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constitutional_law:part-2:high-court-and-subordinate-court

High Court and The Subordinate Courts

The Constitution of India provides a High Court for each State. The Parliament may, however, establish a common High Court for two or more States and a Union Territory (Article 214 & 231). Similar to the Supreme Court, every High Court is also a Court of record and has the entire original and appellate jurisdiction together with the power to punish for contempt (Article 215). The Chief Justice of a High Court is appointed by the President after consulting the Chief Justice of India and Governor of the State and in case of appointment of Judges, other than the Chief Justice, the Chief Justice of the concerned High Court is also consulted.

For a person to be appointed as a Judge of the High Court he/she must:

  • be a citizen of India
  • have ten years of service in Judicial Office, or
  • have ten years of experience as a High Court Advocate.

Every High Court Judge must take an oath of office. He/she holds the office until the age of 62 years. He/she can only be removed from his office in the same manner as provided for the removal of a Judge of the Supreme Court. After retirement, he/she is also restricted to plead before the court he retired from and subordinate courts but he/she can practice in other High Courts and the Supreme Court. Every High Court Judge is entitled to a salary and allowances as decided by Parliament or as specified in the Second Schedule of the Constitution.

After Consulting the Chief Justice of High Court, the President can transfer Judges from one High Court to the other (Article 222). He may also appoint an acting Chief Justice of the High Court and if needed, the additional and other acting Judges for a limited period of two years. Also, the Chief Justice of a High Court with the consent of the President can appoint a retired judge to sit and act as a Judge.

Every High Court shall consist of a Chief Justice and such other Judges as the President may appoint from time to time (Article 216). Each High Court has powers of superintendence over all the Courts and Tribunals except the Tribunals ofArmed Forces (Article 227). When a High Court finds that any lower court has a case pending, which has a substantial question of law, then it can take the case itself for determination or decide the question and send it back to the same court for determination (Article 228).

Article 226 provides that every High Court under its jurisdiction has power to issue writs for enforcement of the Fundamental Rights or for any other purpose. By inserting the word ‘any other purpose’ the High Court has been given much wider power than the Supreme Court. It can issue writs in all the cases of breach of any right while Supreme Court can issue only in the breach of Fundamental Rights. But it should be remembered that the writ in cases other than those of violation of Fundamental Rights is not a normal one. It is an extraordinary remedy which can be expected in special circumstances.

Every Court has the control of its staff. The salaries and allowances of the Judges and of the High Court staff, similar to the Judges of Supreme Court are charged on the Consolidated Fund of the State. The officers and staff of High Courts are appointed by the Chief justice or other such Judge or officer as he/she may decide. The terms and conditions of services of the staff and officers of the court are decided by the rules made by Chief Justice and approved by the President (Article 229). The jurisdiction of a High Court may be extended to or excluded from a Union Territory (Article 230).

As the decisions of the Supreme Court are binding on all courts in India, similarly those declared by the High Court are binding on all subordinate courts within the State and within the territory covered by its jurisdiction.

The Governor after consulting the High Court shall appoint the District Judges. India-II A person who has at least seven years of experience at the bar is eligible for the position of a District Judge (Article 233).

Appointments of persons other than District Judges to the Judicial Service of the State are made by the Governor in consultation with the State Public Service Commission and the High Court (Article 234).

The High Court has an entire administrative control over the District Courts and other lower Courts regarding posting, promotions and grant of leaves etc. to any person belonging to the Judicial service of a State and holding any post inferior to the post of a Judge (Article 235). Article 236 is the interpretation clause and various terms while Article 237 empowers the Governor to apply the provisions regarding Subordinate Courts to any class or classes of magistrate in the State.

Over all, Judiciary as a pillar of the democracy, shall stand firm to deliver justice for the sake of mankind. For its impartiality and responsibility it has been kept independent of the influence of the Legislature and the Executive. With the evolution of ‘Judicial Activism’ and its instruments like the one of PIL has given more and more responsibilities on it. But, in practical terms if the legislative and the executive shall stand accountable and responsive on their duties, then there is no requirements on the part of Judiciary to exceed its jurisdiction.