STATE JUDICIARY HIGH COURT

Introduction to State Judiciary

The Indian Judicial system works with harmony of subordinate court, high court and
supreme court. High Courts are quite important for the feasibility and efficacy of this
system.
Peace and tranquility can be maintained in a country or state with an efficient judicial
system. In introduction to state judiciary, we can say that it is the bedrock of stability in a
state. Judiciary in a state is the principal structure forged to give assurance to people that
they are safe and sound within that state. State judiciary and functions associated with it
need to be followed by everyone. State judiciary makes sure that everyone in the state gets
justice as per the law. The role of the state judiciary is to give a sense of equality and
accountability to everyone.
The introduction to state judiciary starts coming into picture in Article 214 and stays till
Article 231. These articles have been put in Part 6 in the Constitution. These articles
elaborate everything related to judiciary including organization, structure, prerogative of
judges, powers, state judiciary and functions associated with them. The much similar
structure of the judiciary system is found at Centre level also. India has an integral judicial
system in which the supreme court has been put at the top.
Introduction to State Judiciary- Subordinate Courts are the primary courts of India that
work at the ground level. Subordinate Courts have been established in each district of
every state in India. Civil courts, Criminal Courts and Revenue courts are some examples
of the subordinate courts. High courts are higher than subordinate courts and lower than
supreme courts in the hierarchy of the judicial system in India.
The judge of a high court can be a person who has the citizenship of India and has
experience of working in a judicial office in any part of India for 10 years at least or the
person has been part of a high court as an advocate for a decade, i.e.,10 years. So, there is
no minimum age requirement to become the judge of the high court but a judge can hold
office up to a maximum of 62 years of age. The Judges of high court can resign to the
president if they want and they can also be removed by the president if the parliament
recommends to do so. The state judiciary in the Indian system has been used to handle
jurisdiction over revenue matters also which had not been given to high courts in the
colonial era.
State Judiciary and Functions-
The highest state judicial body of the state in India is called the High Court. 25 high
courts have been established in India. In these 25, 3 high courts have jurisdiction in more
than one state. Bombay High Court also deals with cases of Daman and Diu, Goa,
Maharashtra and Dadra and Nagar Haveli. The high court of Guwahati gives justice to
people of Nagaland, Arunachal Pradesh, Assam and Mizoram. Punjab and Haryana High
Court which has territorial jurisdiction over Punjab, Haryana and Chhattisgarh. Similarly,
the judicial system of Union Territories of India is also linked with some state high courts,
for example- Calcutta high court has judicial reach in Andaman and Nicobar Islands.
Madras high court also has jurisdiction over Puducherry.
Role of State Judiciary-
In India, one Chief Justice who is called the Chief Justice of India (CJI) and some other
judges are appointed in the Supreme Court. In the same manner, if we talk about state
judiciary and functions assigned to it, every high court has a chief justice and some other
judges. In our constitution, the number of judges in a high court is not decided, it is left to
the discretion of the president. The president of India designates High Courts’ judges.
Firstly, the chief justice is designated to his post, then after consulting with the governor of
the respective state and chief justice of India, the president of India appoints other judges
too. After the third judges’ case (1998), the Supreme Court gave a verdict that the chief
justice of India should consult with collegium of two senior most judges of the Supreme
Court for a fair ‘consultation’ process. Role of state judiciary also extends to 7 types of
jurisdictions- Original Jurisdiction, Appellate Jurisdiction, Writ Jurisdiction, Control over
subordinate courts, Supervisory jurisdiction, also it is ‘A court of record’, it has been given
power of judicial review. Introduction to state judiciary has been incorporated with more
writ jurisdiction to high courts than supreme court in India. The supreme court can issue
writs only to enforce fundamental rights whereas high courts can issue writ over any or all
kinds of legal rights.
Composition of Judges of High Court
 The Constitution does not specify the strength of a High Court and leaves it to the
discretion of the President.
o Thus, every High Court consists of a Chief Justice and such other Judges as
determined by the President.
 The President determines the strength of a High Court from time to time depending
upon the workload of the High Court.
Appointment of Judges of High Court
The Chief Justice and other judges of the High Court are appointed by the President of
India as can be seen in the following sections.
Appointment of Chief Justice of High Court
The Chief Justice is appointed by the President after consultation with the Governor of
the concerned State and the Chief Justice of India.
Appointment of Other Judges of High Court
 Other judges of the High Court are appointed by the President after consultation
with the Governor of the State, the Chief Justice of India, and the Chief Justice of
the concerned High Court.
  In the case of a common High Court for two or more States, the Governors of all the
States concerned are consulted by the President of India.
 As per the Second Judges Case (1993), consultation with the Chief Justice of
India means concurrence and advice tendered by the Chief Justice of
India is binding on the President.
 As per the Third Judges Case (1998), the Chief Justice of India should
consult a collegium of 2 senior-most judges of the Supreme Court before
recommending the name to the President.
o The recommendations made by the Chief Justice of India, without
consulting the collegium, are not binding on the President.
Qualifications of Judges of High Court
A person to be appointed as a judge of a High Court should have the following
qualifications:
 He/she should be a citizen of India, and
 He/she should have
o Held a judicial office in the territory of India for ten years. OR
o Been an advocate of a High Court (or High Courts in succession) for ten
years.
It is to be noted that:
 Unlike in the case of the Supreme Court, the Constitution makes no provision for
the appointment of a distinguished jurist as a judge of a High Court.
 There is no minimum age for appointment as a judge of a High Court prescribed
by the Constitution.
Oath and Affirmations of Judges of High Court
 The Chief Justice and the Judges of the High Court make and subscribe to an oath
or affirmation before the Governor of the State or some person appointed by him
for this purpose.
 In his/her oath, a judge of a High Court swears:
o to bear true faith and allegiance to the Constitution of India.
o to uphold the sovereignty and integrity of India.
o to duly and faithfully and to the best of his/her ability, knowledge, and
judgment perform the duties of the office without fear or favor, affection or
ill-will.
o to uphold the Constitution and the laws.
Salaries & Allowances of Judges of High Court
 The salaries, allowances, privileges, leave, and pension of the judges of the High
Court are determined by the Parliament from time to time.
o They cannot be varied to their disadvantage after their appointment except
during a Financial Emergency.
Tenure of Judges of High Court
The Constitution has not fixed the tenure of a judge of the High Court. However, the
Constitution contains the following four provisions in this regard:
 He/she holds office until he attains the age of 62 years.
o Any question regarding his/her age is to be decided by the President after
consultation with the Chief Justice of India and the decision of the President
is final.
 He/she can resign from his/her office by writing to the President.
 He/she can be removed from his/her office by the President
on the recommendation of the Parliament.
 He/she vacates his/her office when he/she is appointed as a judge of the Supreme
Court or when he/she is transferred to another High Court.
Removal of Judges of High Court
 A judge of the High Court can be removed from his/her office by an order of the
President.
 They can be removed on the following two grounds:
o proved misbehaviour
o incapacity
 The procedure relating to the removal of a judge of the High Court is regulated by
the Judges Enquiry Act (1968) and is the same as that for a judge of the Supreme
Court.
 As per the Act, the process of removal goes as follows:
o A removal motion signed by 100 members in the case of Lok Sabha or 50
members in the case of Rajya Sabha is to be given to the Speaker/Chairman.
 The Speaker/Chairman may admit the motion or refuse to admit it.
o If the motion is admitted, then the Speaker/Chairman constitutes a three-
member committee to investigate the charges. The Committee consists of:
o the Chief Justice of India or a Judge of the Supreme Court,
 o a Chief Justice of a High Court, and
o a distinguished jurist.
o If the committee finds the judge guilty of the charges, then both the Houses of
Parliament can take up the motion for consideration.
 The motion must be passed by both Houses of Parliament with a
Special Majority (50% of the total membership of the House + two-
thirds of the members present and voting).
o Once passed by both Houses of Parliament, an address is presented to the
President for the removal of the judge.
o Finally, the President passes an order, removing the judge.
Note: No judge of the High Court has been impeached so far.
Transfer of Judges of High Court
 The President of India can transfer a judge of one High Court to another High
Court after consulting the Chief Justice of India.
 As per Third Judges Case (1998), in case of transfer of a judge of the High Court,
the Chief Justice of India should consult, in addition to a collegium of 4
seniormost judges of the Supreme Court, the Chief Justices of the two High
Courts concerned.
o The sole opinion of the Chief Justice of India does not constitute the
consultation process.
Acting, Additional and Retired Judges of High Court
Acting Chief Justice
 The President of India can appoint a judge of the High Court as acting Chief
Justice of the High Court when:
o the office of Chief Justice of the High Court is vacant, or
o the Chief Justice of the High Court is temporarily absent, or
o the Chief Justice of the High Court is unable to perform the duties of
his/her office.
Acting Judge
 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:
o unable to perform the duties of his/her office due to absence or any other
person
o appointed to act temporarily as Chief Justice of that High Court.
  An acting judge holds office until the permanent judge resumes his/her office.
However, he/she cannot hold office after attaining the age of 62 years.
Additional Judge
 The President can appoint duly qualified persons as additional judges of a High
court for a temporary period not exceeding two years when:
o there is a temporary increase in the business of the High Court,
o there are arrears of work in the High Court.
o An additional judge cannot hold office after attaining the age of 62 years.
Retired Judges
 The Chief Justice of a High Court of a State can request a retired judge of that
High Court or any other High Court to act as a judge of the High Court of that State
for a temporary period.
 The Chief Justice of a High Court of a State can do so only with the previous
consent of the President and also of the person to be so appointed.
 Allowances of such a judge are determined by the President of India.
 He/she enjoys all the jurisdiction, powers, and privileges of a judge of that High
Court. But, he/ she will not otherwise be deemed to be a judge of that high court.
Jurisdiction and Powers of High Court
The Constitution does not contain detailed provisions w.r.t. the 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 some
additions such as revenue matters, writ jurisdiction, power of superintendence,
consultative power, etc.
The present jurisdiction and powers of a High Court are governed by multiple sources,
including:
 the constitutional provisions,
 the Letters Patent,
 the Acts of Parliament,
 the Acts of State Legislature,
 the Indian Penal Code, 1860,
 the Criminal Procedure Code, 1973, and
 the Civil Procedure Code, 1908.
The extensive jurisdiction and powers of the High Court can be classified into the
following categories:
Original Jurisdiction
The original jurisdiction of the High Court i.e. its power to hear disputes in the first
instance, not by way of appeal, includes the following:
 Disputes relating to the election of members of Parliament and State Legislatures.
 Regarding revenue matters or an act ordered or done in revenue collection.
 Enforcement of fundamental rights of citizens.
 Cases ordered to be transferred from a subordinate court involving the interpretation
of the Constitution to its own file.
 The four High Courts (i.e., Calcutta, Bombay, Madras and Delhi High Courts) have
original civil jurisdiction in classes of higher value.
Writ Jurisdiction
 As per Article 226 of the Indian Constitution, the High Court is empowered to issue
writs for the enforcement of Fundamental Rights and any ordinary legal right.
 The writ jurisdiction of the High Court is not exclusive but concurrent with the
writ jurisdiction of the Supreme Court.
o It means, when the fundamental rights of a citizen are violated, the aggrieved
party has the option of moving either the High Court or the Supreme Court
directly.
 However, the writ jurisdiction of the High Court is wider than that of
the Supreme Court.
o While the Supreme Court can issue writs only for the enforcement of
fundamental rights, the High Court can issue writs for the enforcement of
Fundamental Rights as well as any ordinary legal right.
Read our detailed article on Writ Jurisdiction of the High Court.
Appellate Jurisdiction
 The High Court is primarily a court of appeal and hears appeals against the
judgments of Subordinate Courts functioning within the territorial jurisdiction
of the State.
 The Appellate Jurisdiction of the Supreme Court can be classified under the
following two heads:
Appeals in Civil Matters
 The civil appellate jurisdiction of a High Court is as follows:
 o First appeals from the orders and judgments of the district courts, additional
district courts, and other subordinate courts lie directly to the high court, on
both questions of law and fact.
o Second appeals from the orders and judgments of the district court or other
subordinate courts lie to the high court in the cases involving questions of
law only, and not questions of fact.
o Some High Courts have provision for intra-court appeals.
 Under this, when a single judge of the High Court has decided a case,
an appeal from such a decision lies to the division bench of the same
High Court.
o Appeals from the decisions of the administrative and other tribunals lie to
the division bench of the State High Court.
Appeals in Criminal Matters
 Appeals from the judgments of Sessions Court and Additional Sessions Court lie to
the High Court if the sentence is one of imprisonment for more than seven years.
o A death sentence or capital punishment awarded by a Sessions Court or an
Additional Sessions Court should be confirmed by the High Court before it
can be executed, whether there is an appeal by the convicted person or not.
Supervisory Jurisdiction
 A High Court has the power of superintendence over all courts and tribunals
functioning in its territorial jurisdiction, except military courts or tribunals.
 This power of superintendence of a High Court extends to all courts and tribunals
whether they are subject to the appellate jurisdiction of the High Court or not.
 The following points are to be noted w.r.t. the Supervisory Jurisdiction of High
Courts:
o It covers not only administrative superintendence but also judicial
superintendence,
o it is a revisional jurisdiction,
o it can be suo-motu (on its own) and not necessarily on the application of a
party.
Control over Subordinate Courts
A High Court has administrative control and other powers over the Subordinate Courts,
which include the following:
  It is consulted by the Governor in the matters of appointment, posting and
promotion of district judges and in the appointments of persons to the judicial
service of the state (other than district judges).
 It deals with the matters of posting, promotion, grant of leave, transfers, and
discipline of the members of the judicial service of the state (other than district
judges).
 It can withdraw a case pending in a subordinate court if it involves a substantial
question of law that requires the interpretation of the Constitution. It can then either
dispose of the case itself or determine the question of law and return the case to the
subordinate court with its judgment.
 Its law is binding on all subordinate courts functioning within its territorial
jurisdiction in the same sense as the law declared by the Supreme Court is binding
on all courts in India.
A Court of Record
As a Court of Record, the High Court has the following powers:
 The judgments, proceedings, and acts of the Supreme Court are recorded for
perpetual memory and testimony. These records are admitted to be of
evidentiary value and cannot be questioned when produced before any court.
o Thus, these judgments are recognized as legal precedents and legal
references.
 It has the power to punish for contempt of not only itself but also contempt
of subordinate courts.
o However, a High Court shall NOT take cognizance of a contempt alleged to
have been committed in respect of a subordinate court, where such contempt
is an offense punishable under the Indian Penal Code, 1860.
 The power to review and correct its own judgment, order, or decision.
o It is to be noted that while the Constitution specifically confers the power of
review on the Supreme, such specific power of review has not been
conferred on the High Courts by the Constitution.
Power of Judicial Review
 It refers to the power of the High Court to examine the constitutionality of
legislative acts and executive orders of both the Central and the State
Governments.
o If, on examination, they are found to be violative of the Constitution, they
will be declared illegal, unconstitutional, null, and void by the High Court.
Independence of High Courts
The Constitution has made the following provisions to safeguard and ensure the
independent and impartial functioning of High Courts:
 Mode of Appointment – The judges of the High Court are appointed by the
President in consultation with the members of the judiciary itself. This ensures that
the judicial appointments are not based on any political or practical considerations.
 Security of Tenure – The judges of the High Court have been given security of
tenure. They can be removed by the President only in the manner and on the
grounds mentioned in the Constitution.
 Fixed Service Conditions – The service conditions of the judges of the High Court
cannot be changed to their disadvantage after their appointment, except during a
Financial Emergency.
 Expenses Charged on Consolidated Fund – The salaries and allowances of the
judges of a High Court are charged on the Consolidated Fund of the State and are
non·votable by the State Legislature.
o Note: the pension of a High Court judge is charged on the Consolidated Fund
of India, not the Consolidated Fund of State.
 Bar on Parliamentary Interference – The conduct of judges of the High Court in
the discharge of their duties cannot be discussed in Parliament or State Legislature,
except when an impeachment motion is under consideration by the Parliament.
 Ban on Post-Retirement Practice – The retired judges of the High Court are
prohibited from pleading or acting in any court or before any authority within the
territory of India, except the Supreme Court and the other High Courts.
o This ensures that they do not favor anyone in the hope of future favor.
 Power to Punish for its Contempt – The High Court can punish any person for its
contempt. Thus, its actions and decisions cannot be criticized and opposed by
anybody.
 Freedom to Appoint its Staff – The Chief Justice of a High Court can appoint
officers and servants of the High Court and prescribe their service conditions,
without any interference from the Executive.
 Protection of Jurisdiction – The Parliament and State Legislature are not
authorized to curtail the jurisdiction and powers of the High Court.
o However, the Parliament can extend the same.
Conclusion
The High Court stands as the pinnacle of judicial administration of the State embodying
the essence of justice, independence, and constitutional supremacy. With its extensive
jurisdiction, it ensures the rule of law and upholds the fundamental rights and liberties of
residents of the concerned state. As India continues to evolve, the High Court’s role will
continue to remain critical in navigating the legal landscape and shaping the nation’s
future.