- The Constitution of India provides for a high court for each state, but the Seventh Amendment Act of 1956 authorised the Parliament to establish a common high court for two or more states or for two or more states and a union territory
- Articles 214 to 231 in Part VI
- Every HC (whether exclusive or common) consist of Chief Justice and such other judges as PRESIDENT OF INDIA may from time to time deem necessary to appoint.
- Constitution does not specify strength of HC and leaves it to the discretion of the President.
Appointment High Court Judges
- The judges of a high court are appointed by the President.
- Chief justice of HC – Appointed by the President after consultation with the chief justice of India and the GOVERNOR of the state concerned.
- Other judges of HC – Chief Justice of the concerned HC 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.
- Third Judges case (1998) – SC opined that in case of the appointment of HC judges, the CJI should consult a collegium of two senior-most judges of the SC. The sole opinion of the CJI alone does not constitute the ‘consultation’ process.
- Fourth Judges case (2015) – The Court opined that the new system NJAC would affect the independence of the judiciary and declared both the 99th Constitutional Amendment 2014 as well as the NJAC Act as unconstitutional and void. The involvement of political executive in appointment procedure was against the “Principles of Basic Structure” e. “Independence of Judiciary”
Qualification of High Court Judges
- He should be a citizen of India.
- He should have held a judicial office in the territory of India for ten years or
- He should have been an advocate of a high court for ten years.
- Constitution has not prescribed a minimum age for appointment as a judge of a HC.
- Constitution makes no provision for appointment of a “distinguished jurist” as a judge of a HC in the opinion of president. (unlike in the case of the SC)
Oath and Affirmation
- A person appointed as a judge of a high court, before entering upon his office, has to make and subscribe an oath or affirmation before the governor of the state or some person appointed by him for this purpose.
- Salaries and allowances
- The salaries, allowances, privileges, leave and pension of the judges of a high court are determined from time to time by the Parliament.
- They cannot be varied to their disadvantage after their appointment except during a financial emergency (Art.360)
NOTE – Salaries of judges of HC are charged upon “consolidated fund of state”. However, pensions of judges of HC are charged upon “consolidated fund of India”.
Tenure of High Court Judges
- The Constitution has not fixed the tenure of a judge of a high court.
- He holds office until he attains the age of 62 years (65 years in case of SC). Any questions regarding his age is to be decided by the president after consultation with the CJI of SC and the decision of the president is final. (determine by parliament in case of SC)
- Resignation – By writing to the president.
- He can be removed from his office by the President on the recommendation of the Parliament.
Removal of High Court Judges
- same manner and on the same grounds as a judge of the Supreme Court
- order of the President on recommendations of parliament
- supported by a special majority of each House of Parliament
- Proved misbehaviour or incapacity.
- Judges Enquiry Act (1968)
- A removal motion signed by 100 members (Lok Sabha) or 50 members (Rajya Sabha) is to be given to the Speaker/Chairman.
- The Speaker/Chairman may admit or refuse to admit motion.
- If it is admitted, then the Speaker/ Chairman is to constitute a three-member committee to investigate into the charges.
- The committee should consist of following members–
- The chief justice or a judge of the Supreme Court,
- The Chief justice of a high court, and
- a distinguished jurist.
- 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.
- Conclusively, the president passes an order removing the judge.
- It is interesting to know that no judge of a high court has been impeached so far.
Transfer of High Court judge
- A High Court judge is also liable to get transferred to other High Courts. This decision is entirely dependent on the Chief Justice of India. Transfer of judges is done with an aim to ensure proper and just trial for every case fought in the court of law.
Acting Chief Justice
President can appoint a judge of a high court as an acting chief justice of HC
- Office of chief justice of HC is vacant; or
- Chief justice of HC is temporarily absent; or
- Chief justice of HC is unable to perform the duties of his office.
Additional and Acting Judges
- President can appoint duly qualified persons as additional judges of a HC for a temporary period not exceeding two years when:
- Temporary increase in the business of the HC; or
- Arrears of work in the HC.
- President can also appoint a duly qualified person as an acting judge of a HC when a judge of that high court (other than the chief justice) is:
- Unable to perform the duties of his office due to absence or any other reason; or
- Appointed to act temporarily as chief justice of that high court.
- 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.
- The chief justice of a HC of a state can request a retired judge of that HC or any other HC to act as a judge of the HC 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.
- Judges of the HC are appointed by the President in consultation with the members of the judiciary (Chief Justice of HC and CJI of SC) .
- Removed from office by the President only in the manner and on the grounds mentioned in the Constitution. “Doctrine of pleasure” of president not applicable.
- Cannot be changed to their disadvantage after their appointment except during a financial emergency (Art.360)
- Salaries, allowances and pensions of the judges and staff, administrative expenses of the HC. Non-votable by the State legislature (can only be discussed).
- Pensionof a judges of HC is charged on the Consolidated Fund of India and not the state.
- Prohibition of any discussion in Parliament or in a State Legislature with respect to the conduct of the judges of the HC in the discharge of their duties, except when an impeachment motion is under consideration.
- The retired permanent judges of a HC are prohibited from pleading or acting in any court or before any authority in India exceptthe SC and the other high courts.
- Thus, actions and decisions of HC cannot be criticised and opposed by any body.
- Chief Justice of HC can appoint officers and servants of the HC and also prescribe their conditions of service.
- Parliament and state legislature can extendthe jurisdiction of HC but not authorised to curtail the jurisdiction and powers of the HC.
- constitution envisaged that executive authorities should not possess the judicial powers. (Art.50- separation of judiciary from executive).
- Entails power of HC to hear disputes in the first instances (applicant can directly go to the HC) not by the way of appeal.
- Mostly applicable for cases related to the election disputes of State Legislative Assembly and parliament, marriages, enforcement of FR (Art.226), revenue matters, contempt of court and transfer cases from other courts.
- The four HC (Calcutta, Bombay, Madras and Delhi) have original civil jurisdiction in cases of higher value.
- Original jurisdiction of HC is narrower than SC (Not covers federal disputes)
- Constitution under Art. 226 of the empowers a HC to issue writs including habeas corpus, mandamus, certiorari, prohibition and quo warranto for the enforcement of the FR and “for any other purpose” (enforcement of an ordinary legal right)
- The writ jurisdiction of the HC (Art.226) is not exclusive but concurrent with the writ jurisdiction of the SC (Art.32). Aggrieved party has the option of moving either the HC or the SC directly.
- Chandra Kumar case (1997)– The SC ruled that writ jurisdiction of both the HC and SC constitute a part of the basic structure of the Constitution.
- The HC can issue writs outside its territorial jurisdiction if the cause of action arises within its territorial jurisdiction.
NOTE – SC can issue writs only for FR and not “for any other purpose”. This makes writ jurisdiction of HC wider than SC.
- HC hears appeals against the judgements of subordinate courts functioning in its territorial jurisdiction.
- HC has appellate jurisdiction in both civil and criminal matters – this makes appellate jurisdiction of a high court is wider than its original jurisdiction.
- Civil Jurisdiction
- Includes orders and judgements of the district court, civil district court and subordinate court.
- The Calcutta, Bombay and Madras High Courts have provision for intra-court appeals.
- Criminal Jurisdiction
- This includes judgements and orders of the sessions court and additional sessions court.
- The death sentence awarded by a sessions court or an additional sessions court should be confirmed by the HC before it can be executed, whether there is an appeal by the convicted person or not.
- Appeals from the decisions of the administrative and other tribunals lie to the division bench of the State HC.
- HC has the power of superintendence over all courts and tribunals functioning in its territorial jurisdiction (except military courts or tribunals).
- Supervisory power of a high court is very broad pertaining to –
- It extends to all courts and tribunals whether they are subject to the appellate jurisdiction of the high court or not
- It covers administrative superintendence as well as judicial superintendence
- It is a revisional jurisdiction
- It can be suo-motu (on its own) and not necessarily on the application of a party.
- Given the extraordinary nature of power, it is 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 and 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 (other than district judges).
- 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.
- Its law is binding on all subordinate courts functioning within its territorial jurisdiction in the same sense as the law declared by the SC is binding on all courts in India.
Court of Record (Article 215)
- It involves recording the judgments, proceedings and acts of HC for perpetual memory.
- 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, either with simple imprisonment or with fine or with both.
- Expression ‘contempt of court” has not been defined by the Constitution. However, the expression has been defined by the Contempt of Court Act of 1971.
- HC has the power to review and correct its own judgement or order or decision, although no specific power of review is conferred on it by the Constitution (Unlike Supreme Court).
- HC empowered with power of Judicial review to examine the constitutionality of legislative and executive actions of both the Central and state governments.
- If they are found to be violative of the Constitution (ultra-vires), they can be declared as illegal, unconstitutional and invalid (null and void) by the HC.
- Phrase “judicial review” has nowhere been mentioned in the Constitution.
- Constitutional provisions– 13, 32, 131-136, 143, 226, 246, 256 etc.
- Constitutional validity of legislative or executive enactments can be challenged
- If it infringes the FR (Part III).
- If it is outside the competence of framing authority.
- If it is in contravention to constitutional provisions.
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