lllliUI KESBAO MESllRAM & ORS. v. RAJlllIKABAl W/O ANANDRAO llAllAPORKAR & Allll.

D For the first time the British Parliament asserted its authority and control over the East India Company's activities both. in India and in England by enacting Statute 13 Geo. lII, c.63, of 1773, commonly known as the Regulating Act. Under this Statute the Governor of Bengal became the Governor- E General in Council with a certain amount of control over the Presidencies of Bombay and Madras and the appointment of the Governor-General had to be approved by the Crown. This Statute also empowered the Crown to establish a Supreme Court of Judicature, in lieu, of the M8Yor' s Court, at Fort William (Calcutta), to be a Court of Record and to consist of a Chief F Justice and three puisne Judges. Accordingly, by a Charter of George III dated March 26, 1774, a Supreme Court of Judicature was established at Fort William. Soon a controversy arose between the said Supreme Court and the Governor-General, Warren Hastings, supported by his Council, with respect to the powers of the said Supreme Court in revenue matters. This G controversy was settled in favour of the Governor-General by Parliament by providing in section 8 of the East India Company Act, 1780 (21 Geo. Ill, c. 70) that "the said Supreme Court shall not have or exercise any jurisdiction in any matter concerning revenue." The East India company Act, 1797 (37 Geo.III, c.142), limited the number of puisne Judges of the H Supreme Court at Fort William to two and further authorized

UMA.Jl KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 777

A the Crown to establish at Madras and Bombay, in lieu of the Mayor's Courts, Recorder's Courts consisting of the Mayor, three Aldermen and a Recorder. By a Charter of George Ill dated February 20, 1798, Recorder's Courts were established both at Madras and Bombay with jurisdiction similar to that of the Court of King's Bench in England "as far as circumstances B would admit". An equitable jurisdiction similar to that of the Court · of Chancery in England was given to the Recorder's Courts as also ecclesiastical jurisdiction which included the power to grant probates and letters of administration, and admiralty jurisdictio.n. The Recorder's Courts were also made Courts of Oyer and Terminer to administer criminal justice as in England "or as nearly thereto as the condition and circum- C stances of the pleas and persons would admit." The Recorder's Courts were to be Courts of Record and an appeal lay from their decision to the Privy' Council. The Recorder's Courts also had no jurisdiction in respect of revenue matters.

The Recorder's Courf which had been set up at Madras was D abolished by the Government of India Act, 1800 (39 & 40 Geo.Ill, c.79), which provided for the establishment in its place of a Supreme Court to be a Court of Record and to consist of a Chief Justice and two puisne Judges possessing the like jurisdiction and the same powers, and subject to the same restrictions, as the Supreme Court at Fort William. The E Charter of the Supreme Court at Madras was granted on December 26, 1801. The Indian Bishops and Courts Act, 1823 (4 Geo.IV, c.71) authorized the Crown to abolish the Recorder's Co-~rt at Bombay and in its place to establish for Bombay and its dependencies a Supreme Court to be a Court. of Re.cord consist- i ing of the same number of Judges, possessing a similar juris- F diction and the same powers and subject to the same restric- tions as the Supreme Court at Fort William. In pursuance of the said Statute, King George IV by Letters Patent· issued on December 8, 1823, established at Bombay a Court of Record to be called "the Supreme Court of Judicature at Bombay." It is interesting to note that in those days when there was no G income-tax, under the said Act of 1823, Bombay Rupees 52,500 was fixed as the annual salary of the Chief Justice of the Supreme Court of Judicature at Bombay and Bombay Rupees 43,500 as the annual salary of each of the puisne Judges which salaries were increased by the Indian Salaries and Pensions Act, 1825 (6 Geo.IV, c.85) with retrospective effect from the H.

778 SUPREME COURT REPORTS [1986] 1 S.C.R,

A date of the inauguration of the said Supreme Court up to the date .of passing of the said Act (namely, July 15, 1825) to Bombay Rupees 58,000 and Bombay Rupees 48,000 respectively and from the date of the passing of the said Act to Bombay Rupees 60,000 and Bombay Rupees 50,000 respectively.

B The Sup.-eme Court of Judicature at Bombay was formally inaugurated on May 8, 1824. <:lause 1 of the Letters Patent created and' constituted the said Supreme Court to be a Court of Record to consist of a Chief Justice and two puisne Judges. Clause 5 of the said Letters Patent provided as followa :

c "5, Tue Court invested with a jurisdiction silll.lar to the Jurisdiction of the Kl.ng 's Bench in England.-

AND it is our further will and pleasure, That the said ad.ef Justice and the said Puisne Justices D shall, severally and respectively, be, and they are, all and every of them, hereby appointed to be JUstices and Conservators of the Peace, and Coro- ners, within and .throughout the Settlement of Bombay, and the Town and Is land of Bombay, and the limits thereof, and the Factories subordinate E thereto and all the territories which now are ' <>r hereafter may be subject to, or dependent upon, the Government of Bombay, aforesaid, and to have such jurisdiction and authority as our Justices of our Court of Kl.ng' s Bench have and may lawfully exer- c:l.se, within that part of Great Britain called F England, as far as cirCUEtances will admit."

(Emphasis supplied)

Clause 23 conferred upon the said Supreme Court all powers possessed by the Mayor's Court and the Recorder's Court. By G clause 25 the jurisdiction of the said Supreme Court was inter alia expressly barred in all revenue matters. Clause 26 conferred power upon the said Supreme Court to punish by fine, imprisonment or other corporeal punishment witnesses who committed contempt of Court by refusing to appear, or wilfully ~ neglecting to appear and be sworn, or to be examined and H subscribe his or her deposition. By various clauses original

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 779

A civil jurisdiction, equitable jurisdiction of the Court of Chancery in Great Britain, criminal jurisdiction as a Court of Oyer and Terminer, jurisdiction over persons and estates of infants and lunatics, and ecclesiastical, testamentary, intes- tate, and admiralty jurisdictions were conferred upon the said Supreme Court. Clause 32 conferred upon the Supreme Court the B power to frame> process and make rules. Clause SS made the Court of Requests and the Court of Quarter Sessions establish- ed at Bombay subject to the control of the Supreme Court of Judicature at Bombay, and was in the following terms

"SS. Court of Requests and ~er Sessions, subject to this Court. - c AND to the end that the Court of Requests and the Court of Quarter Sessions, erected and established at Bombay aforesaid, and the Justices and other Magistrates appointed for the Town and Island of Bombay, and the Factories subordinate thereto, may better the ends of their respective institutions, and act conformably to law and justice, it is our further will and pleasure and we do hereby further grant, ordain, and establish that all and every the said Courts and llagistrates shall be subject to the order and control of the said Supreme Court of E Judicature at Bombay, in such sort, ll8Dller, and fona, as ·the Inferior Courts and Magistrates of and in that part of Great Britain called l!ogland, are by law subject to the order and control of our Court of King's Bench; to which end, the said Supreme Court of Judicature at Bombay is hereby F ellpOlft!red and authorized to mnml and issue a writ or writs of Kandpnw1s, Certiorari, Procedendo, or Error, to be prepared in manner abovementioned, and directed to such Courts or Magistrates as the case may require, and to punish llDY contempt thereof, or wilful disobedience thereunto, by fine and .im- G prisonment."

(Emphasis supplied.}

Clause 56 provided for an appeal to the Privy Council from any judgment or determination of the said Supreme Court. H

780 SUPREME COURT REPORTS [1986] 1 S.C.R.

A Three things are pertinent to note about the Letters Patent of the Supreme Court of Judicature at Bombay. The first is that by clause S it was invested with the same jurisdiction as was possessed by the Court of King's Bench in England which included the power of issuing prerogative writs. The second is that under clause SS the Court of Requests and the Court of B Quarter Sessions at Bombay and the Justices and other .. Magistrates appointed for the Town and Island of Bombay and ~ the factories subordinate thereto were made "Subject to the order and control of the said Supreme Court" in the same way as the inferior Courts and the magistrates in England were subject to the order and control of the Court of King's Bench c and for this purpose the said Supreme Court was empowered and authorized to issue writs of manda:nus, certiorari, procedendo and error. The third is that there was no intra-court appeal provided against the judgment and decree of any Judge or Judges of the said Supreme Court but under clause S6 an appeal ..... lay directly to the Privy Council. " D Before we turn to tne establishment of the High Courts in India, it will not be out of place to consider the position with respect to the judicial institutions in the rest of the Bombay Presidency. Until 176S the jurisdiction of the East India Company's Law Courts was confined to the factories of the Company and its branches. In 176S Robert Clive secured, or rather exacted, the Dewany of Bengal, Bihar and Orissa from the titular Mogul Emperor Shah Alam in Delhi. In this delegat- ed capacity, the East India Company derived its title to adm.inister the revenue and civil affairs of these provinces, and for this purpose it established in Bengal, Bihar and F Orissa, civil and revenue Adalats. The delegated capacity was, .__ however, a mere fiction. The real source of the East India T Company's authority to adm.inister these provinces was the sword and not the 'firman' of the Mogul Emperor. The Regulat- ing Act of 1773 vested in the Governor-General in Council the whole civil and military government of the Presidency of G Bengal as also the government of the territorial acquisitions and revenues in Bengal, Bihar and Orissa which were Dewany lands. By the East India Company Act, 1780, the Governor- General in Council was empowered to frame regulations for the "provincial Courts and Councils" which could be disallowed {'- within two years by the Court of Directors and the Secretary H of State. By the Government of India Act, 1800 (39 Geo.III,

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 781

' c.79), the Madras Government and by Statute 47 Geo.Ill, c. 68, A the Bombay Government were invested within the territories subject to their respective governments with the same legis- lative powers and exerciseable in the same manner as had previously been given to and exercised for Bengal by the Governor-General in Council. B Meanwhile in 1797 the Governor-General in Council of Bengal authorized the Bombay Gover~nt to set up Adalats, both Dewany and Nizami, within its territories on principles similar to those on which the courts in the Bengal Provinces had been established. Progress in this respect was, however, gradual and it was in 1799 that such courts were establishe'd at Thana for the islands of Salsette and Caranja and their c dependencies, Elephanta and Hog, by Bombay Regulations III and V of 1799 and in 1800 at Surat for that city and the town of Randeir by Bombay Regulations I and Ill of 1800. These courts were subordinate to the Governor in Council who heard civil appeals in a separate department of Sadar Adalat in pursuance of Bombay Regulations III of 1799 and I of 1800, and also D disposed of criminal matters as "the tribunal of the Governor in Council" in pursuance of Bombay Regulations V of 1799 and III of 1800. The name "the tribunal of the Governor in Council" was changed to "Superior Tribunal or Chief Crlminal Court" by Bombay Regulation IX of 1812. By Bombay Regulation II of 1805 a Provincial Court of Appeal was established at E Broach. It was also a Court of Circuit and in that capacity replaced the Court of Session which had been established at Surat in 1800. Though the setting up of this Court eased the burden on the Governor in Council on the civil side, as the 'I Governor in Council had also to deal with revenue matters, in January 1820 the Governor, Mountstuart Elphinstone, decided F that it had become "utterly impossible for the Governor in Council to continue to execute the duties of the Sadar Adalat and Superior Tribunal without neglecting other important duties". Consequently by Bombay Regulations V and Vll of 1820, which came into force on January 1, 1821, the Provincial Court of Appeal and of Circuit was abolished and the then existing G Sadar Adalat and the Superior Tribunal were replaced by new Courts, namely, the Sadar Adalat (the former name being retained) and the Sadar Foujdari Adalat. The seat of the Sadar Adalat was also transferred from Bombay to Surat. Under Bombay Regulation V of 1820 an appeal lay from the decision of the Sadar Adalat to the Privy Council. H

782 SUPREME COURT REPORTS [1986] 1 S.C.R.

A On becoming Governor, Mountstuart Elphinstone set' up in August 1820 a committee "to examine the existing law and pracl:ice and to prepare a comprehensive code, expressed in non-technical language, which would as far as possible preserve native institutions•1• Following upon the recommend- ations of the committee, on January 1, 1827, twenty-six Regulations known as the Elphinstone Code were passed which -~ B (with the exception of Regulation XVIII) crune into force on September 1, 1827. Under this Code, the judicial system was reorganized and the Sadar Court was replaced by a "Sadar Adalat" which in the exercise of its civil jurisdiction was named "the Sadar Dewani Adalat" and in the exercise of its criminal jurisdiction as "the Sadar Foujdari Adalat". In 1827 c the jurisdiction of the Sadar Adalat was extended to Khandesh and Deccan which had been formed into the zillas of Poona and Ahmednagar and in 1830 to that part of the Southern Mahratha country which had been formed into the zilla of Dharwar. In ~ 1828 the Sadar Adalat waa transferred to Bombay from Surat for the convenience both of the litigating public and the judges going on circuit.

Prior to 1827, subordinate courts had also been established and they too were reorganized by the Elphinstone Code. Bombay Regulation II of 1827 established Zilla or District Courts. An appeal lay from a decree or order passed by a Zilla Court to the Sadar Dewany Adalat which was invested with civil jurisdiction over the whole of the Bombay Presidency except the Town and Island of Bombay. The decisions of the Sadar Dewany Adalat were made subject to an appeal to the Privy Council by Bombay Regulation IV of 1828. F Bombay Regulation XIII of 1827 reorganized the structure of subordinate criminal courts, and Zilla Criminal Courts were established in certain parts of the Presidency. The Sadar I Foujdari Adalat was vested with supreme criminal jurisdiction over the whole of the Bombay Presidency- except the Town and Island of Bombay. It waa, however, not an appellate court. It G exercised a general supervision over the administration of justice in criminal cases, and to this end it had the power to call for the proceedings of the lower courts and pass such orders on them as it considered proper. It alone had the power 'r- to confirm sentences of death, transportation for life or life imprisonment- passed by the Judges of the Court when on H

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J, ] 783

circuit. All sentences of imprisonment for more than two years A passed by the lower criminal courts had to be referred to it. The Court construed its powers of revision widely. Thus, in Wittoojee Rugsbette's Case [ 1831] 1 Bellasis 52, where the prescribed procedure had not been followed, the Court annulled the proceedings and ordered a fresh trial. B The Sadar Dewany Adalat and the Sadar Foujdari Adalat were Courts of Record.

From about 1852 the Parliamentary Committee for East G Indian affairs was considering a proposal to consolidate the Supreme and Sudder Courts into one Court in each of the three Presidencies of Bengal, Madras and Bombay in the interest of the public administration of justice. Meanwhile the events of 185? led to the passing of the Government of India Act of 1858 H

784 SUPREME COURT REPORTS. [19861 1 s.c.R.

Sections 9, 10 and 11 of the Indian High Courts Act, 1861, are material for our purpose and require to be reproduced in extenso. They provided as follows : F "9. _Jurisdiction and _Powers of High Courts. -

Each of the High Courts to be established under this Act shall have and exercise all such Civil , Criminal, Admiralty and Vice-Admiralty, Testamen- G tary, Intestate, and Matrimonial Jurisdiction, original and appellate, and all such Powers and Authority for and in relation to the Administration of Justice in the Presidency for which it is (-- established, as Ber Majesty 118J by such Letters H

UMAJI KESHAO MESllRAM v, RADHIKABAI [MAOON, J, ] 785

A Patent aa aforesaid grant and direct, subject, however, to such Directions and Limitations as to the EKercise of original Civil and Criminal Juris- diction beyond the Limits of the Presidency Towns as may be prescribed thereby; aud, save aa by such Letters Patent may be otherwise directed, and B subject and without prejudice to the Legislative Powers in relatioo to the Mattera aa aforesaid of the Governo~ral of India in Council, the High Court to be established in each Presidency shall have and exercise all Jurisdiction and Power and Authority whatsoever in any Manner vested in any of the Courts in the same Presidency abolished under c this Act at the Time of the Abolition of such ', last-mentioned Courts.

10. High Courts to exercise same jurisdiction aa Supreme Courts. - D Until the Crown shall otherwise provide under the Powers of this Act, all .Jurisdiction , _ """rcised by the Supreme Courts of Calcutta, Madras and Bombay respectively over inhabitants of such Parts of India as may not be comprised within the local limits of the Letters Patent to be issued under E this Act establishing High Courts at Fort William, Madras and Bombay, shall be """rcised by such High Courts respectively.

(Emphasis supplied)

I F "11. l!rlsting Provisions applicable to Supreme Courts to apply to High Courts. -

Upon the Establishment of the said High Courts in the said Presidencies respectively i'll Provisions then in force in India of Acts of Parliament, or of G any Orders of her Majesty in Council, or Charters, or of any Acts of the Legislature of India, which at the Time or respective Times of the Establish- ment of such High Courts are respectively appli - cable to the Supreme Courts at Fort William in Bengal, Madras and Bombay respectively, or to the H

786 SUPREME COURT REPORTS [1986] 1 S.C.R.

A. Judges of those Courts, shall be taken to be appli- cable to the said High Courts and to the Judges thereof respectively, so far as may be consistent with the provisions of this Act, and the Letters Patent to be issued in pursuance thereof, and subject to the Legislative Powers in relation to

B the Matters aforesaid of the Governor-General of India in Council." f Section 13 of the said A.ct conferred rule-making power upon the High Courts and section 14 conferred power upon the Chief Justice from time to time to determine what Judges in each case should sit alone and what Judges of the Court, whether C with or without the Chief Justice, should constitute the several Division Courts. These two sections were in thes~ terms :

"13. POiler to High Courts to provide for Exercise ~ of Jurisdiction by single Judges or Division · D Courts. -

Subject to any Laws or Regulations which may be made by the Governor General in Council the High Court established in any Presidency under this Act may by its own Rules provide for the Exercise, by E one or more Judges, ' or by Division Courts constituted by two or more Judges, of the said High Court, of the original and appellate Jurisdiction vested in such Court, in such Manner as may appear_ to such Court to be convenient for the due Administration of Justice. F

14. Chief Justice to determine what Judges shall sit alone or in the Division Courts. -

Th,. Chief Justice of each High Court shall from Time to Time determine what Judge in each case G shall sit alone, and what Judges of the Court, whether with or without the Chief Justice, shall constitute the several Division Courts as aforesaid."

Section 15 of the said A.ct conferred upon the High Court the H

UMAJI KESHAO MESllRAM v. RADHIKABAI [MADON, J.] 787

A power of superintendence qver all Courts subject to its appellate jurisdiction. This power of superintendence was very similar to the like power conferred later by section 107 of the Government of India Act of 1915. As under clause 15 of the Letters Patent of the Bombay High Court as amended by Letters Patent dated March 11, 1919, an intra-court appeal does not B lie against a sentence or order passed or made by a Single Judge in the exercise of his power of superintendence under the provisions of section 107 of the Government of India Act of 1915, it would be relevant to ~reproduce section 15 of the Indian High Courts Act, 1861. The said section 15 provided as follows : c "15. High Court to superintend and to frame Rules of Practice for subonllnate Courts.-

Each of the High Courts established under this Act shsll have Superintendence over all Courts which may be subject to its appellate Jurisdiction and D shsll have Power to call for Returns, and to direct tbe Transfer of any SUit or Appeal from any such Court to any other Court of equal or superior Jurisdiction and shall have Power to make and issue General Rules for regulating the Practice and Proceedings of such Courts, and also to prescribe E Forms for every Proceeding in the said Courts for which it shall think necessary that a form be provided, and also for keeping all Books, Entries, and Account-s to be kept by the officers, and also to settle Tables of Fees to be allowed to the Sheriff, Attorneys, and all Clerks and Officers of F Courts, and from Time to Time to alter any such Rule or Form or Table; and the Rules so made, and the Forms so framed and the Tables so settled sha11 be used and observed in the said Courts, provided that such General Rules and Forms and Tables be not inconsistent with the Provisions of any Law in G force, and shall before they are i"ssued have received the Sanction, in the Presidency of Fort William, of the Governor General in Council, and in Madras or Bombay of the Governor in Council of the respective Presidencies". H (Emphasis supplied.)

788 SUPREME COURT REPORTS [1986] 1 s.c.R.

A In pursuance of the power conferred by the Indian High Courts Act, 1861, Letters Patent were issued on May 14, 1862, establishing the High Court of Judicature at Fort William in Bengal for the Bengal Division of the Presidency of Fort Bengal (now the Calcutta High Court) and on June 26, 1862, establishing the Bombay High Court and the Madras High Court for the Presidencies of Bombay and Madras respectively. The B Letters Patent of the Madras and Bombay· High Courts were 1111tatis 1111tandis in identical terms with the Letters Patent of the Calcutta High Court. In the Despatch dated May 14, 1862, from the Secretary of State to the Governor-General in Council which accompanied the Letters Patent of the Calcutta High Court, these Letters patent were referred to 'as the Letters c Patent or Charter". Hence the Indian High Courts Act, 1861, is commonly referred to as the Charter Act and the three High Courts of Calcutta, Bombay and Madras as the Chartered High Courts.

After referring to the provisions of the Indian High D .Courts Act, 1861, the Letters Patent for the Bombay High Court by clause 1 established the High Court for the Presidency of Bombay, to be called "the High Court of Judicature at Bombay" and expressly constituted the High Court to be "a Court of Record". Clauaes 11 to 17 formed a group of clauses which bore the heading "Civil Jurisdiction of the High Court". Under E clause 11 the High Court was to have and exercise Ordinary Original Jurisdiction within such local limits as may, from time to time, be declared and prescribed by any law or regula- tion made by the Governor in Council, and until such local limits were so declared and prescribed, within the limits of the then local jurisdiction of the Supreme Court of Judicature p at Bombay. Clause 12 prescribed when the ordinary original civil jurisdiction in suits was exercisable by the High Court. Clause 13 conferred upon the High Court the power to remove and try and determine as a Court of extraordinary original jurisdiction any suit in any court subject to the superin- tendence of the High Court, whether such court was within or G without the Presidency of Bombay. Clauses 14 and 15 dealt with appeals; clause 14 dealing with appeals from the judgments given in the exercise of original civil jurisdiction of the High Court and clause 15 dealing with appeals from the subor- dinate civil courts in the Presidency. Other clauses of ·the 1862 Letters Patent conferred upon the Bombay High Court H

lil!AJI KESHAO MESHRAM v. RADHIKABAl [MADON, J,] 789

A jurisdiction over infants and lunatics, inaolvency jurisdic- tion, civil and criminal, admiralty and vice-admiralty, testa- mentary and intestate jurisdiction, matrimonial jurisdiction, and ordinary and extraordinary original criminal jurisdiction over all persona residing in places within the jurisdiction of any court then subject to the superintendence of the Sadar a Foujdari Adalat, whether within or without the Presidency of \ Bombay. Clause 24 barred any appeal from any sentence or order passed in any criminal trial before the Courts of original criminal jurisdiction conatituted by one or more Judges of the High Court. Clause 25, however, cot1ferred in such cases a power of review upon the High Court in certain circumstances. Clause 26 ordained the High Court to be a court of _appeal from C the criminal courts of the .Presidency of Bombay and from all other courts which were subject to appeal to the Court of Sadar Foujdari Adalat. Clause 36 provided that any function which under the said Letters Patent was to be performed by the High Court in the exercise of its original or appellate juris- diction might be performed by any Judge or by any Division D Court 9f the High Court appointed or conatituted for S\lCh purpose by section 13 of the Indian High Courts Act, 1861, Under clause 44 of the said Letters Patent so DUCh of the Letters Patent of the Supreme Court of Judicature at Bombay as were inconaistent "with the said recited Act" (that is, the Indian High Courts Act, 1861) and with the said Letters Patent ~ of 1862 were to "cease, determine, and be utter1y void t9 al1 intents and purpr;>ses whatsoever."

The Bombay -High Court was fol'111!1lly inaugurated and commenced its work on August 14, 1862, the Judges making a declaration that they would from that day sit as Judges of the F High Court.

Under section 17 of the Indian High Courts Act, 1S61, the Crow'n could, if it so thought fit, at any time within three years after the establishment of any High Court under that Act, by Letters Patent revoke all or such parts or provisiona G of the Letters Patent by which such Court was established and could grant and make such other powers and provisiona as the Crown thought fit. The said section also conferred power by similar Letters Patent to grant any additional or supplementary powers and provisiona without revoking the earlier Letters Patent. By the Indian High Courts Act, 1865 H

790 SUPREME COURT REPORTS [1986] l'S.C.R.

A (28 & 29 Viet., c.15), the time for issuing fresh Letters Patent was extended to January l, 1866. In pursuance of the above power, the Letters Patent issued in 1862 for establishing the three chartered High Courts were revoked and replaced by Letters Patent dated December 28, 1865, which, with amendments, still continue to be the Letters Patent of those High Courts. B Clause 2 of the 1865 Letters Patent of the Bombay !ugh Court provided that notwithstanding the revocation of the 1862 Letters Patent the High Court of Judicature at Bombay "shall be and continue as. from the time of the original erection and establishment thereof, the High Court of Judicature at Bombay c for the Presidency of Bombay" and that "the said Court shall be and continue a Court of Record". Clauses 11 to 18 of the Letters Patent are grouped under the heading "Civil Jurisdic- tion of the High Court". Under clause 11 the High Court is to have and exercise ordinary original civil jurisdiction within such local limits as might, from time to time, be declared and D prescribed by any law made by the Governor in Council, and until such local limits were so declared and prescribed, with.::;- in the limits of the local jurisdiction of the High Court at the date of the publication of the 1965 Letters Patent. Clause 12 specifies the suits with respect to which the High Court is to exercise its ordinary original civil jurisdiction. Clause E 13 confers upon the High Court the power to remove and to try and determine, as "a Court of extraordinary original juris- diction", any suit being or falling within the jurisdiction of any Court, whether within or without the Presidency of Bombay, subject to the High Court's superintendence, either when the High Court thinks proper to do so on the agreement of the parties to that effect or for purposes of justice. Clause 15 deals with intra-Court appeal from the judgment of a Single Judge, and clause 16 makes the High Court a Court of Appeal from the Civil Courts of the Presidency of Bombay and from all other Courts subject to its superintendence. Jurisdiction with respect to infants and lunatics, insolvency jurisdiction, ordinary and extra-ordinary criminal jurisdiction, civil and criminal admiralty and vice-admiralty jurisdiction, testament- ary and intestate jurisdiction, and matrimonial jurisdiction were conferred upon the High Court by various clauses. The provisions with respect to criminal appellate jurisdiction in the Letters Patent of 1865 is in almost the same terms as H

UMAJI KESHAO MESllRAM v. RADHIKABAI [MADON, J. ] 791

A in the earlier Letters Patent. Clause 36 as amended by further Letters Patent dated March 11, 1919, and December 9, 1927, inter alia provides as follows :

" 36. Single Judges and Division Courts. B And we do hereby declare that any function, which \ is hereby directed to be perfomed by the said High Court of Judicature at Bombay in the exercise of ita original or appellate jurisdiction, may be perfored bJ any Judge or any Division Court thereof, appointed or constituted for such purpose, in pursuance of section One hundred and eight of the Government of India Act, 1915 • • • "

(Emphasis supplied.)

The words "in pursuance of section One hundred and eight of the Government ,of India Act, 1915" were substituted for the words ''under the provisions of the 13th section of the aforesaid .Act of the Twenty-fourth and Twenty-fifth Years of Our reign" by the Letters Patent dated March 11, 1919. The said clause further went on to state what is to happen if the Judges constituting a Division Court are equally divided in opinion. This part of the clauae was amended by the Letters E Patent dated December 9, 1927. Clause 37 confers upon the High Court the power to make rules and orders, from time to time, for the purpose of regulating all proceedings in civil cases, which may be brought before the High Court, including proceed- ings in its admiralty, vice-admirality, intestate and matri- mnial jurisdictions respectively, with this proviso that the F High Court is to be guided in making such rules and orders as far as may be possible by the provisions of the Code of Civil Procedure (Act No. VIII of 1859) and the provisions of any law which was made amending or altering the same by competent legislative authority. Clauae 41 deals with appeals in criminal cases. Clauae 44 made the Letters Patent subject to _ G the legislative power of the Governor-General in Council and provided that they could in all respects be amended and altered thereby. Claue 45 inter alia provides that :

"so IIllch of the aforesaid Letters Patent granted by His Majesty King George the Fourth (that is, the H

792 SUPREME COURT REPORTS [1986] 1 s.c.R.

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J,] 793

' A headed "THE INDIAN HIGH COURTS". Sections 101 to 105 bore the sub-heading "Constitution" (that is, the constitution of the High Courts); sections 106 to 111, the sub-heading "Jurisdiction" (that.is, the jurisdiction of the High Courts); section 113, the sub-heading "Additional High Courts"; and section 114, the sub-heading "Advocate-General". Sections B 101(1), 106, 107 and 108 provided as follows : , "101. Constitution of high C011rta. -

(1) The high courts referred to in this Act are the high courts of judicature for the time being established in British India by letters patent. c /

106. Jurisdiction of high courts. -

(1) The several high courts are courts of record and have such jurisdiction, original and appellate, including admiralty jurisdiction in respect of offences committed on the high seas, and all such powers and authority over or fo 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 jurisdiction, powers and authority as are v_ested in those courts respectively at the commencement of this Act.

(1-A) The letters patent establishing or vesting jurisdiction, powers or authority in a high court may be amended from time to time by His Majesty by further letters patent.

(2) The high courts have not and may not exercise 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.

107, Powers of high C011rts with respect to subordinate COllrta. -

794 SUPREME COURT REPORTS [1986] 1 s.c.R.

A • Each of the high courts has superintendence over all courts for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to i:.ay, -

(a) call for returns, B

' (b) direct the transfer of any suit or appeal from any such court to any other court of equal or ;

superior jurisdiction;

(c) make and issue general rules and prescribe c forms for regulating the practice and proceedings of such courts;

(d) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; and D (e) settle tables of fees to be allowed to the sheriff, attorneys, and all clerks and officers of courts :

Provided that such rules, forms and tables shall E not be inconsistent with the provisions of any law for the time being in force, and shall require the previous approval, in the case of the high court at Calcutta, of the Governor-General in Council, and in other cases of the local government.

F 108. Exercise of jurisdiction by single judges or division courts. -

(I ) 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. 11

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J. ] 795

A • Section 113 of the Government ·of India Act conferred power upon the Crown, by Letters Patent, to establish additional High Courts. Under it the Crown could by Letters Patent establish a High Court of Judicature in any territory in British India, whether or not included within the limits of the local jurisdiction of another High Court; and where a High B Court was so established in any area included within the limits of the local jurisdiction of another High Court, the Crown could by Letters Patent alter those limits. In pursuance of the power conferred by the said section 113, Letters Patent were issued on February 9, 1916, establishing the High Court of Judicature at Patna; on March 21, 1919, establishing the High Court of Judicature at Lahore; and on January 2, 1936, C establishing the High Court of Judicature at.Nagpur.

The Government of India Act 1915 was replaced by the Government of India Act, 1935 (25 & 26 Geo. V. c. 42, reprinted in pursuance of the Government of India (Reprinting) V-./, Act., 1936 (26 Geo. V & 1 Edw. VIII, c. 2) (hereinafter D referred to as "the 1935 Act"). The 1935 Act envisaged a federal constitution. It made a division of powers between the Centre and the Provinces, certain subjects being exclusively assigned to the Central Legislature and others to the Provincial Legislature. In another field the two Legislatures· had concurrent legislative powers. The 1935 Act came into E ~orce with regard to the Provinces on April 1, 1937. The federal structure of the Centre, however, never came into existence, and the Centr~l Government continued to be carried on in accordance with the provisions of the old Government of India Act except that its executive and legislative powers .' _.. were restricted to the matters assigned to it by the 1935 Act. F Part IX of the 1935 Act was headed "THE JUDICATURE". Chapter I of Part IX dealt with the establishment and constitution of the Federal Court. Chapter II, which consisted of sections. 219 to 231, was headed "THE HIGH COURTS IN BRITISH INDIA". Section 219, without the proviso to sub-section (1) thereof which is not material for our purpose, provided as follows G

"219. Meaning of 'High Court'.

(1) The following courts shall in relation to British India be deemed to be High Courts for the purposes of this Act, that is to say, the High H

796 SUPREME COURT REPORTS [1986] l S.C.R. y A Courts in Calcutta, Madras, Bombay, Allahabad, Lahore and Patna, the Chief Court in Oudh, the Judicial 1 Commissioner's Courts in the Central Provinces and Berar, in the North-West Frontier Province and in Sind, any other court in British India constituted or reconstituted under the chapter as a High Court, and any other comparable B court in British India which His Majesty in Council may declare to be a High Court for the purposes of this Act:

x x x x

c (2) The provisions of this chapter shall apply to every High Court in British India."

Sec~ion 220(1), as amended by the India and Burma (Miscella- neous Amendments) Act, 1940 (3 & 4, Geo. VI, c. 5), provided as follows \.-..,. D "220. Constitution of High Courta. --

(1) Every High Court shall be a court of record and shall consist of a chief justice and such other judges as His Majesty may from time to time deem it necessary to appoint

x x x x

'nlere was a proviso to this sub-sec~ion with which we are not concerned. Sections 223 to 225 require to be reproduced in extenso. They were as follows :

"223. Jurisdiction of existing High Courts.

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 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 H

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 797

A to the administration of justice in th.e 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 Part Ill of this Act. B ) "224. Administrative functions of High Courts.

(1) Every High Court shall have superintendence over all courts in India for the time being subject to its appellate jurisdiction, and may do any of the following things, that is to say, ~ c (a) call for returns;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; D

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts; and

(d) settle tables of fees to be allowed to the sheriff, attorneys, and all- clerks and officers of courts;

Provided that such rules, forms and tables shall not be- inconsistent with the -provisions of' any law for the time being in force, and shall require the previous approval of the Governor.

(2) Nothing in this section shall be construed as giving to a High Court any jurisdiction to question any judgment of any inferior court which is not otherwise subject to appeal or revision." G

"225. Transfer of certain cases to High Court for trial.

(1) If on an application made in accordance with the provisions of this section a High Court is H

798 SUPREME COURT REPORTS [1986] 1 S.C.R.

A satisfied that a case pending in an inferior court, being a case which the High Court has power to transfer to itself for trial, involves or is likely to involve the question of the validity of any Federal or Provincial Act, it shall exercise that power. B (2) An application for the purposes of this section shall not be made, except in relation to a Federal Act, by the Advocate-{;eneral, for the Federation and, in relation to a Provincial Act, by the Advocate-{;eneral for the Federation or the Advocate c for the Province. 11

Section 226 barred the High Court's original jurisdiction in any matter concerning the revenue or concerning any act ordered or done in the collection thereof unless . otherwise provided by an Act of the appropriate Legislature. Under the D 1935 Act the jurisdiction and powers of the High Courts with respect to any of the matters in the Federal Legislative List were to be a Federal subject (Sch.VII, List I, Entry 53), with respect to any of the matters in the Provincial Legislative List were to be a Provincial subject (Sch.VII, List II, Entry 2), and with respect to any of the matters in the Concurrent E Legislative List were to be a concurrent subject (Sch. VII, List III, Entry 15).

The political events with which everyone is familiar led to the passing of the Indian Independence Act, 1947 (10 & 11, Geo. VI' c. 30). Under the Act as from August 15, 1947 F (referred to in the said Act as "the appointed day"), two independent Dominions were set up in India, to be known respectively as India and Pakistan. In each Dominion there was to be a ,Governor-{;eneral to be appointed by the King and the paramountcy of the British Crown over the Indian States was to lapse. As from August 15, 1947, the British Government was to have no responsibility with respect to the Government of India or Pakistan. The Legislature of each of the new Dominions was to have full legislative sovereignty and no Act passed by thE> British Parliament on or after August 15, 1947, was to extend to either of the new Dominions as part of the law of that Dominion unless it was extended thereto by law of the Legis-· H lature of the Dominion. The powers of the Legislature of the

UMAJI KESllAO MESHRAM v. RADHIKABAI [MADON, J.] 799

A Dominion were exerciseable by the Constituent Assembly and the Constituent Assembly was not to be subject to any limitation whatsoever in exercising its constituent powers. Until a new Constitution was made, each of the new Dominions and all Provinces and other parts thereof were to be governed as near- ly as may be in accordance with the 1935 Act with such B modifications and adaptations, as may be specified by the Governor-General, and similarly all existing laws with necessary modifications and adaptations were to contimie as law of each of the new Dominions and the several parts thereof until other provision was made by laws of the Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf. Sub-section (3) of c section 19 defined the term "Constituent Assembly". Clause (a) thereof defined it in relation to India and clause (b) in relation to Pakistan. The said clause (a) was as follows

"19. Interpretation, etc. - D x x x x

(3) References in this Act to the Constituent Assembly of a Dominion shall be construed as references - E (a) in relation to India, to the Constituent Assembly, the first sitting whereof was held on the ninth day of December, nineteen hundred and fort)J-six, modified -

(i) by the exclusion of the members representing F. Bengal, the Punjab, Sind and British Baluchistan; and

(ii) should it appear that the North-West F.rontier Province will form part of Pakistan, by the excl us ion of the members representing that G Provi nee; and

(iii) by the inclusion of members representing West Bengal and East Punjab; and

(iv) should it appear that on the appointed day, a H

800 SUPREME COURT REPORTS [1986] 1 S.C,R,

A part of the Province of Assam is to form part of the new Province of East Bengal, by the exclusion of the members theretofore representing the Province of Assam, and the inclusion of members chosen to represent the remainder of that Province;

x x x x" B The Constituent Assembly for India so set up under the Indian Independence Act adopted and enacted on November 26, 1949, in the name of the people of India, the Constitution of India. Under Article, 394 of the Constitution, that Article and Articles 5 to 9, 60, 324, 366, 367, 379, 380, 388 and 391 c to 393 came into force at once and the remaining provisions were to come into force on January 26, 1950, This date is referred to in the Constitution as the co11111encement of the Constttution. The Constitution repealed both the Government of India Act, 1935, and the Indian Independence Act, 1947 .• The relevant provisions of the Constitution have already been 0 noticed.

There is an underlying assumption running through the entire judgment of the Full Bench that the Constitution of India Is a unique document - the first of its kind. This assumption has led it to conclude that the Constitution E "purports to lay down an original institutional matrix of its own", that 11 it is not out of the historical ramparts that something is being put up, but a fundamental scheme", and that "in the matters of powers of the High Court, therefore, there is clear evidence that the Constitution posits a break from that past and has made absolutely a new original and vital F beginning." We are constrained to observe that the above assumption made and the conclusion reached by the Full Bench are both erroneous. How unw~rranted these are is shown by the words of Dr. Ambedkar when introducing to the Constituent Assembly the Draft Constitution as settled by the Drafting Committee and moving that it be taken into consideration. Dr. G Ambedkar said (Constituent Assembly Debates - Official Report, Volume VII, PP• 37-38) :

" It is said that there is nothing new in the Draft /- Constitution, that about half of it has been copied from the Government of India Act of 1935 and that H

IJMAJI KESHAO MESllRAM v. RADHIKABAI [MADON, J.) 801

A the rest . of it hss been borrowed from the Constitutions of other countries. Very little of it can claim originality.

"One likes to ask whether there can be anything new in a Constitution framed at this hour in the B history of the world. !lore than hundred years have rolled over when the first written Constitution was drafted. It has been followed by many countries reducing their Constitutions to writing. What the scope of a Constitution shoul;i be has long been settled. Similarly what are the fundamentals of a Constitution are recognized all over the wor.ld. c Given these facts, all Constitutions in their llllin provisions. mat look eiml.lar. 'l'he only new things, if there can be any, in a Constitution framed ao late in tbe clay are tbe variations lllde to remove tbe faults and to accomodate it to the neecle of the COUDtl'J • • • • D

"As to the accusation that the Draft Constitution has reproduced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent E rights in the fundamental ideas of a Constitution. What I ain sorry about is that the provisions taken from the Government of India Act, 1935, relate mostly to the details of administration. 1 agree that administrative details should have no place in the Constitution. • • • F

"In these circumstances it is wiser not to trust the Legislature to prescribe forms of administration. This is the justification for incorporating them in the Constitution. • • • " G (Emphasis supplied.)

The opening words of our Constitution "WE THE PEOPLE OF INDIA" follow the pattern set by the Constitutions of the United States of America, Eire and Japan. The Preamble to our Constitution contains echoes of the Preamble to the H

802 SUPREME COURT REPORTS [1986] 1 S.C.R.

A Constitution of the United States of America and of Eire. The concepts of Fundamental Rights and Directive Principles of State Policy are ale10 not something new in our Constitution. The first ten Amendments to the Constitution of the Unite<! States of America, which reproduce in substance the Amerkan Bill of Rights, contain rights akin to the Fundamental Rights B in our Consti.tution though not designated as such. The Constitution of Eire has a Chapter headed "FUNDAMENTAL RIGHTS" j and another chapter headed "DIRECTIVE PRINCIPLES OF SOCIAL POLICY". The Constitution of Japan contains a chapter headed "Rights and Duties of the People". These Constitutions came into existence before ours did. Almst three-fourths of our c Constitution is based upon the Goverillllj'nt of India Act, 1935, subject to modifications which were made in the light of experience and adapted to a republican form of government. Apart from the forms of administration taken from the Government of India Act, 1935, the federal form of our Constitution is also erected on the foundation of that Act and shaped mstly in the light of the Constitution of the Dominion ~-·-- of Canada. The principle of responsible Government is taken from the British •oonstitutional system. The provisions relating to emergency are also patterned on the Government of India Act, 1935, E Historical evidence shows that our Constitution did not make a break with the past but was the result of a process of evolution. Politically India achieved her own independence, but legally and constltutionally the independence of India was an act of the British Parliament. The legal and constitutional basis of our independence was the Indian Independence Act, F 1947, and it was in the exercise of power conferred by that Act that the Constituent Assembly adopted and enacted the .,._ Constitution of India. The setting up of the Constituent Assembly itself was an act of the British Parliament. In 1940 the Coalition Government in Great Britain recognized the principle that Indians should themselves frame a new Constitu- G tion for an autonomous India. Repeated efforts were made to bring about unanimity amng different political parties with respect to the basis for such a Constitution. Ultimately, elections for a Consti.tuent Assembly were held, and the Cons- tituent Assembly first sat on December 9, 1946. ,The Consti- ~ tuent Assembly was composed of representatives of the H Provinces and of the Indian States, on the basis of one re-

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J. ] 803

A presentative for ~ million of the population. Representatives of the Provinces were elected by the· members of the lower Chamber of the Provincial Legislatures where the Legislatures were bicameral and by the Chamber of the Provincial Legisla- tures where the Legislatures were unicameral. In the case of the Indian States, their representatives were elected by elec- B toral colleges constituted by the Indian Rulers. This Consti- tuent Assembly was not a sovereign body for its authority was limited both in respect of basic principles and procedure. It was the Indian Independence Act, 1947, which established the sovereign character of the Constituent Assembly and freed it from all limitations. This is tile harsh reality of history which one cannot escape. On the midnight of August 14, 1947, c the Constituent Assembly reassembled as the sovereign Constituent Assembly for the Dominion of India. As a result of the Partition, the representatives of Bengal, Punjab, Sind North-West Frontier Province, Baluchistan,' and the Sylhet ~!strict of Assam (which District had joined the Dominion of Pakistan by a referendum) ceased to be the members of the D Constituent Assembly of India, and there were fresh elections in the new Provinces of West Bengal and East Punjab. The result was that when the Constituent Assembly reassembled on October 31, 1947, its membership was 299 only, including 70 representatives of the Indian States. Of this total number of mem:bers of the Constituent Assembly, 284 were actually present on November 26, 1949, to append their signatures to the Cons- titution as finally passed (See Basu' s 0 Introduction to the Constitution of India", eighth edn., PP• 13 to 18; Basu's "Commentary on the Constitution of India",, sixth edn., vol. A, pp. 1 to 6; Suk.la's "Constitution of India", seventh edn., PP• A-16 to A-18). F

In State of Gujarat v. Vora Fiddali Badruddin Mithibarwala [1964] '6 S.C.R. 461 a contention was raised before a Constitution Bench of seven Judges of this Court that the sovereignty of the Dominion of India and of the Indian States was surrendered to the people of India and in the G exercise of their sovereign power the people gave themselves the new Constitution as from January 26, 1950. Rejecting this contention, Shah, J., observed (at pp. 580 and 582-3) :

" It has also to be remembered that pl'ODllgation of the Constitution did not result Jn transfer of H

804 SUPREME COURT REPORTS [1986] 1 s.c.R.

A sovereignty from the Dominion of India to the Union. It was merely change in the fora of Goverwnt. By the Constitution, the authority of the British Crown over the Dominion was extinguished and the sovereignty which was till then rooted in the Crown was since the Constitution 8 came into force derived from the people of India. It is true that whatever vestige of authority which the British Crown had over the Dominion of India, since the Indian Independence Act was thereby extinguish,ed, but there was no cession, conquest, occupation or transfer of territory. The new c govemmentlll. set up was the final step in the process of evolution towards self-government. The fact that it did not owe its authority to an outside agency but was taken by the representatives of the p<!ople made no difference in its true character. The continuance of the governmental D machinery and of the laws of the Dominion, give a lie to any theory of traDSllission of sovereignty or of the atinction of the sovereignty of the Doml.nion, and from its ashes, the springing up of another SO'lereign • • •

E "These assu°"tions are not supported by history or by constitutional theory. There is no warrant for holding that at the stroke of midnight of the 25th Jauuaxy, 1950, all our pre-edsting political institutions ceased to esist, and in the nest - arose a new set of institutions C011>letely unrelated to the past. The Constituent Assembly which gave form to the Constitution functioned for several years under the old regime, and set up the constitutfonal machinery on the foundations of the earlier poUtical set up. It did not seek to destroy the past institutions: i t raised an edifice on what existed before: The Constituent Assembly moulded no new sovereignty: it merely gave shape to the aspirations of the people by destroying foreign control and evolving a co°"letely democratic form of government as a republic. The process was not one of desttuetion, llllt of evolution." H (Emphasis supplied)

UMAJI KESHAO MESHRAM v, RADHIKABAI [MADON, J, J 805

Though some of t~e Judges in that case differed on certain points, on this point none expressed a dissent or a contrary opinion.

The historical evidence and earlier legislations referred to above, the political, legal and constitutional position accepted and acknowledged by the Constituent Assembly itself when considering the Draft Constitution and in enacting it, and the· observations of Shah, J,, in Vora Fiddali 's Case falsify the assumption made and the conclusion reached by the Full Bench that the Constitution made a total break with the past and set up new institutions. On the contrary, what is established by the above data is that not only was there no break with the past but the Co~stitution was the culmination c of the aspirations of the people of India to be independent and to be governed by their own elected representatives and that the existing institutions, including the High Courts, as also the laws in force which were in existence at the commencement of the Constitution, were preserved aild continued by the Constitution. What the Constitution did was to put its D imprimatur upon them and upon their continuance.

According' to the Full Bench, under the Constitution the existing High Courts acquired a wholly different origin, nature and character from what they possessed inmediately prior to the commencement of the Constitution because the E Constitution of India is a constitutional law while the Indian High Courts Act, 1861, the Governnient of India Act of 1915-1919 and the Government of India.Act, 1935, were ordinary laws. To emphasize this distinction made by it the Full Bench has referred to earlier legislations as "Imperial legislations" and the Letters Patent of the Chartered High F Courts as having been issued by the "Imperial Sovereign". We may preface our discussion with respect to this distinction made by the Full Bench by pointing out that as Queen Victoria (in whose reign the Government of India Act, 1858, was passed) was pr<>claimed "Empress of India" <>nly in 1876, t<> refer to the Indian High Courts Act, 1861, as "Imperial Leglslat'i<>n" or G to the Letters Patent issued in 1862 and 1865 as issued by the "Imperial Sovereign11 is not correct.

Jowitt 's Dictionary of English Law'' (second edition, p.430) defines the term "Constitution" as "any regular form or H

806 SUPREME COURT REPORTS [1986] l s.c.R.

A system of government" and the term "constitutional law" as "all rules which dinoctly or indirectly effect the distribu- tion or eXercise of the sovereign power; the law relating to the legfalature, the executive and the judiciary." According to Dicey, constitutional law includes "all rules which direct- ly or indirectly affect the distribution or the exercise of B the sovereign power ·in the State". (Dicey 1 s "An Introduction to the Study of the Law of the Constitution", tenth edn., T p.23). What a constitutional law usually embraces within its scope has been thus set out by Hood Phillips in his "Consti- tutional and Administrative Law" (sixth edn., p.11) : 1

c 'More spe1:ifically, constitutional law embraces that part ,of a country's laws which relates to the following topics, among others : the

president; his method of choosing the Head Qf State, whether king or powers and prerogatives; the cODStitution of the legislature; its powers and the privileges of its members; if there are two 4 D Chambers, the relations between them; the status of Ministers and the position of the civil servants who act under them; the armed forces and the power to control them; the relations between the central government and local authorities; treaty-making E power; citizenship; the raising and spending of public mornoy; the general system of conrts, and the tenure and immnities of judges; civil liberties and their limitations; the parliamentary franchise and electoral boundaries; and the procedure (if any) for amending the Constitution." F (Emphasis supplied.) f In Sri Sankarl Prasad Singh Deo v. Union of India and State of Bihar [1952] S.C.R. 89, Patanjali Sastri, J., speaking for the Court, said (at page 1.06) : G I "Although wlaw Tlllst ordinarily include constitu- tional law 1 there is a clear demarcation between ·ordinary law, which is made in exercise of legis- lative power, and constitutional law, which is made in exercise of constituent power. Dicey defines H constitutional law as including 'all rules which

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J,] 807

A directly or indirectly affect the distribution or the exercise of the sovereign power in the State.' It is thus mainly concerned with the creation of. the three great organs of the State, the executive, the legislature and the judiciary, the distribution of governmental power amng them and the definition B of their mtual relation."

(Emphasis supplied.)

808 SUPREME COURT REPORTS [1986] l s.c.R. A Viet., c.12), as a Constitution. So far as the Government of India Act, 1935, is concerned, the Federal Court in In re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 (Central Provinces and Berar Act Ro. nv of 1938) [1939] F.C.R. 18, 36 and In re the Hindu Women's Rights to Property Act, 1937, and the Hindu Women's B Rights to Property (Adl!lldEnt) Act, 1938 [1941] F.C.R. 12, 26 and this Cour~ in Navinchandra Mafatlal v. The Couroissioner of /

1ncoE Tm<, Bomay City [1955] 1 S.C.R. 829, 836 have referred to it as a Constitution Act. The British Parliament has also recognized the Government of India Act, 1935, as a Constitu- tion Act. In moving the second reading of the Bill which when c enacted became the Indian Independence Act, 1947, the Prime Minister, Mr. Attlee observed :

"This Bill is, unlike other Bills, dealing with India. It does not lay down as in the Act of 1935, a new Constitution for India providing for every D detail. It is far more in the nature of an enabling Bill - ,a Bill to enable the representatives of India and Pakistan to draft their own Constitution a:nd to provide for the exceedingly difficult period of transitton. 11 E (Emphasis supplied.)

The Indian Legislature has also recognized the Government of India Act, 1935, as a Constitution 1kt. The Statement of Objects and Reasons to the Legislative Assembly Bill No. 32 of 1942, which when enacted, became the Code of Civil Procedure F (Amendment) Act, 19'12, whereby Order XXVII -A was inserted in the Code of Civil Procedure, 1908, for the purpose of giving notice to the Advocate-General of India or the Advocate- General ·of a Provir1ce as the case may be, where in a suit a substantial question of law as to the interpretation of the Government of India Act, 1935, or any Order-in-Council made G thereunder was involved, referred to the Government of India Act, 1935, as the Constitution Act (Gazette of India dated September 10, 1942 Part V, p.140), What is more important is that the Constitution itself accepts this position .. Article 132 provides for an appeal to the Supreme Court from any judgment, decree or final order of a High Court on a certifi- H cate given by th~~ High Court that "the case involves a

UMAJI KE SHAO MESHRAM v, RADllIKABAI [MAOON, J, J 809

A substantial question of law as to "the interpretation of this Constitution." Under Article i45(2), the minillllm number of Judges of the Supreme Court required to decide "any case involving a substantial question of law as to the interpre- tation of this Constitution" is to be five. Articles 132 and 145 are in Chapter IV of Part V of the Constitution which B Chapter deals with the "Union Judiciary." Article 228 confers upon the High Court the power to transfer a case pending in a court subordinate to it for disposal by itself if "it involves a substantial question of law as to the interpretation of this Constitution." Article 228 io in Chapter V of Part Vl of the Constitution which Chapter deals with "The High Courts in the States". The phrase "any substantial question of law as to the C interpretation of this Constitution" is defined by Article

147. Article 147 which occurs in Chapter IV of Part V provides as follows

"147. Interpretation. - D In this Chapter and in Chapter V of Part VI, references to any substantial question of i&w-as to the interpretation of this Constitution shall be construed as including references to any substan- tial questio~ of law as to the interpretation of the Government of India Act, 1935 (including any E enactment amending or supplementing that Act), or any Order in Council or order made thereunder, or of the Indian independence Act, 1947 or of any order made thereunder."

- .... What has been stated above would show that it is erroneous to characterize the Goverrunent of India Acts as F

ordinary laws and not as constitutional laws. It is true· that these Constitution Acts were given to a subject country by a foreign constituent and legislat~ve body but then we 111.lSt remember that it was this very foreign constituent and legislative body which brought into being the Constituent G Assembly, freed it of all limitations and made it possible for it to give to India its Constitution.

ln order to emphasize its conclusion that the High Courts under the Constitution were organically different institutions from the same High Courts in existence immediately prior to H

810 ~:UPREME COURT REPORTS [19861 1 s.c.R.

A the coamencement of the Constitution, the Full Bench relied upon Article 215 of the Constitution. Under Article 215, every High Court is to be a Court of Record and is to have all the powers of such a court including the power to punish for contempt of itself. According to the Full Bench this Article "subserves the need to indicate that the High Court under the B Constitution has an institutional permanence". We are afraid that the Full Bench has misunderstood what a Court of Record is. Jowitt's "Dictionary of English Law" (second edition, page 493) under the heading "Court", states : 11 A court of record is one whereof the acts and c judicial proceedings are enrolled for a perpetual metoory and testitoony, and which has authority to fine and imprison for contempt of its authority. Such were the superior courts of counnon law before their abolition, and such are the High Court of Justice and Court of Appeal, and the county courts; many of the ancient inferior courts were also courts of record."

Unless otherwise provl.ded, the power to punish for contempt i-s thus inherent in and possessed by every Court of Record. It is fallacious to think that the High Cpurts became courts of record for the first time on the commencement of the Consti- tution. All the superl.or courts which preceded the High Courts were courts of record. Under the Charter dated September 24, 1726, granted by George I, the Mayor's Courts which were established at Calcutt.a, Madras and Bombay were expressly made Courts,, of Record, and this position was reiterated when a F fresh Charter dated January 8, 1753, was granted by George II. Similarly, the Recorder's Courts established at Bombay and Madras by Charter dated February 20, 1798, granted by George Ill, were made Courts of Record. Statute 4, Geo, IV, c.71 of 1823 authorized the Crown to abolish the Recorder's Court at Bombay and establish in its place a Supreme Court to be a G Court , of Record and when the Supreme Court of Judicature at Bombay was established, clause 1 of its Letters Patent expressly made that Court a Court of Record. The Sadar Dewany Adalat and the Sadar Foujdari Adalat were both Courts of Record. Clause 1 of the Letters Patent of 1862 constituted the High Court of Judicature at Bombay to be a Court of Record, H and it was this High Court which by clause 1 of the Letters

IJMAJI KESllAO MESHRAM v, RADHIKABAI [MADON, J, ] 811

A Patent of 1865 was continued as the High Court of Judicature at Bombay for the Presidency of Bombay as a Court of Record. Section 106(1) of the Government of India Act of 1915, pro- vided that the several High Courts would be Courts of Record, and section 220 of the Government of India Act, 1935, made an identical provision. The scheme of Chapter V of Part V1 of the B Constitution which deals with High Courts closely follows the scheme of Part IX of the Government of India Act of 1915, and Chapter 11 of Part IX of the Government of India Act, 1935, both of which dealt with High Courts. These Chapters provided for the constitution of the High Courts as Courts of Record, for the salaries and tenure of judges of the High Courts, the power to make rules and regulate the sittings of the High C Courts, and the continuance of the jurisdiction of the High Courts existing as at the date of coming into force of each of the two Government of India Acts, just as Chapter V of Part VT. of the Constitution does. These two Acts also provided for continuance in force of laws in existence at the date when these Acts respectively came into force. Article 215 thus did not bring any revolutionary change in the nature and character of the High Courts existing at the date of the commencement of the Constitution but merely followed a well established pattern and practice in drafting constitutional legislations •. Yet another. reason given by the Full Bench for holding that the High Courts under the Constitution were organically different from the same High Courts illllll0d1ately prior to the commencement of the Constitution was that unlike in the past, under the Constitution the existence of the High Courts is no more dependent upon ordinary legislation. This rea•oning is erroneous for it overlooks the relevant provisions of the F Constitution and the earlier Constitution Acts. By clause 44 of the Letters Patent of the three Chartered High Courts, the Letters Patent were made subject to the legislative powers of the Governor--Oeneral in Council. By further Letters Patent dated March 11, 1919, for the words "powers of the Governor- General in Council" the words "powers of the Governor-General G in Legislative Council and also of the Governor-General in Council" were substituted. Further, under section 9 of the Indian High Courts Act, 1861, read with the said clause 44, the Governor-General in Council had the power to remove any place or territory from the jurisdiction of a High Court (see ~ v. Bllrllh) [1877-78] 5 I,A, 178. Under sub-section (la) H

812 SUPREME COURT REPORTS [1986] 1 S.C.R.

A of section 106 of the Government of India Act of 1915-1919, the Letters Patent establishing or vesting jurisdiction, powers or authority in a High Court could be amended from time to time by the Crown by issuing further Letters Patent. Under section 223 of the Government of India Act, 1935, the juris- diction of the existing High Courts which was continued by B that section was made subject to the provisions of Part IX of that Act and of any Order in Council made under that Act or '( any other Act and to the provisions of any Act of the appro- priate Legislature. Under that Act, the Federal Legislature had the power to legislate with respect to the jurisdiction and powers of all courts except the Federal Court with respect ~ C to any matter in the Federal Legislative List, the Provincial Legislature with respect to matters in the Provincial Legis- lative List and the F'ederal Legislature as also the Provincial Legislature with respect to matters in the Concurrent Legis- lative List. The position under the Constitution is the same. By Article 225 the continuance of the jurisdiction of the D existing High Courts is made subject to the provisions of the ~ , Constitution and of any law of the appropriate Legislature. Under Schedule VII to the Constitution, the power to legislate with respect to thE! jurisdiction and powers of all courts except the Supreme Court is with Parliament with respect to any matter in the Union List (List I, Entry 95), with the E State Legislatures with respect to any matter in the State List (List II, Entry 65) and with both Parliament and the State Legislatures •rith respect to any matter in the Con- current List (List III, Entry 46). Further, Parliament alone can legislate with respect to the Constitution and · organi- zation of the High C,ourts (List I, Entry 78) and the extension of the jurisdiction of a High Court to, and exclusion of the jurisdiction of a High Court from, any Union Territory (List /- I, Entry 79). Under Article 214 of the Constitution there is to be a High Court for each State. Under Article 1(2) as originally enacted the territories which were to constitute the States at the cormnencement of the Constitution were to be as set out in the First Schedule to the Constitution. Under that Schedule the nine Provinces under the Government of India Act, 1935, with the territorial modifications resulting from the Partition, became the nine Part A States. Clause (2) of Article 215 of the Constitution, prior to its deletion by ~ the Constitution (Seventh Amendment) Act, 1956, provided that for the purposes of the Constitution the High Court exercising

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J,] 813

A jurisdiction in relation to any Province before the commence- ment of the Constitution shall be deemed to be the High Court for the corresponding state. Article 2 confers powers upon Parliament by law to admit into .the Union, or establish, new States. Article 3 confers upon Parliament the power by law to B form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State, as also to increase or diminish the area of any State or alter the boundaries or name of any State. All this the Parliament can do by ordinary law. Once a new State is formed, Article 214 requires that it should have a High Court and the power to establish such High Court vests with Parliament under Entry 78 of List I in the c Seventh Schedule to the Constitution, and, in fact, Parliament has done so in a number of cases when the States were reor- ganized or a new State formed or admitted into the Union.

The next question which falls to be considered is whether the powers conferred upon the High Courts by Articles 226, 227 ;md 228 of the Constitution are wholly new powers not possessed by the existing High Courts immediately prior to the commencement of the Constitution as held by the Full Bench. This conclusion of the Full Bench is as erroneous as the other conclusions reached by it and is once again based upon an inadvertence to notice the relevant provisions of the earlier Constitution Acts. A provision similar to Article 228 was to be found in section 225 of the Government of India Act, 1935. Article 227 has a longer ancestry. Clause 55 of the Charter of the Supreme Court of Judicature at Bombay made the Court of Requests and the Court of Quarter Sessions subject to the order and control of the said Supreme Court in the same manner as inferior courts and Magistrates in England were subject to the Court of King's Bench. Section 15 of the Indian High Courts Act, 1861, conferred upon each of the Chartered High Courts the power of superintendence over all courts subject to its appellate jurisdiction. A similar power of superintendence was conferred upon the High Courts by section 107 of the Government of India Act of 1915-1919, and a more limited power of superintendence was conferred upon them by section 224 of the Government of India Act, 1935. The powers under Articles 227 and 228, though in a somewhat different form, were thus possessed by the existing High Courts imnediately prior to the commencement of the Constitution. The power conferred by

814 S\JPREME COURT REPORTS [19861 1 s.c.R. A Article 226, however, stands on a different footing. This was not a power possessed by every existing High Court but only by the three Chartered High Courts. The Recorder's Courts established at Madras and Bombay were invested with jurisdiction similar to the Court of King's Bench in England "as far as circulliStances would admit". The Court of King's B Bench possessed the jurisdiction to issue prerogative writs of various kinds. A brief account of the origin, nature and -{ development of the various prerogative writs in England has been set out in the judgment of this Court in Prabodh Verma and Ors. v. State of Uttar Pradesh &Ors. [1985] 1 S.C.R. 216. Clause 55 of the Letters Patent of the Supreme Court of Judi- c cature at Bombay conferred upon that Court the power to issue writs of """""'&, Certiorari, Procadendn or Error to the Court of Requests and the Court of Quarter Sessions. Procedendo was a prerogative which issued out of the comon law jurisdiction of the Court of Chancery when Judges of any subordinate court delayed the parties by not giving judgment. D In such a case the writ was known as a writ of procedendo ad ~ judici1111 (see Jowitt. 's "Dictionary of English Law'', second edn., P• 1438), A writ de oon procedendo rege f.nconsulte was issued at the interv·ention of the King to withdraw from the cognizance of the comon law courts proceedings in which he claimed to have interest (see De Smith's "Judicial Review of E Administrative Action", fourth edn., p.585). More important than this power to issue certain writs to Courts of Requests and Quarter Sessions was the conferment upon the said Supreme Court by clause 5 of its Letters Patent of the jurisdiction which the Judges of the Court of King's Bench possessed. This jurisdiction included the power to issue prerogative writs. A F eimilar jurisdiction was conferred upon the two other Charter- ed High Courts. Under Section 9 of the Indian High Courts Act, r-- 1861, the High Courts were to have and exercise all juris- diction and every power and authority vested in any of the Courts abolished by the said Act, which included the Supreme Courts of Judicatur<! and the Sadar Dewany Adalat and the Sadar G Foujdari Adalat. Under section 10 of the said Act, all juris- diction then exercised by the Supreme Courts of Judicature of Calcutta, Madras and Bombay respectively was to be exercised by each of the three Chartered High Courts subject to the legislative powers of the Governor-General of India in ;- Council. By clause 44 of the Letters Patent of 1862 so nuch of H

UMAJI KESHAO MESHRAM v. RADHlKABAl [MADON, J,] 815

A the Letters Patent of the said Supreme Court as were inconsis- tent with the said Letters Patent stood revoked, and when the " Letters Patent of 1862 were replaced by new Letters Patent in 1865, clause 45 of the Letters Patent of 1865 expressly provided that so tm1ch of the Letters Patent of the said Supreme Courts as were not revoked by the earlier Letters B Patent of 1862 and were inconsistent with the Letters Patent of 1865 should stand revoked, Neither the Letters Patent of 1862 nor the Letters Patent of 1865 contained any provision inconsistent with the Chartered High Courts possessing the jurisdiction of the Court of King's Bench which had been con- ferred upon the Supreme Courts of Judicature by their respec- tive Letters Patent, and each of the three Chartered High c Courts on its Original Side continued to possess the power inter alia of issuing prerogative writs. In Ryots of Gara- bandho and other villages v. Zemindar of Parlak.imedi and Anr. [1942-43] 70 I.A. 129, the Judicial Committee of the Privy Council held that this power of the High Court of Madras was confined to issuing such writs only within the local limits of D its original civil jurisdiction, this power being derived by that High Court as successor of the Supreme Court of Judica- ture at Madras which had been exercising jurisdiction over the Presidency Town of Madras, and that there was no power in that ._ High Court to issue such a writ beyond the local limits of its original civil jurisdiction. In nection Coamlsaion, India v. E Saka Venkata Subba Rao, [1953] S.C.R. 1144, 1150 this Court reiterated what had been held in the above case by the Judicial Committee and pointed out that the position with respect to the two other Chartered High Courts, namely, the High Courts of Calcutta and Bombay, was the same. As explained by this Court in Dwarltanath, Hindu Undivided P&llily v. F Income-Tax Officer, Special Circle, Kanpqr, and Another [1965] 3 S.C.R. 536, 540-41 Article 226 is designedly couched in· a wide language in order not to confine the power conferred by it only to the power to issue prerogative writs as understood in England, such wide language being used to enable the High Courts to reach injustice wherever found and to mould the reliefs to meet the peculiar and complicated requirements of this country. The power to issue prerogative writs though in a -', 1111ch restricted form was thus already possessed by the three Chartered High Courts immediately prior to the commencement of the Constitution. A question may well be asked why it was thought necessary to incorporate in the Constitution the jurisdiction and powers

816 SUPREME COURT REPORTS [1986) 1 s.c.R.

conferred by Articles 226, 227 and 228. The answer is obvious. Provisions similar to Articles 227 and 228 already existed in a Constitution Act, namely, in sections 224 and 225 of the Government of India Act, 1935. The said sections 224 and 225 were not made subject to the provisions of Part IX of the said Act and of any Order l.n Council made under the said Act or any other Act or to the provisions of any Act of the appropriate Legislature as the jurisdiction of the existing High Courts was by section 223 of the said Act. These sections could, therefore, have been amended only by a legislation made by the British Parliament by amending the Government of India Act,

1935. The Government of India Act, 1935, was repealed by Article 395 of the Constitution. It was, therefore, necessary to re-enact these provisions and the only way in which it could be done was to insert them in the Constitution because were these powers to be treated on the same footing as the other powers and jurisdiction of the existing High Courts, they would have become subject to laws made by the appropriate Legislature. So far as Article 226 is concerned, the power to issue prerogative writs was possessed by the three Chartered High Courts only. As the Constitution-makers intended to confer the enlarged power under Article 226 upon all High Courts, and not merely the three Chartered High Courts, this power had to be embodied in an Article of the Constitution. It should also be borne in mind that the jurisdiction under Articles 226, 227 and 228 was intended to be conferred upon all High Courts -- not only the existing Hi.gh Courts but also any other High Court as and when it came to be established in the future. Further, the insertion of Articles 226, 227 and 228 in the Constitution without making them subject to any law to be made by the appropriate Legislature put these Articles beyond the legislative reach of Parliament and the State Legislatures with the result that the ju~isdiction conferred by these Articles can only be curtailed or excluded with respect to any matter by a constitutional amendment and not by ordinary legislation.

We are not concerned in this Appeal with Article 228 but only with "Articles 226 and 227 or more specifically with the maintainability of an intra-court appeal against the judgment of a Single Judge in a petition under Article 226 or 227. The Full Bench took the view that clause 15 of the Letters Patent provides for an intra-court appeal only in causes heard in the

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J.] 817

exercise of original civil jurisdiction by a Single Judge of the High Court and does not, therefore, comprehend within its scope a judgment passed by a Single Judge in the exercise of jurisdiction under Article 226 or 227. In support of this conclusion the Full Bench relied upon paragraph 22 of the Despatch dated March 14, 1862, from the Secretary of State to the Governor-General of India in Council which accompanied the first Letters Patent of the Calcutta High Court. The said paragraph 22 was as follows :

"22. Clauses 14 and 15.

Clauses 14 and 15 give effect to the recommendations of the law Commissioners that the High Court shall have all the appellate jurisdiction which is now exercised by the Sudder Dewany Adawlut, and a new appellate jurisdiction in civil cases, from the Courts of original jurisdiction, constituted by one or more of its own Judges, except that in the case of a decision which has been passed by a majority of the full number of the Judges of the Court, the appeal shall lie to Her Majesty in Council."

Presumably, a similar Despatch also accompanied the fir•' Letters Patent of the Madras and Bombay High Courts but in any event as the Letters Patent of these two High Courts were mutatis mutandis in identiCal terms with the Letters Patent of the Calcutta High Court, whether such Despatch accompanied them or not would not make any difference. The reliance placed by the Full Bench upon the said Despatch of the Secretary of State was, "however, wholly misconceived. This Despatch accompanied the Letters Patent of 1862 and not the Letters Patent of 1865 and the provision for an intra-court appeal in the Letters Patent of 1865 was materially different from that contained in the Letters Patent of 1862. The Letters Patent of 1862 conferred upon the Chartered High Courts the jurisdic- tions which in England, until November 1, 1875, when the Supreme Court of Judicature Acts of 1873 and 1875 came into force, were exercised by different courts such as the Court of King's Bench, the Court of Common Pleas, the Court of Chancery, the Court of Exchequer as a connnon law court, the \.High Court of Admiralty, the Court of Probate, the Court for

818 SUPREME COURT REPORTS [19861 i s.c.R.

Divorce and Matrimonial Causes, and the London Court of Bankruptcy. These several jurisdictions were conferred upon the High Courts by different clauses of the Letters Patent. Clause 14, however, specifically provided for an. intra-court appeal only from judgments "in ' all cases of original civil jurisdiction". The marginal note to· clause 14 was "Appeal from the Courts of original jurisdiction to the High Court in its appellate jurisdiction"'• Jurisdictions other than ordinary and f extra- ordinary civil jurisdictions were conferred by clauses which followed clause 14. For this reason, it was doubted at one time whether an intra-court appeal would lie from the judgment of one Judge in the exercise ·of original testamentary jurisdiction but in the case of Saroda Soonduree Doesee v. Tincowree llundee [1884] Hyde's Reports 70,· a Division Bench of three Judges of the Calcutta High Court by a majority held that such an appeal would lie. The. Letters Patent of 1865 followed the pattern of the Letters Patent of 1862. Clause 15 forms part of a group of clauses consisting of clauses 11 to 18 headed "Civil Jurisdiction of the High Court". Clause 12 \- deals with original jurisdiction as to suits and clause 13 with extra-ordinary original civil jurisdiction while clause 14 deals with joinder of several causes of action. Though the marginal note to clause 15 was the same as that to the old clause 14, a most material change was made iti clause 15 by providing that intra-court appeals would lie "from the judgment (not being' a sentence or order passed or msde in any criminal trial) of one Judge of the said High.Court, or of one Judge of any Division Court." The word "judgment" in clause 15 is not qualified in any way as to the jurisdiction in which it is given except that it should not be a sentence or order passed or made in any criminal trial, thus excluding judgments given in the exercise of criminal jurisdiction. Criminal /- jurisdiction is provided for in clauses 22 to 29, Various other jurisdictions conferred upon the High Courts, except ordinary and extra-ordinary civil jurisdiction, also feature in clauses subsequent to clause 15. Marginal notes or headings to groups of sections cannot control the meaning of a section if the section is unambiguous and its meaning plain. Not only is the wording of clause 15 unambiguous but there is ·strong intrinsic evidence in that clause itself to show that it applies to all jurisdictions mentioned in different clauses of j- the Letters Patent, whether preceding clause 15 or subsequent thereto, except those expressly excluded by clause 15 itself.

UMAJI KESHAO MESHRAM v. RADHIKABAI [MADON, J,] 819

820 SUPREME COURT REPORTS [1986] l S.C.R.