Chapter 34: High Courts

Historical Background and Establishment

Origin and Evolution

  • High Courts originated in 1862 with the Indian High Courts Act of 1861.

  • The first High Courts were established in Bombay, Madras, and Calcutta.

  • The fourth High Court in Allahabad was established in 1866.

  • The 7th Amendment of 1956 empowered Parliament to establish a common High Court for two states or a Union Territory.

  • Currently, there are a total of 25 High Courts in India.

  • Delhi is the only Union Territory to have its own High Court, while Jammu, Kashmir, and Ladakh share a common High Court.

Constitutional Provisions

  • High Courts are governed by Part 6, Chapter 5, Articles 214-231 of the Indian Constitution.

  • Article 214 specifies the provision of High Courts for states.

  • Article 215 designates High Courts as courts of record with the power to exercise contempt of themselves.

  • Article 216 outlines the constitution of a High Court, with a Chief Justice and other judges as determined by the President.

  • Article 217 details the appointment and qualifications of judges, involving consultation with the Chief Justice of India and the Governor.

  • 218 - application of some provision from 124 clause 4 and 5 of supreme court -w.r.t to impeachment

  • 219 - oath

  • 220 - restriction on practice after being a permanent judge - cannot practice in the same high court, can practice in SC or some other HC

  • 221- salaries etc

  • 222 - transfer of judge from one court to another - compensatory allowance

  • 223 - appointment of acting chief justice - president can appoint duly qualified judge

  • 224 - of additional and acting judges - pres can appoint if temporary increase in the business of HC or if mounting arrears of work

  • 224A - retired judges

  • 225 - jurisdiction of existing high courts - This article provides that the High Court of a state will have the same jurisdiction, powers, and authority as it had before the Constitution came into effect. Jurisdiction over High Court: It also specifies that the High Court's jurisdiction and powers, as specified in the Constitution, will extend to all matters and disputes arising under laws in force in the state, including those laws related to the administration of justice.

  • 226 - power to issue writs + judicial review (alongwith article 13)

  • 227 - supreintendence over all courts

  • 228 - transfer of certain cases to HC

  • 229 - Officers and services expense of HC - to be decided by CJ and charged on the consolidate fund of India

  • 230 - extension of jursidction to UTs

  • 231 - commong high court for 2 or more states

Judicial Appointments and Tenure

  • The appointment of High Court judges is made by the President in consultation with the Chief Justice of India and the state's Governor.

  • The tenure of a High Court judge is not fixed by the Constitution but typically lasts until the age of 62.

  • Judges can resign by writing to the President and can be removed on grounds of proven misbehavior or incapacity.

  • The Judges Enquiry Act of 1968 outlines the process for the removal of judges.

  • The Fourth Judges Case in 2015 declared the National Judicial Appointments Commission (NJAC) unconstitutional, reinstating the collegium system.

Powers and Jurisdiction

  • High Courts have the power to issue writs under Article 226, including mandamus, certiorari, habeas corpus, prohibition, and quo warranto.

  • They can hear disputes related to elections, revenue, fundamental rights, and constitutional interpretation.

  • High Courts also have appellate jurisdiction in civil and criminal matters, supervisory jurisdiction under Article 227, and control over subordinate courts.

  • The Chandrakumar case in 1997 affirmed the writ jurisdiction of High Courts as a basic structure of the Constitution.

  • High Courts act as courts of record, preserving judgments as legal precedents and having the power to punish for contempt.

Appointment and Qualification of Judges

Appointment Process

  • Judges of High Courts are appointed by the President in consultation with the Chief Justice of India and the respective state's Governor.

  • In the case of multiple states, the Governors of all concerned states are consulted.

  • The Chief Justice of the High Court is also consulted for the appointment of other judges.

Qualifications and Removal

  • To be eligible, a judge must have held a judicial office in India for 10 years, practiced as an advocate in a High Court for 10 years, and be an Indian citizen.

  • Judges can be removed on grounds of proven misbehavior or incapacity, following a specific process outlined in the Constitution.

  • The Judges Enquiry Act of 1968 provides a mechanism for the removal of judges through a motion supported by members of the Lok Sabha and Rajya Sabha.

Acting Judges and Retired Judges

  • The President can appoint acting judges when the office of Chief Justice is vacant or temporarily absent.

  • Retired judges can be requested by the Chief Justice to act as judges with the President's consent, with their allowances determined by the President.

Judicial Review and Powers

Judicial Review

  • High Courts have the power of judicial review over legislative enactments and executive orders of both central and state governments.

  • This power is derived from Article 13 and Article 226 of the Constitution.

  • Grounds for judicial review include infringement of fundamental rights, lack of competence by the authority, and repugnance to constitutional provisions.

Supervisory Jurisdiction and Control

  • Article 227 grants High Courts supervisory powers over all courts and tribunals, allowing them to issue general rules and settle fees.

  • High Courts also have control over subordinate courts, including the appointment and management of judicial personnel.

Court of Record and Contempt Powers

  • High Courts act as courts of record, preserving judgments as legal precedents.

  • They have the power to punish for contempt, as outlined in the Contempt of Courts Act of 1971