High Court of India – Powers, and Functions (Indian Polity)

In this article, You will read High Court of India – Powers, and Functions – for UPSC (Indian Polity).

High Court

Article 214 to 231 deal with the High Courts in the states and Article 233 to 237 deals with the Subordinate Courts.

Every state has a High Court which operates within its territorial jurisdiction. Every High Court is a court of record that has all the powers of such as court including the power to punish for contempt of itself. Neither the Supreme Court nor the High Court can deprive the High Court of its power of punishing for contempt of itself.

  • Article 214 says that there shall be a High Court in every state.
  • Article 215 says that each High Court shall be a court of record.
  • Article 216 says that every High Court shall have a Chief Justice and other judges who shall be appointed by the President.

Appointments of judges

The procedure of appointing the Judges of the High Courts in India is slightly different from the appointment of the Judges of the Supreme Court. As per article 217, the Chief Justice of the high court is appointed by the President in consultation with the Chief justice of India as well as the Governor of the state in question. In the appointment of the other judges, the Chief Justice of the High Court is also consulted.

So, in the appointment of the regular Judge of the High Court, the President seeks consultation with three authorities.

  • Chief Justice of India
  • Chief Justice of the High Court
  • Governor of the state

Till 1981, the situation was that the Chief Justice of the High Court used to make a recommendation to the Governor. After that, the matter used to go to the Centre level and the Chief justice of India was consulted. Based upon that either the appointment was made or not made. In 1999, the situation changed after Supreme Court rendered a unanimous opinion on a presidential reference. The decision said that Consultation with CJI means Consultation with the plurality of the Judges in the formation of the opinion of the CJI. So, normally the CJI consults with 4 regular judges of the Supreme Court.

As per Article 217-220

  • If a Judge of High Court is appointed on a permanent basis, he holds the office until he completes the age of 62 years. (In Supreme Court it is 65 years).
  • The Minimum Qualification prescribed is Indian Citizenship and minimum 10 years of experience either as an advocate of the High Court of India or as a Judicial officer with a minimum 10 years of experience.
  • If, an advocate later becomes a Judicial Officer, then, in computing 10 years, the experience as an advocate can be combined with that of a Judicial Officer.

The salaries and other expenses of the judges and maintenance of the state high courts are charged from the consolidated fund of the state.

The following expenditure shall be expenditure charged on the Consolidated Fund of each State-

  • the emoluments and allowances of the Governor and other expenditure relating to his office;
  • the salaries and allowances of the Speaker and the Deputy Speaker of the Legislative Assembly and, in the case of a State having a Legislative Council, also of the Chairman and the Deputy Chairman of the Legislative Council;
  • debt charges for which the State is liable including interest, sinking fund charges and redemption charges, and other expenditure relating to the raising of loans and the service and redemption of debt;
  • expenditure in respect of the salaries and allowances of Judges of any High Court;
  • any sums required to satisfy any judgment, decree or award of any court or arbitral tribunal;
  • any other expenditure declared by this Constitution, or by the Legislature of the State by law, to be so charged. However please note that the retired Judges are entitled to a pension which is drawn from the consolidated fund of India.

Removal of the judges

Art-124(4) says “A judge of Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by the majority of the total members of the House and by the majority of not less than two-thirds of the members of the House present and voting has been presented to the president in the same session for such removal on the ground of proved misbehavior or incapacity.”

Article 217 (b)- 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;

Article 218 says that certain 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.

  • A Judge of the High Court can be removed from office by impeachment only for proved misbehavior or incapacity and only in the same manner in which a Judge of the Supreme Court is removed.
  • The President of India can remove a Judge of the High Court, from his office only if each house of the parliament passes a resolution by the majority of total members of the house and by a two-thirds majority of its members present and voting in each house requesting him to remove the Judge.
  • Transfer of the Judges is done by the President in consultation with the following
    • Chief justice of India’ whose opinion is formed by senior-most judges of the Supreme Court.
    • Chief Justice of the High court from where the transfer is to take place.
    • Chief Justice of the High Court to where the transfer is to take place.

Impeachment Process

In India, Article 124(4) covers the removal of a Judge of the Supreme Court. This article says: A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.

Similarly, Article 217 (1)(b) and 218 cover the removal of the Judge of a High Court. So, the Constitution makes provision for the removal of a judge of a Supreme Court on the ground of proven misbehavior or incapacity.

A judge may be removed only through a motion in Parliament with a two thirds support in each House. The process is laid down in the Judges (Inquiry) Act, 1968. An impeachment motion has to be moved by either 100 Lok Sabha members of Parliament or 50 Rajya Sabha Members. After the motion is admitted, the Speaker of Lok Sabha or Chairman of Rajya Sabha constitutes an inquiry committee.

This inquiry committee is consisted of 3 members viz.

  • A Supreme Court judge,
  • A High Court Chief Justice,
  • An eminent jurist.

The Committee frames charges and asks the judge to give a written response. After the inquiry, the committee determines whether the charges are valid or not. It then submits its report. The judge is given chance to examine the witnesses. If the inquiry committee finds that the judge is not guilty, then there is no further action. If the inquiry committee finds the judge guilty, the House of Parliament which initiated the motion may consider continuing with the motion.

Please note that such a motion can be initiated in any house of the parliament. Then, the motion is debated. During the debate, the judge has the right to represent his/her case. After that, the motion is voted upon. If there is two-thirds support of those voting, and majority support of the total strength of the House, it is considered to have passed. The process is then repeated in the other House. After that, the Houses send an address to the President asking that the judge be removed from office.

Jurisdiction of the High Courts

There are no detailed definitions and classification in the Constitution of India as far as Jurisdiction of the High Courts in concerned. The High Courts have been given full power to make rules and regulate their Jurisdiction. Apart from the normal original and appellate jurisdiction, the constitution vests 4 additional powers to the High Courts. These are:

  • The power to issue writs or orders for the enforcement of Fundamental Rights and some other purposes. (Article 226)
  • Power of superintendence over all other state courts. The High Court exercises the supervision of all the other courts and tribunals in the state.
  • The power to transfer the cases from other subordinate courts in the state to itself. (A-227).
  • Power to appoint the officers and servants of the High Courts (A-228).
  • Article 226 makes the High Court’s protectors of the Fundamental rights, within their own jurisdictions, in the same way, Article 32 makes the Supreme Court ultimate protector of the Supreme Court.

Most of the high courts in India, at the time of framing the Constitution, were functioning in well-defined jurisdictions. The High Court kept enjoying almost all the same powers which they enjoyed immediately before the commencement of the Constitution of India. The Constitution of India makes High Court the Court of Record.

Power of Judicial Review

The phrase ‘judicial review’ is not mentioned in the Constitution but articles 13 and 226 explicitly confer the power of judicial review on a high court. The constitutional validity of a legislative enactment or an executive order can be challenged in a high court on the following three grounds:

  • It infringes the fundamental rights
  • It is outside the competence of the authority which has framed it, and
  • It is repugnant to the constitutional provisions.
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