CHAPTER 15 – THE STATE JUDICIARY

 

THE STATE JUDICIARY

(ARTICLES 214 – 237)

 

 

CHAPTER V –  THE HIGH COURTS IN THE STATES (ARTICLE 214 – 231)

 

The Constitution of India derives its provisions regarding the High Courts in the states from the Indian High Courts Act, 1861.

 

 

ARTICLE 214

 

HIGH COURT FOR THE STATES

There shall be a High Court for each state.

 

DESCRIPTION

Article 214 provides a High Court for each state in the Union of India i.e. every state in India can have a High Court of its own. Also, a state cannot have more than one High Court.

However, there are many states which share their High Court with other states/UT. At present there are 25 High Courts in India.

List of all the High Courts having jurisdiction over more than one state/UT
Bombay High Court Maharashtra, Goa, Daman and Diu (UT), Dadra and Nagar Haveli (UT)
Calcutta High Court West Bengal, Andaman and Nicobar Islands (UT)
Guwahati High Court Assam, Arunachal Pradesh, Mizoram, Nagaland
Kerala High Court Kerala, Lakshadweep (UT)
Madras High Court Tamil Nadu, Puducherry (UT)
Punjab and Haryana High Court Punjab, Haryana, Chandigarh (UT)
Jammu and Kashmir High Court Jammu and Kashmir (UT), Ladakh (UT)

Thus, 7 High Courts have jurisdiction in more than one state or UT. However, only 3 High Courts have jurisdiction in more than one state.

 

 

ARTICLE 215

 

HIGH COURTS TO BE COURTS OF RECORD

Every 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.

 

 

ARTICLE 216

 

COMPOSITION OF THE 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.

 

 

ARTICLE 217

 

QUALIFICATIONS, APPOINTMENT AND VACANCY IN THE OFFICE OF THE JUDGE OF A HIGH COURT

  1. Every Judge of a High Court, shall be appointed by the President after consultation with the Chief Justice of India, the Governor of the state, and, in the case of appointment of a Judge other than the Chief Justice of the High Court, the Chief Justice of the High Court itself, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of 62 years, provided that –
    1. a Judge may resign his office by writing to the President;
    2. a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court;
    3. the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.
  2. A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and –
    1. has for at least 10 years held a judicial office in the territory of India; or
    2. has for at least 10 years been an advocate of a High Court or of two or more such Courts in succession.
  3. If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.

 

DESCRIPTION

 

APPOINTMENTS TO THE OFFICE OF THE JUDGE OF THE HIGH COURT

The proposal for appointment of Judges of High Court must be initiated by the Chief Justice of that High Court. 

The Chief Justice of a High Court is appointed by the President of India after consultation with the Chief Justice of the Supreme Court and the Governor of the state concerned. In case of a common High Court for two or more states, the Governors of all the concerned states are consulted by the President. For the appointment of other Judges of the High Court, the Chief Justice of the concerned High Court shall also be consulted.  

The Supreme Court held in 1998 that in case of the appointment of the High Court Judges, the Chief Justice of India should consult a collegium of two senior most Judges of the Supreme Court, preferably belonging to the state where such appointments are to be made. Thus, the sole opinion of the Chief Justice of India would not constitute the ‘Consultation’ process. In case of conflicting opinions between the constitutional functionaries, the opinion of the Judiciary represented by the Chief Justice of India, formed by him in consultation with the two senior most judges of the Supreme Court, would have supremacy. The recommendations made by the Chief Justice of India without complying to the norms shall not be binding upon the Government of India, and shall be subject to Judicial Review.

 

VACANCY IN THE OFFICE OF THE JUDGE OF THE HIGH COURT

A vacancy may arise in the office of the Judge of a High Court, if,

  1. he attains the age of 62 years.
  2. resigns by writing to the President of India.
  3. he is removed from the office through the process of impeachment similar to that for the removal of a Judge of the Supreme Court. Therefore, a Judge of the High Court can be impeached only through a motion in the regard passed by both the Houses of the Parliament by special majority.
  4. he is transferred to another High Court.
  5. he is elevated to be the Judge of the Supreme Court.

 

QUALIFICATIONS TO BE A JUDGE OF THE HIGH COURT

To be appointed as a Judge of the High Court, a person

  1. must be a Citizen of India.
  2. must have held a judicial office in the territory of India for atleast 10 years OR must have served as an Advocate in High Court for atleast 10 years.

There is no minimum age prescribed to be the Judge of the High Court.

 

 

ARTICLE 218

 

REMOVAL OF THE JUDGE OF THE HIGH COURT

The provisions of clauses (4) and (5) of article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court.

 

DESCRIPTION

A Judge of the High Court can be impeached only through a motion in the regard passed by both the Houses of the Parliament by special majority. The state Legislature has nothing to do with the removal of the Judge of its High Court.

 

 

ARTICLE 219

 

OATH OF THE JUDGE OF THE HIGH COURT

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.

 

DESCRIPTION

Every person appointed as the Judge of a High Court needs to take an oath, before joining the office, before the Governor of the state in accordance with the form set out for the purpose in the 3rd Schedule of the Indian Constitution.

 

 

ARTICLE 220

 

RESTRICTION ON PRACTICE OF THE JUDGE OF THE HIGH COURT

No person who has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts.

 

DESCRIPTION

The Judge of a High Court cannot practice in any court inferior to the High Court, even if they retire or take premature retirement. They can only practice in other High Courts or the Supreme Court.

 

 

ARTICLE 221

 

SALARIES OF THE JUDGES OF THE HIGH COURT

  1. There shall be paid to the Judges of each High Court such salaries as may be determined by 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 Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.

 

DESCRIPTION

The salary, as well as the allowances, privileges and rights, of the High Court judges may be determined by the Parliament by law, and until so determined,  shall be in accordance with the provisions of Second Schedule. Also, the salary, as well as the allowances, privileges and rights, of the High Court judges cannot be varied to their disadvantage after their appointment.

 

 

ARTICLE 222

 

TRANSFER OF A JUDGE FROM ONE HIGH COURT TO OTHER

  1. The President May, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.
  2. When a Judge has been or is so transferred as a Judge of the other High Court, he shall 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 determine.

 

 

ARTICLE 223

 

APPOINTMENT OF ACTING CHIEF JUSTICE OF THE HIGH COURT

When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.

 

DESCRIPTION

When there is a permanent or temporary vacancy in the office of the Chief Justice of a High Court, the President may appoint any Judge of the aforementioned High Court as an Acting Chief Justice, to perform the duties of the office of the Chief Justice, during such period.

 

 

ARTICLE 224

 

APPOINTMENT OF ADDITIONAL OR ACTING JUDGES OF THE HIGH COURT

  1. If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein; it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify.
  2. When any Judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a Judge of that Court until the permanent Judge has resumed his duties.
  3. No person appointed as an additional or acting Judge of a High Court shall hold office after attaining the age of sixty-two years.

 

DESCRIPTION

If at any time, the President feels that the number of Judges in a High Court must be increased owing to temporary increase in the work or by reasons of arrears of work in the aforementioned High Court, the President may appoint duly qualified persons to be the additional Judges of the High Court. The President can appoint such additional Judges for a period not exceeding 2 years at a time. 

Similarly, if a permanent Judge of the High Court is temporarily not able to discharge his duties, the President may appoint a duly qualified person to act as the Judge of the aforementioned High Court until the permanent Judge resumes his duties.

It is to be noted that while making such appointment of additional judges to the High Court, the President is expected to act on the aid and advice of the Chief Justice of the High Court of the state concerned.

No person appointed as an additional or acting Judge of a High Court can hold office after attaining the age of 62 years.

 

 

ARTICLE 224A

 

PROVISION FOR RETIRED JUDGES TO ACT AS THE JUDGES OF THE HIGH COURT

Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any state may at any time, with the previous consent of the President, request any person, who has held the office of a Judge of that Court or of any other High Court, to sit and act as a Judge of the High Court for that state, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court, provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.

 

DESCRIPTION

The Chief Justice of a High Court, with the previous consent of the President, may request a person who has retired as a Judge of any High Court, to sit and act as a Judge of the High Court for that state. However, it is upto such a retired Judge if he agrees to the request or not. Such a person so requested shall, while sitting and acting as a Judge of the High Court shall have all the jurisdiction, powers and privileges of a Judge of the High Court, and such allowances as may be determined by the President of India. However, such a person shall not otherwise be deemed to be a Judge of the High Court. Also, a retired Judge cannot be appointed to fill the temporary or permanent vacancy arising for the post of the Judge of High Court.

 

 

ARTICLE 225

 

JURISDICTION OF THE HIGH COURTS

  1. ORIGINAL JURISDICTION It refers to the power of the Court to hear a dispute in the first instance, not by way of appeal. In that way, its Writ Jurisdiction also comes under its Original Jurisdiction. The Original Jurisdiction of the High Court extends in following matters:
    1. Enforcement of Fundamental Rights.
    2. Disputes related to marriage, divorce, will, company laws, contempt of court.
    3. Disputes related to the election of the members of Parliament as well as state Legislatures.
    4. Cases transferred from the subordinate courts, involving the interpretation of the Constitution.
    5. Civil or criminal cases, if the subordinate courts are not authorised by law to try such matters for lack of pecuniary, territorial jurisdiction.
  2. APPELLATE JURISDICTIONThe High Court is primarily a court of appeal. It hears appeals against the judgments of the subordinate courts, functioning within its territorial jurisdiction. It hears appeals in both civil and criminal cases.

 

 

ARTICLE 226

 

WRIT JURISDICTION OF THE HIGH COURT

Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

 

DESCRIPTION

The High Court under Article 226 can issue writs of Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo-Warrento for the enforcement of the Fundamental Rights of the Citizens and for any other purpose. The phrase ‘for any other purpose’ implies that the High Court can issue writs not just for the enforcement of Fundamental Rights but also for any other purpose. Hence the power of the High Courts to issue writs is wider than that of the Supreme Court of India, since the Supreme Court under Article 32 can issue writs only for the enforcement of the Fundamental Rights. Also, the High Court can issue writs not just to person, authority or government within its territorial jurisdiction, but also to the ones outside its territorial jurisdiction if the cause of action arises within its territorial jurisdiction.

 

 

ARTICLE 227

 

SUPERVISORY JURISDICTION OF THE HIGH COURT

  1. Every High Court shall have superintendence over all courts and tribunal, throughout its territorial jurisdiction.
  2. Every High Court may make rules and regulate the practice and proceedings of such courts, with the previous approval of the Governor.
  3. Nothing in this article shall be deemed to confer on a High Court, the powers of superintendence over any court or tribunal constituted by the Armed Forces.

 

DESCRIPTION

The High Court has the power of superintendence over all courts and tribunals functioning within its territorial jurisdiction. This however excludes all military courts and tribunals. The High Court also has administrative control over all subordinate courts, functioning within its territorial jurisdiction. It is consulted by the Governor in the matters of appointment, posting, and promotion of District Judges, and in the matter matters of appointments of other persons to the judicial services of the state. 

 

 

ARTICLE 228

 

TRANSFER OF CERTAIN CASES TO HIGH COURT

  1. If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution, the determination of which is necessary for the disposal of the case, it shall withdraw the case to itself.
  2. The High Court may,
    1. either dispose off the case itself, or
    2. determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.

 

DESCRIPTION

The High Court may withdraw a case to itself from the subordinate court, if the case involves a substantial question of law as to the interpretation of the Constitution. The High Court may either dispose of the case itself, or send back the copy of its judgment on such a question, to the subordinate court, which shall be obliged to dispose of the case in conformity with such judgement.

 

 

ARTICLE 229

 

OFFICERS, SERVANTS AND EXPENSES OF HIGH COURTS

  1. Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct. The Governor may provide by rule that no person not already attached to the court may be appointed without the recommendation of the state Public Service Commission.
  2. Subject to the provisions of any law made by the Legislature of the state, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose. The rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the state.
  3. The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the state, and any fees or other moneys taken by the Court shall form part of that Fund.

 

DESCRIPTION

The appointments of officers and servants of a High Court are made by the Chief Justice of the High Court, or by another Judge or officer of the High Court as may be directed by the Chief Justice of the High Court. However, a person who is to be appointed for the first time in the High Court could not be appointed so without the recommendation of the respective state Public Service Commission.

The Chief Justice of the High Court specifies rules regarding the terms and conditions of such officers and servants of the High Court. However, the state Legislature by law may override such rules made by the Chief Justice in this regard. In any case, such rules regarding the terms and conditions of the officers and servants of the High Court are to be made only after prior approval from the Governor of the state.

All administrative expenses of the High Court, shall be charged upon the Consolidated Fund of the state. Any fee or money taken by the High Court for its services shall form part of this fund.

 

 

ARTICLE 230

 

EXTENSION OF JURISDICTION OF HIGH COURTS TO UNION TERRITORIES

  1. Parliament may by law extend the jurisdiction of a High Court to, or exclude the jurisdiction of a High Court from, any Union Territory.
  2. Where the High Court of a State exercises jurisdiction in relation to a Union Territory, –
    1. nothing in this Constitution shall be construed as empowering the Legislature of the state to increase, restrict or abolish that jurisdiction; and
    2. the reference in article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts in that territory, be construed as a reference to the President.

 

DESCRIPTION

The Parliament may extend or exclude the jurisdiction of a High Court to any Union Territory. The state has no power to increase, restrict or abolish such a jurisdiction of its respective High Court. Any reference to the Governor in any of the provisions of the High Court with respect to the state must be understood as a reference to the President, in case of a Union Territory.

 

 

ARTICLE 231

 

ESTABLISHMENT OF A COMMON HIGH COURT FOR TWO OR MORE STATES

  1. Parliament may by law establish a common High Court for two or more states, or for two or more states and a Union Territory.
  2. In relation to such a High Court, 
    1. the reference in article 217 to the Governor of the state shall be construed as a reference to the Governors of all the states in relation to which the High Court exercises jurisdiction.
    2. the reference in article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts, be construed as a reference to the Governor of the state in which the subordinate courts are situated.
    3. the references in articles 219 and 229 to the state shall be construed as a reference to the state in which the High Court has its principal seat.
      1. provided that if such principal seat is in a Union territory, the references in articles 219 and 229 to the Governor, Public Service Commission, Legislature and Consolidated Fund of the State shall be construed respectively as references to the President, Union Public Service Commission, Parliament and Consolidated Fund of India.

 

DESCRIPTION

In case of a common High Court for more than one state or UT, the word Governor shall be understood to refer to

  1. Governors of all the states over which the jurisdiction of the High Court extends, in matters of appointments of the Judges of the High Court.
  2. Governor of the state in which the subordinate courts exists, in matters of supervision over the subordinate courts.
  3. President of India, in matters where the High Court exercises its jurisdiction over the Union Territory.

 

 

CHAPTER VI –  SUBORDINATE COURTS (ARTICLE 233 – 237)

 

Article 232 has been omitted from the Constitution of India through 7th Constitutional Amendment Act 1956.

 

 

ARTICLE 233

 

APPOINTMENT OF DISTRICT JUDGE

  1. Appointments of district judges in any state shall be made by the Governor of the state in consultation with the High Court exercising jurisdiction in relation to such state.
  2. A person not already in the service of the Union or of the state shall only be eligible to be appointed as a District Judge if he has been for not less than seven years as an advocate or a pleader and is recommended by the High Court for appointment.

 

DESCRIPTION

The District Judge is the highest judicial authority in the district. He possesses original as well as appellate jurisdiction in both civil as well as criminal cases within the district. When he deals with civil cases, he is known as the District Judge, and when he hears the criminal cases, he is known as the Sessions Judge.

 

APPOINTMENT OF A DISTRICT JUDGE

The appointments, as well as postings and promotions, of District Judges in a state shall be made by the Governor of the state, in consultation with the High Court of the state. 

 

QUALIFICATION NEEDED TO BE APPOINTED AS THE DISTRICT JUDGE

  1. If a person is already in the service of the Union or the state, he may be appointed as the District Judge by means of elevation from the subordinate courts, if he is chosen for the position by the Governor of the state in consultation with the High Court of the state.
  2. If a person is not already in the service of the Union or the state, he needs to have been practicing as an Advocate for atleast 7 years and must qualify a written exam followed by interview by a panel of the Judges of the High Court, to be appointed directly as a District Judge. This is referred to as direct recruitment.

 

 

ARTICLE 234

 

RECRUITMENT TO THE JUDICIAL SERVICES OF THE STATE

Appointments of persons, other than district judges, to the judicial service of a state shall be made by the Governor of the state, in accordance with rules made by him in that behalf after consultation with the state Public Service Commission and with the High Court exercising jurisdiction in relation to such state.

 

DESCRIPTION

Appointments of persons, other than District Judges, to the judicial service of a state are made by the Governor of the state in accordance with rules made by him in that behalf after consultation with the state Public Service Commission and the High Court of the state. The current rule requires one to clear the competitive exam for recruitment to the judicial services of the state. The exam is conducted by the state Public Service Commission. If one clears the exam, he may join such judicial services of the state, as may be available according to his final rank.

 

 

ARTICLE 235

 

CONTROL OVER SUBORDINATE COURTS

The control over district courts, as well as subordinate courts (including the posting, transfer and administration of persons belonging to the judicial services of the state, and holding any post inferior to the post of the district judge), shall be vested in the respective High Court.

 

DESCRIPTION

Below the District and Sessions Court stands,

  1. the Court of Subordinate Judge on the civil sideThe Subordinate Judge exercises unlimited jurisdiction over civil cases i.e. all civil cases within the district shall lie to him.
  2. the Court of Chief Judicial Magistrate on the criminal sideThe Chief Judicial Magistrate exercises jurisdiction over only those criminal cases where the maximum punishment is upto a term of 7 years. All other cases shall directly lie to the Sessions Court.

Appeals against the Subordinate Courts shall go to the District Court while appeals against the order of the District Court shall lie to the High Court. A capital punishment i.e. death penalty passed by a District Judge is subject to confirmation by the High Court, whether an appeal has been made in this regard or not.

 

 

ARTICLE 236

 

INTERPRETATION

  1. The expression ‘district judge’ includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge.
  2. The expression ‘judicial service’ means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.

 

 

ARTICLE 237

 

APPLICATION OF THE PROVISIONS OF THIS CHAPTER TO CERTAIN CLASS OF MAGISTRATES

The Governor may direct through public notification that any of the provisions of the chapter dealing with Subordinate Courts shall apply in relation to a particular class of Magistrates in the state.

 

 

KEY FACTS

 

The Madras High Court in Chennai, Bombay High Court in Mumbai, Calcutta High Court in Kolkata and Allahabad High Court in Prayagraj are the oldest four high courts in India. Out of these, the Calcutta High Court is the oldest high court in the country, established in 1862.