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High Courts under the Constitution of India, 1950

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 15-Jul-2024

Introduction 

Chapter V of the Constitution of India, 1950 (COI) provides for the High Courts in the States. Section 214-Section 232 of the COI are provided for under this Part. 

Constitution of High Courts 

  • Article 214 of the COI provides that there shall be a High Court for every State. 
  • Article 231 of the COI provides that the Parliament may by law establish a common High Court for two or more States or for two or more States and a Union Territory. 
  • Article 216 of the COI provides that 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. 

High Court to be Court of Record 

  • Article 215 provides that every High Court shall be a Court of Record. 
    • It also provides that the High Court shall have the power to punish for contempt of itself. 
    • However, this is a summary power and used sparingly under pressing circumstances. 

Qualification of a Judge of High Court 

  • Article 217(2) of the COI provides for qualifications of a judge of High Court.  
  • These are: 
    • At least 10 years held a judicial office in the territory of India. 
    • At least 10 years has been an advocate of a High Court or of two or more High Courts in succession. 
  • As per Article 217(1) of COI a High Court judge shall remain in office till he attains the age of 62 years. 
  • As per Article 217(3) of COI if any question arises as to the age of the 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.  

Removal of High Court Judge 

  • Article 217(1) of the COI provides that: 
    • A judge may resign from his office by writing under his hand addressed to the President. 
    • The office of a Judge is 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. 
    • The judge may be removed in the manner provided by (4) of Article 124 (Removal of Judge of a Supreme Court). 
      • Article 218 provides that the provisions of Clauses (4) and (5) of Article 124 shall apply in relation to the High Court as they apply in relation to the Supreme Court.  

Oath and Salaries of High Court Judges 

  • Article 219 of the COI provides that every person to be appointed as a judge shall make and subscribe oath before the Governor of the State and the oath shall be in the form set in the Third Schedule. 
  • Article 221 provides that the salaries of High Court judges shall be determined by Parliament by law and until the provision in that behalf is made such salaries as are specified in Second Schedule.    

Jurisdiction of High Courts 

  • Article 225 of the COI preserves the pre-constitutional jurisdiction of the High Court. 
  • The different jurisdiction of High Courts are as follows: 
    • Original Jurisdiction: 
      • Article 226(1) of the COI states that every High Court shall have powers to issue orders or writs including habeas corpus, mandamus, prohibition, quo warranto, and certiorari, to any person or any government for the enforcement of fundamental rights and other purpose. 
      • Article 226(2) states that the High Court has the power to issue writs or orders to any person, government, or authority - 
        • Located within its jurisdiction or 
        • Outside its local jurisdiction if the circumstances of the cause of action arise either wholly or partly within its territorial jurisdiction. 
      • Article 226(3) states that when an interim order is passed by a High Court by way of injunction, stay, or by other means against a party then that party may apply to the court for the vacation of such an order and such an application should be disposed of by the court within the period of two weeks. 
      • Article 226(4) says that the power granted by this article to a high court should not diminish the authority granted to the Supreme Court by Clause (2) of Article 32. 
      • This Article can be issued against any person or authority, including the government. 
      • This is merely a constitutional right and not a fundamental right and cannot be suspended even during an emergency. 
      • Article 226 is of mandatory nature in case of fundamental rights and discretionary nature when it is issued for “any other purpose”. 
      • It enforces not only fundamental rights, but also other legal rights. 
      • Writ of Habeas Corpus: 
        • It is a Latin phrase which means ‘to have a body or to produce a body’. 
        • This is the most often used writ. 
        • When a person is wrongfully held by the government, that person, or his family or friends, can file a writ of Habeas Corpus to have that person released. 
      • Writ of Mandamus: 
        • It is a Latin phrase that translates to ‘we command.’ 
        • Mandamus is a judicial command issued to perform public duty. 
        • The only requirement for using this writ is that there should be a mandatory public duty. 
      • Writ of Certiorari: 
        • It is a Latin phrase that means ‘to be informed.’ 
        • It is a command or order issued by the Higher Court to the inferior court. 
        • It is issued when the inferior courts violate the principles of natural justice. 
        • The Superior Court can quash the order given by the inferior court, if it finds any error. 
      • Writ of prohibition: 
        • It simply means ‘to stop’. 
        • This writ is issued against the inferior court (i.e., subordinate courts, tribunals, quasi-judicial bodies) by the Higher Courts. 
      • Writ of Quo warranto: 
        • The term Quo warranto means ‘by what authority’. 
        • It is issued against a private person by what authority he is holding the office on which he has no right. 
        • By this writ, the Court can control the public official appointment, and protect a citizen from being deprived of a public office to which he may be entitled. 
    • Appellate jurisdiction: 
      • A High Court is essentially a Court of Appeal and has appellate jurisdiction over subordinate Courts. 
      • The Court of Appeal may reduce the sentence or even acquit the accused against the judgment of a lower Court. 
      • Article 228 of COI provides that if the High Court is satisfied that in a case pending in a Court subordinate to it involves a substantial question of law as to the interpretation of the Constitution it shall withdraw the case and may: 
        • Either dispose of the case itself, or 
        • Determine the said question and return the case to the Court from which it has been withdrawn.  
    • Power of Superintendence: 
      • As per Article 227 of the COI the High Court shall have superintendence over all Courts and Tribunals throughout the territory of India. 
      • The power of superintendence includes a revisional jurisdiction to intervene in cases of gross injustice or non-exercise or abuse of jurisdiction even though no appeal or revision against the order was available. 
      • This power of superintendence is wider than the power conferred on the High Court to control inferior Corts through writs under Article 226. 
      • The power is confined not only to administrative superintendence (calling of returns, rules for regulating the practice and proceedings of the lower Courts) but also judicial superintendence.  
    • Disciplinary Jurisdiction: 
      • Every High Court has full control over its staff. 
      • As per Article 235 of the COI the High Court has disciplinary jurisdiction over subordinate Courts. 

Officers and Servants of High Court 

  • Section 229(1) of the COI provides that 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. 
  • Section 229(2) provides that 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: 
  • Provided that 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. 
  • Section 229 (3) provides that 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. 

Conclusion 

There is a total of 25 High Courts in our country out of which six have control over more than one State or Union Territory. High Courts are a very important part of the judicial system. The High Court is a Court of Record and can punish for its contempt.