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VAIJAYANTI BANERJEE
MODULE II
TOPICS:-
PRIVY COUNCIL
FEDERAL COURT
PRIVY COUNCIL: APPEAL, WORKING, APPRAISAL
THE PRIVY COUNCIL
IT’S ESTABLISHMENT.
COMPOSITION.
PROCEDURE
JURISDICTION.
RIGHT TO APPEAL.
PECULIAR NATURE.
THREE RULES GUIDING APPEALS TO THE PRIVY COUNCIL.
In the hey-day of the British Empire, the Privy Council, or rather its Judicial Committee, heard appeals from the courts of some 150 countries, in all manner of cases, civil and criminal, and applied not merely English law but diverse systems of law. The jurisdiction of the Privy Council originated at the Norman Conquest. From 1833 the Privy Council was officially known as or called as the Judicial Committee of the Privy Council.
The Privy Council acted as the highest court of appeal for over two centuries. It made a great contribution towards establishing a high standard of justice in the country and creation and ascertainment of law and therefore, the Privy Council occupies a very unique place in the Indian Legal History.
VAIJAYANTI BANERJEE
ESTABLISHMENTS & COMPOSITION
Lord Brougham’s strong protest against the laymen hearing appeals led to the passing of judicial committee act 1833, by the British Parliament. The statute of 1833 established a statutory permanent committee of legal experts to hear appeals from the British colonies and to dispose of other matters as referred to them by his majesty according to the provisions of the act. The statutory committee was known as the “judicial committee of the privy council”.
The judicial committee of the privy council whose constitution has been modified by the acts of 1844, 1908, 1929 and other acts is now composed of the Lord chancellor, the existing and former lords, presidents of the council, privy councilors, the lords of appeal. Ordinarily the quorum of the judicial committee is of three members but in important cases generally five members preside over the committee meeting to hear appeals.
PROCEDURE…….
The judicial committee is not a court of law but it is only an advisory board whose duty is to report to his majesty their opinion, as a body, and humbly advise him as to the action he should take on appeals submitted to him.
A) Every appeal is addressed to “the king’s most excellent majesty in council” and is sent to the judicial committee for their advice under a general order passed in 1909.
B) The advice so submitted is in the form of a judgment which ends with the words “and we humbly advised etc.”
C) There is only one judgment of the Privy Council and no dissenting judgments.
D) It is the duty of every privy councilor not to disclose the advice he has given to his majesty.
E) On the advice tendered, a draft order in council is prepared and at a meeting of the Privy Council itself, usually in Buckingham palace, it receives his majesty’s approval.
JURISDICTION & RIGHT TO APPEAL
Jurisdiction
They determine not only upon the questions of colonial law in plantation cases but also sit as judges in the last resort of all prize cases. This entire immense jurisdiction over the rights of property and person, over rights political and legal and over all questions growing out of so vast an area is exercised by Privy Council unaided and alone.
Rights to appeal
VAIJAYANTI BANERJEE The charter of 1753 re-established the mayor’s court at the three presidencies towns of Calcutta, madras and bombay.as regards to the provisions of the appeals, the charter of 1753 followed the charter of 1726 A.D.
REGULATING ACT AND SUBSEQUENT CHARTERS
The Regulating Act, 1773 A.D. empowered the crown to issue a charter establishing a supreme court at Calcutta. The charter of 1774 a.d was accordingly issued by the crown which established the Supreme Court at fort William, Calcutta and the mayor’s court was abolished.
Section 30 of the charter granted the right to appeal from the judgment of the Supreme Court to the king-in-council in civil cases where the amount involved exceeded 1000 pagodas. Such an appeal was allowed within six-month period after the date of the Supreme Court’s decision. Thus appeals directly fled before the judicial committee from the Calcutta Supreme Court.
The act of settlement, 1781 A.D. provided that an appeal will lie from sadar diwani adalat at Calcutta to his majesty, in suits valuing 5000 pounds (equivalent to rs 50,000) or more.
In 1818 A.D. it was found that during the last sixty years only fifty appeals were filed to the privy council.it was found that the appeals were not filed due to the fixed limit on the valuation of the suit.in the year 1818 A.D.it was decided to cancel the fixed limit.
APPEALS TO PRIVY COUNCIL FROM HIGH COURTS
The Indian high court act, 1861 recognized the rights of the parties to file an appeal to the Privy Council in all matters, except criminal cases from the final judgments of the high courts.
The Civil Procedure Code also provided for appeals from the high courts to Privy Council under sections 109 and 112.
An appeal was also allowed where the high courts certified that the case involved an important question of law and that it was a fit case for appeal.
FEDERAL COURT UNDER THE GoI ACT, 1935
Section 308 of the act of 1935 made provision of appeal to the Privy Council from the federal court.it is therefore clear that in the constitutional matters the federal court shared with the Privy Council in deciding cases.
VAIJAYANTI BANERJEE After 1937 A.D.it was only in civil cases exceeding rs 10,000 that the appeals were allowed to the Privy Council.
PRIVY COUNCIL: A UNIQUE INSTITUTION
During the period from 1726 to 1949 it pronounced 2500 judgments during its career.
It laid down the fundamental principles of law in a lucid manner for the guidance of the Indian courts.it was a great unifying force in the judicial administration of India.
The law declared by the privy council is still binding on the high courts in India except in those cases where the supreme court of India has declared law in its judgements.it shows the amount of respect which the Indian high courts still have for the privy council.
In the field of Hindu law and the Muslim law, though at times defective law was laid down, the contribution of the privy is remarkable.
The Privy Council commanded the great respect among the lawyers, judges and the Indian public as the highest judicial institution.
Its contribution to the statute law, personal law, commercial law and the criminal law was of great importance.
The principles of integrity, impartiality, independence and the rule of law which were laid down by the Privy Council are still followed by the supreme court of India.
PRECEDENTIAL VALUE OF PRIVY COUNCIL DECISIONS
After the establishment of the supreme court in India in 26- 01 - 1950. The decisions of the Privy Council have no compelling force on the supreme court but are entitled to great respect.
Hence the Supreme Court can decide independently.
The high courts are bound unless they can point out a decision of the Supreme Court to the contrary.
VAIJAYANTI BANERJEE The federal court was to consist of the chief justice and not more than six puisne judges, who were to be appointed by the king.
The king could increase the number the judges.
Qualifications: Qualifications required for a judge are-
1 ) 5 years’ experience as the judge of the high court or
- a barrister or an advocate of 10 years standing or
3) a pleader in a high court of 10 years standing.
4) As regards to the appointment of the chief justice , it was provided that a person should have experience of 15 years of standing in a high court as a barrister ,advocate or pleader or have been one when first appointed as a judge.
Salary: The Judges of the Federal Court were entitled such salaries and allowances and to such rights in respect of leave and pensions, as were laid down by His Majesty from time to time. The salary of the chief justice was fixed as the Rs 7000 a month and of the other judges at Rs 5000 a month
Jurisdiction of the Federal Court:
The Federal Court got three kinds of jurisdictions
i. Original;
ii. Appellate; and
iii. Advisory.
i. Original Jurisdiction: The Original Jurisdiction was confined to disputes between Units of the Dominion or between the Dominion and any of the units. The private individuals had no right to sue any Dominion before the Federal Court.
Ii. Appellate jurisdiction:
The Federal Court exercised appellate jurisdiction in constitutional cases under the Act of
- Its appellate jurisdiction extended to civil and criminal cases. On the same principles and jurisdiction the Supreme Court of India was established.
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1 ) In the constitutional cases: section 205 of the government of India act 1935 made provision that an appeal from any judgment, decree or final order of a High Court would be entertained by the Federal Court, if the High Court certified that the case involved a substantial question of law as to the interpretation of the Act of 1935 or any other Act and law. The certificate was a condition precedent to every appeal.
- In civil cases: since 1948 civil appeals, which formerly went to the Privy Council, were heard by the federal court of India under the federal court act, 1947. Section 3 of the Act of 1947 provided that from 1st feb. 1948 an appeal shall lie to the federal court, civil cases, with or without the special leave of the federal court as provided.
3) In criminal cases: the federal court act 1947, enlarged the jurisdiction of the federal court in India and in 1949 the systems of appeals from India to the privy council was totally abolished. The Federal court of India as such followed the same principles (after 1948) as were followed by the Privy Council in the exercise of the appellate jurisdiction in criminal matters.
iii. Advisory Jurisdiction: The Federal Court was empowered to give advisory opinion to the Governor-General, whenever a question of law had arisen or is likely to arise which is of such a nature and of such public importance that it was expedient to obtain the opinion of the Federal Court upon it. The Court after such hearing as it thinks fit report to the Governor- General thereon.
FORM OF JUDGEMENT
The Federal court of India ,as provided by section 209 of the act of 1935, had no machinery of its own to execute the judgements.it was sending back the case with its decision to the respective high courts so that its order could be substituted for the order of the high court.
Authority of Federal Court: The High Courts were subordinate to Federal Court. The law declared by the Federal Court and any judgment of the Privy Council will be binding on all the courts in British India. It introduced the English doctrine of precedents in India.
Expansion of Jurisdiction: From 1937 to 15-8-1947, the Federal Court entertained only the appellate jurisdiction in constitutional cases. After Independence Act, 1947, the Federal Court was empowered to have the appellate jurisdiction in civil and criminal matters also.
