The High Court’s Procursor

Hon'ble Mr. Justice Orby Honell, Mootham

Ex. Chief Justice,

High Court of Judicature at Allahabad

Everybody connected with the Allahabad High Court knows that it was established in 1866. Fewer perhaps know very much about the court which it replaced, the Sadar Dewani and Nizamat Adalat for the Western Provinces. The History of that court’s short existence, barely 30 years, has yet to be written, but a brief account of the circumstances in which it came into being may be interest.

Prior to the establishment of the High Court the administration of Justice in Bengal, except in the Presidency Town, was the responsibility of the East India Company. It had established a hierarchy of courts at the head of which was a Sadar Court situated in Calcutta. It sat in two divisions: as the Sadar Dewani Adalat it acted as an appellate court in civil cases, and as the Nizamat Adalat it exercised wide revisionary powers in all criminal matters. The court was also required to exercise overall superintendence over the subordinate courts.

The Sadar Court’s territorial jurisdiction extended over a very large area: it stretched from Chittagong in the south to Dehradun in the north. With the passage of time its judicial and administrative business steadily increased and in 1815 the Governor General (Lord Hastings) considered that the time had come for the establishment of a separate Sadar Court for the Western Provinces, that is to say for those districts lying to the west of Saran and Shahabad. It was not however until 1827 that the Directors of the Company in London decided that a new court was essential. They took the view that the fact that the existing court was over 1000 miles from the more remote parts of the Presidency not only involved the litigant in unnecessary hardship and expense but was the cause of avoidable delay in the disposal by the Nizamat Adalat of criminal references. There was also another reason, namely the need to relieve the overburdened Calcutta court. Not only had the court’s business increased but proposals were on foot (and were shortly to become law) which would further add to its work. These included the abolition of the existing provincial courts of appeal and the transfer of the criminal work of the circuit judges to Commissioners of Revenue and Circuit. The former would not only greatly enlarge the judicial work of the Sadar Dewani Adalat (to which the appellate work of the provincial courts was to be transferred) but would also involve the assumption by that court of such responsibility as had previously been exercised by the provincial courts of supervising the civil courts subordinate to them. The latter proposal, to replace the circuit judges by new appointees, would make even more necessary the exercise by the Nizamat Adalat of its supervisory powers over the criminal courts, a power which a single court sitting in Calcutta would find it increasingly difficult to exercise effectively.

The majority of the judges were opposed to the creation of a new court. They were not impressed by the argument that the proposed court would be more accessible to the parties. They did not think that there was any necessity for the parties to be present at the hearing of an appeal, and they had the support of James Mill (then an official in the India Office) who had recorded his opinion that when the Judges confined themselves to the record of the proceedings “the distance of the appellate court from the abode of the parties is…. a matter of indifference”. If the presence of the parties was desirable at the hearing of an appeal, then (as one of the judges pointed out) justice could not be equally administered unless the Sadar Court was within equal reach of the every person subject to its jurisdiction.

The principal of the separation of the judicial from the other functions of government was generally accepted, but in practice it was sometimes overlooked. The second of the main objections advanced by the majority of the judges was that there existed in the Indian mind so close a connection between judicial and executive authority that a chief court situated elsewhere than at the seat of government would not be looked up to with that respect and confidence which not be looked up to with that respect and confidence which were essential: in the Chief Judge’s opinion such a court would be “a thing out of reason”, and the judges would be regarded as subordinate officials. Instead of a new court the majority of the judges considered that a more satisfactory solution to an admitted problem would be increase the number of the judges of the existing court.

The objections of the judges were however of no avail, and the Sadar Dewani and Nizamat Adalat for the Western Provinces was established at Allahabad on the 1^st January 1832 and held its first sitting on the 7^th March. The new court had the same powers and duties within the territories subject to its jurisdiction as had previously been exercised by the Sadar Court in Calcutta. To avoid the law being differently interpreted by the two courts (the fear which had been expressed by objectors to the new court) the Government directed that the two courts should consult each other on points of difficulty, and that in the event of a question of law arising upon which they are unable to agree it should be referred to the Government for decision.

Three judges were appointed to the new court, the two seniors of whom were judges transferred from the Sadar Court in Calcutta. The third Judge was John Alexander Colvin who has been a judge and magistrate in Allahabad and has given his name to a road in the city. Three more Judges were appointed in the following year. The average age of the judges on appointment (or in the case of the senior judges, the first appointment) to the Sadar Court was 45.

Sadar Court judges were not members of the Bar. They were covenanted servants of the Company appointed by it and holding office at its pleasure. They were able and intelligent men, conscious of the obligations of their high office who, by 1830, had achieved a degree of independence which caused alarm to those members of the administration who still believed that control of the judiciary must rest with the government if the respect of the local population was to be retained. This control, they believed, the government had surrendered, leaving the courts free to act without regard to the public good. But the Governor General (Lord Bentinck) thought otherwise: he was of the opinion that the honour, intelligence and experience of the judges would always constitute sufficient security against any abuse of their powers: and time has proved him to have been right.

Such were the origins of the High Court’s precursor: the rest of its short life remains to be written. A worthwhile subject for a future thesis?