High Courts of India

High Courts of India

• High Courts are second Courts of Importance of the democracy of India. They are at the second level in the hierarchy of the courts in India. In general, they are subordinate to the Supreme Court. They are run by Article 141 of the Constitution of India. They are governed by the bindings conferred by the Supreme Court of India so far judgments and orders are concerned. The Supreme Court of India is the highest level of courts and is responsible for fixing the guidance to the High Courts set by precedence.

• High courts are the types of courts which are instituted as the courts powered by the constitution with the effect of Article 214 Chapter V of the Indian Constitution. There are 24 high courts in India taking care of the regional juridical system of India out of which Kolkata High Court is the oldest. High Courts have jurisdiction over the States in which they are located. However, the following three High Courts have jurisdiction over more than one State: High Courts of Bombay (Mumbai), Guwahati, and Punjab and Haryana . For instance, the Bombay High Court is located at Mumbai, the capital city of the State of Maharashtra. However, its jurisdiction covers the States of Maharashtra and Goa and the Union Territories of Dadra and Nagar Haveli.

Court of Record:

• A court whose proceedings are recorded and available as evidence of the fact, then it is called the court of record. Thus a court of record is a court whose acts and proceedings are enrolled for perpetual memory and testimony. These records are used with high authority and their truth cannot be questioned.
• In Indian constitution article 215 make the High Courts the ‘court of record”. Article 215 says: High Court to be a court of record.-The High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Number of Judges:

• The President of India has the authority to fix the number of judges of the High Courts as per requirement. The basic factor for this purpose is being settled through the central executive which can decide about the number of judges which is being decided with a flexible attitude

Appointment of the Judges:

• As per article 217, the Chief Justice of the High courts is appointed by the President in consultation with the Chief justice of India as well as the Governor of the state.
• A collegium system has evolved over the years in which a Collegium headed by the CJI makes a recommendation to the government for appointment of judges. The Collegium recommends the names to the law ministry which after scrutinizing send the paper to the president.
• The president either approves the names or returns the names for reconsideration of the Supreme Court. If still, the Supreme Court sends the same names president appoints the persons recommended.

Qualifications:

• A person to be appointed as a judge of a High court should be a citizen of India. Further,
• He should have held a judicial office in the territory of India for ten years or
• should have been an advocate of the High court(s) for ten years.
• There is no minimum age fixed for High Court judges, and unlike in Supreme Court, there is no provision for appointment of a distinguished jurist as a judge of a high court.

Term and Salary:

• A Judge of High Court holds the office until he completes the age of 62 years. The salaries and allowances of the Chief Justice of the High Court and Judges of the High Court are decided by the parliament by law, from time to time.
• Current salary of Chief Justice is Rs 2.50 lakh, up from the current Rs 90,000
• Current salary of other judges is Rs 2.40 lakh, up from the current Rs 80,000
• The salaries and other expenses of the judges and maintenance of the state high courts are charged from consolidated fund of the state. Pension of retired judges comes from Consolidated Fund of India.

Selection and Transfer of Judges:

• At present, the selection and transfer of Judges of  High Court is done by President on consultation with the collegium system.
•  In case of selection and transfer of HC judges, the collegium consists of CJI, 2 senior-most judges of the SC and CJ of the concerned High Courts.
• The proposal of NJAC to replace the collegium system was struck down by SC and after that, the executive is working on a New Memorandum of Procedures to reform the collegium system

Criteria for Transfer:

• When a judge is appointed as Chief Justice he is generally transferred to another HC.
• In the case when a lawyer from the bar is appointed as Judge or when a judge is promoted to HC. These transfers are done to avoid instances of favoritism.
• In instances of any complaint of corruption or any other charges which does not lead to his impeachment, the judge is transferred to another High Court. These are called punishment transferring.

Removal of the Judge:

• A Judge of the High Courts can be removed from office only for proven misbehaviour or incapacity and only in the same manner in which a Judge of the Supreme Court is removed. The President of India can remove a Judge of the High Court, from his office only if each house of the parliament passes a resolution by a two-thirds majority of its members present and voting in each house requesting him to remove the Judge.

Post-retirement Jobs:

• The retired permanent judges of High courts are prohibited from pleading or acting in any court or before any authority in India except the Supreme Court and the other high courts.
• The government generally uses the retired higher judiciary judges as heads of various commissions. There has been a demand from certain sections of the society that there should be a “cool off” period of two years for the retired judges before they are installed in other offices.

Powers and Functions of High Court:

As a Court of Appeal:

• The aggrieved party due to the order or judgment by immediately below court can appeal against that court in the High Court.

As the Court of Record:

• The High Court is a Court of Record. Its decisions bind all courts in India. HC and Subordinate Courts use its decisions/judgments as laws and decide the cases before them.

Powers of issuing Directions, Order or Writs:

• The High Court can issue Writs in the nature of Habeas Corpus, Mandamus, Prohibition, and Quo-warranto Certiorari; for the enforcement of fundamental rights.

Powers of Superintendence:

• Every High Court has a general power of superintendence over all the lower courts (District and Session Courts) and tribunals within its jurisdiction except military courts and tribunals.
• The High Court controls all the subordinate courts in the State. It consults with the Governor in the matter of appointing, posting and promoting district judges.
• If a case is pending before a subordinate court and the High Court is satisfied that it involves a substantial question of the constitutional law, it can take up the case and decide it itself.

Judging the Validity of Laws:

• In the original Constitution, the High Courts were given powers of judging the validity of the Central and the State laws which was taken away by the 42nd Amendment of the Constitution but restored through the 43rd Constitutional (Amendment) Act, 1978.

Other powers:

• The High Court has the power to punish for contempt of itself.
• The High Court can frame the required rules to carry out its judicial functions.

Jurisdiction:

• These courts are mainly confined to the jurisdiction of the state, group of states or Union Territory. They are being empowered to govern the jurisdiction of lower courts like family, civil and criminal courts with other different courts of the districts.
• These courts are of the statute of principal civil courts so far originality of jurisdiction is concerned in the related domain of the states and the other district courts.
• High Courts are mainly exercising their jurisdiction related to the civil or criminal domain if the lower courts are proved incapable of exercising their power as per authorization extended by law.  These situations may be generated through the inability of financial or territorial jurisdiction.
• There are specific areas in which only High Courts can exercise the right for hearing like cases related to Company Law as it is designated especially in a state or federal law.
• But normally the high courts are involved in the appeals raised in the cases of lower courts with the writ petitions as conferred in Article 226 of the Constitution of India. The area of writ petitions is also the sole jurisdiction of high courts.

Classification of Jurisdiction:

Original Jurisdiction

• In several matters, the High court has the power to hear the dispute in the first instance, not by way of appeal. This is called original jurisdiction. Like the Supreme Court, the High court has original jurisdiction in matters of enforcement of fundamental rights, admiralty, will, marriage, divorce, company laws and contempt of court. It also has similar jurisdiction in matters related to the election of MPs and MLAs.

Appellate Jurisdiction: 

• The High Court hears the appeals against the subordinate courts in both civil and criminal matters.

Supervisory Jurisdiction:

• The High courts have the power of superintendence over all courts and tribunals within its territorial jurisdiction except military courts or tribunals. Under Article 227 of the Constitution of India, it has the power to transfer the cases from other subordinate courts in the state to itself.

Writ Jurisdiction:

• Except for High Courts of Kolkata, Chennai, and Mumbai, none has the power to issue the privileged writs.
• Article 226 empowers the High courts with writ jurisdiction for the enforcement of fundamental rights as well as any other matter within the territory of its jurisdiction. The difference between Supreme Court (article 32) and High Court (article 226) is that while Supreme Court can issue writs only for enforcement of fundamental rights, the High courts can issue writs for other matters also.