High Court of India

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  • Article 214 to 231, Part VI
  • High courts of India operates below the Supreme Court but above the subordinate courts.
  • 1st high courts were set up in Calcutta, Bombay and Madras in 1862.
  • In 1866, a 4th high court was established at Allahabad.
  • Constitution of India provides for a high court for each state.
  • 7th Amendment Act of 1956 authorized Parliament to establish a common high court for two or more states or union territory.
  • At present, there are 25 high courts in the country (Andhra Pradesh 2019).
  • 3 new High courts are Meghalaya, Manipur and Tripura.
  • There are 4 common high courts.
  • Delhi is the only union territory that has a high court since 1966.

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High Court of India first high court of India
Calcutta High Court in 1862

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Organization of High Court of India

  • Consists of a chief justice and such other judges as the President may deem necessary to appoint.
  • Constitution does not specify the strength of a high court

 

Judges of High Court of India

Appointment of Judges of High Court

  • Judges of a high court of India are appointed by the President.
  • Chief justice is appointed by the President after consultation with the CJI and the Governor of the state concerned.
  • For appointment of other judges, the chief justice of the concerned high court is also consulted.
  • Chief Justice of High Court and 4 Senior most judges form the collegium recommend the names to another collegium comprised of CJI and 2 senior most judges of Supreme Court.

 

Qualifications

  • He should be a citizen of India.
  • He held a judicial office in the territory of India for 10 years, or
  • He should have been an advocate of a high court for 10 years
  • Constitution has not prescribed a minimum age for appointment as a judge of a high court of India.

 

Oath or Affirmation

  • Subscribe an oath or affirmation before the governor of the state or some person appointed by him

 

Tenure of Judges

  • The Constitution has not fixed the tenure of a judge.
  • He holds office until 62 years.
  • Any questions regarding his age, decided by the President after consultation with the chief justice of India.
  • The decision of the President is final.

 

Removal of Judges

 

Transfer of Judges

  • The President can transfer a judge from one high court of India to another after consulting the Chief Justice of India.
  • In 1977, the Supreme Court ruled that the transfer only in public interest and not by way of punishment.
  • In 1994, the Supreme Court held that judicial review is necessary to check arbitrariness in transfer
  • But, only the judge who is transferred can challenge it.
  • Third Judges case (1998), the Supreme Court opined that in case of the transfer Chief Justice of India should consult to
    • Collegium of 4 seniormost judges of the Supreme Court
    • Chief justice of the two concern high courts

 

Acting Chief Justice of High Court

  • The President can appoint a judge of a high court of India as an acting chief justice

 

Additional & Acting Judges

  • The President can appoint duly qualified persons as additional judges of a high court  when needed.
  • Appointment for a temporary period not exceeding two years
  • An acting judge holds office until the permanent judge resumes his office
  • Additional or acting judge cannot hold office after age of 62 years.

 

Retired Judges

  • At any time, the chief justice of a high court of a state can request a retired judge to act as a judge of high court for a temporary period.
  • He need previous consent of the President

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appointment of judges of high court
Bombay High Court

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Independence of High Court of India

Expenses Charged on Consolidated Fund

  • Salaries, allowances and pensions of the staff as well as the administrative expenses of a high court are charged on the consolidated fund of the state.
  • They are non-votable by the state legislature
  • Pension of a high court judge is charged on the Consolidated Fund of India.

 

Ban on Practice after Retirement

  • The retired permanent judges of a high court of India are prohibited from pleading or acting in any court or before any authority in India except the Supreme Court and the other high courts.

 

 

Jurisdiction & Powers of High Court of India

  • High Court of India 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.
  • Constitution does not contain detailed provisions with regard to the jurisdiction and powers of a high court of India.
  • It only lays down that the jurisdiction and powers of a high court of India are to be the same as immediately before the commencement of the Constitution.
  • There is one addition, that the jurisdiction over revenue matters
  • Constitution also confers some more additional powers on a high court of India.

 

Original Jurisdiction

  • It means the power of a high court to hear disputes in the first instance, not by way of appeal
  • Matters of admiralty, will, marriage, divorce, company laws 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.
  • Enforcement of fundamental rights of citizens.
  • Cases ordered to be transferred from a subordinate court involving the interpretation of the Constitution to its own file.
  • The four high courts (Calcutta, Bombay, Madras and Delhi High Courts) have original civil jurisdiction in cases of higher value.
  • Before 1973, the Calcutta, Bombay and Madras High Courts also had original criminal jurisdiction.
  • This was fully abolished by the Criminal Procedure Code, 1973.

 

Writ Jurisdiction

  • Article 226 of the Constitution empowers a high court to issue writs including habeas corpus, mandamus, certiorari, prohibition and quowarrento and any other purpose.
  • The phrase ‘for any other purpose’ refers to the enforcement of an ordinary legal right.
  • In the Chandra Kumar case (1997), the Supreme Court ruled that the writ jurisdiction of both the high court and the Supreme Court constitutes a part of the basic structure of the Constitution.

 

Appellate Jurisdiction

  • A high court of India is primarily a court of appeal.
  • It hears appeals against the judgements of subordinate courts functioning in its territorial jurisdiction.
  • It has appellate jurisdiction in both civil and criminal matters.
  • Hence, the appellate jurisdiction of a high court of India is wider than its original jurisdiction.

 

Supervisory Jurisdiction

  • Article 227
  • Supervisory Jurisdiction extends to all courts and tribunals whether they are subject to the appellate jurisdiction of the high court.
  • It covers not only administrative superintendence but also judicial superintendence
  • Supervisory Jurisdiction is a revisional jurisdiction.
  • It can be suomotu and not necessarily on the application of a party.
  • Supervisory Jurisdiction of High court is an extraordinary power and hence has to be used most sparingly and only in appropriate cases.
  • Usually, it is limited to,
    • excess of jurisdiction
    • gross violation of natural justice
    • error of law
    • disregard to the law of superior courts
    • perverse findings
    • manifest injustice.

 

Control over Subordinate Courts

  • It is consulted by the governor in the matters of appointment, posting and promotion of district judges and in the appointments of persons to the judicial service of the state
  • It deals with the matters of posting, promotion, grant of leave, transfers and discipline of the members of the judicial service of the state
  • It can withdraw a case pending in a subordinate court if it involves a substantial question of law that require the interpretation of the Constitution.
  • It can then either dispose of the case itself or determine the question of law and return the case to the subordinate court with its judgement.

 

A Court of Record

  • Judgements, proceedings and acts of the high courts are recorded for perpetual memory and testimony.
  • These records are admitted to be of evidentiary value and cannot be questioned when produced before any subordinate court.
  • They are recognised as legal precedents and legal references.
  • It has power to punish for contempt of court
  • High court of India also has the power to review and correct its own judgement or order or decision
  • No specific power of review is conferred on it by the Constitution.

 

Power of Judicial Review

  • High court has the power to examine the constitutionality of legislative enactments and executive orders of both the Central and state governments.
  • Phrase ‘judicial review’ has nowhere been used in the Constitution
  • Provisions of Articles 13 and 226 explicitly confer the power of judicial review on a high court of India.

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