High Court

• High Courts operate below the Supreme Court but above subordinate courts in the integrated judicial system.
• It is the top judicial body in a state.

History and Establishment

• 1862: High Courts established in Calcutta, Bombay, and Madras.
• 1866: Fourth High Court established in Allahabad.
• Post-1950: High Courts of provinces became High Courts for corresponding states.

Constitutional Provisions

• Constitution provides for a High Court for each state.
• The 7th Amendment Act of 1956 allows Parliament to establish a common High Court for two or more states/Union Territories.
• The territorial jurisdiction is co-terminus with the state/UT.

Current Status

• Currently, there are 25 High Courts in India.
• Only 3 High Courts have jurisdiction over more than one state.
• Delhi has a separate High Court (since 1966).
• Jammu & Kashmir and Ladakh have a common High Court.
• Other UTs fall under the jurisdiction of different state High Courts.
• Parliament can extend or exclude High Court jurisdiction from any UT.

Composition and Appointment

• Each High Court consists of a Chief Justice and other judges as deemed necessary by the President.
• The Constitution does not specify the strength; the President determines it based on workload.

Appointment of Judges

• Judges appointed by the President.
• Chief Justice appointed after consulting the Chief Justice of India and the Governor of the state.
• Other judges are appointed after consulting the Chief Justice of the concerned High Court.
• For common High Courts, Governors of all concerned states are consulted.

Collegium System

• The Second Judges Case (1993): Appointment must conform to the opinion of the Chief Justice of India.
• The Third Judges Case (1998): The Chief Justice of India should consult a collegium of two senior-most Supreme Court judges.
• NJAC: The 99th Constitutional Amendment Act of 2014 and the National Judicial Appointments Commission Act of 2014, which sought to replace the collegium system, were declared unconstitutional in 2015, restoring the previous system.

Qualifications, Oath, and Salaries

Qualifications of Judges

1. Citizen of India.
2. Held a judicial office in India for ten years; OR
   • Been an advocate of a High Court (or High Courts in succession) for ten years.

• No minimum age prescribed.
• No provision for appointing a distinguished jurist, unlike the Supreme Court.

Oath or Affirmation

• Made before the Governor (or appointee).

• The oath includes allegiance to the Constitution, upholding sovereignty and integrity of India, performing duties faithfully, and upholding the Constitution and the laws.

Salaries and Allowances

• Determined by Parliament and cannot be varied to their disadvantage (except during a financial emergency).
• Chief Justice salary: ₹2.50 lakh per month (as of 2018).
• Judge salary: ₹2.25 lakh per month (as of 2018).
• Also includes sumptuary allowance, free accommodation, medical facilities, car, telephone, etc.
• Retired Chief Justices and judges receive 50% of their last drawn salary as monthly pension.

Tenure, Removal, and Transfer

Tenure of Judges

• No fixed tenure.
  1. Holds office until 62 years of age.
  2. Can resign by writing to the President.
  3. Can be removed by the President on the recommendation of Parliament (impeachment).
  4. Vacates office upon appointment to the Supreme Court or transfer to another High Court.

Removal of Judges

• Can be removed by the President after an address by Parliament in the same session.
• Special majority required (majority of total membership and 2/3 of members present and voting).
• Grounds for removal: Proved misbehavior or incapacity.
• The Judges Enquiry Act (1968) regulates the impeachment procedure:
  1. Removal motion signed by 100 (Lok Sabha) or 50 (Rajya Sabha) members.
  2. Speaker/Chairman can admit or refuse the motion.
  3. If admitted, a 3-member committee investigates charges (comprising of SC judge/CJI, HC CJ, and distinguished jurist).
  4. If found guilty, the House considers the motion.
  5. After passage in each House with a special majority, the President issues a removal order.
• No High Court judge has been impeached so far.

Transfer of Judges

• The President can transfer a judge after consulting the Chief Justice of India.
• The judge receives a compensatory allowance determined by Parliament.
• Supreme Court rulings have emphasized transfer only as an exceptional measure in public interest.

Acting, Additional, and Retired Judges

Acting Chief Justice

• The President can appoint a judge as acting Chief Justice when:
  1. The office is vacant.
  2. The Chief Justice is temporarily absent.
  3. The Chief Justice is unable to perform duties.

Additional and Acting Judges

• The President can appoint qualified persons as additional judges for temporary periods (not exceeding two years) when:

  1. There is a temporary increase in the business of the High Court.
  2. There are arrears of work.

• The President can appoint a qualified person as an acting judge when a judge (other than the Chief Justice) is:

  1. Unable to perform duties due to absence or other reason.
  2. Appointed to act temporarily as Chief Justice.

• Acting and Additional judges cannot hold office after attaining 62 years of age.

Retired Judges

• The Chief Justice can request a retired judge to act as a judge temporarily, with the President's consent.
• Such judges are entitled to allowances determined by the President and have the same jurisdiction, powers, and privileges as a judge, but are not otherwise deemed to be a judge.

Independence of High Court

• Essential for effective discharge of duties, free from executive and legislative interference.

Safeguards

1. Mode of Appointment: Appointed by the President in consultation with the judiciary.
2. Security of Tenure: Removed by the President only in the manner and on the grounds mentioned in the Constitution.
3. Fixed Service Conditions: Salaries and allowances determined by Parliament, cannot be changed to their disadvantage (except during a financial emergency).
4. Expenses Charged on Consolidated Fund: Salaries, allowances, and administrative expenses charged on the Consolidated Fund of the state.
5. Conduct of Judges cannot be Discussed: Prohibited in Parliament or state legislature, except during impeachment motion.
6. Ban on Practice after Retirement: Prohibited from pleading or acting in any court or before any authority in India except the Supreme Court and other High Courts.
7. Power to Punish for its Contempt: Can punish for contempt, maintaining authority, dignity, and honor.
8. Freedom to Appoint its Staff: Chief Justice can appoint officers and servants without executive interference.
9. Its Jurisdiction cannot be Curtailed: The jurisdiction and powers, as specified in the Constitution, cannot be curtailed by the Parliament and the state legislature.

Jurisdiction and Powers of High Court

• Extensive and effective powers.
• Highest court of appeal in the state.
• Protector of Fundamental Rights.
• Power to interpret the Constitution.
• Supervisory and consultative roles.

Types of Jurisdiction

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

• Governed by constitutional provisions, Letters Patent, Acts of Parliament, Acts of State Legislature, Indian Penal Code, Criminal Procedure Code, and Civil Procedure Code.

Original Jurisdiction

• Power to hear disputes in the first instance.

  • Disputes relating to the election of members of Parliament and state legislatures.
  • Revenue matters.
  • Enforcement of fundamental rights.
  • Cases transferred from subordinate courts involving the interpretation of the Constitution.
  • The Calcutta, Bombay, Madras and Delhi High Courts have original civil jurisdiction in cases of higher value.

Writ Jurisdiction

• Article 226 empowers the High Court to issue writs (habeas corpus, mandamus, certiorari, prohibition, quo warranto) for enforcement of fundamental and other legal rights.
• Can issue writs to any person, authority, and government within or outside its territorial jurisdiction if the cause of action arises within its territorial jurisdiction.
• Concurrent with the Supreme Court's writ jurisdiction (Article 32), but High Court's writ jurisdiction is wider.
• The Supreme Court can issue writs only for the enforcement of fundamental rights, not for any other purpose.
• The Chandra Kumar case (1997): the writ jurisdiction of both the high court and the Supreme Court constitute a part of the basic structure of the Constitution.

Appellate Jurisdiction

• Primarily a court of appeal.
• Hears appeals against judgments of subordinate courts.
• Has appellate jurisdiction in civil and criminal matters.

Civil Matters

• First appeals from district courts, additional district courts, and subordinate courts on questions of law and fact if the amount exceeds the stipulated limit.
• Second appeals from district courts and other subordinate courts in cases involving questions of law only.
• Some High Courts have provisions for intra-court appeals.
• Appeals from administrative and other tribunals lie to the division bench of the state high court.

Criminal Matters

• Appeals from sessions court and additional sessions court if the imprisonment sentence is more than seven years.
• Death sentence awarded by sessions court or additional sessions court must be confirmed by the High Court.
• Appeals from the judgments of assistant sessions judge, metropolitan magistrate, or other magistrates (judicial) lie to the High Court.

Supervisory Jurisdiction

• Power of superintendence over all courts and tribunals functioning in its territorial jurisdiction (except military courts or tribunals).
  • Call for returns.
  • Make and issue general rules.
  • Prescribe forms for regulating practice and proceedings.
  • Prescribe forms for books, entries, and accounts.
  • Settle fees payable to the sheriff, clerks, officers, and legal practitioners.
• It covers administrative and judicial superintendence, is a revisional jurisdiction, and can be suo motu
• It is an extraordinary power to be used sparingly in appropriate cases.

Control over Subordinate Courts

• Administrative control and other powers over subordinate courts.
• Consulted by the Governor on the matters of appointment, posting and promotion of district judges and in the appointments of persons to the judicial service of the state.
• Deals with the matters of posting, promotion, grant of leave, transfers and discipline of the members of the judicial service of the state.
• Can withdraw a case involving a substantial question of law requiring constitutional interpretation.
• Its law is binding on all subordinate courts functioning within its territorial jurisdiction.

A Court of Record

• Judgments, proceedings, and acts are recorded for perpetual memory and testimony.
• Records are evidentiary and cannot be questioned.
• Has power to punish for contempt of itself and subordinate courts.
• Can review and correct its own judgment, order, or decision.

Power of Judicial Review

• Examine the constitutionality of legislative enactments and executive orders of the Central and state governments.
• Declare them illegal, unconstitutional, and invalid if they violate the Constitution (ultra-vires).
• Validity can be challenged on grounds of infringing fundamental rights, being outside the competence of the authority, and being repugnant to constitutional provisions.
• The 42nd Amendment Act curtailed this power, but the 43rd Amendment Act restored the original position.

Table 34.2 Articles Related to High Courts at a Glance

Article No.	Subject Matter
214.	High Courts for states
215.	High Courts to be courts of record
216.	Constitution of High Courts
217.	Appointment and conditions of the office of a Judge of a High Court
218.	Application of certain provisions relating to Supreme Court to High Courts
219.	Oath or affirmation by judges of High Courts
220.	Restriction on practice after being a permanent judge
221.	Salaries etc., of judges
222.	Transfer of a judge from one High Court to another
223.	Appointment of acting Chief Justice
224.	Appointment of additional and acting judges
224A.	Appointment of retired judges at sittings of High Courts
225.	Jurisdiction of existing High Courts
226.	Power of High Courts to issue certain writs
226A.	Constitutional validity of Central laws not to be considered in proceedings under Article 226 (Repealed)
227.	Power of superintendence over all courts by the High Court
228.	Transfer of certain cases to High Court
228A.	Special provisions as to disposal of questions relating to constitutional validity of state laws (Repealed)
229.	Officers and servants and the expenses of High Courts
230.	Extension of jurisdiction of High Courts to union territories
231.	Establishment of a common High Court for two or more states
232.	Interpretation (Repealed)