High Court : Powers And Jurisdiction
Article 214 provides that there shall be High Court for every state. Two or more states can have common High Court.
Article 215 provides that every High Court shall be court of record. Court of Record has two features – firstly record of such court are admitted to have evidentiary value and secondly, such court has power to punish for its contempt.
Article 216 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.
How a Judge of High Court is appointed ?
Article 217 provides procedure for appointment of judge of a High Court.
A judge of High Court is appointed by the President with warrant under his hand and seal after consultation with Chief Justice of India, the Governor of State, and in case of appointment of judge other than chief justice, the chief justice of the High Court. In S. P. Gupta Vs. Union of India (First Judges Case) it has been held that consultation does not mean concurrence. In Advocates on Record Association Vs. Union of India (Second Judges Case) & Special Reference No. 1 of 1998, it was held that primacy has to given to the opinion of the chief justice in the matter of appointment of judges. Parliament vide 99th Amendment has enacted National Judicial Appointment Commission Act, 2014 to provide for National Judicial Appointment Commission for appointment of judges, which has been declared ultra vires by the Supreme Court.
A judge of High Court holds office till he attains age of 62 years.
A judge can resign his office by writing under his hand addressed to the President.
A judge may be removed from his office in similar manner as that of a judge of the Supreme Court.
Office of judge is vacated when such judge is appointed as judge of Supreme Court or transferred to another High Court.
What are qualifications of a Judge of High Court ?
A person is not qualified to be judge of the Supreme Court unless
- He is a citizen of India
- Has for at least 10 years held a judicial office in the territory of India
- Has for at least ten years been an advocate of a High Court or of two or more such courts in succession
In computation of period of judicial office, the period, during which, the person has been an advocate of a High Court, office of a member of a tribunal or any post under the Union or State requiring special knowledge of law after holding judicial office is included.
In computation of period during which a person has been an advocate, the period during which the person has held judicial office or office of a member of a tribunal or any post, under the union or a state requiring special knowledge of law after becoming advocate is included.
Under Article 219, the judge of a High Court has to subscribe to an oath or affirmation before the Governor of the State or some person appointed in that behalf by him.
Article 220 provides that no permanent judge can plead or act in any court or before any authority in India except the Supreme Court and the other High Courts.
Judges of the High Court are paid such salaries, allowances, rights in respect of leave and absence or pension which are determined by Parliament by law. The salary, allowances, rights in respect of leave and absence or pension can not be varied to his disadvantage after his appointment.
How a Judge of High Court is transferred ?
The President can transfer a judge under Article 222 from one High Court to another after consultation with Chief Justice of India. In Union of India Vs. Sankalchand Himatlal Seth and S. P. Gupta Vs. Union of India (First Judges Case ) it has been held that consultation does not mean concurrence. It has been held that judges can be transferred in national interest but power to transfer can not be used as threat or punishment to judges. In Advocates on Record Association Vs. Union of India (Second Judges Case) & Special Reference No. 1 of 1998, it was held that primacy has to given to the opinion of the chief justice.
When Acting Chief Justice of a High Court can be appointed ?
Article 223 provides for appointment of Acting Chief Justice. When the office of Chief Justice falls vacant or the Chief Justice is unable to perform his duty by reason of absence or otherwise, the duties of the office is performed by such judge as the President may appoint for that purpose.
The President may appoint additional judges if it appears to the President that the number of judges of the High Court should be increased by reason of temporary increase of business or arrear of work. Period of appointment of such additional judge can not be more than two years.
When a permanent judge is appointed as acting Chief Justice, an additional judge can be appointed in his place till he resumes his office.
Additional judge cannot hold office after attaining the age of sixty two years as is the case with permanent judge.
When a retired Judge can be appointed ?
The Chief Justice of a High Court with previous consent of the President under Article 224 A may request any person who has held the office of a judge of that High Court or any other High Court to sit and act as a judge of High Court. Such judge will be entitled to such allowances as the President may determine by order and will have all the jurisdiction, power and privileges. But such judge will not be deemed to be judge of High Court.
What is jurisdiction of High Court ?
Article 225 provides for jurisdiction of High Court. The jurisdiction of and the law administered in any existing High Court and existing power of the judges thereof in relation to the administration of justice in the Court including any power to make rules and to regulate the sitting of the Court and of members thereof sitting alone or in Division Courts, shall be same as immediately before the commencement of this Constitution. The Powers of the High Court will be subject to provisions of Constitution and to provision of any law of the appropriate legislature.
Any restriction to which the exercise of original jurisdiction by any of the High Court with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before commencement of this constitution will no longer apply to the exercise of such jurisdiction.
What are powers of a High Court to issue writs ?
Every High Court under Article 226 has power to issue to any person or authority or any Government directions, orders or writs including writs in nature of habeus 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. The High Court can issue writ throughout the territories in relation to which it exercises jurisdiction.
The power to issue directions, order and writs can also be exercised by the High Court if any cause of action, wholly or in part, has arisen within the jurisdiction of the High Court notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
The writ jurisdiction of the High Court is wider in comparison to the Supreme Court. The Supreme Court can issue writs only for enforcement of fundamental rights on the other hand the High Court can issue writs for enforcement of Fundamental Rights as well as for any other purpose.
What are powers of Superintendence of a High Court over subordinate courts ?
Every High Court under Article 227 has superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
The High Court may:
- Call for returns from such courts
- Make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts
- Prescribe forms in which books, entries, ad accounts are kept by the officers of any such courts
Article does not confer power on the High Court powers of superintendence over any court or tribunal constituted by or under any law related to armed forces.
When a High Court transfer certain cases to itself ?
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 the Constitution, it may withdraw the case and either dispose of the case or return to the court with copy of judgement. The court can proceed to determine in conformity with such judgment.
How jurisdiction of High Court can be extended to Union Territories ?
Article 230 provides that Parliament by law may extend jurisdiction of the High Court or exclude jurisdiction of High Court any Union Territory.
How common High Court for two or more states can be established ?
Article 231 provides that Parliament by law may establish a common High Court for two or more states or two or more states and a union territory.
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Mukesh Kumar Suman is an advocate based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.
