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.
of the Union over a High Court in India is exercised in the following
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
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.
is no such corresponding provision for the Supreme Court.
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
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
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.
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
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.
can examine the previous records of public service rendered by the
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
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.
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
Control over the subordinate courts is the collective and individual
responsibility of the High Court.
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.
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.
for judges of HC:
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
Removal of judges [Act
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
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
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
Additional or Acting
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
Retired judges: The
chief justice may with previous consent of president and
the person concerned
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
appoints judges only after consultation with other
interference is minimum.
of tenure and protection against arbitrary removal
charged on consolidated fund
practise after retirement
as specified can’t be changed for HC and SC by any
jurisdiction with respect to other matters can be
changed by both.
to punish for contempt
of judges can’t be discussed
of High Court:
HC's of Bombay, madras, Calcutta and Delhi have original
civil cases of higher value.
disputes related of parliament and state legislatures.
involving interpretation of constitution.
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.
a court of appeal for civil, criminal cases of
subordinate courts. The
appellate jurisdiction extends to even tribunal orders.
courts have wide supervisory jurisdiction over all
courts and tribunals in its
territorial jurisdiction. Also it has judicial as well
superintendence. It can take suo moto cognisance.
a court of record; it has power of judicial review.
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