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Report On Working Of High Court In India

Though the constitution of India provides for single judicial system, yet provisions are made of separate courts for each state. High court is the highest court in the state and article-214 to 231 of the constitution describe the organisation and powers of high courts. Article 214 of the constitution provides that:
There shall be a High court for each state article 231 further provides that:
parliament may by Law establish a common High Court for two or more states and a union territory.

At present for example there is a common High Court for the states of Punjab, Haryana and Union Territory of Chandigarh. Similarly, there is common high court for Assam, Nagaland, Arunchal Pradesh, Mizoram.

There are 25 High courts at the state and union territory level of India, which together with the Supreme court of India at the national level, comprises the country’s judicial system. Each high court has jurisdiction over a state, a union territory or a group of states and union territories. Below the high courts is a hierarchy of subordinate courts such as the civil courts, family courts, criminal courts, and various other district courts. High courts are instituted as constitutional court under part VI, Chapter V, article 214.

The High courts are the principle civil courts of original jurisdiction in each state and union territory. However, a high court exercises its original civil and criminal jurisdiction only if the subordinate courts are not authorized by law to try such matters for lack of pecuniary, territorial jurisdiction. High courts may also enjoy original jurisdiction in certain matters, if so designated specifically in a state or federal law.

However, the work of most high courts primarily consists of appeals from lower courts and writs petitions in terms of article 226 of the constitution. Writs jurisdiction is also an original jurisdiction of a high court. The precise territorial jurisdiction of each high court varies. The appeal order is the following : tehsil-Kotwali -criminal/ civil courts - district court - high court – supreme court.

Each state is divided into judicial districts presided over by a district and session judge. He is known as district judge when he presides over a civil case, and session judge when he presides over a criminal case. He is the highest judicial authority below a high court of civil jurisdiction, known by different names in different states. Under article 141 of the constitution, all courts in India including high court are bound by the judgement and orders of the supreme court of India by precedence.

Establishment Of High Court

The Indian High Courts Act Of 1861

was an act of the parliament of the united kingdom to authorized the crown to create High courts in the Indian colony. Queen victoria created the high courts in Calcutta, Madras, and Bombay by letter patent in 1862. These High courts would become the precursors to the High courts in the modern day India, Pakistan, and Bangladesh. The act was passed after the Indian Rebellion of 1857 and consolidated the parallel legal system of the crown and East Indian Company.

The Act abolished the Supreme Courts at Calcutta, Madras, and Bombay; the Sadar Diwani Adalat and the Sadar Nizamat Adalat at Calcutta; Sadar Adalat and Faujdari Adalat at Madras; Sadar Diwani Adalat and Faujdari Adalat at Bombay.

Constitution Of High Court Judges

Article 216

States about Constitution of high courts—Every High court shall consist of a chief justice and such other judges as the president may from time to time deem it necessary to appoint.

S.P Gupta v. Union of India 1982 SC , the court held that the president is under a constitutional obligation to review the strength of each High court vis-ŕ-vis the arrears of cases pending therein. However, no mandamus could lie to compel the President to increase the strength.

Supreme court advocates on record association v. union of India 1993 , the court held that the chief justice of India and the chief justice of High court concerned must undertake the periodical review of strength of the judges in the interest of effective administration of justice and make recommendation about such strength to the President. The recommendation of chief justice of India in this regard must be acted upon by the President with the due dispatch. The courts may order the President to act on such recommendations if he fails to do so.

Appoinment And Condition Of The Office Of A Jufge Of High Court

The High Court of a State is the highest court of the State and all other courts of the State work under it. Normally there is one High Court in every State but there can be only one High Court for two or more States as well, according to the constitution. There is one High Court at Chandigarh for Punjab, Haryana and Union Territory of Chandigarh. Similarly there is one High Court at Guwahati which serves Assam, Arunachal Pradesh, Mizoram and Nagaland.

Appointment of the Judges: The Chief Justice of a High Court is appointed by the President with the consultation of the Chief Justice of the Supreme Court and the Governor of the State. The other judges are appointed by the will of President, Governor and the Chief Justice of High Court.

Qualifications for the Judges
  1. He should be a citizen of India.
  2. He should have been
    1. a judge for 10 years of Subordinate court under the Judicial Service of the State or
    2. an Advocate for 10 years in a High Courts in India (Article 217).

Originally the age of the retirement of the judges of the High Courts was fixed at 60 but it was raised to 62 in 1963 according to the 15th amendment of the Constitution.
Removal of the Judges: A judge may leave his office by resigning. He will send his letter of resignation to the President. His office would be considered to have been vacated if he is appointed as a judge of the Supreme Court or is transferred to some other High Court.

A judge of a High Court may also be removed like a judge of the Supreme Court. A judge of High Court may be removed by the President if the Parliament passes a motion against him by an absolute majority and 2/3rd majority of the members present and voting, both the Houses sitting separately.

Article 217

deals with the mode of appointment of judges of high courts, their tenure and their qualification.

Its procedure is mandatory and applies to appointment of regular judges under article 224. Controversies concerning this procedure came for determination before the court in the Judges case. In the lengthiest ever decision of the court different judges expressed their views on this and other issues involved in that case.

In brief, the court held that the consultation with each of the three constitutional functionaries, the Chief Justice of the High court, the Governor of the State and the Chief Justice of India must be a full and effective consultation, which has the same meaning as under article 222(1), namely, obtaining opinion after due deliberation, placing full and identical facts and material before the person being consulted.

The pay of the Chief Justice of a High Court is rupees 90,000/- per month and that of the other judges is rupees 85,000/- per month.
Article 221 states about salaries etc., of judges:
  1. There shall be paid to the judges of each High court such salaries as may be determined by the parliament by law and, until provision in that behalf is so made, such salaries as are specified in the second schedule.
  2. Every judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by parliament and, until so determined, to such allowances and rights as are specified in the second schedule:
    Provided that neither the allowances of a judges nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.
Salaries of the High Court judges were laid down by the constitution, and could not be varied unless the constitution was amended. The constitution was amended in 1986 conferring power on parliament under clause (1) to determine such salaries. The amendment, however, does not exempt salaries so determined by Parliament from the provisions of the Income Tax Act. Salaries and allowances of judges are charged on the Consolidated Fund of the state and hence are non-votable.

Their pension are also charged on the Consolidated Fund of India. The High Court judges (condition of service) Act, 1954 determines matters related to salaries and allowances of the High Court judges. A judge is entitled to a staff car. In case the State Government fails to provide him staff car he is entitled to be compensated. The compensation is, however, only a short term measure and not a substitute for staff car.

Powers And Functions

Original Jurisdiction:
The original jurisdiction of the High Court is restricted.
Every High Court under Article 226 is empowered to issue writs, orders, directions including writs in the nature of Habeas Corpus,
  1. Mandamus, Prohibition, Quo-warranto ,Habeas corpus and Certiorari or any of them to any person or authority with in its territory for the enforcement of the Fundamental Rights and for any other purpose.
    Habeas Corpus- You May Have The Body
    Mandamus-We Command
    Prohibition-Stay Order
    Certiorari-To Be Certified
    Quo Warranto- By What Authority
  2. The original jurisdiction of High Court extends to matters of admiralty, matrimonial, contempt of court and cases ordered to be transferred to High Court by lower court.
  3. The High Courts of Mumbai, Kolkata and Chennai have original jurisdiction on hearing straightway cases involving the Christians and Parsies.
  4. The High Courts of Mumbai, Kolkata and Chennai exercise original civil jurisdiction when the amount involved is more than two thousand rupees.

Appellate Jurisdiction:

The appellate jurisdiction of the High Courts extends so:
  1. The High Court can hear appeals in civil cases if the amount involved in the case is at least Rs. 5000.
  2. The High Court in criminal cases hears the appeal in which the accused has been sentenced to four years imprisonment by the Sessions Judge.
  3. The death sentence awarded by Sessions Judge is subject to approval by the High Court.
  4. The High Court hear the cases involving interpretation of the Constitution or Law.
  5. The High Court hears the cases on income tax, sales tax etc.

Power of Judicial Review:

The States High Courts like the Supreme Court has the power of Judicial Review. A High Court has the power to strike down any law of the State or any order of the executive if it violates any provision of the constitution or curtails or takes any of the Fundamental Rights of the people.

Administrative and Supervisory Power:

State High Court performs many administrative functions within its Territorial Jurisdiction. It exercises the power of superintendence and control over all courts and tribunals throughout the territory except the military tribunals.

Under article 9 of the Indian high court Act 1861, each High Court had "all such powers and authority for and in relation to the administration of justice" including original and appellate jurisdiction over civil, criminal, admiralty, vice-admiralty, testamentary, intestate, and matrimonial matters.

Oath Of Judges Of High Court

Article 219 states about oath or affirmation by judges of high courts-every person appointed to be a judge of a high court shall, before he enters upon his office, make and subscribe before the governor of the state, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the third schedule.

The oath which the judges takes under this article requires him (inter alia) to bear true faith and allegiance to the Constitution of India and to perform the duties of his office without fear or favour, affection or ill will and to uphold the Constitution and the laws.

Transfer Of Judges

Article 222 states about transfer of a judge from one high court to another- (1) the president may, (on the recommendation of the National Judicial Appointments commission referred to in article 124A), transfer a judge from one high court to any other high court.

(2)when a judge has been or is so transferred, he shall, during the period he serves, after the commencement of the constitution (fifteenth amendment) act 1963, as a judge of the other high court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by parliament by law and until so determined, such compensatory allowance as the president may by order fix.

There was no specific provision in the Government of India Act, 1935, for the transfer of a judge from one High court to another. The present article empowers the President , after consultation with the Chief Justice of India, to transfer a judge from one High court to another.

In Union of India v. sankalchand Himtlal Seth, the validity of a presidential notification transferring sankalchand h. sheth J from Gujarat High Court to Andhra Pradesh High court was challenged among others on the ground that the transfer was without the consent of the judge and without consultation of Chief Justice of India.

Although before pronouncement of the court decision, a settlement was reached between the parties and the Government of India admitted that there was no  justification for transferring Sheth J from Gujarat High Court , the court, in view of the importance of the issue and in view of the fact that the case had been hotly argued before the settlement, gave four elaborate opinion.

All the judges agreed that independence of judiciary was an essential and vital ingredient of our legal system and the threat of transfer at the whims and caprices of the executive constitutes a major inroad in that independence. Therefore, transfer of judges can be made only in public interest.

S.P. Gupta v. Union of India in which a larger bench of the court upheld the validity of a circular letter. The court decided that the transfer of High court judges could be pursued as a policy in the interest of national integration without a threat to judicial independence. But in spite of the consent by a judge every transfer must satisfy the requirement laid down in sankalchand in the national interest after consultation with the chief justice of India.

The distinct feature of judiciary is that it has a single integrated and unified judicial system.

The High court is the highest court in a state. The number of judges varies from state to state. The President appoints them. They hold office up to the age of 62 years. They may be removed earlier by the President on resolution of a request from both Houses of Parliament.

It has original and appellate jurisdiction. It is the protector of the Fundamental Rights. It is also court of record, and can punish for is contempt.
There are 25 High court for 29 States and seven union territories.

In every district there are subordinate civil, family, criminal and revenue courts. Appeals against the decisions of the lower courts are taken to the High Court of the State.

  1. V.N Shukla
  2. J.N. Pandey
  3. Constitution of India Bare act
Written By: Smriti Singh

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