Posted in Polity

Judicial Activism

Judicial Activism
Judicial activism has been defined as ‘innovative interpretation’ of the Constitution by the Court. This has often been criticized as the judiciary taking over the powers of the legislature. But in India, it has enjoyed support from the public because it has concentrated on giving the disadvantaged access to justice. It uses the instrument of Public Interest Litigation (PIL). With public interest litigation, any person can bring a petition about a problem before the court, and not just the person affected by the problem. PIL has often been used on behalf of people who are poor or disadvantaged and do not have the means to approach the court. With judicial activism and PIL, courts have given judgments on pollution, the need for a uniform civil code, eviction of unauthorized buildings, stopping child labor in dangerous occupations, and other issues.

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The Supreme Court

updated on May 27th, 2019

Articles 124 to 147 in Part V of the Constitution deal with the organization, independence, jurisdiction, powers, procedures and so on of the Supreme Court. The Parliament is also authorized to regulate them.

Judges

Appointment of Judges The judges of the Supreme Court are appointed by the president. The chief justice is appointed by the president after consultation with such judges of the Supreme Court and high courts as he deems necessary. The other judges are appointed by the president after consultation with the chief justice and such other judges of the Supreme Court and the high courts as he deems necessary. The consultation with the chief justice is obligatory in the case of appointment of a judge other than Chief justice.

Controversy over Consultation The Supreme Court has given a different interpretation of the word ‘consultation’ in the above provision. In the First Judges case (1982), the Court held that consultation does not mean concurrence and it only implies the exchange of views. But, in the Second Judges case (1993), the Court reversed its earlier ruling and changed the meaning of the word consultation to concurrence. Hence, it ruled that the advice tendered by the Chief Justice of India is binding on the President in the matters of appointment of the judges of the Supreme Court. But, the Chief Justice would tender his advice on the matter after consulting two of his seniormost colleagues. Similarly, in the third judges case2 (1998), the Court opined that the consultation process to be adopted by the Chief justice of India requires ‘consultation of plurality judges’. The sole opinion of the chief justice of India does not constitute the consultation process. He should consult a collegium of four seniormost judges of the Supreme Court and even if two judges give an adverse opinion, he should not send the recommendation to the government. The court held that the recommendation made by the chief justice of India without complying with the norms and requirements of the consultation process is not binding on the government.

Appointment of Chief Justice From 1950 to 1973, the practice has been to appoint the seniormost judge of the Supreme Court as the chief justice of India. This established convention was violated in 1973 when A N Ray was appointed as the Chief Justice of India by superseding three senior judges. Again in 1977, M U Beg was appointed as the chief justice of India by superseding the then seniormost judge. This discretion of the government was curtailed by the Supreme Court in the Second Judges Case (1993), in which the Supreme Court ruled that the seniormost judge of the Supreme Court should alone be appointed to the office of the chief justice of India.

Qualifications of Judges A person to be appointed as a judge of the Supreme Court should have the following qualifications:

  1. He should be a citizen of India.
  2. (a) He should have been a judge of a High Court (or high courts in succession) for five years; or (b) He should have been an advocate of a High Court (or High Courts in succession) for ten years; or (c) He should be a distinguished jurist in the opinion of the president.

From the above, it is clear that the Constitution has not prescribed a minimum age for appointment as a judge of the Supreme Court.

Oath or Affirmation A person appointed as a judge of the Supreme Court, before entering upon his Office, has to make and subscribe an oath or affirmation before the President, or some person appointed by him for this purpose. In his oath, a judge of the Supreme Court swears:

  1. to bear true faith and allegiance to the Constitution of India;
  2. to uphold the sovereignty and integrity of India;
  3. to duly and faithfully and to the best of his ability, knowledge and judgment perform the duties of the Office without fear or favor, affection or ill-will; and
  4. to uphold the Constitution and the laws.

Tenure of Judges The Constitution has not fixed the tenure of a judge of the Supreme Court. However, it makes the following three provisions in this regard:

  1. He holds office until he attains the age of 65 years. Any question regarding his age is to be determined by such authority and in such manner as provided by Parliament.
  2. He can resign his office by writing to the president.
  3. He can be removed from his office by the President on the recommendation of the Parliament.

Removal of Judges A judge of the Supreme Court can be removed from his Office by an order of the president. The President can issue the removal order only after an address by Parliament has been presented to him in the same session for such removal.5 The address must be supported by a special majority of each House of Parliament (ie, a majority of the total membership of that House and a majority of not less than two-thirds of the members of that House present and voting). The grounds of removal are two—proved misbehavior or incapacity.

The Judges Enquiry Act (1968) regulates the procedure relating to the removal of a judge of the Supreme Court by the process of impeachment:

  1. A removal motion signed by 100 members (in the case of Lok Sabha) or 50 members (in the case of Rajya Sabha) is to be given to the Speaker/Chairman.
  2. The Speaker/Chairman may admit the motion or refuse to admit it.
  3. If it is admitted, then the Speaker/Chairman is to constitute a three-member committee to investigate into the charges.
  4. The committee should consist of (a) the chief justice or a judge of the Supreme Court, (b) a chief justice of a high court, and (c) a distinguished jurist.
  5. If the committee finds the judge to be guilty of misbehaviour or suffering from an incapacity, the House can take up the consideration of the motion.
  6. After the motion is passed by each House of Parliament by special majority, an address is presented to the president for removal of the judge.
  7. Finally, the president passes an order removing the judge.

It is interesting to know that no judge of the Supreme Court has been impeached so far. The first and the only case of impeachment is that of Justice V Ramaswami of the Supreme Court (1991–1993). Though the Inquiry Committee found him guilty of misbehaviour, he could not be removed as the impeachment motion was defeated in the Lok Sabha. The Congress Party abstained from voting.

Acting Chief Justice

The President can appoint a judge of the Supreme Court as an acting Chief Justice of India when:

  1. the office of Chief Justice of India is vacant; or
  2. the Chief Justice of India is temporarily absent; or
  3. the Chief Justice of India is unable to perform the duties of his office.

Ad hoc Judge

When there is a lack of a quorum of the permanent judges to hold or continue any session of the Supreme Court, the Chief Justice of India can appoint a judge of a High Court as an ad hoc judge of the Supreme Court for a temporary period. He can do so only after consultation with the chief justice of the High Court concerned and with the previous consent of the president. The judge so appointed should be qualified for appointment as a judge of the Supreme Court. It is the duty of the judge so appointed to attend the sittings of the Supreme Court, in priority to other duties of his office. While so attending, he enjoys all the jurisdiction, powers and privileges (and discharges the duties) of a judge of the Supreme Court.

Retired Judges

At any time, the chief justice of India can request a retired judge of the Supreme Court or a retired judge of a high court (who is duly qualified for appointment as a judge of the Supreme Court) to act as a judge of the 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. Such a judge is entitled to such allowances as the president may determine. He will also enjoy all the jurisdiction, powers and privileges of a judge of Supreme Court. But, he will not otherwise be deemed to be a judge of the Supreme Court.

SEAT OF SUPREME COURT

The Constitution declares Delhi as the seat of the Supreme Court. But, it also authorizes the chief justice of India to appoint other place or places as the seat of the Supreme Court. He can take the decision in this regard only with the approval of the President. This provision is only optional and not compulsory. This means that no court can give any direction either to the President or to the Chief Justice to appoint any other place as a seat of the Supreme Court.

PROCEDURE OF THE COURT

The Supreme Court can, with the approval of the president, make rules for regulating generally the practice and procedure of the Court. The Constitutional cases or references made by the President under Article 143 are decided by a Bench consisting of at least five judges. All other cases are usually decided by a bench consisting of not less than three judges. The judgments are delivered by the open court. All judgments are by majority vote but if differing, then judges can give dissenting judgements or opinions.

INDEPENDENCE OF SUPREME COURT

The Supreme Court has been assigned a very significant role in the Indian democratic political system. It is a federal court, the highest court of appeal, the guarantor of the fundamental rights of the citizens and guardian of the Constitution. Therefore, its independence becomes very essential for the effective discharge of the duties assigned to it. It should be free from the encroachments, pressures, and interferences of the executive (council of ministers) and the Legislature (Parliament). It should be allowed to do justice without fear or favor.

The Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of the Supreme Court:

  1. Mode of Appointment The judges of the Supreme Court are appointed by the President (which means the cabinet) in consultation with the members of the judiciary itself (ie, judges of the Supreme Court and the high courts). This provision curtails the absolute discretion of the executive as well as ensures that the judicial appointments are not based on any political or practical considerations.
  2. Security of Tenure The judges of the Supreme Court are provided with the Security of Tenure. They can be removed from office by the President only in the manner and on the grounds mentioned in the Constitution. This means that they do not hold their office during the pleasure of the President, though they are appointed by him. This is obvious from the fact that no judge of the Supreme Court has been removed (or impeached) so far.
  3. Fixed Service Conditions The salaries, allowances, privileges, leave and pension of the judges of the Supreme Court are determined from time to time by the Parliament. They cannot be changed to their disadvantage after their appointment except during a financial emergency. Thus, the conditions of service of the judges of the Supreme Court remain the same during their term of Office.
  4. Expenses Charged on Consolidated Fund The salaries, allowances and pensions of the judges and the staff as well as all the administrative expenses of the Supreme Court are charged on the Consolidated Fund of India. Thus, they are non-votable by the Parliament (though they can be discussed by it).
  5. Conduct of Judges cannot be Discussed The Constitution prohibits any discussion in Parliament or in a State Legislature with respect to the conduct of the judges of the Supreme Court in the discharge of their duties, except when an impeachment motion is under consideration of the Parliament.
  6. Ban on Practice after Retirement The retired judges of the Supreme Court are prohibited from pleading or acting in any Court or before any authority within the territory of India. This ensures that they do not favor anyone in the hope of future favor.
  7. Power to Punish for its Contempt The Supreme Court can punish any person for its contempt. Thus, its actions and decisions cannot be criticized and opposed by anybody. This power is vested in the Supreme Court to maintain its authority, dignity, and honor.
  8. Freedom to Appoint its Staff The Chief Justice of India can appoint officers and servants of the Supreme Court without any interference from the executive. He can also prescribe their conditions of service.
  9. Its Jurisdiction cannot be Curtailed The Parliament is not authorized to curtail the jurisdiction and powers of the Supreme Court. The Constitution has guaranteed to the Supreme Court, the jurisdiction of various kinds. However, Parliament can extend the same.
  10. Separation from Executive The Constitution directs the State to take steps to separate the Judiciary from the Executive in the public services. This means that the executive authorities should not possess the judicial powers. Consequently, upon its implementation, the role of executive authorities in judicial administration came to an end.

JURISDICTION AND POWERS OF SUPREME COURT

The Constitution has conferred a very extensive jurisdiction and vast powers on the Supreme Court. It is not only a Federal Court like the American Supreme Court but also a final court of appeal like the British House of Lords (the Upper House of the British Parliament). It is also the final interpreter and guardian of the Constitution and guarantor of the fundamental rights of the citizens. Further, it has advisory and supervisory powers. Therefore, Alladi Krishnaswamy Ayyar, a member of the Drafting Committee of the Constitution, rightly remarked: “The Supreme Court of India has more powers than any other Supreme Court in any part of the world.” The jurisdiction and powers of the Supreme Court can be classified into the following:

  1. Original Jurisdiction.
  2. Writ Jurisdiction.
  3. Appellate Jurisdiction.
  4. Advisory Jurisdiction.
  5. A Court of Record.
  6. Power of Judicial Review.
  7. Other Powers.

1. Original Jurisdiction

As a federal court, the Supreme Court decides the disputes between different units of the Indian Federation. More elaborately, any dispute between:
(a) the Centre and one or more states; or
(b) the Centre and any state or states on one side and one or more states on the other; or
(c) between two or more states.
In the above federal disputes, the Supreme Court has exclusive original jurisdiction. Exclusive means, no other court can decide such disputes and original means, the power to hear such disputes in the first instance, not by way of appeal.

With regard to the exclusive original jurisdiction of the Supreme Court, two points should be noted. One, the dispute must involve a question (whether of law or fact) on which the existence or extent of a legal right depends. Thus, the questions of political nature are excluded from it. Two, any suit brought before the Supreme Court by a private citizen against the Centre or a state cannot be entertained under this.

Further, this jurisdiction of the Supreme Court does not extend to the following:

(a) A dispute arising out of any pre-Constitution treaty, agreement, covenant, engagement, sand or another similar instrument.
(b) A dispute arising out of any treaty, agreement, etc., which specifically provides that the said jurisdiction does not extend to such a dispute.
(c) Inter-state water disputes.
(d) Matters referred to the Finance Commission.
(e) Adjustment of certain expenses and pensions between the Centre and the states.
(f) Ordinary dispute of Commercial nature between the Centre and the states.
(g) Recovery of damages by a state against the Centre.

In 1961, the first suit, under the original jurisdiction of the Supreme Court, was brought by West Bengal against the Centre. The State Government challenged the Constitutional validity of the Coal Bearing Areas (Acquisition and Development) Act, 1957, passed by the Parliament. However, the Supreme Court dismissed the suit by upholding the validity of the Act.

2. Writ Jurisdiction

The Constitution has constituted the Supreme Court as the guarantor and defender of the fundamental rights of the citizens. The Supreme Court is empowered to issue writs including habeas corpus, mandamus, prohibition, quo-warrento and certiorari for the enforcement of the fundamental rights of an aggrieved citizen. In this regard, the Supreme Court has original jurisdiction in the sense that an aggrieved citizen can directly go to the Supreme Court, not necessarily by way of appeal. However, the writ jurisdiction of the Supreme Court is not exclusive. The high courts are also empowered to issue writs for the enforcement of the Fundamental Rights. It means, when the Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly.

Therefore, the original jurisdiction of the Supreme Court with regard to federal disputes is different from its original jurisdiction with regard to disputes relating to fundamental rights. In the first case, it is exclusive and in the second case, it is concurrent with high courts jurisdiction. Moreover, the parties involved in the first case are units of the federation (Centre and states) while the dispute in the second case is between a citizen and the Government (Central or state).

There is also a difference between the writ jurisdiction of the Supreme Court and that of the high court. The Supreme Court can issue writs only for the enforcement of the Fundamental Rights and not for other purposes. The high court, on the other hand, can issue writs not only for the enforcement of the fundamental rights but also for other purposes. It means that the writ jurisdiction of the high court is wider than that of the Supreme Court. But, the Parliament can confer on the Supreme Court, the power to issue writs for other purposes also.

3. Appellate Jurisdiction

As mentioned earlier, the Supreme Court has not only succeeded in the Federal Court of India but also replaced the British Privy Council as the highest court of appeal. The Supreme Court is primarily a court of appeal and hears appeals against the judgements of the lower courts. It enjoys a wide appellate jurisdiction which can be classified under four heads:
(a) Appeals in constitutional matters.
(b) Appeals in civil matters.
(c) Appeals in criminal matters.
(d) Appeals by special leave.

(a) Constitutional Matters In the constitutional cases, an appeal can be made to the Supreme Court against the judgment of a high court if the high court certifies that the case involves a substantial question of law that requires the interpretation of the Constitution. Based on the certificate, the party in the case can appeal to the Supreme Court on the ground that the question has been wrongly decided.

(b) Civil Matters In civil cases, an appeal lies to the Supreme Court from any judgment of a high court if the high court certifies—
(i) that the case involves a substantial question of law of general importance; and
(ii) that the question needs to be decided by the Supreme Court.
Originally, only those civil cases that involved a sum of `20,000 could be appealed before the Supreme Court. But this monetary limit was removed by the 30th Constitutional Amendment Act of 1972.

(c) Criminal Matters The Supreme Court hears appeals against the judgment in a criminal proceeding of a high court if the high court—
(i) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
(ii) has taken before itself any case from any subordinate court and convicted the accused person and sentenced him to death; or
(iii) certifies that the case is a fit one for appeal to the Supreme Court.

In the first two cases, an appeal lies to the Supreme Court as a matter of right (ie, without any certificate of the high court). But if the high court has reversed the order of conviction and has ordered the acquittal of the accused, there is no right to appeal to the Supreme Court.

In 1970, the Parliament had enlarged the Criminal Appellate Jurisdiction of the Supreme Court. Accordingly, an appeal lies to the Supreme Court from the judgment of a high court if the high court:
(i) has on appeal, reversed an order of acquittal of an accused person and sentenced him to imprisonment for life or for ten years; or
(ii) has taken before itself any case from any subordinate court and convicted the accused person and sentenced him to imprisonment for life or for ten years.

Further, the appellate jurisdiction of the Supreme Court extends to all civil and criminal cases in which the Federal Court of India had jurisdiction to hear appeals from the high court but which are not covered under the civil and criminal appellate jurisdiction of the Supreme Court mentioned above.

(d) Appeal by Special Leave The Supreme Court is authorized to grant in its discretion special leave to appeal from any judgment in any matter passed by any court or tribunal in the country (except military tribunal and court martial). This provision contains the four aspects as under:
(i) It is a discretionary power and hence, cannot be claimed as a matter of right.
(ii) It can be granted in any judgement whether final or interlocutory.
(iii) It may be related to any matter—constitutional, civil, criminal, income-tax, labour, revenue, advocates, etc.
(iv) It can be granted against any court or tribunal and not necessarily against a high court (of course, except a military court).

Thus, the scope of this provision is very wide and it vests the Supreme Court with a plenary jurisdiction to hear appeals. On the exercise of this power, the Supreme Court itself held that ‘being an exceptional and overriding power, it has to be exercised sparingly and with caution and only in special extraordinary situations. Beyond that, it is not possible to fetter the exercise of this power by any set formula or rule’.

4. Advisory Jurisdiction

The Constitution (Article 143) authorizes the president to seek the opinion of the Supreme Court in the two categories of matters:
(a) On any question of law or fact of public importance which has arisen or which is likely to arise.
(b) On any dispute arising out of any pre-constitution treaty, agreement, covenant, engagement, sand or other similar instruments.

In the first case, the Supreme Court may tender or may refuse to render its opinion to the president. But, in the second case, the Supreme Court ‘must’ tender its opinion to the president. In both cases, the opinion expressed by the Supreme Court is only advisory and not a judicial pronouncement. Hence, it is not binding on the president; he may follow or may not follow the opinion. However, it facilitates the government to have an authoritative legal opinion on a matter to be decided by it.

So far (2013), the President has made fifteen references to the Supreme Court under its advisory jurisdiction (also known as consultative jurisdiction). These are mentioned below in the chronological order.

  1. Delhi Laws Act in 1951
  2. Kerala Education Bill in 1958
  3. Berubari Union in 1960
  4. Sea Customs Act in 1963
  5. Keshav Singh’s case relating to the privileges of the Legislature in 1964
  6. Presidential Election in 1974
  7. Special Courts Bill in 1978
  8. Jammu and Kashmir Resettlement Act in 1982
  9. Cauvery Water Disputes Tribunal in 1992
  10. Rama Janma Bhumi case in 1993
  11. Consultation process to be adopted by the chief justice of India in 1998
  12. Legislative competence of the Centre and States on the subject of natural gas and liquefied natural gas in 2001
  13. The constitutional validity of the Election Commission’s decision on deferring the Gujarat Assembly Elections in 2002
  14. Punjab Termination of Agreements Act in 2004
  15. 2G spectrum case verdict and the mandatory auctioning of natural resources across all sectors in 2012

5. A Court of Record

As a Court of Record, the Supreme Court has two powers:
(a) The judgments, proceedings, and acts of the Supreme Court are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when produced before any court. They are recognized as legal precedents and legal references.
(b) It has the power to punish for contempt of court, either with simple imprisonment for a term up to six months or with fine up to `2,000 or with both. In 1991, the Supreme Court has ruled that it has the power to punish for contempt not only of itself but also of high courts, subordinate courts and tribunals functioning in the entire country.

Contempt of court may be civil or criminal. Civil contempt means wilful disobedience to any judgement, order, writ or other process of a court or wilful breach of an undertaking given to a court. Criminal contempt means the publication of any matter or doing an act which—(i) scandalises or lowers the authority of a court; or (ii) prejudices or interferes with the due course of a judicial proceeding; or (iii) interferes or obstructs the administration of justice in any other manner.

However, innocent publication and distribution of some matter, fair and accurate report of judicial proceedings, fair and reasonable criticism of judicial acts and comment on the administrative side of the judiciary does not amount to contempt of court.

Power of Judicial Review

Judicial review is the power of the Supreme Court to examine the constitutionality of legislative enactments and executive orders of both the Central and state governments. On examination, if they are found to be violative of the Constitution (ultra-vires), they can be declared as illegal, unconstitutional and invalid (null and void) by the Supreme Court. Consequently, they cannot be enforced by the Government.

Judicial review is needed for the following reasons:
(a) To uphold the principle of the supremacy of the Constitution.
(b) To maintain federal equilibrium (balance between Centre and states).
(c) To protect the fundamental rights of the citizens.

The Supreme Court used the power of judicial review in various cases, as for example, the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses Abolition case (1971), the Kesavananda Bharati case (1973), the Minerva Mills case (1980) and so on.

Though the phrase ‘Judicial Review’ has nowhere been used in the Constitution, the provisions of several articles explicitly confer the power of judicial review on the Supreme Court. The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court on the following three grounds:

(a) it infringes the Fundamental Rights (Part III),
(b) it is outside the competence of the authority which has framed it, and
(c) it is repugnant to the constitutional provisions.

From the above, it is clear that the scope of judicial review in India is narrower than that of what exists in the USA, though the American Constitution does not explicitly mention the concept of judicial review in any of its provisions. This is because the American Constitution provides for ‘due process of law’ against that of ‘procedure established by law’ which is contained in the Indian Constitution. The difference between the two is: ‘The due process of law gives wide scope to the Supreme Court to grant protection to the rights of its citizens. It can declare laws violative of these rights void not only on substantive grounds of being unlawful but also on procedural grounds of being unreasonable. Our Supreme Court, while determining the constitutionality of a law, however, examines only the substantive question i.e., whether the law is within the powers of the authority concerned or not. It is not expected to go into the question of its reasonableness, suitability or policy implications.’

The exercise of wide power of judicial review by the American Supreme Court in the name of ‘due process of law’ clause has made the critics to describe it as a ‘third chamber’ of the Legislature, a super-legislature, the arbiter of social policy and so on. This American principle of judicial supremacy is also recognized in our constitutional system but to a limited extent. Nor do we fully follow the British Principle of parliamentary supremacy. There are many limitations on the sovereignty of Parliament in our country, like the written character of the Constitution, the federalism with the division of powers, the Fundamental Rights and the judicial review. In effect, what exists in India is a synthesis of both, that is, the American principle of judicial supremacy and the British principle of parliamentary supremacy.

Other Powers of The Supreme Court

Besides the above, the Supreme Court has numerous other powers:
(a) It decides the disputes regarding the election of the president and the vice-president. In this regard, it has the original, exclusive and final authority.
(b) It enquires into the conduct and behavior of the chairman and members of the Union Public Service Commission on a reference made by the president. If it finds them guilty of misbehaviour, it can recommend to the president for their removal. The advice tendered by the Supreme Court in this regard is binding on the President.
(c) It has the power to review its own judgement or order. Thus, it is not bound by its previous decision and can depart from it in the interest of justice or community welfare. In brief, the Supreme Court is a self-correcting agency. For example, in the Kesavananda Bharati case (1973), the Supreme Court departed from its previous judgement in the Golak Nath case (1967).
(d) It is authorised to withdraw the cases pending before the high courts and dispose of them by itself. It can also transfer a case or appeal pending before one high court to another high court.
(e) Its law is binding on all courts in India. Its decree or order is enforceable throughout the country. All authorities (civil and judicial) in the country should act in aid of the Supreme Court.
(f) It is the ultimate interpreter of the Constitution. It can give a final version to the spirit and content of the provisions of the Constitution and the verbiage used in the Constitution.
(g) It has the power of judicial superintendence and control over all the courts and tribunals functioning in the entire territory of the country.

The Supreme Court’s jurisdiction and powers with respect to matters in the Union list can be enlarged by the Parliament. Further, its jurisdiction and powers with respect to other matters can be enlarged by a special agreement of the Centre and the states.

SUPREME COURT ADVOCATES

Three categories of Advocates are entitled to practice law before the Supreme Court. They are :

  1. Senior Advocates These are Advocates who are designated as Senior Advocates by the Supreme Court of India or by any High Court. The Court can designate any Advocate, with his consent, as Senior Advocate if in its opinion by virtue of his ability, standing at the Bar or special knowledge or experience in law the said Advocate is deserving of such distinction. A Senior Advocate is not entitled to appear without an Advocate-on-Record in the Supreme Court or without a junior in any other court or tribunal in India. He is also not entitled to accept instructions to draw pleadings or affidavits, advise on evidence or do any drafting work of an analogous kind in any court or tribunal in India or undertake conveyancing work of any kind whatsoever but this prohibition shall not extend to settling any such matter as aforesaid in consultation with a junior.
  2. Advocates-on-Record Only these advocates are entitled to file any matter or document before the Supreme Court. They can also file an appearance or act for a party in the Supreme Court.

Comparing Indian and American Supreme Courts

Indian Supreme CourtAmerican Supreme Court
1. Its original jurisdiction is confined to federal cases.

1. Its original jurisdiction covers not only federal cases but also cases relating to naval forces, maritime activities, ambassadors, etc.
2. Its appellate jurisdiction covers constitutional, civil and criminal cases.2. Its appellate jurisdiction is confined to constitutional cases only.
3. It has a very wide discretion to grant special leave to appeal in any matter against the judgement of any court or tribunal (except military).3. It has no such plenary power.



4. It has advisory jurisdiction.4. It has no advisory jurisdiction.
5. Its scope of judicial review is limited.5. Its scope of judicial review is very wide.
6. It defends rights of the citizen according to the ‘procedure established by law’.6. It defends rights of the citizen according to the ‘due process of law’.
7. Its jurisdiction and powers can be enlarged by Parliament.7. Its jurisdiction and powers are limited to that conferred by the Constitution.
8. It has power of judicial superintendence and control over state high courts due to integrated judicial system.8. It has no such power due to double (or separated) judicial system.

Articles Related to Supreme Court at a Glance

Article No.Subject-matter
124.Establishment and Constitution of Supreme Court
125.Salaries, etc., of Judges
126.Appointment of acting Chief Justice
127.Appointment of ad hoc Judges
128.Attendance of retired Judges at sittings of the Supreme Court
129.Supreme Court to be a court of record
130.Seat of Supreme Court
131.Original jurisdiction of the Supreme Court
131A.Exclusive jurisdiction of the Supreme Court in regard to questions as to constitutional validity of Central Laws (Repealed)
132.Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases
133.Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters
134.Appellate jurisdiction of Supreme Court in regard to criminal matters
134A.Certificate for appeal to the Supreme Court
135.Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court
136.Special leave to appeal by the Supreme Court
137.Review of judgments or orders by the Supreme Court
138.Enlargement of the jurisdiction of the Supreme Court
139.Conferment on the Supreme Court of powers to issue certain writs
139A.Transfer of certain cases
140.Ancillary powers of Supreme Court
141.Law declared by Supreme Court to be binding on all courts
142.Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.
143.Power of President to consult Supreme Court
144.Civil and judicial authorities to act in aid of the Supreme Court
144A.Special provisions as to disposal of questions relating to constitutional validity of laws (Repealed)
145.Rules of court, etc.
146.Officers and servants and the expenses of the Supreme Court
147.Interpretation

3. Other Advocates These are advocates whose names are entered on the roll of any State Bar Council maintained under the Advocates Act, 1961 and they can appear and argue any matter on behalf of a party in the Supreme Court but they are not entitled to file any document or matter before the Court.

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Posted in Polity

High Court and Subordinate or Lower Courts

updated on April 10th, 2019

You must have heard about the High Court of your State. According to the Constitution, there has to be a High Court for every State. A High Court may have more than one State under its jurisdiction. We have an example of Guwahati High The court that acts as a common High Court for the States of Assam, Meghalaya, Arunachal Pradesh, Nagaland, Mizoram, Manipur and Tripura. Mostly, the Union Territories come under the jurisdiction of the High Court of their neighbouring States.

Constitution of the High Court

Each High Court has a Chief Justice and Judges. The number of Judges in each High Court is determined by the President from time to time. There is no uniformly fixed number of Judges in all the High Courts. The Chief Justice and Judges of High Courts are appointed by the President. For appointment of the Chief Justice of the High Court, the President consults the Chief Justice of Supreme Court, whereas for the Judges, he/she also consults the Chief Justice of the concerned High Court. The Governor of the concerned State is also consulted for appointment of the Judges of the High Court. Judges can be transferred from one High Court to the other by the President on the advice of the Chief Justice of India.

In order to be appointed as a Judge of a High Court, the person concerned should possess the following qualifications. He/She:

  • should be a citizen of India;
  • should have held a judicial office in the territory of India for at least 10 years; or
  • should have been an advocate in one or more High Courts for at least ten years continuously without break.

The Judges of the High Court hold office till they attain the age of 65 years. However, a Chief Justice or a Judge can resign. A Judge can be removed from office through an impeachment process by parliament on grounds of proved misbehavior or incapacity. The Chief Justice and Judges are paid salaries and are also entitled to such privileges and allowances as determined by Parliament. After retirement, they may practice as advocates either in Supreme Court or in any High Court except the High Court(s) in which they have served as Judges.

Jurisdiction of High Court

The jurisdiction of the High Court extends up to the territorial limits of the concerned State/States or Union Territories. The High Court has original and appellate jurisdictions. Under the original jurisdiction certain types of cases may be brought directly before a High Court. The High Court exercises original jurisdiction for the enforcement of Fundamental Rights and other legal rights. In this respect High Court has the power to issue writs. These writs go a long way in protecting the rights of the individual against encroachment by the legislature, the executive or any other authority. The High Court may also hear election petitions under its original jurisdiction challenging election of a member of State Legislature.

Do You Know

Writs are the directions or orders which are issued by the Supreme Court or the High Courts for the enforcement of Fundamental Rights. The courts thus are the guarantors of these rights.

Under appellate jurisdiction, High Courts hear appeals against the judgments of the subordinate courts at the district level. In civil cases, an appeal may be filed before the High Court against the judgment of a District Judge. In criminal matters, the appeal may be made before a High Court against the judgment of a Sessions Court, where the sentence of imprisonment exceeds seven years. Death sentence awarded by a lower court has to be confirmed by the High Court. The High Court exercises powers of control and superintendence over all subordinate courts falling within its jurisdiction. The High Court is a Court of Record. Hence, all the subordinate courts follow the judgments of the High Court. High Courts may also punish for contempt or disrespect of the Court.

Subordinate or Lower Courts

Subordinate or Lower Courts
There are subordinate courts at district and sub-divisional levels. There is a Distictand Sessions Judge in each district. Under him/her there is a hierarchy of judicial officers. The organisation and working of subordinate courts in India are more or less uniform throughout the country as given below:

Subordinate Courts

Civil Courts Criminal Courts Revenue Courts

As seen in the illustration, these subordinate courts hear civil cases, criminal cases, and revenue cases.

Civil Cases: These cases filed in civil courts pertain to disputes between two or more persons regarding property, breach of agreement or contract, divorce or disputes between landlords and tenants. All these cases are settled by civil courts. In such civil cases, the court does not award any punishment as violation of law is not involved.

Criminal Cases: Such cases relate to theft, robbery, rape, pick-pocketing, physical murder etc. These cases are filed in the criminal courts by the police, on behalf of the State, against the accused. In such cases, if the court finds the accused guilty, he/she is awarded punishment.

Revenue Courts Board of Revenue exists at the State level, Under it are the Courts of Commissioner, Collector, Tehsildars and Assistant Tehsildars. The Board of Revenue hears the final appeals against all the lower revenue courts under it. All States do not have a Board of Revenue. Andhra Pradesh, Gujarat, and Maharashtra have Revenue Tribunals, Haryana, Punjab, Himachal Pradesh, and Jammu and Kashmir have Financial Commissioners instead of the Board.

Each state has a High Court, which is the highest judicial organ of the state. However, there can be a common High Court for two or more states. Punjab. Haryana and the Union Territory of Chandigarh have a common High Court. A union territory can also have a separate High Court. Thus, the National Capital Territory of Delhi has a separate High Court. The other union territories come under the jurisdiction of various High Courts. At present, there are 21 High Courts.

The High Court consists of a chief justice and such other judges as the President may determine from time to time. The strength of the various High Courts is not identical. For example, the Allahabad High Court has 37 judges as against five in the Jammu and Kashmir High Court. The Chief Justice of High Court is appointed by the President in consultation with the Chief Justice of India and the governor of the concerned state. However, in the appointment of judges of the High Court, the President also consults the Chief Justice of the High Court.

It may be noted that consultation with the Chief Justice’ actually implies consultation with a plurality of judges. In 1999 the Supreme Court, on a Presidential reference, opined that the Chief Justice of India must make the recommendation for the appointment of a High Court judge in consultation with two senior-most puisne judges of the Supreme Court.

1. Qualifications To qualify for appointment as a judge of the High Court, a person
(a) must be a citizen of India;
(b) should have been an advocate of a High Court or of two or more such courts in succession for at least 10 years: or should have held judicial office in Indian territory for a period of at least 10 years.

2. Oath Before entering office the judge of a High Court has to take an oath in the prescribed form before the governor of that state or some person appointed for that purpose, affirming that he will bear true faith and allegiance to the Constitution of India and will perform the duties of his office without fear or favor, affection or ill-will and will uphold the Constitution and the laws.

3. Term and Salary The judges of the High Court hold office till they attain the age of 62 years. Their term can be cut short due to resignation or removal by the President on grounds of proved misbehavior or incapacity. The President can remove a judge of the High Court from his office only if the Parliament passes a resolution by a two-thirds majority of its members present and voting in each house, requesting him to remove the judge.

The judges of the High Court draw such salaries and allowances as may be determined by the Parliament from time to time. At present, the Chief Justice and other judges of the High Court draw a monthly salary of Rs 90.000 and Rs 80.000 respectively. In addition, they are entitled to a pension, death-cum-retirement gratuity and benefits of deposit linked insurance scheme. The salary and service conditions of the judges of the High Court cannot be changed to their disadvantage during their tenure. The expenditure in respect of the judges of the High Courts and other stall is charged on the consolidated fund of the states.

Transfer of Judges

Judges of High Courts can be transferred from one High Court to another in consultation with the Chief Justice of India. If the transfer is effected without the consent of the Chief Justice of India, the same can be challenged. In its judgment of 1993 the nine-member Bench of the Supreme Court held that the transfer of High Court judges was subject to judicial review to the extent whether there was the requisite recommendation of the Chief Justice of India in this regard. In other words, it held that the opinion of the Chief Justice of India was not primary but determinative in the matter of transfer of judges of High Court. In1998. on reference by the President the supreme court gave a unimousopinion that the chief justice of India should make the recommendation for transfer of a high court judge in consultation with seniormost judges of the supreme court and after obtaining the views of the chief justice of the High Court from which transfer is to be effected well as the Chief Justice of the High Court to which the transfer is to be affected.

Jurisdiction of High Court

  1. The High Court enjoys the same powers which it enjoyed immediately before the commencement of the Constitution.
  2. The High Court is a court of record and has all the powers of such a court, including the power to punish for its contempt.
  3. Cases relating to admiralty, matrimonial matters and issues concerning contempt of court are directly taken to the High Court.
  4. The High Court can issue directions, orders or writs to any person or authority within its jurisdiction. The writs which the High Court can issue for the enforcement of Fundamental Rights or other purpose, include habeas corpus, mandamus, pro-hibition, quo warranto. and certaiorari.
  5. The High Court exercises supervision over the working of courts and tribunals within its jurisdiction. and ensures that the lower courts discharge their duties properly.
  6. The High Court can withdraw a case pending before a subordinate court and may itself dispose of the case, or determine the question of law involved in the case and return the case together with its judgment on the question, to the said court for disposal in conformity with its judgment.
  7. The Parliament can further extend the jurisdiction of the High Court.

The powers and jurisdiction of the High Court show that it is primarily a supervisory court which exercises supervision over subordinate courts and tribunals. It also acts as guardian of the fundamental liberties of people.

In the Indian single integrated judicial system, the high court operates below the Supreme Court but above the subordinate courts. The judiciary in a state consists of a high court and a hierarchy of subordinate courts. The high court occupies the top position in the judicial administration of a state.

The institution of high court originated in India in 1862 when the high courts were set up at Calcutta, Bombay, and Madras1. In 1866, a fourth high court was established at Allahabad. In the course of time, each province in British India came to have its own high court. After 1950, a high court existing in a province became the high court for the corresponding state.

The Constitution of India provides for a high court for each state, but the Seventh 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 union territory. The territorial jurisdiction of a high court is co-terminus with the territory of a state. Similarly, the territorial jurisdiction of a common high court is co-terminus with the territories of the concerned states and union territory.

At present, there are 24 high courts in the country2. Out of them, three are common high courts. Delhi is the only union territory that has a high court of its own (since 1966). The other union territories fall under the jurisdiction of different state high courts. The Parliament can extend the jurisdiction of a high court to any union territory or exclude the jurisdiction of a high court from any union territory.

The name, year of establishment, territorial jurisdiction and seat (with bench or benches) of all the 24 high courts are mentioned in Table 30.1 at the end of this chapter.

Articles 214 to 231 in Part VI of the Constitution deal with the organization, independence, jurisdiction, powers, procedures and so on of the high courts.

ORGANISATION OF HIGH COURT

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 necessary to appoint. Thus, the Constitution does not specify the strength of a high court and leaves it to the discretion of the president. Accordingly, the President determines the strength of a high court from time to time depending upon its workload.

Judges

Appointment of Judges The judges of a high court are appointed by the President. The chief justice is appointed by the President after consultation with the chief justice of India and the governor of the state concerned. For the appointment of other judges, the chief justice of the concerned high court is also consulted. In case of a common high court for two or more states, the governors of all the states concerned are consulted by the president.

In the Second Judges case (1993), the Supreme Court ruled that no appointment of a judge of the high court can be made unless it is in conformity with the opinion of the chief justice of India. In the Third Judges case4 (1998), the Supreme Court opined that in case of the appointment of high court judges, the chief justice of India should consult a collegium of two senior-most judges of the Supreme Court. Thus, the sole opinion of the chief justice of India alone does not constitute the ‘consultation’ process.

Qualifications of Judges A person to be appointed as a judge of a high court, should have the following qualifications:

  1. He should be a citizen of India.
  2. (a) He should have held a judicial office in the territory of India for ten years; or
    (b) He should have been an advocate of a high court (or high courts in succession) for ten years.

From the above, it is clear that the Constitution has not prescribed a minimum age for appointment as a judge of a high court. Moreover, unlike in the case of the Supreme Court, the Consitution makes no provision for the appointment of a distinguished jurist as a judge of a high court.

Oath or Affirmation 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. In his oath, a judge of a high court swears:

  1. to bear true faith and allegiance to the Constitution of India;
  2. to uphold the sovereignty and integrity of India;
  3. to duly and faithfully and to the best of his ability, knowledge and judgement perform the duties of the office without fear or favour, affection or ill-will; and
  4. to uphold the Constitution and the laws.

Tenure of Judges The Constitution has not fixed the tenure of a judge of a high court. However, it makes the following four provisions in this regard:

  1. He holds office until he attains the age of 62 years5. Any questions regarding his age is to be decided by the president after consultation with the chief justice of India and the decision of the president is final.
  2. He can resign his office by writing to the president.
  3. He can be removed from his office by the President on the recommendation of the Parliament.
  4. He vacates his office when he is appointed as a judge of the Supreme Court or when he is transferred to another high court.

Removal of Judges A judge of a high court can be removed from his office by an order of the President. The President can issue the removal order only after an address by the Parliament has been presented to him in the same session for such removal. The address must be supported by a special majority of each House of Parliament (i.e., a majority of the total membership of that House and majority of not less than two-thirds of the members of that House present and voting). The grounds of removal are two—proved misbehavior or incapacity. Thus, a judge of a high court can be removed in the same manner and on the same grounds as a judge of the Supreme Court.

The Judges Enquiry Act (1968) regulates the procedure relating to the removal of a judge of a high court by the process of impeachment:

  1. A removal motion signed by 100 members (in the case of Lok Sabha) or 50 members (in the case of Rajya Sabha) is to be given to the Speaker/Chairman.
  2. The Speaker/Chairman may admit the motion or refuse to admit it.
  3. If it is admitted, then the Speaker/Chairman is to constitute a three-member committee to investigate into the charges.
  4. The committee should consist of (a) the chief justice or a judge of the Supreme Court, (b) chief justice of a high court, and (c) a distinguished jurist.
  5. If the committee finds the judge to be guilty of misbehavior or suffering from an incapacity, the House can take up the consideration of the motion.
  6. After the motion is passed by each House of Parliament by special majority, an address is presented to the president for removal of the judge.
  7. Finally, the president passes an order removing the judge.

From the above, it is clear that the procedure for the impeachment of a judge of a high court is the same as that for a judge of the Supreme Court.

It is interesting to know that no judge of a high court has been impeached so far.

Salaries and Allowances The salaries, allowances, privileges, leave and pension of the judges of a high court are determined from time to time by the Parliament. They cannot be varied to their disadvantage after their appointment except during a financial emergency. In 2009, the salary of the chief justice was increased from 30,000 to90,000 per month and that of a judge from 26,000 to 80,000 per month6. They are also paid sumptuary allowance and provided with free accommodation and other facilities like medical, car, telephone, etc.

The retired chief justice and judges are entitled to 50% of their last drawn salary as monthly pension.

Transfer of Judges The President can transfer a judge from one high court to another after consulting the Chief Justice of India. On transfer, he is entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament.

In 1977, the Supreme Court ruled that the transfer of high court judges could be resorted to only as an exceptional measure and only in public interest and not by way of punishment. Again in 1994, the Supreme Court held that judicial review is necessary to check arbitrariness in the transfer of judges. But, only the judge who is transferred can challenge it.

In the Third Judges case (1998), the Supreme Court opined that in case of the transfer of high court judges, the Chief Justice of India should consult, in addition to the collegium of four seniormost judges of the Supreme Court, the chief justice of the two high courts (one from which the judge is being transferred and the other receiving him). Thus, the sole opinion of the chief justice of India does not constitute the ‘consultation’ process.

Acting Chief Justice

The President can appoint a judge of a high court as an acting chief justice of the high court when:

  1. the office of chief justice of the high court is vacant; or
  2. the chief justice of the high court is temporarily absent; or
  3. the chief justice of the high court is unable to perform the duties of his office.

Additional and Acting Judges

The President can appoint duly qualified persons as additional judges of a high court for a temporary period not exceeding two years when:

  1. there is a temporary increase in the business of the high court; or
  2. there are arrears of work in the high court.

The President can also appoint a duly qualified person as an acting judge of a high court when a judge of that high court (other than the chief justice) is:

  1. unable to perform the duties of his office due to absence or any other reason; or
  2. appointed to act temporarily as chief justice of that high court.

An acting judge holds office until the permanent judge resumes his office. However, both the additional or acting judge cannot hold office after attaining the age of 62 years.

Retired Judges

At any time, the chief justice of a high court of a state can request a retired judge of that high court or any other high court to act as a judge of the high court 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. Such a judge is entitled to such allowances as the President may determine. He will also 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.

INDEPENDENCE OF HIGH COURT

The independence of a high court is very essential for the effective discharge of the duties assigned to it. It should be free from the encroachments, pressures, and interferences of the executive (council of ministers) and the legislature. It should be allowed to do justice without fear or favor.

The Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of a high court.

  1. Mode of Appointment The judges of a high court are appointed by the president (which means the cabinet) in consultation with the members of the judiciary itself (i.e., chief justice of India and the chief justice of the high court). This provision curtails the absolute discretion of the executive as well as ensures that the judicial appointments are not based on any political or practical considerations.
  2. Security of Tenure The judges of a high court are provided with the security of tenure. They can be removed from office by the president only in the manner and on the grounds mentioned in the Constitution. This means that they do not hold their office during the pleasure of the president, though they are appointed by him. This is obvious from the fact that no judge of a high court has been removed (or impeached) so far.
  3. Fixed Service Conditions The salaries, allowances, privileges, leave and pension of the judges of a high court are determined from time to time by the Parliament. But, they cannot be changed to their disadvantage after their appointment except during a financial emergency. Thus, the conditions of service of the judges of a high court remain the same during their term of office.
  4. Expenses Charged on Consolidated Fund The salaries and allowances of the judges, the salaries, allowances, and pensions of the staff, as well as the administrative expenses of a high court, are charged on the consolidated fund of the state. Thus, they are non-votable by the state legislature (though they can be discussed by it). It should be noted here that the pension of a high court judge is charged on the Consolidated Fund of India and not the state.
  5. Conduct of Judges cannot be Discussed The Constitution prohibits any discussion in Parliament or in a state legislature with respect to the conduct of the judges of a high court in the discharge of their duties, except when an impeachment motion is under consideration of the Parliament.
  6. Ban on Practice after Retirement The retired permanent judges of a high court are prohibited from pleading or acting in any court or before any authority in India except the Supreme Court and the other high courts. This ensures that they do not favor anyone in the hope of future favor.
  7. Power to Punish for its Contempt A high court can punish any person for its contempt. Thus, its actions and decisions cannot be ciriticised and opposed by anybody. This power is vested in a high court to maintain its authority, dignity and honour.
  8. Freedom to Appoint its Staff The chief justice of a high court can appoint officers and servants of the high court without any inteference from the executive. He can also prescribe their conditions of service.
  9. Its Jurisdiction cannot be Curtailed The jurisdiction and powers of a high court in so far as they are specified in the Constitution cannot be curtailed both by the Parliament and the state legislature. But, in other respects, the jurisdiction and powers of a high court can be changed both by the parliament and the state legislature.
  10. Separation from Executive The Constitution directs the state to take steps to separate the judiciary from the executive in public services. This means that the executive authorities should not possess the judicial powers. Consequent upon its implementation, the role of executive authorities in judicial administration came to an end.

JURISDICTION AND POWERS OF HIGH COURT

Like the Supreme Court, the high court has been vested with quite extensive and effective powers. It is the highest court of appeal in the state. It is the protector of the Fundamental Rights of the citizens. It is vested with the power to interpret the Constitution. Besides, it has supervisory and consultative roles.

However, the Constitution does not contain detailed provisions with regard to the jurisdiction and powers of a high court. It only lays down that the jurisdiction and powers of a high court are to be the same as immediately before the commencement of the Constitution. But, there is one addition, that is, the Constitution gives a high court jurisdiction over revenue matters (which it did not enjoy in the pre-constitution era). The Constitution also confers (by other provisions) some more additional powers on a high court like writ jurisdiction, the power of superintendence, consultative power, etc. Moreover, it empowers the Parliament and the state legislature to change the jurisdiction and powers of a high court.

At present, a high court enjoys the following jurisdiction and powers:

  1. Original jurisdiction.
  2. Writ jurisdiction.
  3. Appellate jurisdiction.
  4. Supervisory jurisdiction.
  5. Control over subordinate courts.
  6. A court of record.
  7. Power of judicial review.

The present jurisdiction and powers of a high court are governed by (a) the constitutional provisions, (b) the Letters Patent, (c) the Acts of Parliament, (d) the Acts of State Legislature, (e) Indian Penal Code, 1860, (f) Cirminal Procedure Code, 1973, and (g) Civil Procedure Code, 1908.

1. Original Jurisdiction
It means the power of a high court to hear disputes in the first instance, not by way of appeal. It extends to the following:

(a) Matters of admirality, will, marriage, divorce, company laws and contempt of court.
(b) Disputes relating to the election of members of Parliament and state legislatures.
(c) Regarding revenue matter or an act ordered or done in revenue collection.
(d) Enforcement of fundamental rights of citizens.
(e) Cases ordered to be transferred from a subordinate court involving the interpretation of the Constitution to its own file.
(f) The four high courts (i.e., Calcutta, Bombay, Madras and Delhi High Courts) have original civil jurisdiction in cases of higher value.

Before 1973, the Calcutta, Bombay and Madras High Courts also had original criminal jurisdiction. This was fully abolished by the Criminal Procedure Code, 1973.

2. Writ Jurisdiction
Article 226 of the Constitution empowers a high court to issue writs including habeas corpus, mandamus, certiorari, prohibition, and quo-warrant for the enforcement of the fundamental rights of the citizens and for any other purpose. The phrase ‘for any other purpose’ refers to the enforcement of an ordinary legal right. The high court can issue writs to any person, authority and government not only within its territorial jurisdiction but also outside its territorial jurisdiction if the cause of action arises within its territorial jurisdiction.

The writ jurisdiction of the high court (under Article 226) is not exclusive but concurrent with the writ jurisdiction of the Supreme Court (under Article 32). It means, when the fundamental rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly. However, the writ jurisdiction of the high court is wider than that of the Supreme Court. This is because the Supreme Court can issue writs only for the enforcement of fundamental rights and not for any other purpose, that is, it does not extend to a case where the breach of an ordinary legal right is alleged.

In the Chandra Kumar case9 (1997), the Supreme Court ruled that the writ jurisdiction of both the high court and the Supreme Court constitute a part of the basic structure of the Constitution. Hence, it cannot be ousted or excluded even by way of an amendment to the Constitution.

3. Appellate Jurisdiction
A high court is primarily a court of appeal. It hears appeals against the judgments of subordinate courts functioning in its territorial jurisdiction. It has appellate jurisdiction in both civil and criminal matters. Hence, the appellate jurisdiction of a high court is wider than its original jurisdiction.

(a) Civil Matters The civil appellate jurisdiction of a high court is as follows:
(i) First appeals from the orders and judgements of the district courts, additional district courts and other subordinate courts lie directly to the high court, on both questions of law and fact, if the amount exceeds the stipulated limit.
(ii) Second appeals from the orders and judgements of the district court or other subordinate courts lie to the high court in the cases involving questions of law only (and not questions of fact).
(iii) The Calcutta, Bombay and Madras High Courts have provision for intra-court appeals. When a single judge of the high court has decided a case (either under the original or appellate jurisdiction of the high court), an appeal from such a decision lies to the division bench of the same high court.
(iv) Appeals from the decisions of the administrative and other tribunals lie to the division bench of the state high court. In 1997, the Supreme Court ruled that the tribunals are subject to the writ jurisdiction of the high courts. Consequently, it is not possible for an aggrieved person to approach the Supreme Court directly against the decisions of the tribunals, without first going to the high courts.
(b) Criminal Matter
s The criminal appellate jurisdiction of a high court is as follows:
(i) Appeals from the judgements of sessions court and additional sessions court lie to the high court if the sentence is one of imprisonment for more than seven years. It should also be noted here that a death sentence (popularly known as capital punishment) awarded by a sessions court or an additional sessions court should be confirmed by the high court before it can be executed, whether there is an appeal by the convicted person or not.
(ii) In some cases specified in various provisions of the Criminal Procedure Code (1973), the appeals from the judgements of the assistant sessions judge, metro-politian magistrate or other magistrates (judicial) lie to the high court.

4. Supervisory Jurisdiction
A high court has the power of superintendence over all courts and tribunals functioning in its territorial jurisdiction (except military courts or tribunals). Thus, it may—

(a) call for returns from them;
(b) make an issue, general rules and prescribe forms for regulating the practice and proceedings
of them;
(c) prescribe forms in which books, entries, and accounts are to be kept by them; and
(d) settle the fees payable to the sheriff, clerks, officers and legal practitioners of them.

This power of superintendence of a high court is very broad because, (i) it extends to all courts and tribunals whether they are subject to the appellate jurisdiction of the high court or not; (ii) it covers not only administrative superintendence but also judicial superintendence; (iii) it is a revisional jurisdiction; and (iv) it can be so-motu (on its own) and not necessarily on the application of a party.

However, this power does not vest the high court with unlimited authority over the subordinate courts and tribunals. It is an extraordinary power and hence has to be used most sparingly and only in appropriate cases. Usually, it is limited to, (i) excess of jurisdiction, (ii) gross violation of natural justice, (iii) error of law, (iv) disregard to the law of superior courts, (v) perverse findings, and (vi) manifest injustice.

5. Control over Subordinate Courts
In addition to its appellate jurisdiction and supervisory jurisdiction over the subordinate courts as mentioned above, a high court has administrative control and other powers over them. These include the following:

(a) It is consulted by the governor in the matters of appointment, posting, and promotion of district judges and in the appointments of persons to the judicial service of the state (other than district judges).
(b) It deals with the matters of posting, promotion, grant of leave, transfers, and discipline of the members of the judicial service of the state (other than district judges).
(c) It can withdraw a case pending in a subordinate court if it involves a substantial question of law that requires the interpretation of the Constitution. It can then either dispose of the case itself or determine the question of law and return the case to the subordinate court with its judgement.
(d) Its law is binding on all subordinate courts functioning within its territorial jurisdiction in the same sense as the law declared by the Supreme Court is binding on all courts in India.

6. A Court of Record
As a court of record, a high court has two powers:
(a) The judgments, proceedings, and acts of the high courts are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when produced before any subordinate court. They are recognized as legal precedents and legal references.
(b) It has the power to punish for contempt of court, either with simple imprisonment or with fine or with both.

The expression ‘contempt of court’ has not been defined by the Constitution. However, the expression has been defined by the Contempt of Court Act of 1971. Under this, contempt of court may be civil or criminal. Civil contempt means wilful disobedience to any judgment, order, writ or other processes of a court or wilful breach of an undertaking given to a court. Criminal contempt means the publication of any matter or doing an act which—(i) scandalizes or lowers the authority of a court; or (ii) prejudices or interferes with the due course of a judicial proceeding; or (iii) interferes or obstructs the administration of justice in any other manner.

However, innocent publication and distribution of some matter, fair and accurate report of judicial proceedings, fair and reasonable criticism of judicial acts and comment on the administrative side of the judiciary do not amount to contempt of court.

As a court of record, a high court also has the power to review and correct its own judgment or order or decision, even though no specific power of review is conferred on it by the Constitution. The Supreme Court, on the other hand, has been specifically conferred with the power of review by the constitution.

Power of Judicial Review

Judicial review is the power of a high court to examine the constitutionality of legislative enactments and executive orders of both the Central and state governments. On examination, if they are found to be violative of the Constitution (ultra-vires), they can be declared as illegal, unconstitutional and invalid (null and void) by the high court. Consequently, they cannot be enforced by the government.

Though the phrase ‘judicial review’ has nowhere been used in the Constitution, the provisions of 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:

(a) it infringes the fundamental rights (Part III),
(b) it is outside the competence of the authority which has framed it, and
(c) it is repugnant the constitutional provisions.

The 42nd Amendment Act of 1976 curtailed the judicial review power of high court. It debarred the high courts from considering the constitutional validity of any central law. However, the 43rd Amendment Act of 1977 restored the original position.

Name

Year of establishmentTerritorial JurisdictionSeat

1.

Allahabad

1866

Uttar Pradesh

Allahabad (Bench at Lucknow)
2.Andhra Pradesh1954Andra PradeshHyderabad
3.



Bombay13



1862



Maharashta, Goa, Dadra and Nagar Haveli and
Daman and Diu
Mumbai (Benches at Nagpur, Panaji and Aurangabad)
4.


Calcutta13


1862


West Bengal and Andaman and Nicobar IslandsKolkata (Circuit Bench at Port Blair)
5.Chhattisgarh2000ChhattisgarhBilaspur
6.Delhi1966DelhiDelhi
7.



Guwahati



194810



Assam, Nagaland, Mizoram and Arunachal Pradesh14Guwahati (Benches at Kohima, Aizawl and Itanagar)
8.Gujarat1960GujaratAhmedabad
9.

Himachal
Pradesh
1971

Himachal PradeshSimla

10.

Jammu and
Kashmir
1928

Jammu and KashmirSrinagar and Jammu
11.Jharkhand2000JharkhandRanchi
12.Karnataka188411KarnatakaBengaluru
13.

Kerala

1958

Kerala and LakshadweepErnakulam

14.


Madhya Pradesh


1956


Madhya Pradesh


Jabalpur (Benches at Gwalior and
Indore)
15.

Madras13

1862

Tamil Nadu and PuducherryChennai

16.Manipur152013ManipurImphal
17.Meghalaya152013MeghalayaShillong
18.Orissa161948OdishaCuttack
19.Patna1916BiharPatna
20.

Punjab and
Haryana
187512

Punjab, Haryana and ChandigarhChandigarh

21.

Rajasthan

1949

Rajasthan

Jodhpur (Bench at Jaipur)
22.Sikkim1975SikkimGangtok
23.Tripura152013TripuraAgartala
24.Uttarakhand2000UttarakhandNainital

Articles Related to High Courts at a Glance

Article No.Subject-matter
Article 214.High Courts for states
Article 215.High Courts to be courts of record
Article 216.Constitution of High Courts
Article 217.

Appointment and conditions of the office of a Judge of a High Court
Article 218.

Application of certain provisions relating to Supreme Court to High Courts
Article 219.Oath or affirmation by judges of High Courts
Article 220.

Restriction on practice after being a permanent judge
Article 221.Salaries etc., of judges
Article 222.

Transfer of a judge from one High Court to another
Article 223.Appointment of acting Chief Justice
Article 224.Appointment of additional and acting judges
Article 224A.

Appointment of retired judges at sittings of High Courts
Article 225.Jurisdiction of existing High Courts
Article 226.Power of High Courts to issue certain writs
Article 226A.


Constitutional validity of Central laws not to be considered in proceedings under Article 226 (Repealed)
Article 227.

Power of superintendence over all courts by the High Court
Article 228.Transfer of certain cases to High Court
Article 228A.


Special provisions as to disposal of questions relating to constitutional validity of state laws (Repealed)
Article 229.

Officers and servants and the expenses of High Courts
Article 230.

Extension of jurisdiction of High Courts to union territories
Article 231.

Establishment of a common High Court for two or more states

The state’s judiciary consists of a high court and a hierarchy of subordinate courts, also known as lower courts. The subordinate courts are so called because of their subordination to the state high court. They function below and under the high court at district and lower levels.

CONSTITUTIONAL PROVISIONS

Articles 233 to 237 in Part VI of the Constitution make the following provisions to regulate the organization of subordinate courts and to ensure their independence from the executive.

  1. Appointment of District Judges
    The appointment, posting, and promotion of district judges in a state are made by the governor of the state in consultation with the high court.
    A person to be appointed as district judge should have the following qualifications:
    (a) He should not already be in the service of the Central or the state government.
    (b) He should have been an advocate or a leader for seven years.
    (c) He should be recommended by the high court for appointment.
  2. Appointment of other Judges
    Appointment of persons (other than district judges) to the judicial service of a state is made by the governor of the state after consultation with the State Public Service Commission and the high court.
  3. Control over Subordinate Courts
    The control over district courts and other subordinate courts including the posting, promotion and leave of persons belonging to the judicial service of a state and holding any post inferior to the post of district judge is vested in the high court.
  4. Interpretation
    The expression ‘district judge’ includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge.
    The expression ‘judicial service’ means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.
  5. Application of the above Provisions to Certain Magistrates
    The Governor may direct that the above mentioned provisions relating to persons in the state judicial service would apply to any class or classes of magistrates in the state.

STRUCTURE AND JURISDICTION

The organizational structure, jurisdiction, and nomenclature of the subordinate judiciary are laid down by the states. Hence, they differ slightly from state to state. Broadly speaking, there are three tiers of civil and criminal courts below the High Court. This is shown below :

The district judge is the highest judicial authority in the district. He possesses original and appellate jurisdiction in both civil as well as criminal matters. In other words, the district judge is also the sessions judge. When he deals with civil cases, he is known as the district judge and when he hears the criminal cases, he is called as the sessions judge. The district judge exercises both judicial and administrative powers. He also has supervisory powers over all the subordinate courts in the district.
Appeals against his orders and judgments lie to the High Court. The sessions judge has the power to impose any sentence including life imprisonment and capital punishment (death sentence). However, a capital punishment passed by him is subject to confirmation by the High Court, whether there is an appeal or not.

Below the District and Sessions Court stands the Court of Subordinate Judge on the civil side and the Court of Chief Judicial Magistrate on the criminal side. The subordinate judge exercises unlimited pecuniary jurisdiction over civil suits3. The chief judicial magistrate decides criminal cases which are punishable with imprisonment for a term up to seven years.

At the lowest level, on the civil side, is the Court of Munsiff and on the criminal side, is the Court of Judicial Magistrate. The munsiff possesses limited jurisdiction and decides civil cases of the small pecuniary stake. The judicial magistrate tries criminal cases which are punishable with imprisonment for a term up to three years.

In some metropolitan cities, there are city civil courts (chief judges) on the civil side and the courts of metropolitan magistrates on the criminal side.

Some of the States and Presidency towns have established small causes courts. These courts decide the civil cases of small value in a summary manner. Their decisions are final, but the High Court possesses a power of revision.

In some states, Panchayat Courts try petty civil and criminal cases. They are variously known as Nyaya Panchayat, Gram Kutchery, Adalati Panchayat, Panchayat Adalat and so on.

NOTES AND REFERENCES

  1. The 20th Constitutional Amendment Act of 1966 added a new Article 233-A which
    retrospectively validated the appointment of certain district judges as well as the judgements delivered by them.
  2. In practice, the State Public Service Commission conducts a competitive examination for recruitment to the judicial service of the state.
  3. A subordinate judge is also known as civil judge (senior division), civil judge (class I) and so on. He may also be given the powers of an assistant sessions judge. In such a case, he combines in himself both civil as well as criminal powers like that of a District Judge.
  4. A munsiff is also known as civil judge (junior division), civil judge (class-II) and so on.
  5. Delhi, Bombay, Calcutta and Madras were formerly called presidency towns.

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