High courts

High Court

Introduction

• In the Indian single integrated judicial system, the high court operates below the
Supreme Court but above the subordinate courts.
• The judiciary in a state consists of a high court and a hierarchy of subordinate
courts. The high court occupies the top position in the judicial administration of a
state.
 Brief History of High Court

• The institution of High court originated in India in 1862 when the high courts were set up at
Calcutta, Bombay and Madras
• In 1866, a fourth high court was established at Allahabad.
• In the course of time, each province in British India came to have its own high court.
• After 1950, a high court existing in a province became the high court for the corresponding
state.

Note:

The Constitution of India provides for a high court for each state, but the 7th Constitutional
Amendment Act of 1956 authorized the Parliament to establish a common high court for two or
more states or for two or more states and a union territory.
 In Today’s date
• At present (2019), there are 25 high courts in the country.
• Articles 214 to 231 in Part VI of the Constitution deal with the organization,
independence, jurisdiction, powers, procedures and so on of the high courts.
 Appointment

• The Judges of a High court are appointed by the President.

• The Chief justice is appointed by the President after consultation with the Chief justice
of India and the Governor of the state concerned.

• For appointment of other judges, the Chief Justice of the concerned high court is also
consulted. In case of a common high court for two or more states, the Governors of all
the states concerned are consulted by the president
 Qualifications

1. He should be a citizen of India.

2. (a) He should have held a judicial office in the territory of India for ten years;
or (b) He should have been an advocate of a high court (or high courts in succession) for
ten years.

Note:
From the above, it is clear that the Constitution has not prescribed a minimum age for
appointment as a judge of a high court.
Moreover, unlike in the case of the Supreme Court, the Constitution makes no provision
for appointment of a distinguished jurist as a judge of a high court.
Tenure of Judges The Constitution has not fixed the tenure of a judge of a high court.
However, it makes the following four provisions in this regard:

1. He holds office until he attains the age of 62 years. Any questions regarding his age is
to be decided by the president after consultation with the chief justice of India and the
decision of the president is final.
2. He can resign his office by writing to the president.
3. He can be removed from his office by the President on the recommendation of the
Parliament.
4. He vacates his office when he is appointed as a judge of the Supreme Court or when he
is transferred to another high court.
 Transfer of Judges

• The President can transfer a judge from one high court to another after consulting the
Chief Justice of India.
• On transfer, he is entitled to receive in addition to his salary such compensatory allowance
as may be determined by Parliament.
 Acting Chief Justice
• The President can appoint a judge of a high court as an acting chief justice of the high court
when:
1. the office of chief justice of the high court is vacant; or
2. the chief justice of the high court is temporarily absent; or
3. the chief justice of the high court is unable to perform the duties of his office.

Additional and Acting Judges

The President can appoint duly qualified persons as additional judges of a high court for a
temporary period not exceeding two years when:
1. there is a temporary increase in the business of the high court; or
2. there are arrears of work in the high court.

Note:

An acting judge holds office until the permanent judge resumes his office. However, both the
additional or acting judge cannot hold office after attaining the age of 62 years.
 Retired Judge

• At any time, the chief justice of a high court of a state can request a retired judge of that
high court or any other high court to act as a judge of the high court of that state for a
temporary period.
• He can do so only with the previous consent of the President and also of the person to be
so appointed.
• Such a judge is entitled to such allowances as the President may determine. He will also
enjoy all the jurisdiction, powers and privileges of a judge of that high court.
 Power of High Court

• Like the Supreme Court, the high court has been vested with quite extensive and effective
powers. It is the highest court of appeal in the state. It is the protector of the Fundamental
Rights of the citizens. It is vested with the power to interpret the Constitution. Besides, it has
supervisory and consultative roles.

At present, a high court enjoys the following jurisdiction and powers:

1. Original jurisdiction.
2. Writ jurisdiction.
3. Appellate jurisdiction.
4. Supervisory jurisdiction.
5. Control over subordinate courts.
6. A court of record.
7. Power of judicial review.
 Original Jurisdiction

• It means the power of a High court to hear disputes in the first instance, not by way of appeal.
• It extends to the following:
✓ Matters of admiralty and Contempt of Court
✓ Disputes relating to the election of members of Parliament and state legislatures.
✓ Regarding revenue matter or an act ordered or done in revenue collection.
✓ Cases ordered to be transferred from a subordinate court involving the interpretation of the
Constitution to its own file.
✓ The four high courts (i.e., Calcutta, Bombay, Madras and Delhi High Courts) have original
civil jurisdiction in cases of higher value.
 Writ Jurisdiction

• Article 226
• For the enforcement of Fundamental Rights of the Citizens and for any other purpose.
• The Phrase “Any other Purpose” refers to the enforcement of an Ordinary Legal Right.
• Writ Jurisdiction of the High court is wider than that of the Supreme Court.
• SC Writs = Only FR and HC Writs= FR+ Original Legal Rights
 Appellate Jurisdiction

• A High court is primarily a court of appeal.

• It hears appeals against the Judgement of subordinate courts functioning in its territorial
Jurisdiction.
• It has appellate Jurisdiction in both Civil and Criminal matters.
 Supervisory Jurisdiction and
other Powers

• A High court has the power of superintendence overall all courts and tribunals functioning in
its territorial Jurisdiction ( except Military courts or Tribunals)

Control Over Subordinate Courts:

A High court has an administrative control and other powers over them
• It is Consulted by the Governor in the matters of appointment , posting and promotion of
District Judges and appointment to the Judicial Service.
• It deals with the matters of posting, promotion, grant of leave, transfers and discipline of
the members of the judicial service of the state (other than district judges).

Apart from it, It also has the power of Judicial Review and Court of Record
 Removal of Judges
• A Judge of the Supreme Court can be removed from his office by an order of President.
• The President can issue the removal order only after an address by Parliament has been presented
to him in the same session for such removal.
• The Ground of removal are two: Proved misbehavior or Incapacity.
• A removal motion signed by 100 members(In case of Lok Sabha) or 50 members (In case of Rajya
Sabha) is to be given to the Speaker/ Chairman.
• The Speaker/Chairman may admit the motion or refuse to admit it.
• If it is admitted , then the speaker/Chairman is to constitute a 3 member committee to investigate
into the charge.
• The Committee should consist of a) The Chief Justice or a Judge of the Supreme Court b) A Chief
Justice of a High Court c) A Distinguished Jurist
• If the Committee finds the Judge to be guilty of misbehavior or suffering from an incapacity, The
House can take up the Consideration of the motion.
• After the motion is passed by each house of Parliament by special majority, an address is
presented to the President for removal of the Judge.
• Finally the President passes an order removing the Judge.