“Law Master’s Publication”

“State Judiciary”

Prof. Santosh D. Bhosale 137

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JUDICIARY UNDER THE CONSTITUTION.

STATE JUDICIARY (I.E. HIGH COURT AND SUBORDINATE COURTS)

(ART. 214- 237).

QUESTION BANK.

Q. 1. Explain fully the powers of the High Court to issue writs. In what respects does the

writ power of the High Court differ from that of the Supreme Court.

Q.2. Explain the power of High Court.

SHORT NOTES.

1. Subordinate Courts.

2. Appointment of High Court Judges and their qualification.

INTRODUCTION:-

The State Judiciary consists of a High Court and a system of subordinate

courts. The High Court is at the apex of the State Judicial system. The High Court comes

below the Supreme Court in the judicial hierarchy. The High Court was age-old since 1862

when it was first established in the three Presidency Towns of Calcutta, Bombay, and

Madras.

Each State in India currently has a High Court (Art. 214). Parliament,

however, may establish by law a common High Court for two or more States (Art. 232 (1)).

The State of Punjab and Haryana have a common High Court. Similarly, the States of

Assam, Nagaland, Meghalaya, Manipur, and Tripura have a common High Court called

the Gauhati High Court. Besides these two, there are 16 other High Courts.

II.

COMPOSITION OF HIGH COURT:-

Strength of the High Court:-

A High Court consists of the Chief Justice and several other judges the

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“State Judiciary”

Prof. Santosh D. Bhosale 138

President may occasionally appoint [Art. 216]¹. In other words, the number of judges in

the High Court is not fixed; the number of judges can be fixed by the Central Executive

from time to time, considering the workload before it.

Appointment and transfer of Judges (Art. 217):-

The President appoints High Court Judges after consulting with the Chief Justice

of India, the Governor of the State concerned, and, in case of an appointment of a Judge

other than the Chief Justice, the Chief Justice of the High Court to which the appointment

is to be made (Art. 217(1)).

The President, after consultation with the Chief Justice of India, may transfer

a judge from one High Court to any other High Court (Art. 222(1))². However, the judge

going on transfer is entitled to a compensatory allowance (Art. 222 (2)).

Additional and Acting Judges:-

Under Article 223, the President may appoint one of the High Court's Judges

as acting Chief Justice when the office of the Chief Justice falls vacant or he is unable to

perform his duties by reason of absence or otherwise. In addition, the President may

appoint duly qualified persons to be additional court judges for a temporary period not

exceeding two years to clear off the arrears of work in a High Court (Art. 224). The

President may also appoint an acting Judge when any Judge of the High Court other than

the Chief Justice cannot perform his duties because of absence or for any other reason or

is appointed to act temporarily as Chief Justice. An acting Judge is to hold office until the

permanent Judge has resumed his duties (Art. 224(2). Under Article 224-A, the Chief

Justice of a High Court may at any time, with the prior permission of the President, request

a retired Judge of the High Court to sit and act as Judge of the High Court.

Qualifications:-

A person to be qualified for appointment as a Judge of a High Court-

Should be a citizen of India,

(i)

(ii)

(iii)

Should have held a judicial office for at least ten years in the territory of India, or

Should have advocated for the High Court for at least ten years. (Art 217 (1), (2)).

Term and removal of Judge:-

¹In Supreme Court Advocates-on- Record Association v. Union of India. (AIR 1994 SC 441).

Supreme Court Held- that it is necessary to make a periodical review of the Judges strength of every High Court with

reference to the felt need for disposal of cases, taking into account the backlog of cases and the expected future filing.

This is essential to ensure speedy justice.

²In Union of India v. Sankalachand (AIR 1977 SC 2328).

Facts- A Judge of the Gujarat High Court was transferred to the Andra Pradesh High Court without his consultation.

He challenged his transfer.

Supreme Court Held- that Art. 222 does not require consent of a Judge to his transfer.

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A Judge of the High Court shall hold office until he attains the age of 62

years. A Judge may, however, be removed from the office by the President in the same

manner and on the same grounds as a Judge of the Supreme Court is removed.

III

JURISDICTION OF THE HIGH COURT:-

A Court of Record:-

The High Court is a court of record and has all such powers, including

punishing for its contempt (Art. 215).

Power of superintendence (Art. 227):-

Every High Court has the power of superintendence over all courts and

tribunals throughout the territory in relation to which it exercises jurisdiction (Art. 227).

For this purpose, it may-

(i)

Call for records from such Courts,

(ii)

Make and issue general rules and prescribe forms for regulating the practice and

proceedings of such Court,

(iii)

(iv)

Prescribe forms in which books, entries, and accounts shall be kept by the officers

of any such Court, and

Settle tables of fees to be allowed to the sheriff and all clerks and officers of such

Courts and to attorneys, advocates, and leaders practising therein. (However, before

passing such rules, forms, or tables, previous permission from the Governor is

necessary).

C) Power to withdraw cases (Art. 228):-

The High Court has the power to withdraw cases from subordinate Courts

involving substantial questions of law as to its interpretation (Art. 228). It may either

dispose of the case itself or determine the question of law and return the case to the

subordinate Court with a copy of its judgment. The subordinate Court will then decide

the case in conformity with the High Court’s judgment.

Power to issue writs (Art. 226):-

Art. 226 empowers the High Court to issue to any person or authority,

including the Government, directions, orders, or writs, including writs like habeas corpus,

mandamus, prohibition, quo Warranto, certiorari, or any of them-

(i)

For the enforcement of any of the fundamental rights conferred by Part III of the

constitution, or

(ii)

For any other purpose.

(The nature of writs and the difference between Art. 226 and 32 are discussed in a topic on

the Supreme Court).

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“State Judiciary”

Prof. Santosh D. Bhosale 140

NOTE.

SUBORDINATE COURTS. (Art. 233 to 237):-

Every State has a system of subordinate courts below the High Court. The

Constitution secures the independence of the subordinate Judiciary from the Executive.

Appointment of District Judges (Art. 233)- The appointment, posting, and promotion of

District Judges shall be made by the Governor of the State in consultation with the High

Court. A person already not in the service of the Union or of the State shall only be eligible

to be appointed as a District Judge if he fulfils two qualifications. Viz-

He should be an advocate or a pleader for 7 years, and

ii)

The High Court recommends his name for appointment (Art. 233).

Recruitment of persons other than District Judges (Art. 233) –

Appointment of other Judges (other than District Judges) in the State shall be made

by the Governor of the State in accordance with the rules made by him on that behalf after

consultation with the State Public Service Commission and with the High Court exercising

jurisdiction in relation to such State.

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