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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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

• A judge of a high court of India can be removed in the same manner and on the same grounds as a judge of the Supreme Court.
• He can resign from his office by writing to the President

 

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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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 suo–motu 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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