Laxmikanth: Summary of High Court Notes | EduRev

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  • In the Indian single integrated judicial system, the high court operates below the Supreme Court but above the 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 Madrasi. 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. 
  • 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. 
  • At present, there are 24 high courts in the country. Out of them, four 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. 
  • 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
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. 

  • 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.

The 99th Constitutional Amendment Act of 2014 and the National Judicial Appointments Commission Act of 2014 have replaced the Collegium System of appointing judges to the Supreme Court and High Courts with a new body called the National Judicial Appointments Commission (NJAC).

Qualifications of Judges 

  • 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 (or high courts in succession) for ten years.

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.
2. He can resign his office by writing to the president.

Removal of Judges
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.

Transfer of Judges

  • The President can transfer a judge from one high court to another after consulting the Chief Justice of India. 
  • 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 senior most 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).

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.

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.

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. 

1. Mode of Appointment,
2. Security of Tenure,
3. Fixed Service Conditions,
4. Expenses Charged on Consolidated Fund,
5. Conduct of Judges cannot be Discussed,
6. Ban on Practice after Retirement,
7. Power to Punish for its Contempt,
8. freedom to appoint its staff,
9. Its Jurisdiction cannot be Curtailed,
10. Separation from Executive

JURISDICTION AND POWERS OF HIGH COURT
At present, a high court enjoys the following jurisdiction and powers:
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:
(i) Matters of admiralty, will, marriage, divorce, company laws and contempt of court.
(ii)  Disputes relating to the election of members of Parliament and state legislatures.
(iii) Regarding revenue matter or an act ordered or done in revenue collection.
(iv) Enforcement of fundamental rights of citizens.
(v) Cases ordered to be transferred from a subordinate court involving the interpretation of the Constitution to its own file.

2. Writ Jurisdiction

  • Article 226 of the Constitution empowers a high court to issue writs including habeas corpus, mandamus, certiorari, prohibition and quowarrento for the enforcement of the fundamental rights of the citizens and for any other purpose.
  • In the Chandra Kumar case9 (1997), the Supreme Court ruled that the writ jurisdiction of both the high court and the Supreme Court constitute a part of the basic structure of the Constitution.

3. Appellate Jurisdiction
A high court is primarily a court of appeal. It hears appeals against the judgements of subordinate courts functioning in its territorial jurisdiction. It has appellate jurisdiction in both civil and criminal matters.

4. Supervisory Jurisdiction
A high court has the power of superintendence over all courts and tribunals functioning in its territorial jurisdiction (except military courts or tribunals). Thus, it may—
(i) call for returns from them;
(ii) make and issue, general rules and prescribe forms for regulating the practice and proceedings of them;
(iii) prescribe forms in which books, entries and accounts are to be kept by them; and
(iv) settle the fees payable to the sheriff, clerks, officers and legal practitioners of them.

5. Control over Subordinate Courts
In addition to its appellate jurisdiction and supervisory jurisdiction over the subordinate courts as mentioned above, a high court has an administrative control and other powers over them.

6. A Court of Record
As a court of record, a high court has two powers:
(i) The judgements, proceedings and acts of the high courts are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when produced before any subordinate court.
(ii) It has power to punish for contempt of court, either with simple imprisonment or with fine or with both. The expression "contempt of court' has not been defined by the Constitution.

7. Power of Judicial Review

  • Judicial review is the power of a high court to examine the constitutionality of legislative enactments and executive orders of both the Central and state governments.
  • On examination, if they are found to be violative of the Constitution (ultra-vires), they can be declared as illegal, unconstitutional and invalid (null and viod) by the high court. Consequently, they cannot be enforced by the government.
  • The 42nd Amendment Act of 1976 curtailed the judicial review power of high court. It debarred the high courts from considering the constitutional validity of any central law.

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