The Hindu Editorial Analysis- 28th November 2022 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Shifts Unexplained

Context

A recent round of transfers — among the dozens that have been efected in the last few years — has brought the controversial issue to the fore again. The list included three judges from the Telangana High Court, and two each from the Madras and Andhra Pradesh High Courts

About High Courts

• According to the constitution, India follows a single integrated judicial system which means that the apex court i.e, the Supreme Court is the head of all courts, and the High Courts of all states function under it. High Courts are the highest judicial body at the State level and the territorial jurisdiction of the high court is proximate to the territory of a state.
• Composition of High Court- Constitution has not fixed or specified the strength of a high court and leaves it to the discretion of the president so the high court consists of Chief Justice and such other judges that the president specifies. President specifies the strength depending upon the workload of any high court.

Articles related to High Courts 

• Article 214- High Courts for States
  • Article 214 states that there shall be a High Court for each State.
• Article 215- High Courts to be courts of record
  • Every High Court shall be a court of record, the judgment, proceedings, and act of the high court are recorded for perpetual memory/testimony and it has all the powers of such a court including the power to punish for contempt of court.
• Article 216- Constitution of High Courts
  • Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem fit and necessary to appoint.
• Article 217- Appointment and conditions of the office of a Judge of a High Court
  • Every Judge of a High Court is appointed by the President. An appointment is done by warrant under his hand and seal.
  • The Chief Justice of the High Court is appointed by the president after consultation with-
    • Chief Justice of India, and
    • Governor of the state concerned
    • Judges other than the Chief Justice of the High court are also appointed by the President after consultation with-
    • Chief Justice of India
    • Chief Justice of the concerned High Court
    • Governor of the concerned state.
    • In the case of a common high court, the Governor of all the states concerned is consulted.

Tenure of Judges

Constitution has not fixed any tenure for the judges of the high court but has made the following provisions in this regard-

• Shall hold office until the age of 62 Years.
• In case, any judge wants to resign from their post, the resignation will be presented to the President of India.
• President is empowered to remove a judge of the High court same as the manner provided in clause (4) of Article 124 for the removal of a Judge of the Supreme Court. Such a recommendation of removal is made by Parliament.
• He vacates his office when appointed as a judge of the Supreme Court or if he is transferred to another High Court.
• If any question arises about the age of a Judge of a High Court, the question shall be decided by the President. Such decisions can be made after consultation with the Chief Justice of India. The decision of the President in this regard shall be final

Removal of Judges

• President is authorized to issue removal orders only after an address is presented to him by the parliament. Such an order must be passed by the parliament in the same parliamentary session.
• The address must be supported by a special majority.
• Special Majority- the majority of the total membership of the house and not less than two-thirds of members present and voting.
• The ground of removal should be the same as the Supreme Court that is, proved misbehavior and incapacity.
• The manner of removal should also be the same as the judges of the Supreme Court.

THE PROCESS OF REMOVAL IS AS FOLLOWS

• The removal motion must be signed by 100 members in the case of Lok Sabha and by 50 Members in the case of Rajya Sabha.
• The must be presented to the Chairman/Speaker. They can admit the motion or can refuse to admit it.
• In case of admittance of the motion, a 3-member committee is constituted by Chairman/Speaker to investigate the charges.
• If the committee finds him guilty, the house can take up consideration of the motion.
• The motion must be passed by each house of the parliament with a special majority.
• Then, the address is presented to the president for the removal and the president passes an order removing the judges.

Qualification 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 for ten years

Salaries and allowances

• They are determined by the parliament and cannot be varied to the detriment of the judges once they are appointed. However, this does not apply during the times of financial emergency

Note: Though the salary of a judge is charged on the consolidated fund of the state, the pension is charged on the consolidated fund of India

Transfer of judges

• The president can transfer a high court judge after consultation with the CJI
• In 1994, the SC held that judicial review is necessary to check arbitrariness in transfer of judges
• In third judges cases, it was opined that the CJI should consult an addition of collegium of four senior-most judges of the SC, chief justice of the two high courts involved in the process before taking any final decision

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
  • There is a temporary increase in the business of the high court
  • 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 is:

• Unable to perform the duties of his office due to absence or any other reasons
• Appointed to act temporarily as chief justice of that high court

In both the cases, the additional or acting judge cannot hold office beyond 62 year of age

Independence of High Court

• Mode of appointment
• Security of tenure: They can be removed in the same manner as SC judges
• Fixed service conditions
• Expenses charged on Consolidated Fund
• Conduct of judges cannot be discussed
• Ban on practice after retirement: The retired permanent judges of a high court 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
• Freedom to appoint its staff
• Its jurisdiction cannot be curtailed
• The jurisdiction and powers provided by the constitution to high court cannot be curtailed by either the Parliament or the state legislature
• However, the jurisdiction and powers of a high court can be changed both by the Parliament and the state legislature

Jurisdiction of High Court

Original jurisdiction of High Court

The Constitution of India does not give a detailed description of the original jurisdiction of the High Court. It is accepted that the original jurisdiction of a High Court is exercised by issue of Writs to any person or authority including Government.

• Article 226 of the Constitution vests in the High Court the power to issue writs for the restoration of fundamental rights and also in cases of other legal rights
• This power of the High Court does not derogate the similar power conferred on the Supreme Court in Article 32 of the Constitution.
• The original jurisdiction of the High Court also extends to the matters of admiralty, probate, matrimonial and contempt of Court cases.
• The High Courts have also full powers to make rules to regulate their business in relation to the administration of justice. It can punish for its own contempt.
• High Courts have been given original jurisdiction over cases arising out of Parliament or state legislature elections

Appellate Jurisdiction of High Court

The appellate jurisdiction of High Court extends to both civil and criminal cases.

• In civil cases, its jurisdiction extends to cases tried by Courts of Munsifs and District judges.
• In the criminal cases it extends to cases decided by Sessions and Additional Sessions Judges.

HC’s Power of Superintendence:

A High Court has also the power of superintendence over all Courts and Tribunals except those dealing with the armed forces functioning in the State.

• This power has made the High Court responsible for the entire administration of Justice in the State.
• It is both judicial as well as administrative in nature.
• The Constitution does not place any restriction on its power of superintendence over the subordinate Courts. It may be noted the Supreme Court has no similar power vis-a-vis the High Court.
• The governor also consults the High Court in the appointment and transfer of district judges and other officers of the judicial service in the state.

Erosion of High Court’s jurisdiction in recent times due to tribunalization

• Tribunals have replaced high courts for disputes under the Companies Act, Competition Act, SEBI Act, Electricity Act, and Consumer Protection Act among others.
• In general sense, the ‘tribunals’ are not courts of normal jurisdiction, but they have very specific and predefined work area. These tribunals do not enjoy the same constitutional protection as high courts.
• Any person aggrieved by an order of an appellate tribunal can directly appeal to the Supreme Court, side-stepping the high court.

This raises several institutional concerns.

• The enormous institutional investment to protect the independence of high courts is dispensed with when it comes to tribunals.
• Many tribunals still owe allegiance to their parent ministries.
• Critics say that Tribunals are also not as accessible as high courts. This makes justice expensive and difficult to access.
• Further, the justification of expert adjudication by tribunals disappears as many tribunals preside over by retired high court judges.

Way forward

• Prevent unnecessary creation of tribunals in the country
• Fill the vacancies in the high court which has been rising in India since recent times
• High courts should be provided certain superintendence role in monitoring the tribunals in the state.