HIGH COURTS IN INDIA: FUNCTIONS AND POWERS

HIGH COURTS IN INDIA: FUNCTIONS AND POWERS #

• He should be a citizen of India + He should have held judicial office in Indian territory for 10 years or He should have been an advocate of High Courts in India for 10 years.
• No minimum age prescribed
• The Constitution makes no provision for appointment of a “distinguished jurist” as a judge of a HC in the opinion of the president. (unlike in the case of the SC)

• A person appointed as a judge of a high court, before entering upon his office, has to make and subscribe an oath or affirmation before the governor of the state or some person appointed by him for this purpose.

• The salaries, allowances, privileges, leave and pension of the judges of High Courts in India are determined from time to time by the Parliament.
• They cannot be varied to their disadvantage after their appointment except during a financial emergency (Art.360)
• NOTE – Salaries of judges of HC are charged upon “consolidated fund of state”. However, pensions of judges of HC are charged upon “consolidated fund of India”.

Tenure :

• Constitution no fixed tenure of judges of supreme court
• Four provisions: Until 62 years (65 in case of SC) + Resign by writing to president + Removed from office by president on recommendation of parliament + He vacates his office when he is appointed as supreme court judge or when he is transferred to another High Courts in India.

• A Judge of a High Court in India can be removed in the same manner and on the same grounds as a judge of the Supreme Court.
• Removed by order of the president on recommendations of parliament.
• The address must be supported by a special majority of each House of Parliament.
• Ground of removal :

1. Proved misbehavior

2. Incapacity

• Procedure relating to the removal of a judge of a high court is govern by The Judges Enquiry Act (1968).

• Removal motion: signed by 100 members (Lok Sabha) or 50 members (Rajya Sabha ) – given to speaker/ chairman of the respective houses.
• Speaker/chairman may admit /refuse the motion
• If admitted – three member committee to enquire into charges: Committee of Chief justice /judge of supreme court ,chief justice of High Courts in India, and distinguished jurist.
• If they find guilty—house take up for consideration
• Motion passed in each house by special majority, and then an address presented to the president for removal of the judge.
• Order passed by president
• No judge has been impeached so far

• The President can appoint a judge of the high court as an acting chief justice of the high court, when the office of High Courts in India chief justice: vacant + temporarily absent + Unable to perform the duties of office.

• The President can appoint duly qualified persons as additional judges of a HC for a temporary period not exceeding two years when: Temporary increase in high court business + There are arrears of work in high court.

• When a judge: Unable to perform duties due to absence or any other reasons + Appointed to act temporarily as chief justice of that High Courts in India.
• However, both the additional or acting judge cannot hold office after attaining the age of 62 years.

• At any time the chief justice of India can request any retired judge (qualified to be) of the supreme court to act as supreme court for a temporary period. He can do so only with the previous consent of the President and also of the person to be so appointed.

• Mode of appointment: Judges appointed by judiciary itself
• Security of tenure: Judges are removed only on the manner prescribed by the constitution
• Fixed service conditions: Cannot be changed to their disadvantage after their appointment except during a financial emergency (Art.360)
• Expenses charged on consolidated fund of India
• Conduct of judges cannot be discussed: Except when impeachment motion is in consideration of parliament
• Ban on practice after retirement: Except the SC and the other High Courts in India.
• Freedom to appoint its staff
• Jurisdiction cannot be curtailed: But can be extended by parliament.
• Separation from executive

• Wider than SC – for both FR + other legal rights
• All five writs + Includes ordinary legal right. Unlike supreme court + If cause of action within its territory it can issue writ + High court >> supreme court.
• NOTE – SC can issue writs only for FR and not “for any other purpose”. This makes the writ jurisdiction of HC wider than SC.

• Both civil + criminal matters

• Superintendence over all other courts, tribunals in state (except military court or tribunal)
• Covers both administrative and judicial superintendence
• Provisional jurisdiction
• Suo – motu powers
• Only used in extraordinary cases limited to: Excess of jurisdiction, gross violation of natural justice, error of law, disregard to law of superior court, perverse findings and manifest injustice.

Control over subordinate courts:

• Consulted by the governor in the matters of appointment, posting and promotion of district judges and in the appointment of persons to the judicial service of the state.
• Posting, promotion etc. of judicial service of state (other than district judges).
• Withdraw case pending in a subordinate court if it involves a substantial question of law that requires interpretation of constitution.
• Its law is binding on all subordinate courts in its jurisdiction.

• Judgment, proceedings and acts of supreme court are recorded for perpetual memory and testimony à Evidentiary value + cannot be questioned by any court + Legal precedents + references.
• Power to punish for contempt of court
• As a court of record High Courts in India have power to review and correct its own judgment.

• Phrase “judicial review” has nowhere been mentioned in the Constitution. Constitutional provisions – Art.13, 32, 131-136, 143, 226, 246, 256 etc.
• Constitutional validity of legislative or executive enactments can be challenged
• To examine constitutionality of legislation and executive orders of both state and central governments challenged on :

1. Infringes fundamental rights

2. Outside the competence of the authority which has framed it.

3. Repugnant to constitutional provisions