Q. 3. Describe the composition, jurisdiction and powers of the High Court.
Ans. The Constitution of India provides for a High Court in each State. However, Parliament by law can provide a common High Court for two or more States.
At present, the States of Punjab and Haryana have the common High Court known as the Punjab and Haryana High Court. The States of Assam, Nagaland, Meghalaya, Manipur and Tripura have also a common High Court.
The High Court is the highest Court of the State.
All other Courts and tribunals working in a State are subject to the authority of the High Court.
Composition. Each High Court consists of a Chief Justice and such other Judges as the President may from time to time, deem it necessary to appoint.
It means that number of Judges in the State High Courts is neither uniform nor fixed. The total strength of the State High Courts has been left to the will of the President. He can appoint as many judges of a High Court as he deems necessary. Besides the regular judges, the President may also appoint additional judges for a period not exceeding two years in order to clear the arrears of work.
A duly qualified person may be appointed by the President as an acting judge when a permanent Judge is absent from the duties of his office or is acting as a Chief Justice.
Appointment of the Judges. All the Judges of a High Court, including the Chief Justice are appointed by the President of India. While appointing the Chief Justice and other judges of a High Court, the President is required to consult the Chief Justice of India and the Governor of the State. On Oct. 28, 1998 in a significant unanimous order, a nine-judge Constitution Bench of the Supreme Court held that recommendations made by the Chief Justice of India on the appointments of Judges to the High Courts without following the consultation process was not binding on the government.
The Chief Justice of the Supreme Court is required to consult two senior-most judges of the Supreme Court. The Supreme Court Bench stated that “Merit should be the predominant factor while making any recommendation for appointment as Judges and that seniority above should not be the criteria.”
Chief Justice from other States. In July 1986, the Supreme Court recommended to the Government to appoint Chief Justice of the High Courts from other States. Law Commission also makes this recommendation to the Government. Hence, the Chief Justice of High Courts are appointed from other States.
Appointment of Additional Judges. The President may appoint additional judges for a period not exceeding two years in order to clear the arrears of work.
Appointment of Acting Judges. A duly qualified person may be appointed by the President as an Acting Judge when a permanent judge is absent from the duties of his office or is acting as a Chief Justice.
Appointment of Acting Chief Justice. If the office of the Chief Justice of High Court falls vacant temporarily due to some reasons, the President can appoint any judge of the High Court as an Acting Justice.
Qualifications for Appointment. No one can be appointed as a Judge of the High Court, unless:
(1) he is a citizen of India.
(2) he has held a judicial office in the territory of India for at least ten years; or
(3) he has been an advocate of one or more High Courts for at least ten years.
Terms of office. Judges of the High Courts retire at the age of 62. Judges can resign office earlier by writing to that effect to the President of India. The President can remove a Judge from office on the ground of proved misbehaviour or incapacity. The procedure of removal is similar to the one used in the removal of a Supreme Court Judge.
Jurisdiction of High Court.
Power and Functions of High Court.
A State High Court has to perform various functions and has various powers. Besides the administration of justice, they perform administrative functions as well. Since all the courts working in the State are subject to the authority of the State High Court, hence, the administrative functions of the High Court. The powers and functions of a High Court may be divided into two parts:
I. Judicial Powers
II. Administrative Powers.
I. Judicial Powers. The main responsibility of a State High Court is to administer justice. The jurisdiction of the various High Courts under the Constitution is the same as it was before the commencement of the Constitution. This is, however, subject to the provision of the Constitution and any future law that is to be made by the appropriate legislature. The jurisdiction of the High Court may be discussed as follows:
(1) Original Jurisdiction. The original jurisdiction of the State High Court is limited.
(a) Under Article 226, every High Court has been empowered to issue writs, orders, directions including writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari or any of them to any person or authority within its territory for the enforcement of the Fundamental Rights and for any other purpose.
(b) The original jurisdiction of the State High Courts also extends to matters of admiralty, probate, matrimonial, contempt of court and cases ordered to be transferred from a lower Court involving the interpretation of the Constitution to its own file.
(c) The High Courts of Kolkata, Chennai and Mumbai exercise original civil jurisdictions when the amount involved is more than ₹ 2000. In criminal cases, it extends to cases committed to them by Presidency Magistrates.
(d) The High Courts of Kolkata, Mumbai and Chennai have the original jurisdiction as they had before the enforcement of the new Constitution on hearing straight way cases involving the Christians and the Parsies.
(e) Election disputes can also be taken to the High Courts.
(2) Appellate Jurisdiction. The Appellate Jurisdiction of the High Court extends to both civil and criminal cases.
(a) The High Court can hear appeals in civil cases, if the amount involved in the case is at least ₹ 5000 of the dispute involves a property of that amount.
(b) The High Court can hear appeals in criminal cases in which the accused has been sentenced to four years imprisonment by the Session Judge.
(c) The Session Judge of a district can award death sentence in criminal cases. But such a sentence is subject to the approval of the High Court.
(d) The High Court can hear appeals against the decisions of the lower Courts in most of the revenue cases also.
(e) Any case involving the interpretation of the Constitution or law is brought to the High Court in appeal.
(f) Appeal in cases of income tax, sales tax, etc. can be heard by the High Court.
(3) Judicial Review. Like the Supreme Court of India, the State High Courts have also been vested with the power of Judicial Review. State High Court can strike down any law of the State or any order of the executive if it violates any provision of the Constitution or curtails or takes away any of the Fundamental Rights of the people.
(4) Interpretation of the Constitution. If the High Court feels that a case under consideration of a subordinate Court involves an important question regarding the interpretation of the Constitution, it can withdraw a case from the subordinate Courts.
Then the High Court interprets the Constitution and can decide the case or can send back the case to the subordinate Court for the decision in the light of the interpretation of the High Court.
(5) Court of Record. Like the Supreme Court of India, the State High Courts are also the Courts of Record. As a Court of Record, the State High Court has all the powers of such a court including the power to punish for contempt of itself. The records of such a court are admitted to be of evidentiary value and they cannot be questioned when produced before any court. Neither the Supreme Court nor the Legislature can deprive a High Court of its power of punishing a contempt for itself.
II. Administrative Powers. The High Court has also to perform many administrative functions within its territorial jurisdiction. The administrative powers of the High Court are as follows:
(1) Except the Military Tribunals, all other courts and tribunals working within the jurisdiction of the High Courts are subjected to the superintendence and control of the High Court.
(2) The High Court can make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts.
(3) The High Court can prescribe the form in which book entries and accounts shall be kept by the officers of any court.
(4) The High Court has the power to call for returns from such courts.
(5) It is the responsibility of the High Court to see that the inferior Court or tribunal exercises its jurisdiction in accordance with the provisions of laws which it has to administer.
(6) According to Article 228, if the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of the Constitution, it is empowered to withdraw the said case to itself and may either dispose of the case itself or determine the said question of law and return the case to the Court concerned along with a copy of its judgement on that point.
(7) The High Court may transfer a case from one Court to another Court, if it deems necessary and in the interest of justice.
(8) The High Court can determine the salary, allowances and other conditions of service of the staff of the subordinate courts.
(9) The High Court has the power to make rules for the promotion, leave, pension and other allowances of the judges of subordinate courts.
(10) The High Court is consulted by the Governor of a state when the latter appoints and promotes district Judges.
Position of the High Court. In the administration of justice, the role of the High Court is as vital as that of the Supreme Court. The High Court is the highest Court of a State. All other Courts and tribunals (except Military Tribunals) in the territory of a State are subject to the superintendence and control of the State High Court. Though the High Courts function in States, yet they are free and independent from the control of the State Governments.
Neither in their composition nor in their salaries, allowances, pension and other conditions of service, do they depend on State Governments. Judges of the High Court are appointed by the President in consultation with the Governors of the States and it should not be forgotten that State Governors are also appointed by the President. Then the High Courts are under authority of the Supreme Court. Every effort has been made to make the Judiciary independent and impartial. It is gratifying to note that the High Courts have not bellied the expectations of the framers of the Constitution.
Q. 4. What do you mean by Judicial Activism ? Write down its main devices.
Ans. During the last few years Judicial Activism have become an important feature of the Indian Judicial system. The area of Judicial intervention has been expanding through the devices of Public Interest Litigation and enforcement of Human Rights. Earlier the Judiciary used to examine the Constitutionality of the Act, but these days judiciary also provides dictions how to make an act, how to protect environment where to dump garbage, how best Cauvery water can be used, how the governor should exercise his discretionary power etc.
This is what is described as Judicial Activism.
According to former Judge of the Supreme Court Justice P.B. Sawant, ‘‘ In short, exceeding the constitutional brief of interpreting and applying the law as it is and taking over executive and legislative functions in violation of the constitutional scheme of the separation of powers.’’
Causes of the Origin of Judicial Activism. Problems relating to environment pollution and natural resources of the nation, which out to have been tabled on a priority by the Parliament and executive are brought up through PIL before the Supreme Court and High Courts.
In fact, lack of proper governance, non-governance and miss governance are probably more responsible for growing Judicial Activism. Delivering Dr. Zakir Hussain Memorial Lecture in 1997, Former Chief Justice of India Mr. A.M. Ahmedi asserted that judicial activism might be seen as a transient phase responding to the peculiar needs of the nation.
According to former Justice Krishna Iyer, the Judiciary is trying to reach where either the government has failed or has been indifferent. Judicial activism has been an important instrument for developing the law and to make its broad and general rules applicable to an ever-changing society.
According to Atual Setalvad, ‘Judicial Activism has in a way been forced on the courts, faced as they have been with malafide and motivated actions by politicians and by the failure of the executive to enforce laws which Parliament has enacted. Though bonded labour was declared illegal, the government not only did little to enforce the law but its own agencies employed bonded labour, laws protecting the environment were passed but then, neglected.
Somebody had to do something and the courts stepped in the fields. Where they would have had to role to play had the administration enforced.
The first major case of judicial activism through social action litigation was the Bihar undertrials case. After that one finds number of cases identifying Judicial Activism by way of attainment of social justice, failure of executive to enforce laws, to enforce human rights etc.
Devices of Judicial Activism
According to former Justice of the Supreme Court Mr. P.B. Sawant, ‘‘Judicial activism falls into two categories. One is largely acceptable while other is not permissible. The first consists of evolving new principles, new concepts, new maxims, new formulae, new equities, new procedures and reliefs..... The second extends to laying down priorities, policies and programmes and giving directions to execute them when they are not obligatory, and are entirely in the discretion of the executive and the legislative or other authorities........’’
According to S.P. Sathe, ‘‘Supreme Court’s activist contribution can be summarized in the following three patterns:
(I) Interpretational thrusts with a view of extending judicial control over other organs of the state to ensure liberty, dignity, equality and justice to the individual and greater accountability of the governing institutions.
(II) Interpretational strategies with a view to facilitate social change which would promote greater protection of the minorities, weaker sections of society and political and religious dissenters.
(III) Innovating new methods for increasing access to Justice (like Public Interest Litigations.) The following are the devices of Judicial Activism:
1. Judicial Review. Judicial Review has been an important feature of the Indian Judicial System.
The Supreme Court and High Courts have the powers to declare acts of the legislature, executive or administration void if they find them in conflict with the Constitution or the law of the land. While using the power of Judicial Review Indian Judiciary has laid down certain principles which have restricted the powers of the legislature and executive. In Gopalan’s, case the Supreme Court upheld that our fundamental rights are not uncontrolled and absolute.
In Golak Nath’s case the Supreme Court decided that the Parliament has no power to amend the provisions of the Fundamental Rights. In Kesavananda Bharti’s case the Supreme Court upheld that the Parliament has a power to amend the provisions of fundamental rights but it has no power to amend the basic structure of the Constitution. These judgements are examples of Judicial Activism.
2. Interpretation of the Constitution. The Supreme Court is the final interpreter of the Indian Constitution. The parliament and executive are bound to accept the interpretation of the Constitution given by the Supreme Court. According to Article 124 (2) of the Constitution, ‘‘Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the judges of the Supreme Court and of the High Courts in the states as the President may deem necessary for the purpose...’ In the appointment of other judges of the Supreme Court, the Chief Justice of India must be consulted by the President.
On Oct. 28, 1998, in a significant unanimous order, a nine-judge Constitution Bench of the Supreme Court held that recommendations made by the Chief Justice of India on the appointment of judges to the Supreme Court without following the consultation process was not binding on the government. The consultation process to be adopted by the Chief Justice requires consultation of four senior most judges of the Supreme Court. The sole opinion of the Chief Justice does not constitute consultation process.
Hence recommendations made by the Chief Justice without complying with the norms and guidelines regarding the consultation process are not binding on the government. The Supreme Court made it clear that even if two judges give an adverse opinion, the Chief Justice should not sent the recommendation to the government.
3. Protection of Fundamental Rights. The Supreme Court and High Courts are the guardian of the fundamental rights mentioned in the Indian Constitution. Many judgements of the Supreme Court related to the protection of fundamental rights symbolises judicial activism. In Sunil Batra Case Justice Krishana Ayer stressed that the high pricing of legal publications monopolized by the government, amounted to denial of equal protection of laws.
In Khatri Vs. State of Bihar, the Supreme Court held that the indignent accused has the right to free legal services not only at the commencement of trial, but also at the initial stage, when he is produced before the magistrate for the first time. In 1995 the Supreme Court declared that health is the basic right of the people. Hence doctors were brought under Consumer Law. In 2001 the Supreme Court held that right to access to clean drinking water is fundamental necessity to life and it is the duty of the state to provide the same. In 1993 the Supreme Court held that to get education upto the age of 14 years is a fundamental right of the children and they get this right enforced through courts.
4. Public Interest Litigation. Public Interest Litigation is the most important method of Judicial Activism. Public Interest Litigation is a process whereby the Courts admit petitions filed by concerned citizens on behalf of the poor or distressed or on issues of general public concern, without following prescribed judicial procedure and charging court fees etc.
Justice P.N. Bhagwati opines that an individual in public interest litigation can raise voice against injustice by simply writing a postcard to the Supreme Court.
On September 7, 2005 Punjab and Haryana Court during the hearing of a PIL filed by the Public Interest and Common Cause Society, held that thousands of applicants, who have applied for residential plots advertised under various housing schemes floated by the HUDA but have neither been allotted plots and nor has their initial deposit been refunded, will be paid interest at the rate of 5.5 percent for annum.