High Courts in India

For the first time, the Indian High Courts Act of 1861 establish the High Courts of Calcutta, Madras, and Bombay.

Constitution has authorized the Parliament to establish a common high court for two or more States or for two or more states and union territories. This provision was added to the constitution through the 7th Amendment Act of 1956.

About High Courts

According to the constitution, India follows a single integrated judicial system which means that the apex court i.e, the Supreme Court is the head of all courts, and the High Courts of all states function under it. High Courts are the highest judicial body at the State level and the territorial jurisdiction of the high court is proximate to the territory of a state.

Composition of High Court- Constitution has not fixed or specified the strength of a high court and leaves it to the discretion of the president so the high court consists of Chief Justice and such other judges that the president specifies. President specifies the strength depending upon the workload of any high court.

Article 214- High Courts for States

Article 214 states that there shall be a High Court for each State.

Article 215- High Courts to be courts of record

Every High Court shall be a court of record, the judgment, proceedings, and act of the high court are recorded for perpetual memory/testimony and it has all the powers of such a court including the power to punish for contempt of court.

Article 216- Constitution of High Courts

Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem fit and necessary to appoint.

Article 217- Appointment and conditions of the office of a Judge of a High Court

1. Every Judge of a High Court is appointed by the President. An appointment is done by warrant under his hand and seal.
2. The Chief Justice of the High Court is appointed by the president after consultation with-
   1. Chief Justice of India, and
   2. Governor of the state concerned
3. Judges other than the Chief Justice of the High court are also appointed by the President after consultation with-
   1. Chief Justice of India
   2. Chief Justice of the concerned High Court
   3. Governor of the concerned state.
4. In the case of a common high court, the Governor of all the states concerned is consulted.

Tenure of Judges

Constitution has not fixed any tenure for the judges of the high court but has made the following provisions in this regard-

1. Shall hold office until the age of 62 Years.
2. In case, any judge wants to resign from their post, the resignation will be presented to the President of India.
3. President is empowered to remove a judge of the High court same as the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court. Such a recommendation of removal is made by Parliament.
4. He vacates his office when appointed as a judge of the Supreme Court or if he is transferred to another High Court.
5. If any question arises about the age of a Judge of a High Court, the question shall be decided by the President. Such decisions can be made after consultation with the Chief Justice of India. The decision of the President in this regard shall be final.

Removal of Judges

President is authorized to issue removal orders only after an address is presented to him by the parliament. Such an order must be passed by the parliament in the same parliamentary session.

• The address must be supported by a special majority.
  • Special Majority- the majority of the total membership of the house and not less than two-thirds of members present and voting.
• The ground of removal should be the same as the Supreme Court that is, proved misbehavior and incapacity.
• The manner of removal should also be the same as the judges of the Supreme Court.

The process of removal is as follows

1. The removal motion must be signed by 100 members in the case of Lok Sabha and by 50 Members in the case of Rajya Sabha.
2. The must be presented to the Chairman/Speaker. They can admit the motion or can refuse to admit it.
3. In case of admittance of the motion, a 3-member committee is constituted by Chairman/Speaker to investigate the charges.
4. If the committee finds him guilty, the house can take up consideration of the motion.
5. The motion must be passed by each house of the parliament with a special majority.
6. Then, the address is presented to the president for the removal and the president passes an order removing the judges.

Qualification of Judges of a High Court

1. a) The person must be a citizen of India

b). 1) He should for at least ten years held a judicial office in the territory of India; or
2) For at least ten years been an advocate of a High Court or high court in succession.

Note- It is clear from the above statements that, the constitution has not prescribed any minimum age for an appointment.

Article 219- Oath or affirmation by Judges of High Courts

A person appointed as a Judge of a High Court shall, before entering upon his office, make and subscribe oath or affirmation before the Governor of the State, or some person appointed by him in this regard.

Article 220- Restriction on practice after being a permanent Judge

Any permanent judge of a high court shall not plead or act in any court or before any authority in India except the Supreme Court and the other High Courts.

Article 221- Salaries, etc., of Judges

1. Parliament from time to time determines the salaries, allowances, privileges, and pension of a judge of a high court, such salaries as are specified in the Second Schedule.
2. Neither the allowances of a Judge nor his rights in respect of leave of absence or pension can be varied to his disadvantage after the appointment except during a financial emergency.

Article 222- Transfer of a Judge from one High Court to another

1. The President may transfer a Judge from one High Court to another High Court after consultation with the Chief Justice of India.
2. On transfer, the judge of the High Court is entitled to receive an addition to his salary such as a compensatory allowance as may be determined by Parliament.
3. Supreme Court has ruled that the transfer can be done only in the public interest and cannot be used as a way of punishment.
4. Supreme Court has also ruled that judicial review is necessary to check any arbitrary transfer. But only the judge for which the transfer order is passed can challenge it.

Article 223- Appointment of acting Chief Justice

When the office of Chief Justice of a High Court is vacant or temporarily absent or unable to perform the duties of his office, then the duties of the office are performed by such other Judges of the Court as the President may appoint to serve the purpose.

Article 224- Appointment of Additional and Acting Judges

The President is empowered to appoint a qualified person as additional judges of the High Court if there is a temporary increase in the business of the High Court. Such an appointment is temporary in nature and cannot exceed the time frame of 02 Years.

President is also authorized to appoint a qualified person as an acting judge of the high court if the judge of the high court (other than Chief Justice0 is unable to perform his duties due to the absence of the such judge and is appointed temporarily as the Chief Justice of the High Court. An acting judge can hold office until the permanent judge resumes his office.

Note- Both acting and additional judges cannot hold the office beyond the age of 62 years.

Article 224A- Appointment of a retired judge at sitting of a high court

The chief justice of a high court can request a retired judge of any high court to act as the judge of the high court of the state for a temporary period. This can be done only with the previous consent of the president along with the consent of the person is also important. The allowances of Such judges are determined by the president.

Article 225- Jurisdiction and power of the High Court

It is the highest court of appeal bestowed with the power to interpret the constitution. At present high court enjoys the following jurisdiction and powers-

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

The high court has the power to hear the dispute in the first instance i.e, it has the original jurisdiction. That contains the matter related to contempt of court, the election of the member of parliament and state legislature, revenue matters, enforcement of fundamental rights, etc.

Article 226- Power of High Courts to issue certain writs

It is empowered to issue writs including habeas corpus, certiorari, mandamus, prohibition, and quo warranto for the enforcement of fundamental rights and for any other purpose i.e, for enforcement of ordinary legal rights as well.

The writ can be issued not within the territorial jurisdiction but also outside the territorial jurisdiction if the matter arises in the territorial jurisdiction. It can be issued to any person, authority, or government.

Article 227- Power of superintendence over all courts by high courts

Supervisory Jurisdiction- The high court has the power to superintendence over all courts and tribunals functioning in the territorial jurisdiction. But it has no jurisdiction over military courts or tribunals.

Its law is binding over all subordinate courts within the territory in the same manner as the law of the Supreme Court is binding on all courts in India.

Article 228- Transfer of Certain cases to High Court

The high court is empowered to withdraw a case pending in a subordinate court if it involves a substantial question of law or required constitutional interpretation.

Article 229-Officers and servants and the expenses of the high court

The Chief Justice of the High Court has the freedom to appoint the officers and servants of the high court without any executive interference. The Chief justice is also empowered to prescribe their condition of services.

Article 230- Extension of the jurisdiction of the High Court to certain union territories

Constitution has authorized the Parliament to establish a common high court for two or more States or for two or more states and union territories. This provision was added to the constitution through the 7th Amendment Act of 1956.

Article 231- Establishment of a common high court for two or more states

The Parliament is authorized to establish a common high court for two or more States.

Facts

• The high court in India as an institution originated in 1862. Then was set up in Calcutta, Bombay, and Madras.
• The fourth high court was established in 1866 at Allahabad (now Prayagraj).
• Delhi is the only union territory with a separate high court.
• Parliament is empowered to extend and exclude the jurisdiction of a high court.

Read: Special courts in India

Article Written By: Priti Raj