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High Court

In the Indian single integrated judicial system, the high court operates below the Supreme Court but above the subordinate courts. The judiciary in a state consists of a high court and a hierarchy of subordinate courts. The high court occupies the top position in the judicial administration of a state.

The institution of high court originated in India in 1862 when the high courts were set up at Calcutta, Bombay and Madras In 1866, a fourth high court was established at Allahabad. In the course of time, each province in British India came to have its own high court. After 1950, a high court existing in a province became the high court for the corresponding state.

The Constitution of India provides for a high court for each state, but the Seventh Amendment Act of 1956 authorised the Parliament to establish a common high court for two or more states or for two or more states and a union territory. The territorial jurisdiction of a high court is co-terminus with the territory of a state. Similarly, 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 24 high courts in the country . Out of them, three are common high courts. Delhi is the only union territory that has a high court of its own (since 1966). The other union territories fall under the jurisdiction of different state high courts. The Parilament can extend the jurisdiction of a high court to any union territory or exclude the jurisdiction of a high court from any union territory.

The name, year of establishment, territorial jurisdiction and seat (with bench or benches) of all the 24.

Articles 214 to 231 in Part VI of the Constitution deal with the organisation, independence, jurisdiction, powers, procedures and so on of the high courts.

Organisation of High Court

Every high court (whether exclusive or common) consists of a chief justice and such other judges as the president may from time to time deem necessary to appoint. Thus, the Constitution does not specify the strength of a high court and leaves it to the discretion of the president. Accordingly, the President determines the strength of a high court from time to time depending upon its workload.

Judges

Appointment of Judges The judges of a high court are appointed by the President. The chief justice is appointed by the President after consultation with the chief justice of India and the governor of the state concerned. For appointment of other judges, the chief justice of the concerned high court 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.

In the Second Judges case (1993), the Supreme Court ruled that no appointment of a judge of the high court can be made, unless it is in conformity with the opinion of the chief justice of India. In the Third Judges case (1998), the Supreme Court opined that in case of the appointment of high court judges, the chief justice of India should consult a collegium of two senior-most judges of the Supreme Court. Thus, the sole opinion of the chief justice of India alone does not constitute the ‘consultation’ process.

Qualifications of Judges A person to be appointed as a judge of a high court, should have the following qualifications: 1. He should be a citizen of India. 2. (a) He should have held a judicial office in the territory of India for ten years; or (b) He should have been an advocate of a high court (or high courts in succession) for ten years.

From the above, it is clear that the Constitution has not prescribed a minimum age for appointment as

a judge of a high court. Moreover, unlike in the case of the Supreme Court, the Consitution makes no provision for appointment of a distinguished jurist as a judge of a high court. 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. In his oath, a judge of a high court swears: 1. to bear true faith and allegiance to the Constitution of India; 2. to uphold the sovereignty and integrity of India; 3. to duly and faithfully and to the best of his ability, knowledge and judgement perform the duties of the office without fear or favour, affection or ill-will; and 4. to uphold the Constitution and the laws. Tenure of Judges The Constitution has not fixed the tenure of a judge of a high court. However, it makes the following four provisions in this regard: 1. He holds office until he attains the age of 62 years 5 . Any questions regarding his age is to be decided by the president after consultation with the chief justice of India and the decision of the president is final. 2. He can resign his office by writing to the president. 3. He can be removed from his office by the President on the recommendation of the Parliament. 4. He vacates his office when he is appointed as a judge of the Supreme Court or when he is transferred to another high court.

Removal of Judges A judge of a high court can be removed from his office by an order of the President. The President can issue the removal order only after an address by the Parliament has been presented to him in the same session for such removal. The address must be supported by a special majority of each House of Parliament (i.e., a majority of the total membership of that House and majority of not less than two-thirds of the members of that House present and voting). The grounds of removal are two—proved misbehaviour or incapacity. Thus, a judge of a high court can be removed in the same manner and on the same grounds as a judge of the Supreme Court. The Judges Enquiry Act (1968) regulates the procedure relating to the removal of a judge of a high court by the process of impeachment:

1. A removal motion signed by 100 members (in the case of Lok Sabha) or 50 members (in the case of Rajya Sabha) is to be given to the Speaker/Chairman. 2. The Speaker/Chairman may admit the motion or refuse to admit it. 3. If it is admitted, then the Speaker/Chairman is to constitute a three-member committee to investigate into the charges. 4. The committee should consist of (a) the chief justice or a judge of the Supreme Court, (b) a chief justice of a high court, and (c) a distinguished jurist. 5. If the committee finds the judge to be guilty of misbehaviour or suffering from an incapacity, the House can take up the consideration of the motion. 6. 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. 7. Finally, the president passes an order removing the judge. From the above, it is clear that the procedure for the impeachment of a judge of a high court is the same as that for a judge of the Supreme Court.

It is interesting to know that no judge of a high court has been impeached so far. 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. In 2009, the salary of the chief justice was increased from `30,000 to `90,000 per month and that of a judge from `26,000 to `80,000 per month

They are also paid sumptuary allowance and provided with free accommodation and other facilities like medical, car, telephone, etc. The retired chief justice and judges are entitled to 50% of their last drawn salary as monthly pension.

Transfer of Judges The President can transfer a judge from one high court to another after consulting the Chief Justice of India. On transfer, he is entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament. In 1977, the Supreme Court ruled that the transfer of high court judges could be resorted to only as an exceptional measure and only in public interest and not by way of punishment. Again in 1994, the Supreme Court held that judicial review is necessary to check arbitrariness in transfer of judges. But, only the judge who is transferred can challenge it. In the Third Judges case (1998), the Supreme Court opined that in case of the transfer of high court judges, the Chief Justice of India should consult, in addition to the collegium of four seniormost judges of the Supreme Court, the chief justice of the two high courts (one from which the judge is being transferred and the other receiving him). Thus, the sole opinion of the chief justice of India does not constitute the ‘consultation’ process. Acting Chief Justice The President can appoint a judge of a high court as an acting chief justice of the high court when: 1. the office of chief justice of the high court is vacant; or 2. the chief justice of the high court is temporarily absent; or 3. the chief justice of the high court is unable to perform the duties of his office. Additional and Acting Judges The President can appoint duly qualified persons as additional judges of a high court for a temporary period not exceeding two years when: 1. there is a temporary increase in the business of the high court; or 2. there are arrears of work in the high court. The President can also appoint a duly qualified person as an acting judge of a high court when a judge of that high court (other than the chief justice) is: 1. unable to perform the duties of his office due to absence or any other reason; or 2. 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 At any time, the chief justice of a high court of a state can request a retired judge of that high court or any other high court to act as a judge of the high court 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. He will also enjoy all the jurisdiction, powers and privileges of a judge of that high court. But, he will not otherwise be deemed to be a judge of that high court. Independence of High Court The independence of a high court is very essential for the effective discharge of the duties assigned to it. It should be free from the encroachments, pressures and interferences of the executive (council of ministers) and the legislature. It should be allowed to do justice without fear or favour. The Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of a high court. Jurisdiction and Powers of High Court

Like the Supreme Court, the high court has been vested with quite extensive and effective powers. It is the highest court of appeal in the state. It is the protector of the Fundamental Rights of the citizens. It is vested with the power to interpret the Constitution. Besides, it has supervisory and consultative roles. However, the Constitution does not contain detailed provisions with regard to the jurisdiction and powers of a high court. It only lays down that the jurisdiction and powers of a high court are to be the same as immediately before the commencement of the Constitution. But, there is one addition, that is, the Constitution gives a high court jurisdiction over revenue matters (which it did not enjoy in the pre￾constitution era). The Constitution also confers (by other provisions) some more additional powers on a high court like writ jurisdiction, power of superintendence, consultative power, etc. Moreover, it empowers the Parliament and the state legislature to change the jurisdiction and powers of a high court. At present, a high court enjoys the following jurisdiction and powers: 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. The present jurisdiction and powers of a high court are governed by (a) the constitutional provisions, (b) the Letters Patent, (c) the Acts of Parliament, (d) the Acts of State Legislature, (e) Indian Penal Code, 1860, (f) Cirminal Procedure Code, 1973, and (g) Civil Procedure Code, 1908. 1. Original Jurisdiction It means the power of a high court to hear disputes in the first instance, not by way of appeal. It extends to the following: (a) Matters of admirality, will, marriage, divorce, company laws and contempt of court. (b) Disputes relating to the election of members of Parliament and state legislatures. (c) Regarding revenue matter or an act ordered or done in revenue collection. (d) Enforcement of fundamental rights of citizens. (e) Cases ordered to be transferred from a subordinate court involving the interpretation of the Constitution to its own file. (f) The four high courts (i.e., Calcutta, Bombay, Madras and Delhi High Courts) have original civil jurisdiction in cases of higher value. Before 1973, the Calcutta, Bombay and Madras High Courts also had original criminal jurisdiction. This was fully abolished by the Criminal Procedure Code, 1973.