioner referred to the history of establishment of courts in India, cited a number of books and made submissions, as referred hereunder: queen Elizabeth granted a Charter in 1600 incorporating the London East India Company. William III granted a Charter in 1698 to establish english East India Company. Both Companies were amalgamated and came to be knows as English East india Company. This Company carried their Trade and Business in the East Indies, including India. Slowly the East India Company started acquiring territories and administering the natives. As a part and parcel of Administration, the East India company established Courts of law in different places of their occupation after obtaining permission from the Crown. Even the Governor and board of Directors of the East India Company sitting at England used to issue Charters to the 'factor' who was the Head of the Factory, to administer Justice to their employees and even to the natives. The occupation of the Indian territory by the East India Company expanded day by day. The persons of the East India Company lived a lavish life. This raised the eyebrows of many of the Englishmen. As the East India Company strengthened its hold on the native Indians, they indulges in malpractice and bad administration and this was complained to the British Government by many persons. In 1857 there was a Sippoy Mutiny revolting against the English rule and in 1858 the queen issued a proclamation and the British parliament passed the Government of India Act, 1858. Consequently, the East India Company and its affairs were taken over by the British government. To alleviate the corrupt practice crept in the judicial system, the British government wanted to establish a Judicial institution for rendering better justice. Toward this goal, the British Parliament passed 'indian high Courts Act, 1861' and in the same year 'indian Councils Act' was also passed. This Act empowered the Queen to establish High Court of judicature at Fort William in Bengal for the bengal Division of the Presidency of Fort William and by like Letters Patent to erect and establish like High Courts at Madras and Bombay for those presidencies respectively. The Indian High Courts act inter alia provided for the strength, qualification and service condition of the Judges and the power and their jurisdiction. Under this act, by virtue of Section 8, the Supreme Courts in the Presidency of Fort William in Bengal (Calcutta), the Presidency of Madras and the presidency of Bombay and the Appellate Courts of sudder Diwani Adawlut and the Foujdary Adalut in all the three presidencies were abolished and jurisdiction exercised by the Supreme Courts and the Courts of Sudder Diwani Adawlut and Foujdary were vested in the High Courts. By virtue of the power granted to the Queen under the Indian High Courts Act, 1861, the Queen issued the 'letters Patent, 1862' for the High court of Judicature for the Presidency of Madras on the 26th June, 1862. The Letters Patent had a life time of three years and in 1865 the Queen issued an Amended Letters Patent which came into force on 28. 12. 1865. This Letters Patent continues to be the basis for the administration of the High Court and forms part and parcel of the high Court Rules. As the Letters Patent 1862 and 1865 were issued as authorised by the 'indian High courts Act, 1861', the Letters Patent is only a permissive or subordinate legislation, if at all called to be a law. By virtue of the Indian Councils Act, 1861, the dominion Council and the Provincial Councils were given power to legislate on the subject allotted to them as per the Indian Councils Act and the subsequent legislature. The Dominon Councils as well as the provincial councils were enacting laws in their spheres without any restriction or intervention by the British authorities. As full liberty was given to the Dominion Council and to the provincial councils, the provisions of the colonial Laws Validity Act, 1865, was not made applicable to the British Territories in India. The subject matter for which law could be made by the Dominion Council and the provincial councils were demarcated in the Devolution Rules framed under the Government of India Act. Only the provincial Council was given power to legislate with regard to law Courts and their affairs. The Government of India Act, 1915, was a consolidating Act and it repealed the Indian councils Act, 1861, and the 'indian High Courts act, 1861'. Part-IX of Government of India Act, 1915, deals with the affairs of the Indian High courts. As per the Government of India Act, 1915, the Letters Patent, 1862 and 1865 issued under the indian High Courts Act, 1861, are also deemed to be repealed. The Government of India Act, 1915, in Part-IX absorbed all the High Courts established in British India by Letters Patent which includes the High Court of Judicature at madras also. Therefore, it is to be deemed that the provisions of the Letters Patent, 1865 were repealed and substituted by Part-IX of the government of India Acts, 1916, 1919 and 1935. Chapter-II of Part-IX of the Government of India act, 1935, provides for the administration and powers of the High Court. After this the Indian provisional Constitutional Second Amendment Order and the Indian Independence Act were passed in 1947. In 1947 the Governor General in Council issued orders establishing High Courts in different places which are continuing High Courts. All these enactments have now been consolidated and repealed by the provisions of the Constitution of India which came into force on 26. 1. 1950. Chapter-V of Part-VI of the Constitution of India deals with administration and powers of the High courts. Articles 214 to 231 deals with the High courts. Therefore, all the previous enactments dealing with the establishment, administration and affairs of the High Court are deemed to be repealed by Articles 214 to 231 of the constitution of India. Thereby, the Letters patent also is deemed to be repealed. The Letters patent, 1865, deemed to have come to a close as early as the Government of India Act, 1915, came into force while repealing the Indian High Courts act, 1861. Apart from the High Courts established by letters Patent, some of the High Courts were established by orders issued by the Governor-General in Council. Some High Courts were established after coming into force of the constitution of India. Some Permanent Benches of the Main High Courts were established by the presidential Ordinance. Some of the new High courts were established under the State reorganisation Act. The High Courts now in existence and the permanent Benches in various places in India is given in detail in Appendix-1.