High Court

High Courts in India form an integral part of the country’s judicial system, playing a pivotal role in upholding the rule of law and ensuring justice delivery at the state level.

HIgh courts serve as the primary judicial authority within their respective states or union territories, exercising jurisdiction over civil, criminal, and constitutional matters. With their origins dating back to the colonial era, High Courts have evolved significantly, adapting to the changing socio-political landscape of independent India. In this blog post, we will delve into the structure, powers, and functioning of High Courts, exploring their significance in safeguarding citizens’ rights and maintaining the constitutional balance between state and central authority.

Constitutional Provision

Article 214 to 231 of the Indian Constitution, under Part VI, outline the establishment, jurisdiction, and functioning of High Courts in India. The institution of High Courts in India dates back to 1862, with the establishment of High Courts in Calcutta, Bombay, and Madras. High Courts serve as the highest judicial authority within a state in India’s unified judicial system, which comprises both the High Courts and subordinate courts.

Originally, each state had its own High Court, but the 7th Amendment Act of 1956 introduced the provision for common High Courts serving multiple states and union territories.

Parliament has the authority to expand or limit the jurisdiction of High Courts, including the inclusion or exclusion of union territories. Delhi and Jammu & Kashmir are the only union territories with their own High Courts, a status granted to them since 1966.

Appointment of Judges of High Court

Article 217 of the Constitution outlines the process for appointing judges to High Courts in India. According to this article, the President appoints a High Court judge in consultation with the Chief Justice of India (CJI) and the Governor of the respective state. If the appointment is for a judge other than the Chief Justice, the Chief Justice of the High Court is consulted.

The consultation process for appointing High Court judges involves a Collegium consisting of the CJI and the two most senior judges. The proposal for appointment is initiated by the Chief Justice of the concerned High Court, in consultation with two senior colleagues. The recommendation is then forwarded to the Chief Minister, who advises the Governor to submit the proposal to the Union Law Minister.

High Court Chief Justices are typically appointed from outside the respective states. The final decision regarding appointments is made by the Collegium.

Additionally, Article 224A of the Constitution allows for the appointment of retired judges as ad-hoc judges in High Courts. The Chief Justice of a High Court may, with the President’s prior consent, request a retired judge to serve as a judge of the High Court for a specified period. Recently, the Supreme Court proposed guidelines for the appointment and functioning of ad-hoc judges to address the backlog of cases in High Courts.

Collegium System

The system of appointing and transferring judges in India has evolved primarily through judicial rulings of the Supreme Court, rather than through legislation or constitutional provisions.

The evolution of this system can be traced through key judicial decisions:

1. First Judges Case (1981): In this case, the Supreme Court ruled that the Chief Justice of India’s (CJI) recommendations on judicial appointments and transfers could be refused by the Executive for “cogent reasons.” This decision gave the Executive authority over judicial appointments for the following 12 years.

2. Second Judges Case (1993): The Supreme Court introduced the Collegium system in this case, determining that “consultation” actually meant “concurrence.” The Collegium comprised the CJI and the two most senior judges, and it was clarified that the decision reflected the institutional opinion rather than just the CJI’s individual perspective.

3. Third Judges Case (1998): In response to a reference from the President, the Supreme Court expanded the Collegium to include five members, consisting of the CJI and the four most senior judges. This expansion was particularly relevant for matters concerning the transfer of High Court judges.

In 2014, there was an effort to replace the Collegium system with a National Judicial Appointments Commission (NJAC) through the 99th Constitutional Amendment Act, 2014. The NJAC aimed to enhance transparency in the appointment of High Court and Supreme Court judges and chief justices by establishing a commission composed of members from the judiciary, legislature, and civil society.

However, the Supreme Court’s Constitutional Bench declared the NJAC unconstitutional in 2015. The Court ruled that the NJAC violated the Basic Structure of the Constitution of India, as it posed a threat to the independence of the judiciary.

Qualification

To qualify for appointment as a High Court judge, the individual must be an Indian citizen and meet one of two criteria: they must have served in a judicial capacity within Indian territory for a period of 10 years, or they must have practiced as an advocate in the High Courts of India for the same duration. There is no specified minimum age for eligibility. Unlike the Supreme Court, the Constitution does not include provisions for appointing a “distinguished jurist” based on the president’s opinion.

Oath and Affirmation

Before assuming the duties of a high court judge, the appointed individual must take and subscribe to an oath or affirmation. This oath or affirmation is administered by the governor of the respective state or by an individual designated by the governor for this specific purpose.

Salaries and allowance:

The salaries, allowances, privileges, leave, and pensions of High Court judges in India are established by Parliament periodically. These terms cannot be altered to the detriment of the judges after their appointment, except in the event of a financial emergency as per Article 360 of the Constitution. It’s important to note that while the salaries of High Court judges are funded by the consolidated fund of the respective state, their pensions are funded by the consolidated fund of India.

Tenure

The Constitution does not specify a fixed tenure for judges of the Supreme Court. However, there are four provisions regarding their tenure: they can serve until the age of 62 (65 in the case of the Supreme Court), resign by writing to the President, be removed from office by the President on the recommendation of Parliament, or vacate their office upon appointment as a Supreme Court judge or transfer to another High Court in India.

Removal of Judges

A High Court judge in India can be removed in a manner similar to that of a Supreme Court judge, based on the same grounds. The President can issue the removal order upon the recommendation of Parliament, which must be supported by a special majority in both Houses. The grounds for removal include proved misbehavior and incapacity. The procedure for the removal of a High Court judge is governed by The Judges Enquiry Act (1968).

Acting Chief Justice of HC

The President has the authority to designate a judge of the high court as an acting chief justice of the high court in situations where the position of chief justice is vacant, the incumbent is temporarily absent, or is unable to carry out the responsibilities of the office.

Additional and acting judges of HC

The President has the power to appoint qualified individuals as additional judges of a high court on a temporary basis for a maximum duration of two years in cases where there is a temporary surge in the workload of the high court or a backlog of cases.

Functions of High Court

Original Jurisdiction

High Courts of Calcutta, Bombay, and Madras possess original jurisdiction over both criminal and civil cases originating within their respective territories.
These High Courts have the exclusive authority to adjudicate civil cases involving property valued at more than Rs. 20,000.
They are empowered to issue writs for the enforcement of fundamental rights.
In addition to fundamental rights cases, High Courts hold original jurisdiction over matters such as wills, divorces, contempt of court, and admiralty.
High Courts are authorized to hear election petitions.

Appellate Jurisdiction

In civil cases, parties dissatisfied with a district court’s decision may appeal to the High Court.
Alternatively, appeals may be made directly from subordinate courts if the dispute exceeds Rs. 5000 in value or involves questions of fact or law.
In criminal matters, the High Court’s jurisdiction encompasses cases decided by Sessions and Additional Sessions Judges, particularly those involving sentences of seven years or more imprisonment or capital punishment.
The High Court holds jurisdiction over all cases governed by state or federal laws.
In constitutional matters, the High Court may hear cases certified to involve substantial questions of law.

As a Court of Record

High Courts, similar to the Supreme Court, function as Courts of Record. The judgments rendered by High Courts can serve as precedents for subordinate courts in their decision-making process. Additionally, all High Courts possess the authority to penalize instances of contempt committed by individuals or entities.

Administrative Powers

High Courts oversee and manage all subordinate courts under their jurisdiction.
They have the authority to request information about proceedings from subordinate courts.
High Courts establish regulations governing the operations of subordinate courts.
They possess the power to transfer cases between different courts, including the ability to transfer cases to themselves for adjudication.
High Courts can examine the records and related documents of subordinate courts.
They are responsible for appointing administrative staff, determining their salaries and allowances, and establishing their terms of service.

Independence of High Court

Appointment of Judges: High Court judges are appointed by the judiciary itself, independent of the legislature or executive branches.

Tenure of Judges: High Court judges serve until they reach the retirement age of 62 years and can only be removed by the President through an address.

Salaries and Allowances: High Court judges receive fixed salaries, perks, and allowances that cannot be altered to their detriment, except during a financial emergency. The expenses of the High Court are covered by the Consolidated Fund of the State and are not subject to approval by the state legislature.

Powers: The powers and jurisdiction of the High Court, as outlined in the Constitution, cannot be diminished by either the Parliament or the state legislature.

Conduct of Judges: Except in cases where an impeachment motion has been initiated, the conduct of High Court judges cannot be deliberated upon in Parliament.

Retirement: Upon retirement, High Court judges are prohibited from holding any salaried position under the Government of India or a state. However, exceptions can be made for temporary appointments with the consent of the Chief Justice of India or during emergencies.