Laxmikanth Summary High Court - Indian Polity for UPSC CSE PDF Download

In India there is a judicial system comprising the Supreme Court, high courts and subordinate courts. The high court occupies the position above subordinate courts and below the Supreme Court. Each state normally has its own high court; the high court is the highest authority in the state's judicial administration and supervises the subordinate judiciary within its territorial jurisdiction.

The institution of high courts in India began in 1862 with the establishment of the high courts at Calcutta, Bombay and Madras. Over time more high courts were created in different provinces. After the Constitution came into force in 1950, the organisation and powers of high courts were integrated into the constitutional scheme and, in practice, each state was provided with a high court. In 1956 Parliament was empowered to constitute a common high court for two or more states. At present there are 25 high courts in India. The National Capital Territory of Delhi has its own high court, while the union territories of Jammu & Kashmir and Ladakh share a common high court; other union territories fall under the jurisdiction of various state high courts.

High Court

The Constitution details the organisation, powers, jurisdiction and procedures of high courts in Articles 214 to 231 (Part VI). These provisions guarantee the constitutional status of high courts and provide safeguards for judicial independence, procedure and administration.

Composition and Appointment

Appointment of Judges

• Appointment authority: Judges of a high court are appointed by the President of India.
• Chief Justice: The Chief Justice of a high court is appointed by the President after consultation with the Chief Justice of India and the Governor of the state concerned.
• Other judges: The President appoints other high court judges after consulting the Chief Justice of the respective high court and, in practice, the Chief Justice of India through the collegium process.
• Common high court: For a common high court serving more than one state, the President consults the governors of the states whose matters fall under that high court.

Consultation Process

• Second Judges Case (1993): The Supreme Court held that appointments of high court judges must give due weight to the opinion of the Chief Justice of India.
• Third Judges Case (1998): The Court ruled that for high court appointments the Chief Justice of India should consult a collegium comprising the two senior-most Supreme Court judges; the objective was to make the consultative process collective rather than dependent on a single opinion.
• Collegium principle: The consultative process in judge appointments evolved into the collegium system in which the judiciary plays a decisive role in recommending appointments to preserve judicial independence.

Changes and Challenges

• 99th Constitutional Amendment & NJAC (2014): Parliament enacted the 99th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act to replace the collegium with a commission that included representatives of the executive and lay members.
• Supreme Court (2015): The Supreme Court struck down the 99th Amendment and the NJAC Act as unconstitutional, holding that the proposed mechanism threatened the independence of the judiciary. The collegium system was thus retained.
• Concerns: The key concern expressed by the Court was that any mechanism which exposed judicial appointments to excessive executive or political influence would erode judicial independence.

Qualifications, Oath and Salaries

Qualifications of Judges

1. Citizenship: The person must be a citizen of India.
2. Judicial or legal experience: The person must have either:
   • Held a judicial office in the territory of India for at least ten years, or
   • Been an advocate of a high court (or high courts in succession) for at least ten years.

Note: Unlike the Supreme Court, there is no minimum prescribed age for appointment as a high court judge, and the Constitution does not provide for the direct appointment of a "distinguished jurist" to a high court.

Oath or Affirmation

Before entering office a high court judge must take an oath or affirmation. The oath is administered before the state Governor or some other authorised authority and contains commitments to the Constitution, impartiality and the faithful discharge of duties.

1. Allegiance to the Constitution of India.
2. To uphold the sovereignty and integrity of India.
3. To perform duties faithfully and impartially, without fear or favour.
4. To safeguard the Constitution and the law.

Salaries and Service Conditions

The salaries, allowances, privileges, leave and pension of high court judges are determined by Parliament. Once appointed, these service conditions cannot be altered to the disadvantage of a judge during their continuance in office, except under a financial emergency.

• As of 2018: The salary of a high court Chief Justice was increased from ₹90,000 to ₹2.50 lakh per month.
• As of 2018: The salary of a high court judge was increased from ₹80,000 to ₹2.25 lakh per month.
• Judges are also entitled to various allowances and facilities such as official accommodation, medical facilities, conveyance, telephone and other service benefits as prescribed by law.

Tenure, Removal and Transfer

Tenure of Judges

• Retirement age: A high court judge holds office until reaching the age of 62 years.
• Disputes on age: Any question regarding a judge's age is decided by the President after consultation with the Chief Justice of India, and the President's decision is final.
• Resignation: A judge may resign by submitting a written resignation to the President.
• Ceasing to hold office: A judge ceases to be a high court judge if elevated to the Supreme Court or transferred to another high court.

Removal of Judges

A high court judge can be removed from office only through the constitutional process of impeachment on grounds of proven misbehaviour or incapacity. This process is regulated by the Judges Inquiry Act, 1968 and involves parliamentary procedures.

The usual procedural steps for removal are:

1. A motion for removal is presented in Parliament. Such a motion must be signed by at least 100 members of the Lok Sabha or 50 members of the Rajya Sabha before presentation to the Speaker/Chairman.
2. The Speaker/Chairman decides whether to admit the motion for consideration.
3. If admitted, a three-member committee is constituted to investigate the charges. The committee normally includes a Supreme Court judge (often the Chief Justice or nominee), a chief justice of a high court and a distinguished jurist.
4. If the committee finds the judge guilty of misbehaviour or incapable, each House of Parliament must pass the removal motion by a special majority (i.e., by a majority of the total membership of the House and by a majority of not less than two-thirds of the members present and voting).
5. After both Houses pass the motion, an address is presented to the President requesting removal.
6. The President then makes the final order removing the judge from office.

Transfer of Judges

The President may transfer a judge from one high court to another after consulting the Chief Justice of India. Transfers attract compensatory allowances prescribed by Parliament.

• A Supreme Court decision in 1977 stressed that transfers should be exceptional and only in public interest, not punitive.
• Judicial review of transfer orders is permissible to prevent arbitrariness; however, normally only the judge concerned has standing to challenge a transfer.

Third Judges Case (1998) - Transfer Aspect

• In matters of transfer the Chief Justice of India is required to consult the Supreme Court collegium and the chief justices of the sending and receiving high courts.
• The sole opinion of the Chief Justice of India is not treated as constituting the entire consultation; the process must be collective and consultative.

Additional and Acting Judges

• Additional judges: The President may appoint additional judges to a high court for a temporary period not exceeding two years, to deal with increased workload or backlog.
• Acting judges: The President may appoint a qualified person as an acting judge of a high court when a regular judge is temporarily unable to perform duties or when a permanent judge is temporarily elevated as acting Chief Justice. An acting judge serves until the permanent judge resumes duty.
• Neither additional nor acting judges can continue in office beyond the retirement age of 62 years.

Retired Judges

• The Chief Justice of a high court may request a retired judge (from that or any other high court) to serve temporarily as a judge, with the prior consent of the President and the retired judge.
• The retired judge so appointed receives allowances as determined by the President and exercises the powers and privileges of a regular judge during the temporary period, but is not treated as a permanent judge.

Independence of the High Court

Independence of the judiciary is essential for the effective discharge of judicial duties. High courts must be free from executive and legislative encroachments, pressures or interference so that they may administer justice impartially and without fear or favour. The Constitution and judicial practice contain multiple safeguards to secure the independence and impartiality of high courts.

1. Mode of Appointment

High court judges are appointed by the President after consultations that include the judiciary (the Chief Justice of India and the Chief Justice of the concerned high court). The consultative and collegium elements in appointments help limit unfettered executive discretion and protect judicial independence.

2. Security of Tenure

High court judges have a secure tenure until the retirement age of 62. Removal is possible only by the constitutionally prescribed impeachment process, which provides protection against arbitrary dismissal.

3. Fixed Service Conditions

Parliament determines salaries, allowances and other service benefits. After appointment these conditions cannot be reduced to a judge's disadvantage, except under a declared financial emergency. This stability contributes to judicial independence.

4. Expenses Charged on Consolidated Fund

The salaries and allowances of judges, staff salaries and administrative costs of a high court are met from the Consolidated Fund of the State (and certain pensions from the Consolidated Fund of India). These are charged items and hence non-votable by the state legislature, insulating judicial finances from ordinary legislative appropriation processes.

5. Restriction on Discussion of Judicial Conduct

The Constitution bars discussion in Parliament or state legislatures about the conduct of high court judges in the performance of their duties, except when an impeachment motion is under consideration. This protects judges from political attacks and preserves the dignity of judicial office.

6. Ban on Practice after Retirement

Retired permanent judges of a high court are debarred from practising in any court or before any authority in India except the Supreme Court and other high courts. This rule is intended to prevent conflicts of interest and preserve impartiality while on the bench.

7. Power to Punish for Contempt

High courts have the power to punish for contempt of court in order to safeguard their authority, dignity and the due administration of justice. Contempt powers may include fines and imprisonment as prescribed by law.

8. Freedom to Appoint Staff

High courts have administrative autonomy to appoint officers and staff necessary for the discharge of judicial functions and to prescribe terms and conditions of their service, with minimal executive interference in day-to-day judicial administration.

9. Jurisdictional Security

The Constitution specifies the jurisdiction and powers of high courts; neither Parliament nor the state legislature can unilaterally curtail the constitutionally provided jurisdiction of a high court. This serves to protect the court's functional independence.

Jurisdiction and Powers of High Courts

Jurisdiction and powers of a high court denote the legal authority vested in it by the Constitution and statutes to adjudicate, supervise, review and protect rights within its territorial sphere.

• High courts exercise significant authority as the highest courts in a state: they act as courts of appeal from subordinate courts and as guardians of fundamental rights.
• They possess powers to interpret the Constitution, exercise writ jurisdiction, and exercise superintendence over subordinate courts and certain tribunals.
• Where specific pre-Constitution powers existed, the Constitution preserved those powers and in many cases conferred additional jurisdiction (for example, over revenue matters and writs).

1. Original Jurisdiction

Original jurisdiction is the authority of the high court to hear certain classes of disputes first (i.e., not on appeal). Typical subjects include:

• Election disputes relating to membership of Parliament and state legislatures.
• Matters pertaining to revenue and revenue administration.
• Protection and enforcement of fundamental rights in appropriate cases.
• Cases transferred from subordinate courts that raise questions involving constitutional interpretation.
• Four high courts (Calcutta, Bombay, Madras and Delhi) historically have had special original civil jurisdiction in certain high-value civil matters.

Before 1973 some high courts (notably Calcutta, Bombay and Madras) had limited original criminal jurisdiction; however, the Criminal Procedure Code reforms in 1973 effectively curtailed such original criminal jurisdiction in those courts.

2. Writ Jurisdiction

• Article 226 empowers high courts to issue writs - habeas corpus, mandamus, certiorari, prohibition and quo warranto - for enforcement of fundamental rights and for any other purpose under the Constitution.
• In L. Chandra Kumar v. Union of India (1997) the Supreme Court held that the writ jurisdiction of high courts and the Supreme Court is part of the basic structure of the Constitution, underscoring its centrality to constitutional justice.

3. Appellate Jurisdiction

A high court primarily functions as a court of appeal. It hears appeals from subordinate courts (both civil and criminal) within its territorial jurisdiction. Appeals lie to a high court in cases and under procedures prescribed by statute and rules.

4. Supervisory Jurisdiction

High courts exercise superintendence over all subordinate courts and certain tribunals within their jurisdiction (except military courts). This supervisory power enables them to ensure proper administration of justice and uniformity of procedure. Powers include:

• Calling for returns and information from subordinate courts.
• Making and issuing general rules and prescribing forms to regulate practice and procedure in subordinate courts.
• Prescribing the forms in which books, entries and accounts are to be kept by subordinate courts.
• Fixing or settling fees payable to sheriffs, clerks, officers and legal practitioners connected with subordinate courts.

5. Control over Subordinate Courts

Beyond appellate and supervisory jurisdiction, a high court exercises administrative control over subordinate judiciary in matters such as appointments, postings, promotions and disciplinary proceedings as prescribed by law.

6. Court of Record

As a court of record, a high court has two characteristic powers:

• The judgements, records and proceedings of a high court are preserved for perpetuity and are admissible as evidence; they carry evidentiary value.
• A high court has the power to punish for contempt of court, including by imposing fines or imprisonment, to protect its authority and dignity.

7. Power of Judicial Review

• High courts possess judicial review power to examine the constitutional validity of legislative enactments and executive actions of both the Central and State governments within their domain.
• If a law or executive order is found ultra vires (i.e., violative of the Constitution), the high court may declare it invalid and unenforceable.
• Historical note: The 42nd Amendment Act (1976) attempted to curtail judicial review by limiting courts' powers in certain respects; subsequent judicial pronouncements restored and reaffirmed the high courts' essential power of judicial review as integral to constitutional governance.

Summary: The high courts are vital pillars of India's constitutional system. They combine original, appellate, supervisory and constitutional jurisdictions, exercise judicial review, protect fundamental rights and administer the subordinate judiciary. Constitutional provisions, statutory regulations and judicial decisions together shape their composition, appointment, tenure, independence and powers so as to preserve the rule of law and judicial impartiality.