Guardians of State Constitutionalism: The High Court's Jurisdiction, Writ Powers, and Independence

High Court

India follows a single integrated judicial system. Within this structure, the High Court sits above all subordinate courts in a state but below the Supreme Court of India. It is the apex judicial authority at the state level, heading a hierarchy of district and subordinate courts beneath it.

The institution of the High Court in India dates to 1862, when High Courts were established at Calcutta, Bombay, and Madras under the Indian High Courts Act, 1861. A fourth High Court came up at Allahabad in 1866. Over time, every province in British India acquired its own High Court. After the Constitution came into force in 1950, provincial High Courts became the High Courts of the successor states.

Articles 214 to 231 in Part VI of the Constitution govern the organisation, independence, jurisdiction, and powers of High Courts.

• Article 214 - High Courts for states
• Article 215 - High Courts as courts of record
• Article 216 - Constitution of High Courts
• Article 217 - Appointment and conditions of office of judges
• Article 226 - Power to issue writs
• Article 227 - Power of superintendence
• Article 231 - Common High Court for two or more states

The Constitution originally provided for one High Court per state. However, the Seventh Amendment Act of 1956 empowered Parliament to establish a common High Court for two or more states, or for two or more states and a union territory.

• At present, there are 24 High Courts in India.
• Of these, four are common High Courts serving more than one state/UT.
• Delhi is the only Union Territory with its own High Court (since 1966). All other Union Territories fall under the jurisdiction of the nearest state High Court.
• The territorial jurisdiction of a High Court is co-terminus with the territory of its state (or states, in the case of a common High Court).
• Parliament can extend or exclude the jurisdiction of a High Court over any Union Territory.

Every High Court - whether exclusive or common - consists of a Chief Justice and such other judges as the President may from time to time deem fit to appoint. The Constitution does not fix the numerical strength of a High Court; this is left to presidential discretion based on workload.

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Appointment

• All judges of a High Court are appointed by the President.
• The Chief Justice of a High Court is appointed after consultation with:
  • The Chief Justice of India
  • The Governor of the concerned state
• Other judges are appointed after additionally consulting the Chief Justice of the concerned High Court.
• For a common High Court, the Governors of all concerned states are consulted.

Collegium Evolution through Landmark Cases:

The 99th Constitutional Amendment Act (2014) and the National Judicial Appointments Commission Act (2014) had sought to replace the collegium with the NJAC. The Supreme Court in 2015 declared both unconstitutional on the ground that the NJAC would compromise judicial independence.

Qualifications

To be appointed as a High Court judge, a person must:

1. Be a citizen of India
2. Have held judicial office in India for at least 10 years, OR
3. Have been an advocate of a High Court for at least 10 years

Important distinctions from the Supreme Court:

• No minimum age is prescribed for HC judges (unlike the SC where no minimum age is prescribed either, but the practice is different).
• Unlike the Supreme Court, the Constitution makes no provision for appointing a distinguished jurist as a judge of a High Court.

Oath or Affirmation

Before assuming office, a judge swears an oath before the Governor of the state (or a person appointed by the Governor). The oath covers:

1. True faith and allegiance to the Constitution
2. Upholding the sovereignty and integrity of India
3. Faithful and impartial discharge of duties
4. Upholding the Constitution and the laws

Tenure

The Constitution does not fix a tenure but makes four key provisions:

1. A judge holds office until the age of 62 years (raised from 60 by the 15th Amendment Act of 1963). Any age dispute is decided by the President after consulting the CJI - this decision is final.
2. A judge may resign by writing to the President.
3. A judge can be removed by the President on recommendation of Parliament.
4. A judge vacates office when appointed to the Supreme Court or transferred to another High Court.

Removal

• Removal is by Presidential order after Parliament presents an address in the same session.
• The address must be supported by a special majority in each House (majority of total membership + two-thirds of members present and voting).
• Grounds: proved misbehaviour or incapacity - same as for Supreme Court judges.

Procedure under the Judges Enquiry Act (1968):

1. A removal motion signed by 100 Lok Sabha members or 50 Rajya Sabha members is submitted to the Speaker/Chairman.
2. The Speaker/Chairman may admit or reject the motion.
3. If admitted, a three-member inquiry committee is constituted comprising: (a) a SC judge (Chief Justice or judge), (b) a Chief Justice of a High Court, and (c) a distinguished jurist.
4. If the committee finds guilt or incapacity, the motion is taken up in the House.
5. After passing by both Houses with special majority, an address is presented to the President.
6. The President issues the removal order.

Exam Fact: No judge of a High Court has ever been impeached in India.

Salaries and Allowances

• Determined by Parliament and cannot be varied to the disadvantage of judges after appointment, except during a financial emergency.
• Judges also receive sumptuary allowance, free accommodation, and facilities (medical, car, telephone).
• Retired judges are entitled to 50% of last drawn salary as monthly pension.
• Important: Salaries/allowances charged on the Consolidated Fund of the State; however, pensions of HC judges are charged on the Consolidated Fund of India.

Transfer of Judges

• The President may transfer a High Court judge to another High Court after consulting the Chief Justice of India.
• On transfer, the judge receives a compensatory allowance in addition to salary (as determined by Parliament).
• 1977 ruling: Transfer is only an exceptional measure in public interest, not as punishment.
• 1994 ruling: Judicial review is available to check arbitrary transfers, but only the transferred judge can challenge it.
• Third Judges Case (1998): For transfers, CJI must consult the collegium of four senior-most SC judges plus the Chief Justices of both the transferring and receiving High Courts.

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Acting Chief Justice

The President can appoint a judge of the High Court as Acting Chief Justice when the office of Chief Justice is:

1. Vacant
2. Temporarily absent
3. Unable to perform duties

Additional and Acting Judges

• Additional Judges: Appointed by the President for up to two years when there is a temporary increase in workload or pending arrears.
• Acting Judges: Appointed when a sitting judge (other than the Chief Justice) is absent or acting as Chief Justice.
• Neither additional nor acting judges can hold office beyond the age of 62 years.

Retired Judges

• A Chief Justice of a High Court may request a retired judge of any High Court to sit temporarily - but only with the prior consent of the President and the judge concerned.
• Such a judge enjoys full jurisdiction and powers but is not deemed a regular judge.

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The Constitution provides ten key safeguards to ensure the impartiality and independence of the High Court:

1. Mode of Appointment - Judicial consultation is mandatory, limiting executive discretion.
2. Security of Tenure - Judges can only be removed through a constitutionally prescribed impeachment process.
3. Fixed Service Conditions - Salaries and perks cannot be reduced after appointment except during financial emergency.
4. Expenses Charged on Consolidated Fund - HC expenses are non-votable (though discussable) in the state legislature. Exception: Pensions are charged on the Consolidated Fund of India.
5. Conduct of Judges Not Discussable - No discussion in Parliament or state legislature on a judge's conduct except during impeachment proceedings.
6. Post-Retirement Practice Bar - Retired permanent HC judges cannot practice in any court or authority in India except the Supreme Court and other High Courts.
7. Contempt Power - The HC can punish contempt to preserve its dignity and authority.
8. Freedom to Appoint Staff - The Chief Justice appoints HC officers without executive interference.
9. Jurisdiction Cannot Be Curtailed - Parliament and state legislature cannot curtail the constitutionally specified jurisdiction of a High Court.
10. Separation from Executive - The Constitution directs states to separate judiciary from executive in public services; effected by the CrPC 1973 (Article 50, DPSP).

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The Constitution does not enumerate HC jurisdiction in detail. It continues the pre-Constitution jurisdiction and adds: (i) jurisdiction over revenue matters, (ii) writ jurisdiction, (iii) power of superintendence, and (iv) consultative power. Parliament and state legislatures can also modify HC jurisdiction.

The jurisdiction of an HC is governed by constitutional provisions, Letters Patent, Acts of Parliament, Acts of State Legislature, IPC 1860, CrPC 1973, and CPC 1908.

1. Original Jurisdiction

Power to hear cases directly (not by appeal). Extends to:

• Admiralty, will, marriage, divorce, company laws, contempt of court
• Election disputes of Parliament and state legislature members
• Revenue matters or acts done in revenue collection
• Enforcement of Fundamental Rights
• Cases transferred from subordinate courts involving constitutional interpretation
• Calcutta, Bombay, Madras, and Delhi HCs have original civil jurisdiction in cases above a certain value
• Original criminal jurisdiction of Calcutta, Bombay, and Madras HCs was fully abolished by CrPC 1973

2. Writ Jurisdiction (Article 226)

• A High Court can issue all five writs: habeas corpus, mandamus, certiorari, prohibition, and quo-warranto
• Writs can be issued for: (a) enforcement of Fundamental Rights, and (b) any other purpose (i.e., enforcement of ordinary legal rights - broader than the SC)
• Writs can be issued against any person, authority, or government within its territorial jurisdiction, and also outside if the cause of action arises within its jurisdiction
• HC writ jurisdiction is concurrent (not exclusive) with the Supreme Court's writ jurisdiction under Article 32
• Key distinction: HC's writ jurisdiction is wider than SC's because the SC under Article 32 can only issue writs for FR enforcement, while HC under Article 226 can do so for any legal right too
• Chandra Kumar Case (1997): Writ jurisdiction of both HC and SC is part of the basic structure of the Constitution and cannot be ousted even by constitutional amendment

3. Appellate Jurisdiction

The HC is primarily a court of appeal and has wider appellate than original jurisdiction.

Civil Matters:

• First appeals (on law and fact) from district courts and additional district courts (above stipulated value) lie directly to the HC
• Second appeals (on questions of law only) from district or subordinate courts
• Intra-court appeals (Calcutta, Bombay, Madras HCs): Appeal from a single judge lies to the division bench of the same HC
• Appeals from administrative/other tribunals lie to the division bench of the HC (not directly to SC - ruled in 1997)

Criminal Matters:

• Appeals from sessions courts and additional sessions courts lie to the HC if the sentence is more than 7 years' imprisonment
• A death sentence awarded by a sessions court must be confirmed by the HC before execution, regardless of whether the convicted person appeals
• Certain appeals from assistant sessions judges and magistrates also lie to the HC as specified in the CrPC

4. Supervisory Jurisdiction (Article 227)

The HC has power of superintendence over all courts and tribunals in its territorial jurisdiction except military courts or tribunals. Under this power, the HC may:

• Call for returns from subordinate courts
• Issue general rules and prescribe forms for practice and proceedings
• Prescribe formats for books and accounts maintained by them
• Settle fees payable to legal practitioners and officers

Scope: This supervisory power is very broad:

• Extends to all courts/tribunals whether or not subject to HC's appellate jurisdiction
• Covers both administrative and judicial superintendence
• Is a revisional jurisdiction and can be exercised suo motu

However, it is an extraordinary power and must be used sparingly, generally limited to: excess of jurisdiction, gross violation of natural justice, error of law, disregard of superior court law, perverse findings, and manifest injustice.

5. Control over Subordinate Courts

Beyond appellate and supervisory roles, the HC exercises administrative control:

• Governor consults the HC in matters of appointment, posting, and promotion of district judges and appointments to state judicial service
• HC directly handles posting, promotion, leave, transfer, and discipline of members of the judicial service (other than district judges)
• HC can withdraw a case from a subordinate court if it involves a substantial constitutional question - it may either dispose of it or return it after deciding the legal issue
• HC's law is binding on all subordinate courts within its jurisdiction (analogous to SC law being binding on all courts in India)

6. Court of Record (Article 215)

As a court of record, the HC has two powers:

1. Evidentiary Value: Its judgements, proceedings, and acts are permanently recorded and carry evidentiary value. They serve as legal precedents before subordinate courts.
2. Contempt Power: It can punish contempt of court with simple imprisonment, fine, or both.

Types of Contempt (Contempt of Courts Act, 1971):

• Civil contempt: Wilful disobedience to a court's judgement, order, writ, or process, or wilful breach of an undertaking given to a court
• Criminal contempt: Publication or act that scandalises/lowers court authority; prejudices a judicial proceeding; or obstructs the administration of justice

Not contempt: Innocent publication, fair and accurate reporting of proceedings, reasonable criticism of judicial acts, or comments on the administrative functioning of the judiciary.

The HC can also review its own judgements even without explicit constitutional authority to do so. (Note: The SC has an explicit power of review under the Constitution.)

7. Power of Judicial Review

• The HC can examine the constitutional validity of legislative enactments and executive orders of both Central and state governments.
• If found ultra-vires the Constitution, they are declared null and void and unenforceable.
• Though the phrase 'judicial review' does not appear in the Constitution, Articles 13 and 226 explicitly confer this power on HCs.
• A law or executive action can be challenged on three grounds:
  1. Violation of Fundamental Rights (Part III)
  2. Beyond the competence of the authority that enacted/issued it
  3. Repugnant to constitutional provisions

Historical amendment trap:

• 42nd Amendment Act (1976): Debarred HCs from examining the constitutional validity of Central laws - a major curtailment
• 43rd Amendment Act (1977): Restored the original position

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• Common High Courts: Authorised by the 7th Amendment Act of 1956; Parliament enacts; 4 such courts currently exist
• Delhi HC: Only UT with its own HC (since 1966)
• Retirement age: 62 years (raised from 60 by 15th Amendment Act of 1963)
• NJAC: Struck down in 2015 (Fourth Judges Case); collegium restored
• Pensions charged on Consolidated Fund of India (not state)
• Writ jurisdiction: HC (Article 226) is wider than SC (Article 32) - HC can issue writs for ordinary legal rights too
• Death sentence by sessions court needs HC confirmation before execution
• No HC judge has been impeached so far
• Contempt power: HC can act suo motu; excludes military tribunals from supervisory power
• 42nd Amendment curtailed HC judicial review; 43rd Amendment restored it