Chapter 33: HIGH COURT

  • THERE shall be a High Court in each State [Art. 214] but Parliament The High Court of has the power to establish a common High Court for two or more States. The High Court stands at the head of the Judiciary in the State.

  • Every High Court shall consist of a Chief Justice and such other Constitution of Judges as the President of India may from time to time appoint

  • Participatory Consultative Process : A nine-Judge Bench of the Supreme Court has held that (1) the process of the appointment of the Judges of the High Courts is an integrated 'participatory consultative process' for selecting the best and most suitable persons available for appointment; and all the constitutional functionaries must perform this duty collectively with a view primarily to reach an agreed decision, subserving the constitutional purpose, so that the occasion of primacy does not arise.

  • Initiation of the proposal for appointment in the case of High Court must invariably be made by the Chief Justice of that High Court.

  • In the event of conflicting opinions by the constitutional functionaries, the opinion of the judiciary 'symbolised by the view of the Chief Justice of India' formed by him in consultation with two senior most Judges of the Supreme Court who come from that State, would have supremacy.

  • No appointment of any Judge of a High Court can be made unless it is in conformity with the opinion of the Chief Justice of India.

  • In exceptional cases alone, for stated strong cogent reasons, disclosed to the Chief Justice of India, indicating that the recommendee is not suitable for appointment, that the appointment recommended by the Chief Justice of India not be made.

  • However, if the stated reasons are not accepted by the CJI and the other Judges of the Supreme Court, consulted by him in the matter, on reiteration of the recommendation by the CJI, the appointment should be made as a healthy convention.

  • As Sir Alladi Krishnaswami explained in the Constituent Assembly, while ensuring the independence of the Judiciary, the Constitution placed the High Courts under the control of the Union in certain important matters, In order to keep them outside the range of 'provincial politics'.

  • Thus, even though the High Court stands at the head of the State Judiciary, it is not.

  • So sharply separated Irom the federal Government as the highest Court ofan American State (called the State Supreme Court) is.

  • The control of the Union over a High Court in India is exercised in the following matters:

  • Appointment (Art. 217), transfer from one High Court to another [Art. 222) and removal Art. 217(1), and determination of dispute as to age [Art. 217(3)]. of Judges of High Courts.

  • Now the power to transfer of the High Court Judges remains no more a method of control over the High Court by the Union Government as the Supreme Court has prescribed a procedure for the purpose in a Reference made by the President of India in exercise of his powers under Art. 143.

  • The Supreme Court opined that the Chief Justice of India should obtain the views of the Chief justice of the High Court from which the proposed transfer Is to be effected as also that of the Chief Justice of the High Court to which the transfer is to be effected

  • The Chief Justice of India should also take into account the views of one or more Supreme Court Judges who are In position to provide material which would assist in the process of deciding whether or not a proposed transfer should take place.

  • These views should be expressed In writing and should be considered by CJI and the four senior most Judges of the Supreme Court.

  • These views and those of each of the four senior most Judges should be conveyed to the Govt. of India with the proposal of transfer.

  • What applies to the transfer of Judges of a H.C. applies as well to the transfer of the Chief Justice of a High as a CJ. of another H.C. except that in this case, only the views of one or more knowledgeable Judges need be taken into account

  • These factors, including the response of the High Court Chief Justice or the Judge proposed to be transferred, to the proposal to transfer him, should be placed before the collegium-the CJI and his first four Judges-to be taken into account by it before reaching a final conclusion on the proposal.

  • Unless the decision to transfer has been taken in the manner aforestated, it is not decisive and does not bind the Govt of India and shall be subject to judicial review.

  • (b) The constitution and organisation of High Courts and the power to establish a common High Court for two or more States and to extend the jurisdiction of a High Court to, or to exclude its jurisdiction from, a Union Territory, are all exclusive powers of the Union Parliament

  • It should be pointed out in the present context that there are some provisions introduced into the original Constitution by subsequent amendments, which affect the independence of High Court Judges as compared with Supreme Court Judges;

  • (a) Art. 224 was introduced by substitution, in 1956. to provide for the appointment of additional Judges to meet 'any temporary increase in the business of a High Court'.

  • An additional Judge, so appointed, holds office for two years, but he may be made permanent at the end of that term.

  • There is no such corresponding provision for the Supreme Court.

  • It was introduced in the case of the High Courts because of the problem of arrears of work, which was expected to disappear in the near future.

  • Now that the problem of arrears has become a standing problem which is being met by the addition of more Judges.

  • There is no particular reason why the make-shift device of additional appointment should continue.

  • The inherent vice of th1s latter device is that It keeps an additional Judge on probation and under the tutelage of the Chief Justice as well as the Government as to whether he would get a permanent appointment at the end of two years.

  • So far as the judicial power of a High Court Judge is concerned, he ranks as an equal to every other member of a Bench and is not expected, according to any principle relating to the administration of justice, to 'agree' with the Chief Justice or any other senior member of a Bench where his learning, conscience or wisdom dictates otherwise or to stay his hands where the merits of a case require a judgment against the Govemment

  • The fear of losing his job on the expiry of two years obviously acts as an inarticulate obsession upon an additional Judge.

  • Similarly. Cl(3) was inserted in Art. 217 in 1963. giving the President, in consultation with the Chief Justice of India, the final power to determine the age of High Court Judge, if any question is raised by anybody in that behalf.

  • By the same amendment of 1963 (15th Amendment), Cl.(2A) was inserted in Art. 124, laying down that a similar question as to the age of a Supreme Court Judge shall be determined in such manner as Parliament may by law provide.

  • A High Court Judge's position has thus become not only unnecessarily inferior to that of a Supreme Court Judge but even to that of a subordinate judicial Officer, because any administrative determination of the latter's age is open to challenge in a Court of law, but in the case of a High Court Judge, It is made 'final' by the Constitution itself.

  • There is apparently, no impelling reason why a provision similar to Cl. (2A) to Art. 12. shall not be Introduced in Art. 217, in place of Cl. (3), in question.

  • Another agency of control over High Court Judges is the provision in Art. 221(1) for their transfer from one High Court to another, which has been given a momentum by transferring as many as 50 Judges at a time.

  • In order that the power of the President to order such transfer is not used as a punitive measure, the Supreme Court has laid down that while no consent of the Judge concerned would be required, the President would not be competent to exercise the power except on the recommendation of the Chief Justice of India.

  • Following English and American decisions, our Supreme Court has admitted exceptions from the strict rules relating to affidavit locus standi and the like in the case of a class of litigations, classified as 'public interest litigation' (PIL) i.e., where the public in general are interested in the vindication of some right Or the enforcement of some public duty.

  • The High Courts also have started following this practice in their jurisdiction under Art. 226, and the Supreme Court has approved this practice, observing that where public interest Is undermined by an arbitrary and perverse executive action, it would be the duty of the High Court to issue a writ

  • The Court must satisfy itself that the party bringing the PIL is litigating bolla fide for public good.

  • It should not be merely a cloak for attaining private ends of a third party or of the party bringing the petition.

  • The court can examine the previous records of public service rendered by the litigant.

  • An advocate filed a writ petition against the State or Its 'instrumentalities seeking not only compensation to a victim of rape committed by its employees (the railway employees) but also so many other reliefs including, eradication of anti-social and criminal activities at the railway stations.

  • The Supreme Court held that the petition was in the nature of a PIL and the advocate could bring in the same for which no personal injury or loss is an essential element.

  • As the head of the Judiciary in the State, the High Court has got an administrative control over the subordinate judiciary in the State in respect of certain matters, besides its appellate and supervisory Jurisdiction over them.

  • The Subordinate Courts include District Judges, Judges of the City Civil Courts as well as the Metropolitan Magistrates and members of the judicial service of the State.

  • The control over the Judges of these Subordinate Courts is exercised by the High Courts in the following matters-

  • (a) The High Court is to be consulted by the Governor in the matter of appointing, posting and promoting District Judges [Art. 233].

  • (b) The High Court is consulted, along with the State Public Service Commission, by the Governor in appointing persons (other than District Judges) to the Judicial service of the State [Art. 234].

  • (c) The control over district courts and courts subordinate thereto, including the posting and promotion of, and the grant of leave , transfers of, disciplinary control over including inquiries, suspension and punishment, and compulsory retirement of, persons belonging to the judicial service and holding any post inferior to the post of a district judge is vested In High Court

  • Control over the subordinate courts is the collective and individual responsibility of the High Court.

     High Court:

     High court occupies top position in the judicial administration of the state. Parliament can have common high court for two or more states or states and UT's. [Ex: Bombay HC over Daman Diu and dadra nagar haveli, Calcutta HC over A&N islands, Kerala HC over Lakshadweep islands and madras HC over Puducherry].

     Only Delhi is a union territory that has a HC. HC has a chief justice and other judges as the president may deem necessary to appoint. Constitution doesn’t determine strength of HC but leaves it to the President.


     Appointment of Judges:

     The President appoints chief justice of high court after consulting CJI and governor of the state or states [in case of common high court]. For other judges of that court chief justice of that high court is also consulted.


     Qualification for judges of HC:

1. Citizen of India

2. A) should have held a judicial office in India for 10  years


2 B) should have been an advocate of HC for 10 years in succession.



He can be a judge of the high court till he reaches 62 years of age. He can be removed by president on recommendation of parliament. He can resign by writing to the president.


Removal of judges [Act of Parliament]:

Grounds for removal are proven misbehaviour or incapacity.

A motion support removal must be supported by 100 LS / 50 RS members. The presiding officer may or may not admit it. If admitted an inquiry committee of Chief justice of India or a Supreme Court judge; A Chief justice of high court and distinguished jurist checks if judge is guilty; if the committee finds the judge guilty then parliament can pass a motion by special majority in both houses. An address supported by this motion must be presented to the president on the same day. Then by a presidential order the judge can be removed.

President can transfer the judge of a HC after consultation with chief justice of India.

Acting Chief Justice:

The president can appoint a HC judge as acting chief justice in case the vacancy of office of chief justice OR C.J is temporarily absent or unable to perform his duties.


Additional or Acting judges:

President can appoint additional judges for a period of two years if additional work load is seen or to clear arrears. The appointees should be duly qualified. For acting judges the president can appoint duly qualified people till the judge is temporarily absent or unable to perform his duty.

Retired judges: The chief justice may with previous consent of president and the person concerned

Appoint a retired judge [of the same HC or other HC] as judge of the HC. Though such a person enjoys all privileges and powers he isn’t considered as a judge of the HC.

Independence of HC:

1.      President appoints judges only after consultation with other judges. Executive interference is minimum.

2.      Security of tenure and protection against arbitrary removal

3.      Expense charged on consolidated fund

4.      Ban on practise after retirement

5.      Jurisdiction as specified can’t be changed for HC and SC by any legislature. But jurisdiction with respect to other matters can be changed by both.

6.      Power to punish for contempt

7.      Conduct of judges can’t be discussed

Jurisdiction of High Court:

Original jurisdiction

1.      Four HC's of Bombay, madras, Calcutta and Delhi have original jurisdiction over civil cases of higher value.

2.      Revenue matters

3.      Elections disputes related of parliament and state legislatures.

4.      Enforcing fundamental rights

5.      Cases involving interpretation of constitution.

Writ jurisdiction:

The HC can issue writs to any person, organisation or authority for enforcement of fundamental rights as well as for any other purpose. Hence it is wider than the writ jurisdiction of SC.

Appellate jurisdiction:

It is a court of appeal for civil, criminal cases of subordinate courts. The appellate jurisdiction extends to even tribunal orders.

Supervisory jurisdiction:

High courts have wide supervisory jurisdiction over all courts and tribunals in its territorial jurisdiction. Also it has judicial as well as administrative superintendence. It can take suo moto cognisance.

It is a court of record; it has power of judicial review.


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