High Courts in India: Composition, Powers, Jurisdiction & More

The High Court stands as the apex judicial body within the State, holding the pivotal responsibility of interpreting the law, safeguarding fundamental rights, and ensuring the rule of law prevails across its jurisdiction. Established as a cornerstone of the single integrated judicial system envisioned by the Indian Constitution, the High Court serves as the highest judicial authority at both the State and Union Territory levels. This article of NEXT IAS aims to study in detail the High Court, including its history, constitutional provisions, composition, powers, jurisdiction, and other related aspects.

About High Court

• The High Court is the apex court in the judicial administration of a State under the integrated judicial system established by the Constitution of India.
• The High Courts have been envisaged as:
  • The highest court of appeal in the state
  • The guarantor of Fundamental Rights
  • The guardian of the Constitution of India, and
  • The interpreter of the Constitution of India.

About Indian Judiciary

• Inspired by the Government of India Act of 1935, the Indian Constitution has established a single-integrated judicial system with a three-tier structure:
  • The Supreme Court
  • The High Courts
  • The Subordinate Courts (District Courts, and other Lower Courts)
• This single system of courts enforces both Central and State Laws across the country.

Constitutional Provisions Related to High Courts

• Articles 214 to 231 in Part VI of the Indian Constitution deal with the provisions related to the High Courts.
• The constitutional provisions mentioned under these articles deal with the organization, independence, jurisdiction, powers, and procedures of the High Courts.
  • The Parliament and State Legislature both are authorized to regulate these provisions.

Territorial Jurisdiction of High Court

• The Constitution of India provides for a High Court for each State.
• However, the 7th Constitutional Amendment Act of 1956 authorized the Parliament to establish a common High Court for two or more States or for two or more States and a Union Territory. For example-
  • The Union Territories of Jammu and Kashmir and Ladakh have a common High Court.
• The territorial jurisdiction of a High Court is co-terminus with the territory of a State.
• The territorial jurisdiction of a common High Court is co-terminus with the territory of a State as well as a Union Territory.
• The Parliament can extend the jurisdiction of a High Court to any Union Territory or exclude the jurisdiction of a High Court from any Union Territory.

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.
  • 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.
  • 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
  • Held a judicial office in the territory of India for ten years. OR
  • 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:
  • to bear true faith and allegiance to the Constitution of India.
  • to uphold the sovereignty and integrity of India.
  • 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.
  • 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.
  • 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.
  • 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:
  • proved misbehaviour
  • 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:
  • 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.
  • If the motion is admitted, then the Speaker/Chairman constitutes a three-member committee to investigate the charges. The Committee consists of:
  • the Chief Justice of India or a Judge of the Supreme Court,
  • a Chief Justice of a High Court, and
  • a distinguished jurist.
  • 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).
  • Once passed by both Houses of Parliament, an address is presented to the President for the removal of the judge.
  • 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.
  • 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:
  • the office of Chief Justice of the High Court is vacant, or
  • the Chief Justice of the High Court is temporarily absent, or
  • 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:
  • unable to perform the duties of his/her office due to absence or any other person
  • 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:
  • there is a temporary increase in the business of the High Court,
  • there are arrears of work in the High Court.
  • 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.
  • 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.
  • 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:
  • 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.
  • 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.
  • 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.
  • 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.
  • 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:
  • It covers not only administrative superintendence but also judicial superintendence,
  • it is a revisional jurisdiction,
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.
  • 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.

Contempt of Courts

– Contempt of Court refers to any acts or omissions that impede the functioning of a court of law in any manner. – In India, the procedures and punishments related to contempt of courts are regulated by the Contempt of Courts Act of 1971. – As per the Act, contempt of courts can be of 2 types: a. Civil Contempt: It refers to: 1. Wilful disobedience to any judgment, order, writ, or other process of a court; or 2. Wilful breach of an undertaking given to a court b. Criminal Contempt: It refers to the publication of any matter or doing an act that: 1. scandalizes or lowers the authority of a court; or 2. prejudices or interferes with the due course of a judicial proceeding; or 3. interferes or obstructs the administration of justice in any other manner.

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