High Court of India

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  • Articles 214 to 231 in Part VI
  • High court 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

  • 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,
    1. excess of jurisdiction
    2. gross violation of natural justice
    3. error of law
    4. disregard to the law of superior courts
    5. perverse findings
    6. 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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