Basics
- 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 and in 1866, a fourth high court was established at Allahabad.
- 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.
Appointments of Judges
- The judges of a high court are appointed by the president of India
- The Chief justice of a high court is appointed after consultation with the CJI and governor of the state concerned. If it is for a common high court, then the governors of all the concerned state high court are consulted
- In case of appointment of other judges to high court, it was opined that CJI should consult a collegium of two senior-most judges of the SC before recommending a name to the President of India in the seminal third judges case.
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.
Oath of Judges
- Given by the governor of the state
Tenure of Judges
- He holds office until he attains the age of 62 years.
Removal and Resignation of Judges
- Resignation: He can resign from office by writing to the President
- Removal of Judges: The process of impeachment of a high court judge is similar to that of a judge of Supreme Court.
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.
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
- 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.
Independence of High Court
- Mode of Appointment: The judges of a high court are appointed by the president in consultation with the members of the judiciary itself which will curtail political interference.
- Security of Tenure: They can be removed from office by the president only in the manner and on the grounds mentioned in the Constitution that is proven misbehaviour or incapacity.
- Fixed Service Conditions: The salaries, allowances, privileges, leave and pension of the judges of a high court are determined from time to time by the Parliament. But, they cannot be changed to their disadvantage after their appointment except during a financial emergency.
- Expenses Charged on Consolidated Fund: The salaries and allowances of the judges, the salaries, allowances and pensions of the staff as well as the administrative expenses of a high court are charged on the consolidated fund of the state but pension of high court judge is charged on the Consolidated Fund of India.
- Conduct of Judges cannot be Discussed: The Constitution prohibits any discussion in Parliament or in a state legislature with respect to the conduct of the judges of a high court in the discharge of their duties, except when an impeachment motion is under consideration of the Parliament.
- 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 Supreme Court and the other high courts.
- Power to Punish for its Contempt: A high court can punish any person for its contempt.This power is vested in a high court to maintain its authority, dignity and honour.
- Freedom to Appoint its Staff: The chief justice of a high court can appoint officers and servants of the high court without any interference from the executive. He can also prescribe their conditions of service.
- Jurisdiction Cannot be Curtailed : The jurisdiction and powers of a high court cannot be curtailed both by the Parliament and the state legislature. But the jurisdiction and powers of a high court can be changed both by the parliament and the state legislature.
- Separation from Executive: The Constitution directs the state to take steps to separate the judiciary from the executive in public services. This means that the executive authorities should not possess the judicial powers.
Jurisdiction of High Court
- Original Jurisdiction: In such kind of cases the applicant can directly go to the High Court and does not require to raise an appeal. It is mostly applicable for cases related to the State Legislative Assembly, marriages, enforcement of fundamental rights and transfer cases from other courts.
- Power of Superintendence: It a special power enjoyed only by High Court and no other subordinate court has this power of superintendence. Under this, the High Court holds the right to order its subordinate offices and courts the way of maintaining records, prescribe rules for holding proceedings in the court and also settle the fees paid to sheriff clerks, officers and legal practitioners.
- Court of Record: It involves recording the judgments, proceedings and acts of high courts for perpetual memory. These records cannot be further questioned in any court. It has the power to punish for contempt of itself.
- Control over Subordinate Courts: This is an extension of the supervisory and appellate jurisdiction. It states that the High Court can withdraw a case pending before any subordinate court if it involves the substantial question of law. The case can be disposed of itself or solve the question of law and return back to the same court.
- Appellate Jurisdiction: This is for cases where people have risen a complaint about a review of the judgement given by the district level or subordinate court of that territory. This power is further divided into two categories:
- Civil Jurisdiction: This includes orders and judgements of the district court, civil district court and subordinate court
- Criminal Jurisdiction: This includes judgements and orders of the sessions court and additional sessions court.
- Power of Judicial Review: This power of High Court includes the power to examine the constitutionality of legislative and executive orders of both central and state government. It is to be noted that the word judicial review is nowhere mentioned in our constitution but the Article 13 and 226 explicitly provide High Court with this power.
- Writ Jurisdiction of High Court: Article 226 of the Constitution empowers a high court to issue writs including habeas corpus, mandamus, certiorari, prohibition, and quo warren to for the enforcement of the fundamental rights of the citizens and for any other purpose.