The High Court

High Court-

Background-

• The High Court originated in India in 1862 when the high courts were set up at Calcutta, Bombay and Madras.

• In 1866, a fourth high court was established at Allahabad.

• The constitution provides for a High Court at the apex of the State judiciary. Chapter V of Part VI of the Constitution of India contains provisions regarding the organization and functions of the High Court.

• The parliament has the power to establish a common High Court for two or more states.

• In case of Union Territories, the Parliament may by law extend the jurisdiction of a High Court to, or exclude the jurisdiction of a High Court from any Union Territory, or create a High Court for a Union Territory.

Composition of the High Court-

• There is no minimum number of judges for the High Court mentioned in our constitution.

• The President, from time to time will fix the number of judges in each High Court.

Appointment of judges-

• The judges of a high court are appointed by the president of India

Chief Justice of state-

• 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

Judges of High Court-

• Collegium of 2 senior-most judges of the Supreme court are consulted by CJI and names are forwarded to The President (Chief Justice of the concerned High Court and Governor of the concerned state are also consulted ).

Qualifications-

(i)He or she should be a citizen of India

(ii) He or she should have held a judicial office, at the district level or below for at least ten years. OR

He or she should have been an advocate in one or more High Courts for at least ten years continuously without break

Tenure-

• Once appointed, the High Court judges hold office till they attain the age of 62 years.

Reappointment-

• After retirement, they may be appointed judges of the Supreme Court or they may practise as advocates either in the Supreme Court or in any High Court other than the High Court in which they served as judges.

Removal-

• A High Court judge may be removed before he or she attains the age of 62 years, only on the ground of incapacity or proved misbehaviour.

• He or she may be removed if both the Houses of Parliament adopt a resolution by a majority of their total membership and by two thirds majority of members present and voting, separately in each House in the same session.

• Such a resolution is submitted to the President, who then can remove the concerned judge.

• This procedure is same as for removal of judges of the Supreme Court.

Salary and Pension-

• The salary of a judge is charged on the consolidated fund of the state.

• The pension of a judge is charged on the consolidated fund of India.

Transfer of judges

• The president can transfer a high court judge after consultation with the CJI.

3^rd Judge case-

In third judges cases, it was opined that the CJI should consult following before taking any final decision in this matter,that is-

• Collegium of four senior-most judges of the SC.

• Chief justice of the two high courts involved in the process.

Acting Chief Justice

President can appoint a judge of a high court as an acting chief justice of the high court when:

• the office of chief justice of the high court is vacant;or

• the chief justice of the high court is temporarily absent;or

• the chief justice of the high court is unable to perform the duties of his office.

Additional and Acting Judges-

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; or

• There are arrears of work in the high court

Acting Judge-

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.

Retired Judges

• 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 can do so only with the previous consent of the President and also of the person to be so appointed

Jurisdiction and powers of High Court-

Original Jurisdiction -

• The Constitution of India does not give a detailed description of the original jurisdiction of the High Court but some of the matters discussed below can be considered as original jurisdiction

The power to issue writs or orders for the enforcement of the Fundamental Rights-

• Article 226 of the Constitution empowers a high court to issue writs including habeas corpus, mandamus, certiorari, prohibition and quo-warrento for the enforcement of the fundamental rights of the citizens and for any other purpose.

• The writ jurisdiction of a High Court is larger than that of the Supreme Court.

• It can not only issue writs not only in cases of infringement of Fundamental Rights but also in cases of an ordinary legal right.

Other matters includes-

• Matters of admirality, will, marriage, divorce, company laws and contempt of court.

• Disputes relating to the election of members of Parliament and state legislatures.

• Regarding revenue matter or an act ordered or done in revenue collection.

• Cases ordered to be transferred from a subordinate court involving the interpretation of the Constitution to its own file

Appellate Jurisdiction-

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

• In civil cases appeal from Munisif and District court and in Criminal cases appeal from Session courts

Supervisory Jurisdiction-

• A High Court has the right of superintendence and control over all the subordinate courts in all the matter of judicial and administrative nature and may call for any information from the lower courts; may make and issue general rules and prescribe norms for regulating the practice and proceedings of these courts etc.

Court of Record-

It means that High court has-

• The power to punish for contempt of court.

• Lower courts in a State are bound to follow the decisions of the High Court which are cited as precedents.

Contempt of Court-

• Contempt of court is an act of disrespect or disobedience toward a court or interference with its orderly process.

• The expression contempt of court has not been defined by the Constitution the expression has been defined by the Contempt of Court Act of 1971.

Contempt of court can be of two types:

1.Civil contempt-

• It refers to the willful disobedience of a court order or judgment or willful breach of an undertaking given to a court.

2.Criminal contempt-

Criminal contempt includes any act or publication which:

(i) ‘scandalises’ the court, or

(ii) prejudices any judicial proceeding, or

(iii) interferes with the administration of justice in any other manner.

‘Scandalising the Court’ broadly refers to statements or publications which have the effect of undermining public confidence in the judiciary

Power of superintendence over all courts by high courts

It is mentioned under Article 227 and is stated below-

Power of superintendence over all courts by the High Court.

(1)Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction

(2)Without prejudice to the generality of the foregoing provisions, the High Court may

(a) call for returns from such courts;

(b) Make an issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) Prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein

Note -

• Under Article 227(4) High court has no jurisdiction over military courts or tribunals

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.

• Though the phrase judicial review has no where been used in the Constitution, the provisions of Articles 13 and 226 explicitly confer the power of judicial review on a high court.

Transfer of Certain cases to High Court(Article 228)

• The high court is empowered to withdraw a case pending in a subordinate court if it involves a substantial question of law or required constitutional interpretation.