HIGH COURT

HIGH COURT

To prepare for INDIAN POLITY for any competitive exam, aspirants have to know about High Court. It gives an idea of all the important topics for the IAS Exam and the polity syllabus (GS-II.). This is an essential portion of the polity.  As IAS aspirants, you should be thorough with the High Court. In this article, you can read all about the High Court for the Polity and Governance segments of the UPSC syllabus.

High Court is the highest judicial court in a state in single integrated judicial system of India. It is termed as the second-highest in the country after SUPREME COURT of India. The HC occupies the top position in the judicial administration of a state.

 

BACKGROUND
  • The institution of high court originated in India in 1862 with three high courts were set up at Calcutta, Bombay and Madras (Indian high Courts act).
  • Fourth HC was est. at Allahabad in 1966.
  • After 1950, a high court existing in a province became the high court for the corresponding state.
  • Andhra Pradesh Reorganisation Act, 2014 – Came into effect from 2 June 2014 has facilitated establishment of separate High Courts for Telangana and Andhra Pradesh.
  • Currently, India has total 25 High Courts established in different states of the country.
  • Andhra Pradesh HC became the 25th HC in India commencing from 1 jan 2010 at Amaravati.
  • Hydrabad HC now rechristened as “Telangana HC” located at Hydrabad.
  • The UTs of Jammu and Kashmir and Ladakh have a common high court.
  • Calcutta High Court (2 July 1862) is the oldest HC in India.

 

CONSTITUTIONAL POSITION OF HC
  • 214 to 231 in Part VI (State) of the Constitution deal with the organisation, independence, jurisdiction, powers, procedures and so on of the HC.
  • Constitution gives a HC jurisdiction over revenue matters (did not enjoy in the pre-constitution era).
  • Constitution empowers the PARLIAMENT and the state legislature to change the jurisdiction and powers of a HC.
  • The Constitution of India provides for a HC for each state, but the Seventh Amendment Act of 1956 authorised the Parliament to establish a common HC for two or more states or for two or more states and a UT.
  • The territorial jurisdiction of a HC is co- terminus with the territory of a state. The territorial jurisdiction of a common high court is co-terminus with the territories of the concerned states and union territory.
  • At present, there are 25 high courts in the country. Out of them, 3 are common for 2 or more states.
  • Delhi is the only UT in India having high court of its own (since 1966).
  • The Parliament can extend the jurisdiction of a HC to any UT or exclude the jurisdiction of a HC from any UT.

 

ORGANISATION OF HIGH COURT (ART.216)
  • 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.

 

PROVISIONS W.R.T JUDGES OF HC AND THEIR POWERS APPOINTMENT OF JUDGE
  • 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 HCChief 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”

 

PROCEDURE TO APPOINTMENT OF JUDGES
  • Third Judges case (1998)- SC opined that in case of the appointment of HC judges, the chief justice of India should consult a collegium of two senior-most judges of the SC. (Sole opinion of the CJI alone does not constitute the “consultation
  • CJI then needs to submit this recommendation to the Central government as part of the record.
  • After receipt of the final recommendation of the CJI, the Minister of Law and Justice will put up the recommendation to the PM who will advise the President in the matter of appointment.

 

TRANSFER OF 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.

 

COLLEGIUM SYSTEM OF HC
  • A High Court collegium is led by its Chief Justice and four other senior most judges of that court.
  • Names recommended for appointment by a HC collegium reaches the government only after approval by the CJI and the SC collegium.

 

ROLE OF GOVERNMENT IN JUDICIAL APPOINTMENT
  • Judges of the higher judiciary are appointed only through the collegium system and the government has a role only after names have been decided by the collegium.
  • can raise objections and seek clarifications regarding the collegium’s choices, but if the collegium reiterates the same names, the government is bound, under Constitution Bench judgments, to appoint them as judges.

 

CONTROVERSY OVER ‘CONSULTATION’ AND EVOLUTION OF COLLEGIUM SYSTEM
  • The SC has given different interpretations of the word ‘consultation’ in the above mentioned provisions.
  • 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).
  • The sole opinion of the CJI does not constitute the consultation process. He should consult a collegium of four senior most judges of the SC and even if two judges give an adverse opinion, he should not send the recommendation to the government.

 

QUALIFICATION OF JUDGE HIGH COURT
  • 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)

 

PROCEDURE FOR TRANSFER OF JUDGES

ContextRecently, Chief Justice of the Madras HC, was transferred to Meghalaya High Court.

  • Constitutional provisions- Transfer of Judges from one HC to another HC is made by the President after consultations with the CJI under Article 222 (1) of the Constitution.
  • Judicial Interpretation: The SC derives its power to select, appoint and transfer judges from its verdicts in Three Judges Cases.
  • From the SC decisions on the subject of judges’ transfer, following points emerge:
    • Transfer of a judge cannot be a punitive
    • Transfer can be ordered only on ‘public interest‘ for the ‘better administration of justice’.
    • Transfer can be ordered by President only on the basis of concurrence of the CJI after effective consultation.

 

OATHS AND AFFIRMATIONS
  • 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 JUDGES OF HC
  • 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 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.
  • A judge of a HC can be removed from his office by an order of the President on recommendations of parliament.
  • The address must be supported by a special majority of each House of Parliament.
  • Grounds of removal– Proved misbehaviour or incapacity.
  • Procedure relating to the removal of a judge of a high court is govern by The 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.

 

ACTING CHIEF JUSTICE OF HC(ART. 223)
  • 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(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 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.

 

RETIRED JUDGES(ART.224 A)
  • 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.

 

JURISDICTION OF HIGH COURT (ART.225)

Original Jurisdiction (Narrower than SC)

  • Original jurisdiction entails power of HC to hear disputes in the first instances (applicant can directly go to the HC) not by the way of appeal.
  • It is 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 )

 

Writ jurisdiction (Wider than SC)

  • 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.

 

APPELLATE JURISDICTION (WIDER THAN ORIGINAL JURISDICTION)
  • 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.

NOTE – Chandra kumar case (1997)– SC ruled that the tribunals are subject to the writ jurisdiction of the HC. Consequently, it is not possible for an aggrieved person to approach the Supreme Court directly against the decisions of the tribunals, without first going to the high courts.

 

SUPERVISORY JURISDICTION
  • 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 BY HC
  • 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 (ART.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 ).

 

JUDICIAL REVIEW
  • 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 no where been mentioned in the Constitution.
  • Constitutional provisions13, 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.
High court Jurisdiction
Bombay HC Maharashtra, Goa, Dadra and Nagar Haveli, Daman and Diu
Guwahati HC Assam, Nagaland, Mizoram and Arunachal Pradesh
Punjab and Haryana HC Punjab, Haryana, Chandigarh
Calcutta HC West Bengal, Andaman and Nicobar Islands
Tamil Nadu HC Tamil Nadu, Puducherry
Kerala HC Kerala, Lakshadweep

 

 

HCS HAVING COMMON JURISDICTION WITH 2 OR MORE STATES AND/OR UTS

Constitutional provisions for Independence of HC

PROVISIONS
·         Mode of Appointment – 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) .
·         Security of tenure – 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.
·         Fixed service conditions Cannot be changed to their disadvantage after their appointment except during a financial emergency (Art.360)
·         Expenses charged on the consolidated fund of state– Salaries, allowances and pensions of the judges and staff, administrative expenses of the HC. Non-votable by the State legislature (can only be discussed). 

·         NOTEPension of a judges of HC is charged on the Consolidated Fund of India and not the state.

·         Conduct of judges cannot be discussed – 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.
·         Ban on Practice after Retirement The retired permanent judges of a HC are prohibited from pleading or acting in any court or before any authority in India except the SC and the other high courts.
·         Power to punish for its contempt – Thus actions and decisions of HC cannot be criticised and opposed by any body.
·         Freedom to appoint its staff Chief Justice of HC can appoint officers and servants of the HC and also prescribe their conditions of service.
·         Jurisdiction cannot be curtailed Parliament and state legislature can extend the jurisdiction of HC but not authorised to curtail the jurisdiction and powers of the HC.
·         Separation from Executive – constitution envisaged that executive authorities should not possess the judicial powers. (Art.50- separation of judiciary from executive).

 

ZERO PENDENCY COURT PROJECT  

 Context – Recently the Delhi HC has released the report on its pilot project titled “Zero Pendency Courts”.

  • Project is started by Delhi High Court in certain subordinate courts in Delhi.
  • The objectives of the project were to study the actual, real-time ‘Flow of Cases’ from the date of institution till final disposal.
  • National Judicial Data Grid (NJDG) Report (2018) – 93 crore cases are pending in the subordinate courts, 49 lakhs in High Courts and 57,987 cases in Supreme Court respectively.
  • Uttar Pradesh (61.58 lakh) has highest pendency followed by Maharashtra (33.22 lakh).
  • Legal Information Management & Briefing System (LIMBS)- is a web-based portal developed by Ministry of Law & Justice for monitoring and handling of various court cases of Govt. Departments and Ministries.

 

 

FAST TRACK COURTS
  • Context – As per the recent study conducted by the National Law University (Delhi), fast-track courts (FTC) in India are increasingly getting sluggish.

 

BACKGROUND
  • FTCs were established in the year 2000, to expeditiously dispose of long pending cases in the Sessions Courts and long pending cases of under trial prisoners in a time bound
  • Notable fast track cases- Best Bakery Case, Jessica Lal Murder Case, 26/11 Mumbai case etc.
  • In recent times, questions have been raised over the slow and inefficient working of FTCs.
  • Since commencement in year 2000, close to around 39 lakh cases were transferred to the FTCs out of which, 5 lakh cases are still pending with FTCs.

 

FACTORS AFFECTING THE FUNCTIONING OF THE FAST TRACK COURTS
  • Insufficient number of FTCs– E.g. In Delhi, fast-track courts have only one or two judges.
  • Ad hoc or temporary basis – FTCs at the level of additional district or session judge is being run on ad hoc or temporary basis though the SC in 2012 had directed that either they be discontinued or made permanent.
  • Heavy burden of workload– Over the years, the number of cases allotted to them have increased, which has led to the burdening of these courts
  • Lack of infrastructure- These courts are often housed in an existing court, were not set up with different facilities.
  • FTCs do not follow any special, speedier procedure for disposal of cases.
  • Financial bottlenecks- In its judgment in the Brij Mohan Lal case, the SC held that the continuation of FTCs is within the domain of the States with their own funds. This has left FTCs on the mercy of State. No central funding to FTCs after 2011.

 

WAY AHEAD
  • Rationalisation of judicial structures– A central agency to be established by Central and State Governments to review the functioning of courts in a systematic and streamlined manner.
  • Capacity building and improving infrastructure- hiring of additional judges and new infrastructure, including courtrooms, technological facilities and libraries
  • Permanent status to the ad-hoc judges and support staffs as suggested by the Supreme Court, should be granted.
  • Holistic and integrated approach of fast tracking the investigation to complement the FTC’s and providing a special procedure different from the procedure followed in the regular courts is required.
  • Sensitising State Governments- State Governments, in consultation with the Chief Justices of the respective HC should take necessary steps to establish suitable number of FTCs and provide adequate funds.

 

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