In the Indian scheme of judicial system, high court work below the Supreme Court. The judiciary in the state consists of a high court and a hierarchy of subordinate courts. The institution of High Court originated in India in 1862 when the high courts were setup at Bombay, Calcutta and Madras.
The constitution of India provides a high court for each state; however, the Parliament is authorized to declare a common high court for two or more states. The territorial jurisdiction of a high court is co-terminus with the territory of a state. Furthermore, the Parliament has been empowered to extend or curtail the jurisdiction of a high court over a Union Territory
Organization of a High Court: The number of judges in a high court unlike Supreme Court is decided by the President of India rather than the parliament
Appointment of judges
- The judges of a high court are appointed by the president of India
- 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
- In case of appointment of other judges to high court, it was opined that CJI should consult a collegium of two senior-most judges of the SC before recommending a name to the President of India in the seminal third judges case
Qualification of judges
- He should be a citizen of India
- He should have held a judicial office in the territory of India for ten years or
- He should have been an advocate of a high court for ten years
Tenure of judges
- He holds office until he attains the age of 62 years. Any question regarding his age will be determined by the President of India in consultation with the CJI and the decision of the President is final
- He can resign from office by writing to the President
- He can be removed from his office by the President on the recommendation of the Parliament
- He vacates his office when he is appointed as a judge of the SC or when he is transferred to another high court
Removal of judges: The process of impeachment of a high court judge is similar to that of a judge of SC
Salaries and allowances: They are determined by the parliament and cannot be varied to the detriment of the judges once they are appointed. However, this does not apply during the times of financial emergency
Note: Though the salary of a judge is charged on the consolidated fund of the state, the pension is charged on the consolidated fund of India
Transfer of judges
- The president can transfer a high court judge after consultation with the CJI
- In 1994, the SC held that judicial review is necessary to check arbitrariness in transfer of judges
- In third judges cases, it was opined that the CJI should consult an addition of collegium of four senior-most judges of the SC, chief justice of the two high courts involved in the process before taking any final decision
Additional and acting judges
The 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
- There are arrears of work in the high court
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
In both the cases, the additional or acting judge cannot hold office beyond 62 year of age
Independence of High Court
- Mode of appointment
- Security of tenure: They can be removed in the same manner as SC judges
- Fixed service conditions
- Expenses charged on Consolidated Fund
- Conduct of judges cannot be discussed
- Ban on practice after retirement: The retired permanent judges of a high court are prohibited from pleading or acting in any court or before any authority in India except the SC and the other high courts
- Power to punish for its contempt
- Freedom to appoint its staff
- Its jurisdiction cannot be curtailed:
- The jurisdiction and powers provided by the constitution to high court cannot be curtailed by either the Parliament or the state legislature
- However, the jurisdiction and powers of a high court can be changed both by the Parliament and the state legislature
Jurisdiction and powers of High Court
- Constitution does not contain detailed provisions with regard to jurisdiction and powers of a high court
- It only lays down that the jurisdiction and powers of a high court are to be the same as immediately before the commencement of the constitution with one addition- High court has been given jurisdiction over revenue matters
Jurisdiction of High Court
Original jurisdiction of High Court
The Constitution of India does not give a detailed description of the original jurisdiction of the High Court. It is accepted that the original jurisdiction of a High Court is exercised by issue of Writs to any person or authority including Government.
- Article 226 of the Constitution vests in the High Court the power to issue writs for the restoration of fundamental rights and also in cases of other legal rights
- This power of the High Court does not derogate the similar power conferred on the Supreme Court in Article 32 of the Constitution.
- The original jurisdiction of the High Court also extends to the matters of admiralty, probate, matrimonial and contempt of Court cases.
- The High Courts have also full powers to make rules to regulate their business in relation to the administration of justice. It can punish for its own contempt.
- High Courts have been given original jurisdiction over cases arising out of Parliament or state legislature elections
Appellate Jurisdiction of High Court
The appellate jurisdiction of High Court extends to both civil and criminal cases.
- In civil cases, its jurisdiction extends to cases tried by Courts of Munsifs and District judges.
- In the criminal cases it extends to cases decided by Sessions and Additional Sessions Judges.
HC’s Power of Superintendence:
A High Court has also the power of superintendence over all Courts and Tribunals except those dealing with the armed forces functioning in the State.
- This power has made the High Court responsible for the entire administration of Justice in the State.
- It is both judicial as well as administrative in nature.
- The Constitution does not place any restriction on its power of superintendence over the subordinate Courts. It may be noted the Supreme Court has no similar power vis-a-vis the High Court.
- The governor also consults the High Court in the appointment and transfer of district judges and other officers of the judicial service in the state.
Erosion of High Court’s jurisdiction in recent times due to tribunalization
Tribunals have replaced high courts for disputes under the Companies Act, Competition Act, SEBI Act, Electricity Act, and Consumer Protection Act among others.
In general sense, the ‘tribunals’ are not courts of normal jurisdiction, but they have very specific and predefined work area. These tribunals do not enjoy the same constitutional protection as high courts.
Any person aggrieved by an order of an appellate tribunal can directly appeal to the Supreme Court, side-stepping the high court.
This raises several institutional concerns.
- The enormous institutional investment to protect the independence of high courts is dispensed with when it comes to tribunals.
- Many tribunals still owe allegiance to their parent ministries.
- Critics say that Tribunals are also not as accessible as high courts. This makes justice expensive and difficult to access.
- Further, the justification of expert adjudication by tribunals disappears as many tribunals preside over by retired high court judges.
Way forward
- Prevent unnecessary creation of tribunals in the country
- Fill the vacancies in the high court which has been rising in India since recent times
- High courts should be provided certain superintendence role in monitoring the tribunals in the state
