High Courts in India

Topics Discussed: -

·       Introduction

·       Composition and Appointments in High Courts

·       Qualification of Judges of HCs

·       Oath or Affirmation of High Court Judges

·       Tenure of High Court Judges

·       Removal of High Court Judges

·       Important Terms relating to HC

·       Independence of High Court

·       Jurisdiction and Powers of High Courts

·       Introduction

       I.            As per the Constitution of India, Articles 214-231 deals with the provisions of the High Courts in India.

    II.            At present, we have 24 high courts in the country, which includes 3 common high courts.

  III.            Article 217 deals with the appointment of judges. However, there is also a procedure for removal of Judges of the High Court.

·       Composition and Appointments in the High courts

       I.            Every High Court comprises of a Chief Justice and other judges appointed by President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the state.

    II.            There is no fixed minimum number of judges for the High Courts. It varies from Court to Court and from State to State.

Qualification of Judges of HCs

       I.            A person shall not be fit for appointment as a Judge of the High Court unless

    II.            He is a citizen of India

  III.            He has been for at least 5 years a judge of one or of two or more High Court

 IV.            He has been for at least 10 years an advocate of one or of two or more High Court

·       Oath or Affirmation of High Court Judges

Every person appointed to be a Judge of a High Court shall, before he enters upon his office, make and subscribe before the Governor of the State, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.

Form of oath or affirmation to be made by the Judges of a High Court:

 “I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or of) ..........do swear in the name of God that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India,] that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws.”

·       Tenure of High Court Judges

ü Once appointed, a permanent Judge of a High Court holds office until the age of 62 years.

ü Any dispute relating to the age of a Judge of a High Court is decided by the President in consultation with the Chief Justice of India, which shall be final.

ü He can resign from his office by writing to the President. He vacates his office when he is appointed as the judge of the SC or when he is transferred to another High Court.

ü A judge does not hold office during the pleasure of the President.

·       Removal of High Court Judges

a)    A motion support removal must be supported by 100 Lok Sabha / 50 Rajya Sabha members. The presiding officer may or may not admit it. 

b)    If admitted an inquiry committee of Chief justice of India or a Supreme Court judge; Chief justice of high court and distinguished jurist checks if judge is guilty

c)     If the committee finds the judge guilty then parliament can pass a motion by special majority in both houses.

d)    An address supported by this motion must be presented to the president on the same day. Then by a presidential order the judge can be removed.

·       Transfer of High Court Judges from One Court to Another

       I.            The Constitution, under Article 222 empowers the President, after consultation with the chief Justice of India to transfer a Judge from one High Court to another.

    II.            The Third Judges Cases, 1998 established that in case of the transfer of High Court judges, the Chief justice of India should consult, in addition to the collegiums of four senior most judges of the SC, the Chief Justice of the two High Courts (one from which the judges is being transferred and other receiving him).

  III.            The opinion provided by the Chief Justice shall have primary and is binding on the President. A Judge of a High Court can be transferred without his consent.

·       Important Terms relating to HCs

1.   Additional Judges – duty qualified persons as additional Judges for a period not exceeding 2 years, when it appears to the President that because of temporary increase in the business of High Court or arrears of work, the number of Judges should be increased (Article 224(1)).

2.    Acting Judge- an acting judge can be appointed when any Judge, other than the Chief Justice, is unable to perform his duties due to absence or otherwise, or when a permanent Judge of the High Court is appointed as its acting Chief Justice. An acting judge holds office until the permanent Judge resumes his duties (Article 224 (2)).

But neither an additional nor an acting Judge can hold office beyond the age of 62 years.

3.   Appointment of retired Judges: The Chief Justice of a High Court may, with the prior consent of the President, request a retired High Court Judge to shit and act as a Judge of the High Court for a temporary period.

·       Independence of High Courts

1.    The appointment of Judges if the High Court is made by the President in consultation with Chief Justice of India and two senior-most judges of the Supreme Court. The proposal is initiated by the concerned High Court alone. This is to ensure that the appointment is made on the basis of merit only.

2.    The judges are allowed and expected to work without fear or favour with no interference of executive. Being a court of record, the high Court can utilize the power of Contempt of court and dissuade attempts to influence the judges.

3.    The judges have been granted the security of tenure. A judge does not hold office during the pleasure of the President. A Judge of a High Court can be removed only by the President on an address of both Houses of Parliament, passed by not less than two-thirds of the members present and voting and by a majority of the House on the ground of proved misbehavior or incapacity only.

4.    After retirement, a Judge of a High Court cannot plead in a Court or before any authority in India except in the Supreme Court and a High Court other than the High Court in which he had held office.

5.    The salaries and allowances payable to Judges of High Courts are charged on the Consolidated Funds of State concerned and are not subject to vote in the Legislature. They cannot be changed to their disadvantage after appointment except during a Financial emergency.

6.    The conduct of the Judges of the High Court’s cannot be discussed in Parliament, except on a motion for the removal of a Judge.

·       Jurisdiction and Powers of High Courts

The powers and jurisdiction of High Court can be classified under following heads:

1) Original Jurisdiction- it means that applicant can directly go to High Court and not by means of appeals. This power is used in the following matters –

ü Disputes arising out of relating to members of Parliament and state legislative assembly

ü Relating to marriage, law, admiralty divorce, contempt of court etc.

ü Enforcement of fundamental rights (Supreme Court also has this power)

ü Cases transferred from other court to itself which involves a question of law.

2) Writ Jurisdiction- Article 226 states that High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority including in appropriate cases, any government, within those territories directions, orders, or writs.

3) Appellate Jurisdiction-

It is said that the high court is the primary court of appeal i.e. it has power to hear the appeals against the judgment of the subordinate courts within its territories. This power can be classified in to 2 Categories-Civil jurisdiction and Criminal jurisdiction.

In civil cases its jurisdiction includes to the orders and judgments of the district courts, additional district courts and other subordinate courts.

In criminal cases its jurisdiction includes judgments relating to sessions courts and additional sessions court. These cases should be involving imprisonment for more than 7 years, confirmation of any death sentence awarded by session court before execution

4) Power of Superintendence

The High Court has this power over all courts and tribunals except those dealing with the armed forces functioning in the state. Hence in the exercise of this power it may –

ü Call for return from such courts

ü May issue general rules and prescribe forms for regulating the practice and proceedings of such courts

ü Prescribe the form in which books and accounts are being kept by the officers of any court

ü Settle fees payable to the sheriff clerks, officers and legal practitioners

The constitution does not place any restriction on this power of superintendence over the subordinate courts, it is not only by means of appeal by the person, it can be so motto. It is of the nature of revision as it verifies the earlier judgments. In this regard it is considered as a special function as the Supreme Court has no similar power vis some vis the High Court.

5) Control over Subordinate Courts

ü This is an extension of the above supervisory and appellate jurisdiction.

ü It states that the High Court can with draw a case pending before any subordinate court, if it involves the substantial question of law. The case can be disposed of itself or solve the question of law and return back to the same court.

6) Court of Record – It involves recording of judgments, proceedings and acts of high courts to be recorded for the perpetual memory. These records cannot be further questioned in any court. Based on this record it has power to punish for the contempt of court either with simple imprisonment or with fine or both.

7) Judicial Review -This power of High Court includes the power to examine the constitutionality of legislative and executive orders of both central and state government. It is to be noted that the word judicial review is nowhere mentioned in our constitution but the Article 13 and 226 explicitly provide High Court with this power.

8) Extension of jurisdiction of High Court to Union Territories

Parliament by law may extend the jurisdiction of a High Court to or exclude the jurisdiction of a high court from any union territory.