HIGH COURT

HIGH COURT

 

ORGANISATION OF HC: (ART. 216)
  • Article 214 to 231 (part VI) of the constitution
  • The institution of HC originated in India in 1862 when the HC were set up at Calcutta, Bombay and Madras.
  • High Court is the highest judicial court in a state in single integrated judicial system of India.
  • State judiciary = High court + subordinate courts
  • Constitution originally provided for one high court for each state à amended by 7th Amendment Act 1956 – common high court for two or more states and union territory.
  • Parliament can extend the jurisdiction of a high court to include or exclude union territory
  • Delhi and Jammu & Kashmir are the only UTs in India having high court of their own (since 1966).
  • Constitution does not specify strength of HC and leaves it to the discretion of the President.
  • Chief justice appointed by president after consultation with chief justice of India and governor of state concerned (in case of more than one state all those governors are consulted).
  • For other judges’ appointment the concerned high court chief justice is also consulted.

 

  • First Judges case (1982)- SC opined that “consultation” does not mean “concurrence” and it only implies exchange of views.
  • Second Judges case (1993)- SC reversed its earlier ruling and changed the interpretation of the word “consultation to concurrence”.
  • Third Judges case (1998)- SC opined that the consultation process to be adopted by the CJI requires “consultation of plurality judges” (Not CJI alone). In case of the appointment of HC judges, collegium of two senior most judges of SC must be consulted.
  • Fourth judges case (2015) – 99th constitutional amendment acts invalidated NJAC on the grounds of interference –NJAC case

 

 

Qualification of judges

 

•         He should be a citizen of India + He should have held judicial office in Indian territory for 10 years or He should have been an advocate of high court for 10 years.

•         No minimum age prescribed

•         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 or 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 :

 

•         Constitution no fixed tenure of judges of supreme court

•         Four provisions: Until 62 years (65 in case of SC) + Resign by writing to president + Removed from office by president on recommendation of parliament + He vacates his office when he is appointed as supreme court judge  or when he is transferred  to another high court.

 

 

 

Removal of judges

•         Judge of a high court can be removed in the same manner and on the same grounds as a judge of the Supreme Court.

•         Removed by order of president on recommendations of parliament.

•         The address must be supported by a special majority of each House of Parliament.

•         Ground of removal :

1.       Proved misbehavior

2.       Incapacity

•         Procedure relating to the removal of a judge of a high court is govern by The Judges Enquiry Act (1968).

 

 

 

 

Judges enquiry act 1968:

 

•         Removal motion : signed by 100 members (Lok Sabha) or 50 members (Rajya Sabha ) à given to speaker/ chairman of the respective houses.

•         Speaker/chairman may admit /refuse the motion

•         If admitted – three member committee to enquire into charges: Committee of Chief justice /judge of supreme court ,chief justice of high court , and distinguished jurist.

•         If they find guilty—house take up for consideration

•         Motion passed  in each house by special majority , and then an address presented to president for removal of judge.

•         Order passed by president

•         No judge has been impeached so far

Acting chief justice of HC (Art. 223):•         President can appoint a judge of high court as an acting chief justice of high court, when office of high court chief justice: vacant + temporarily absent + Unable to perform the duties of office.
Additional and acting judges of HC (Art. 224):
  •         President can appoint duly qualified persons as additional judges of a HC for a temporary period not exceeding two years when: Temporary increase in high court business + There are arrears of work in high court.
 

Acting Judge:

  •         When a judge: Unable to perform duties due to absence or any other reasons + Appointed to act temporarily as chief justice of that high court.
  •         However, both the additional or acting judge cannot hold office after attaining the age of 62 years.
Retired judge (Art. 224A):
  •         At any time chief justice of India can request any retired judge (qualified to be) of supreme court to act as supreme court for temporary period. He can do so only with the previous consent of the President and also of the person to be so appointed.
 

 

 

 

 

Independence of high court

 

•         Mode of appointment: Judges appointed by judiciary itself

•         Security of tenure: Judges are removed only on the manner prescribed by the constitution

•         Fixed service conditions: Cannot be changed to their disadvantage after their appointment except during a financial emergency (Art.360)

•         Expenses charged on consolidated fund of India

•         Conduct of judges cannot be discussed: Except when impeachment motion is in consideration  of parliament

•         Ban on practice after retirement: Except the SC and the other high courts.

•         Freedom to appoint its staff

•         Jurisdiction cannot be curtailed: But can be extended by parliament.

  •         Separation from executive

 

JURISDICTION AND POWER OF HIGH COURT (ART. 225)

 

Original jurisdiction: (Narrower than SC)Matters of admiralty and contempt of court + Elections of member of parliament and state legislature – disputes + Revenue matter + Enforcement of fundamental right of citizen + Cases ordered to be transferred from a subordinate court involving the interpretation of constitution.
 

Writ jurisdiction: (article 226)

•         Wider than SC – for both FR + other legal rights

•         All five writs + Includes ordinary legal right. Unlike supreme court + If cause of action within its territory it can issue writ + High court >> supreme court.

•         NOTE – SC can issue writs only for FR and not “for any other purpose”. This makes writ jurisdiction of HC wider than SC.

Appellate jurisdiction•         Both civil + criminal matters
 

 

Supervisory jurisdiction:

•         Superintendence over all other courts, tribunals in state (except military court or tribunal)

•         Covers both administrative and judicial superintendence

•         Provisional jurisdiction

•         Suo – motu powers

•         Only used in extraordinary cases limited to: Excess of jurisdiction, gross violation of natural justice, error of law, disregard to law of superior court, perverse findings and manifest injustice.

 

Control over subordinate courts:

 

•         Consulted by governor in the matters of appointment, posting and promotion of district judges and in the appointment of persons to the judicial service of the state.

•         Posting, promotion etc. of judicial service of state (other than district judges).

•         Withdraw case pending in a subordinate court if it involves a substantial question of law that require interpretation of constitution.

•         Its law is binding on all subordinate court in its jurisdiction.

 

 

Court of record (Art. 215):

Two power to high court:

•         Judgment, proceedings and acts of supreme court are recorded for perpetual memory and testimony à Evidentiary value + cannot be questioned by any court + Legal precedents + references.

•         Power to punish for contempt of court

•         As court of record high court have power to review and correct its own judgment.

 

 

 

Judicial Review:

•         Phrase “judicial review” has nowhere been mentioned in the Constitution. Constitutional provisions à Art.13, 32, 131-136, 143, 226, 246, 256 etc.

•         Constitutional validity of legislative or executive enactments can be challenged

•         To examine constitutionality of legislation and executive  orders of both state and central governments challenged on :

1.       Infringes fundamental rights

2.       Outside the competence of the authority which has framed it.

3.       Repugnant to constitutional provisions

 

HCs HAVING COMMON JURISDICTION WITH 2 OR MORE STATES AND/OR UTs:

 

HIGH COURTJURISDICTION
Bombay HC Maharashtra, Goa, Dadra and Nagar Haveli, Daman and Diu
Guwahati HCAssam, Nagaland, Mizoram and Arunachal Pradesh
Punjab and Haryana HC Punjab, Haryana, Chandigarh
Calcutta HC West Bengal, Andaman and Nicobar Islands
Tamil Nadu HCTamil Nadu, Puducherry
Kerala HC Kerala, Lakshadweep