High Court: Appointments, transfer, powers, functions and jurisdiction

High Court: Appointments, transfer, powers, functions and jurisdiction

High Courts are the highest authority in terms of courts in a State. Article 214 to 237 deals with the provisions of High Courts. Article 214 deals with the establishment of the High Court in each state. A High Court consists of a Chief Justice and some other judges who are appointed by the President. There is no fixed limit for the maximum number of judges in a High Court, they are appointed as per the necessity. There will be a separate High Court for each state but after the 7th Constitutional amendment, the same high court can be the court for more than one state. Under Article 241, Parliament has the power to constitute a High Court for a Union Territory and can also declare any Court to be a High Court for the purpose of the Constitution.

Appointment and transfer of High Court Judges

Prior to the 99th Amendment, every judge of the High Court must be appointed by the President (Article 217). The Chief Justice of the High Court will be appointed by the President, after consultation with the Governor of that state and the Chief Justice of Supreme Court. For the appointment of Judges other than Chief Justice of the High Court President can consult the Chief Justice of that High Court.

In S.P. Gupta & Others v. Union of India, 1 popularly known as Judges Transfer case, the question was raised whether in appointing the additional Judges of the High Courts the President was bound by the consult of Chief Justice of India. The majority held that the opinion of the Chief Justice of India had no primacy over the opinion of the Chief Justice of High Court under Article 217. Justice Bhagwati has stated that “the Chief Justice of India, Chief Justice of High Court & Governor have equal importance in the consultation process and there is no superiority over the opinion of one another.” He suggested for the establishment of a Judicial Commission to make recommendations to the President in regard to the appointment of the Judges of Supreme Court and High Court.

But, in Supreme Court Advocate on Record Association v. Union of India, 2 a nine judges bench by a 7:2 majority has overruled the Judged Transfer case and held that in the matters of appointment and transfer of Judges the view of CJI has the greatest significance. The majority gave the primacy to the opinion of the Chief Justice of India formed in consultation with two senior-most judges of the Supreme Court in the matters of appointment and transfer of Judges.

In re Presidential Reference case, 3 nine-judge-bench held that the recommendation made by the Chief Justice of India without following the consultation process for appointment of Supreme Court & High Court Judges were not binding on the government.

But after the 99th Amendment, every judge of the High Court will be appointed by the warrant and seal of the President on the recommendation of the National Judicial Appointments Commission (Article 124-A). There is no requirement to consult with the CJI and the State Governor and also the Chief Justice of High Court in appointment of judges other than Chief Justice.

Since, in Supreme Court Advocate on Record Association v. Union of India, 4 The Court declared the 99th Amendment act as void and unconstitutional and the appointment of judges will be done through the collegium system. In other words, the Chief Justice of the High Court shall be appointed by the President of India with the consultation of Chief Justice of India and the State Governor.

Transfer:

Prior to 99th Amendment President has the power to transfer a Judge from one High Court to another with the consultation of Chief Justice of Supreme Court. In Union of India v. Sankalchand Sheth, 5 The Supreme Court by 3:2 majority held that a Judge of High Court could be transferred without his consent [Article 222 (1)]. The power to transfer the High Court Judge is in the public interest. After 99th Amendment a Judge can be transferred from one High Court to another on the recommendation of National Judicial Appointments Commission by the President.

But the 99th Amendment Act has been declared unconstitutional in 2015, so the Judge of a High Court can be transferred by the President after consultation with the Chief Justice of India.

Qualifications for being a Judge of High Court

The qualification for appointing a Judge of a High Court is defined under Article 217 (2). The qualifications are- Firstly, it must be a citizen of India; Secondly, it must have held a judicial office for not less than 10 years within the territory of India; Thirdly, it must have been an advocate of High Court for not less than 10 years.

The 44th Amendment Act, 1978 has amended the Explanation to clause 2. Under the present clause (a) of the Explanation- any period during which a person has, after becoming an advocate has held the judicial office or the office as a member of a tribunal or any post under the Union or a State requiring special knowledge of law will be included in computing the period during which he has been an advocate for the purpose of determining his eligibility for appointment as Judge of High Court.

Powers and functions of the High Court

The following are the powers and functions of the High Court:

  • It has the power to control over all the courts and tribunals within its jurisdiction except in the matters of Armed Forces under Article 227.
  • It has the power to withdraw a case pending before any subordinate court it involves the substantial question of law.
  • It is a Court of Record as like the Supreme Court which involves recording of judgements, proceedings etc (Article 215).
  • Under the Article 13 & 226 High Court has the power of judicial review. They have the authority to declare any law or ordinance as unconstitutional if it seems to be against the Constitution of India.
  • It can appoint the administration staff according to the need and can decide their salaries, allowance etc.
  • It issues the rules and regulations for the working of subordinate courts.

To get the information there is a Right to Information Act under this one can get the information. But the judiciary does not fall under the ambit of this Act to maintain the Independence of Judiciary. No court proceedings are questionable under the RTI. In the landmark verdict on 2010, the Delhi High Court had held that the office of the Chief Justice of the Supreme Court comes under the ambit of RTI law, by stating that the judicial independence was not a judge’s privilege but a responsibility cast upon them. 3

Jurisdiction of the High Court

The jurisdiction of the High Court is divided into three parts:

Original or general jurisdiction: 

Under Article 215, High Courts have to power to deal with the revenue matters under this jurisdiction. This power has been used in the following matters:

  • Disputes relating to the Members of Parliament and the State Legislative Assembly.
  • Disputes relating to marriage, law, contempt of court etc.
  • Cases which are transferred from other courts to itself as it involves a substantial question of law.

Writ Jurisdiction:

Under Article 226 of the Constitution of India High Courts has the power to issue the writs for the enforcement of fundamental rights or for other purposes. The writs issued by the High Courts are in the nature of Habeas Corpus, Mandamus, Prohibition, Certiorari and quo warranto.  The jurisdiction of the High Court is not limited for not only the protection of fundamental rights but also for other legal rights. The writ jurisdiction of the High Court is wider than the Supreme Court because High can also issue the writs for the enforcement of legal rights. A person can directly approach the High Court when there is a violation of fundamental right.

Supervisory Jurisdiction:

Article 227 deals with the powers of the superintendence on High Court over all the subordinate courts and tribunals except the matters which are related to Armed Forces. Under this, the High Court issues the general rules and prescribes forms for the regulation of the proceedings and practices of subordinate courts.

The power of the Superintendence is a judicial and administrative power vested in the High Courts. The Supreme Court has no such power of superintendence in comparison with High Courts.

Appellate Jurisdiction:

High Court is the primary court of appeal it means that it has the power to hear the appeals against the judgement of the subordinate courts within their territories.

  • In Civil Cases: An appeal can be made in the High Court only against the district court’s decisions. An appeal can also be made directly from the subordinate court if there is a question of fact or law involve in it or the dispute involving the value higher than Rs. 5000/-.
  • In Criminal Cases: It extends to the cases which are decided by the Sessions and Additional Session Judges. The jurisdiction of the High Court extends to all matters related to State and federal laws. It the session judge has awarded capital punishment or imprisonment for 7 or more than 7 years.
  • In Constitutional Cases: If it is certified that the case or the matter involves a question of fact or law.

Conclusion:  

High Court is the Court which has a wider scope than the Supreme Court because High Court can issue the writs for the violation of fundamental rights as well as for legal right but the Supreme Court can only issue the writs when there is a violation of fundamental right. It is also a court or record like the Supreme Court. One can go to the High Court directly when there is a violation of Fundamental Right as well as legal right. High Court can control all the subordinate courts as well as tribunals except the matters of Armed Forces.

The High Court must fall in the ambit of the RTI but with some restrictions like information regarding the proceedings, confidential information will not come under RTI etc. The restriction is necessary to maintain the Independence of Judiciary. So as to make the accountability and transparency in the appointment of judges, the pendency of cases etc. the Supreme must come under RTI.

“The views of the authors are personal

References:

  • AIR 1982 SC 149
  • (1993) 4 SCC 441
  • AIR 1999 SC 1
  • (2015) AIR SCW 5457
  • AIR 1977 SC 2328
  • Secretary General, Supreme Court of India v. Subhash Chandra, AIR 2010 Del. 159.