HIGH COURTS

STATE JUDICIARY: The State Judiciary consists of a High Court and a system of subordinate courts. The process of constituting High Courts were established at Calcutta, Bombay and Madras. In the course of time, other High Courts also came to be established. The constitution builds the structure of the High Courts, on the pre-existing foundations. The Constitution provides that there shall be a High Court in each State (Article 214) but Parliament has the power to establish a common High Court for two or more States (Article 231). At present, there are in all 24 High Courts for 28 States and 7 Union Territories. In 2013, three new High Courts, namely Meghalaya, Manipur and Tripura were added.

Strength of a High Court: A High Court consists of the Chief Judges and such other Judges as the President may from time to time deem it necessary to appoint (Article 216). In this way, the number of Judges in a High Court unlike that of the Supreme Court is flexible and it can be determined by the President from time to time keeping in view the amount of work before a High Court.

Appointment of High Court Judges

While appointing a Judge of a High Court, the President shall consult the Chief Justice of India, the Governor of the State and the Chief Justice of that High Court in the matter of appointment of a Judge other than the Chief Justice.

Due to the combined effect of the decision of the Supreme Court in 1993 and 1998 with regard to appointment of a High Court Judge, following is the present position:

• The process of the appointment of the Judges of the High Courts is an integrated “participatory consultative process”, where, all the constitutional functionaries must perform this duty collectively.
• Initiation of the proposal for appointment in the case of a High Court must invariably be made by the Chief Justice of that High Court.
• The Third Judges Case, 1998 established that a collegiums of Judges comprising the Chief Justice of India and two senior most Judges of the Supreme Court, giving fair importance to the opinion of the Chief Justice of the concerned High Court Should make a recommendation as to appointment to the President. In addition, other Judges of the High Court and the views of the other Judges of the Supreme Court who are conversant with the High Court concerned can also be consulted. All these views should be expressed in writing and be conveyed to the President along with the recommendation of the collegiums.
• In the event of conflicting opinions by the constitutional functionaries, the opinion of the collegiums would have supremacy.
• No appointment of any Judge of a High Court can be made unless it is in conformity with the opinion of the Chief Justice of India.

Transfer of a Judges from one High Court to another: The Constitution, under Article 222 empowers the President, after consultation with the chief Justice of India to transfer a Judge from one High Court to another. The Third Judges Cases, 1998 established that in case of the transfer of High Court judges, the Chief justice of India should consult, in addition to the collegiums of four senior most judges of the SC, the Chief Justice of the two High Courts (one from which the judges is being transferred and other receiving him). The opinion provided by the Chief Justice shall have primary and is binding on the President. A Judge of a High Court can be transferred without his consent.

Appointment of acting Chief Justice: When the Office of the Chief Justice of a High Court is vacant or when any such Chief Justice, by reason of absence or otherwise, is unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.

Appointment of Additional and Acting Judges

In this context, the President may appoint,

1. Additional Judges – duty qualified persons as additional Judges for a period not exceeding 2 years, when it appears to the President that because of temporary increase in the business of High Court or arrears of work, the number of Judges should be increased (Article 224(1)).

2. Acting Judge- an acting judge can be appointed when any Judge, other than the Chief Justice, is unable to perform his duties due to absence or otherwise, or when a permanent Judge of the High Court is appointed as its acting Chief Justice. An acting judge holds office until the permanent Judge resumes his duties (Article 224 (2)).

But neither an additional nor an acting Judge can hold office beyond the age of 62 years.

Appointment of retired Judges: The Chief Justice of a High Court may, with the prior consent of the President, request a retired High Court Judge to shit and act as a Judge of the High Court for a temporary period.

Tenure of Judges

Once appointed, a permanent Judge of a High Court holds office until the age of 62 years. Any dispute relating to the age of a Judge of a High Court is decided by the President in consultation with the Chief Justice of India, which shall be final. He can resign from his office by writing to the President. He vacates his office when he is appointed as the judge of the SC or when he is transferred to another High Court. A judge does not hold office during the pleasure of the President. He can be removed from his office by the President on the recommendations of the Parliament, for proved misbehaviour and incapacity only, in the manner provided for the removal of a judge of the Supreme Court (Discussed in the previous chapter). The Constitution (One Hundred and Fourteenth (Amendment) Bill 2010, seeks to raise the retirement age of every judge of a High Court including additional and acting judges to 65 years from the present 62 years. The bill has been introduced in Lok Sabha in 2010 and it still pending.

Salaries:A Judge of a High Court gets a salary of Rs. 80,000 per month while the Chief Justice gets Rs. 90,000 per month. He is also entitled to such allowance and rights in respect of leave of absence and pension as Parliament may determine from time to mine from time to time. But this cannot be altered to the disadvantage of a Judge after his appointment (Article 221).

Oath: Before entering upon his office, a person appointed as a High  Court Judge is to make and subscribe an oath or affirmation before the Governor of the State (Article 219).

Qualifications for appointment as a Judge of High Court

A person to be qualified for appointment as a Judge of a High Court
a.  must be a citizen of India and
b.  must have held a judicial office in the territory of India for at least 10 years; or
c.  must have been an advocate of a High Court or two or more such Courts in succession for at least 10 years.

Independence of Judges of the High Court

The Constitution seeks to secure the independence of Judges of the High Courts in the following ways:

1.  The appointment of Judges if the High Court is made by the President in consultation with Chief Justice of India and two senior-most judges of the Supreme Court. The proposal is initiated by the concerned High Court alone. This is to ensure that the appointment is made on the basis of merit only.

2.  The judges are allowed and expected to work without fear or favour with no interference of executive. Being a court of record, the high Court can utilize the power of Contempt of court and dissuade attempts to influence the judges.

3.  The judges have been granted the security of tenure. A judge does not hold office during the pleasure of the President. A Judge of a High Court can be removed only by the President on an address of both Houses of Parliament, passed by not less than two-thirds of the members present and voting and by a majority of the House on the ground of proved misbehaviour or incapacity only.

4.  After retirement, a Judge of a High Court cannot plead in a Court or before any authority in India except in the Supreme Court and a High Court other than the High Court in which he had held office.

5.  The salaries and allowances payable to Judges of High Courts are charged on the Consolidated Funds of State concerned and are not subject to vote in the Legislature. They cannot be changed to their disadvantage after appointment except during a Financial emergency.

6.  The conduct of the Judges of the High Courts cannot be discussed in Parliament, except on a motion for the removal of a Judge.

JURISDICTION AND POWERS OF THE HIGH COURTS

I.  Territorial Jurisdiction: The jurisdiction of a High Court is coterminous with territorial boundaries of the state. But if the Parliament creates a High Court for two or more states (e.g. Chandigarh High Court) or extends its jurisdiction to a Union Territory (e.g. Bombay High court’s jurisdiction extends to Dadra, Div and Daman), its jurisdiction stretches over such territories. The Constitution refrains from exhaustively marking the jurisdiction of the High Courts and powers and other of administrative matters of the High Courts.

II.  Original Jurisdiction: The High Courts of Presidency Towns (Bombay, Madras and Calcutta) have both original and appellate jurisdiction, while the other High Courts have mostly appellate jurisdiction. Only in matter of admiralty, probate, matrimonial and contempt of Courts cases the other High Courts Have original jurisdiction. Earlier the Presidency High Courts had original jurisdiction in civil and criminal cases. But the Criminal Procedure Code, 1973 has completely taken away the original criminal jurisdiction from all the High Courts. Now, the original jurisdiction lies only in civil matters, that too above a certain defined value.

III.  Appellate Jurisdiction: As courts of appeal, all High Courts entertain appeals in civil and criminal cases from their subordinate courts as well as from their original side. In some High Courts provision is made for intra-court appeal. Appeals lie from the decision of a single judge to Division bench of the same High Court. However, the High Courts have no jurisdiction over tribunals established under the law relating to the armed forces of the country.

IV.  Writ Jurisdiction: Under Article 226 of the Constitution, the High Courts are given powers of issuing direction, order or writs for the enforcement of Fundamental Rights and for any other purpose. The power of High Court to issue writs for the enforcement of Fundamental Right is concurrent i.e. parallel to the same power of Supreme Court under Article 32. However, there is some difference between overall writ jurisdiction of Supreme Court and High Courts. Under Art.32 the Supreme Court can issue writs only where a fundamental right has been infringed, while High Courts can issue writs for enforcement of Fundamental Rights as well as for any other purpose i.e. ordinary legal rights of the citizen. Thus, the jurisdiction of High Courts under Art.226 is wider than that of the Supreme Court under Art.32.

Also, the remedy provided under Art.226 is not a Fundamental Right of any person, hence High Courts have discretionary Jurisdiction i.e. the High Courts may or may not exercise the writ jurisdiction to grant a relief to the aggrieved citizen. Obviously, such discretion is to be exercised judiciously and not arbitrarily. However, a citizen can alternatively appeal to the High Court for enforcement of his ordinary legal rights or otherwise under the supervisory jurisdiction granted to the High Court over sub-ordinate courts, under Art.227. Coming back to discretion, the Supreme Courts are bound to issue writs under Art. 32 as we already know it. Third thing, the territorial jurisdiction of the High Courts is limited to the extent granted to it by the Parliament, which is generally limited to one or combination of states and Union Territories. On the other hand, the territorial jurisdiction the Supreme Court extends to the whole India.

V.  Administrative and Supervisory functions of the High Courts: Every High Court has been ensured a complete control over the members of its staff, as per Article 229. Under this Article, the Chief Justice of a High Court is empowered to appoint officers and servants of the Court. He is also authorized to regulate the conditions of service of the staff and he has the power to dismiss any such member from the services of the Court. A High Court stands at the apex of the judicial system in a State. Under Article 227, a High Court has the right of superintendence and control over all the subordinate courts in all the matter of judicial and administrative nature.

Court of Record for Subordinate courts: Subordinate Courts are bound to follow the decision of the High Courts. Its proceedings and decisions are reffered to in all future cases. It has the power to punish for contempt of itself and subordinate courts. It can also examine the records of its subordinate courts.

Superintendence

Every High Court has the power of superintendence over all courts and tribunals, functioning within its territorial jurisdiction, except those dealing with the Armed Forces. The High Court controls and supervises the working of courts subordinate to it and frames rules and regulations for the transactions of their business. In exercise of this power, the High Court may.

1. call for returns from such courts;
2. make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts;
3. prescribe forms in which books and accounts shall be kept by the officers of any such courts; and
4. transfer cases from one court to another.

Further, under Article 235, the High Court can also make rules and regulations relating to the appointment, demotion and leave of absence for the officer of the subordinate courts.

RELATIONSHIP BETWEEN THE SUPREME COURT AND HIGH COURT

The High Court is not a court subordinate to the Supreme Court. Both are Courts of Records. The High court exercise power of superintendence over subordinate courts and tribunals. Supreme Court has no such powers. The High Courts have much larger jurisdiction than Supreme Court in respect of the writs but the Supreme Court remains the Courts of appeal for the judgements and other order of High Courts. Overall, under hierarchical structure of Indian judiciary, Supreme Courts stands at apex and High Court is just vertically below it.

“If the Supreme Courts and the High Courts both were to be thought of as brothers in the administration of justice, the High Court has larger jurisdiction but the Supreme Court still remains the elder brother. There are a few provisions which give an edge, and assign a superior place in the hierarchy, to Supreme Court over High Courts. So far as the appellate jurisdiction is concerned, in all civil and criminal matters, the Supreme Court is the highest and the ultimate court of appeal. It is the final interpreter of the law. Under Article 139-A, the Supreme Court may transfer any case pending before one High Court to another High Court or may withdraw the case to itself. Under Article 141 the law declared by the Supreme Court shall be binding on all Courts, including High Courts, within the territory of India. Under Article 144 all authorities, civil and judicial, in the territory of India – and that would include High Court as well – shall act in aid of the Supreme Courts”.

Scope and location of High Courts

*Originally Known as the Assam High Court, renamed as Guwahati High Court in 1971.
**Originally Known as Mysore High Court, renamed as Karnataka High Court in 1973.
***Originally Known as Punjab High Court, renamed as Punjab & Haryana High Court in 1966.