High Courts of India: Constitutional Framework and Role in Upholding Justice

• Constitution: Originally provided for one high court for each state.
• 7th 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 UT.
• Territorial Jurisdiction of a High Court: Co-terminus with the territory of a state.
• Territorial jurisdiction of a common high court: Co-terminus with the territories of the concerned states and union territory.
• Parliament can extend the jurisdiction of a high court to include or exclude UT.
• Delhi and Jammu & Kashmir: Only UTs in India having a High Court of their own.
• UT of Jammu & Kashmir and Ladakh have a common high court.

• The Constitution does not specify the strength of HC. It is at the discretion of the President.
• Every High Court (exclusive or common) consists of a Chief Justice and such other judges as the president may from time to time deem necessary to appoint.

• For Chief Justice: President after consulting CJI + Governor of the concerned state.
• For Other Judges: President after consulting CJI (Second Judges case) + Governor + CJ of State High Court.
• In case of the appointment of high court judges, the chief justice of India to consult a collegium of two senior-most judges of the Supreme Court. (Third Judges case).
• Common High Court: Governors of all the states concerned are consulted by the President.

(Article 217)

• A citizen of India.
• He should have held judicial office in Indian territory for 10 years or
• He should have been an advocate of the High Court (or high courts in succession) for 10 years.
• No minimum age prescribed.
• 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 in the opinion of the president.

• Makes and subscribes to an oath or affirmation before the Governor of the state or some person appointed by him for this purpose.

• Determined from time to time by the Parliament.
• Cannot be varied to their disadvantage after their appointment except during a financial emergency (Article 360).
• Salaries of judges of HC are charged upon “Consolidated Fund of State”.
• Pensions of judges of HC are charged upon “Consolidated Fund of India”.

• • The Constitution does not provide for a fixed tenure of judges of HC.
• Four provisions:
• Until 62 years (65 in case of SC).
• Resign by writing to the President.
• Can be removed from office by the President on the recommendation of Parliament.
• He vacates his office when he is appointed as SC judge or when he is transferred to another HC.

• Procedure for the impeachment of a judge of a HC is the same as that for a judge of the SC. [UPSC 2019]
• Same manner and on the same grounds as the judge of the SC.
• Procedure: Governed by the Judges Enquiry Act (1968).
• Removed by order of the President only on Parliament’s recommendation.
• The address must be supported by a special majority of each House of Parliament.
• Ground of Removal: Proved misbehaviour or/and incapacity.

No judge of a High Court has been impeached so far.

• Signed by 100 members (Lok Sabha) or 50 members (Rajya Sabha).
• The Speaker/Chairman may admit the motion or refuse to admit it.
• If admitted: Three-member committee (Committee of Chief justice /judge of SC, Chief Justice of HC, and distinguished jurist) to enquire into charges.
• If found guilty, the motion is taken up for the consideration of the House. 
• The address must be supported by a special majority of each House of Parliament.
• Order passed by President.

(Article 222)

• The President can transfer a judge from one HC to another after consulting the CJI.
• On transfer: Judges are entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament.
• SC in 1977: The transfer of high court judges only as an exceptional measure and public interest, not by way of punishment.
• SC in 1994: Judicial review is necessary to check arbitrariness in transfer of judges. Only the judge who is transferred can challenge it.
• Third Judges Case (1998): CJI should consult, in addition to the collegium of four senior most judges of the SC, the chief justice of the two high courts (transferring and receiving).

(Article 223)

• The President can appoint a judge of HC as an acting chief justice of HC, when the office of HC chief justice lies vacant; he is temporarily absent; or 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 there is a temporary increase in high court business and there are arrears of work in high court.
  • Additional Judges:
    • Appointed by the President can appoint duly qualified persons as additional judges of an HC for a temporary period not exceeding two years when there is a temporary increase in high court business and there are arrears of work in high court.
  • Acting Judges:
    • Appointed by President
    • These are appointed when a judge of that high court
• Unable to perform the duties of his office due to absence or any other reason
• Appointed temporarily as chief justice of that high court.

• • • Holds office until the permanent judge resumes his office.
• Both the additional or acting judge cannot hold office after attaining the age of 62 years.

• At any time, the CJ of HC can request any retired judge of that HC or any other HC to act as a judge of the HC of that state 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.
• May enjoy all the jurisdiction, powers and privileges of a judge of that high court. But, he will not otherwise be deemed to be a judge of that high court.

• Mode of Appointment: Judges appointed by the President by consulting the judiciary itself (CJI + CJ of HC). [UPSC 2013]
• Security of Tenure: Judges are removed only in 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 funds of the State. The pension of a high court judge is charged on the Consolidated Fund of India and not the state.
• Conduct of judges cannot be discussed: Except when impeachment motion is in consideration of the Parliament.
• Ban on Practice after Retirement: Except the SC and the other high courts.
• Power to Punish for its Contempt: A high court can punish any person for its contempt
• Freedom to appoint its staff.
• Jurisdiction cannot be curtailed but it can be changed both by the parliament and the state legislature.
• Separation from the Executive (Article 50) (DPSP): Separation of judiciary from executive).