This article is written by Millia Dasgupta, a second-year student studying at Jindal Global Law School. This article discusses the High Courts of India.
Table of Contents
The High Courts of India are the principal civil courts of original jurisdiction. There are present in most states. In the case of small states, a high court is present for 2 to 3 states. Their territory is merged and is under the jurisdiction of one high court. This is why we have 29 states but we only have 25 high courts.
The first high court was the Calcutta. The Bombay and Madras High Court was established in the year of 1862. While there were 24 high courts, the number increased to 25 in 2019. This is due to the high court built in Amaravati. Delhi is the only Union Territory which has a separate high court.
The head of the High Court is the Chief Justice of the High Court. There is one Chief Justice. The number of judges is not fixed by the Constitution of India and leaves it up to the discretion of the president.
Qualifications To Become A High Court Judge
A judge of the High Court should be a:
- Citizen of India,
- Holding a judicial office for not less than 10 years in a territory of India,
- An advocate of the High Court for at least 10 years in succession.
Appointment Of Judges
The judges and the Chief Justice of the High Courts are appointed officially by the President.
The Chief Justice is appointed by the President in consultation with Chief Justice of India and Governor of the state which the High Courts jurisdiction falls under.
For the appointment of other judges of the High Court, they are appointed by the President on the advice of the Chief Justice of India, the governor of that state and the Chief Justice of the High Court.
Oath of Office
The Chief Justice of the High Courts and judges of the High Court take an oath before the Governor of state or some person appointed by him.
Thus while their appointment and removal are done by the President, they take an oath they take in front of the governor.
Term of Office
A judge of the High Court holds his office until he attains the age of 62. If he wants to resign, he can resign by writing to the president. He can also be removed by the President on the recommendation of the Parliament. A High Court judge after retirement can practice either in Supreme or High Court in which he has not served.
Process of Removal of Judges
A judge can be removed by the President on the recommendation of the Parliament on grounds of proved incapacity or misbehavior.
A motion to remove the judge of HC can be introduced in any house of parliament. It must be introduced by at least 100 members in Lok sabha or 50 members in Rajya Sabha whenever it is introduced.
The Speaker or Chairman may reject this proposal or set up a 3 member committee to investigate the concerns.
When the committee finds him guilty, then the motion has to be passed by both houses by a special majority. Then, the President gives his assent and Judge of HC is removed.
While Calcutta might be the place where the first high court was built it was Bombay where the East Indian company had placed its first laws. This lead to the establishment of ‘Mayor Courts’ in Bombay and they were later on established in Calcutta and Madras. They established uniform jurisdiction but due to unrest among Indians, Indians were not included in the jurisdiction of the courts.
After the Battle of Plassey, the English had to bring law and order to the state of Bengal. Warren Hasting suggested that they set up provincial courts in all the districts having civil jurisdiction. They were called Mofussul Diwani Adalats. Similar courts called the Faujdari Adalat having criminal jurisdiction were established. These courts could appeal to the Sadar Nizamat Adalats which was run by Company servants.
The next step was the Regulating Act of 1733, which not only made important changes in the legislature of Bengal but also authorized that a Supreme Court of Judicature is set up in Calcutta with a bench of three judges, appointed by the king. This court was however limited to British citizens. Later on, courts of these nature were set up in Madras and Bombay.
But the Act was very vague and did not establish the extent of its powers and it influences over the East Indian Company. In the famous Nandakumar case, it was stated that these Supreme Courts did not have power over cases that dealt with revenue. Its jurisdiction was clearly mapped out as well as the jurisdiction of the Companies and the Sadar Nizamat Adalat courts.
Sadly, this dual administration did not last for long as there were clashes between the Supreme Court and the Sadar Adalat. Thus, the Indian High Court Act of 1861 was passed. It abolished the old Supreme Courts and the Sadar Nizamat Adalat that established High Courts in Calcutta, Madras, and Bombay. These courts were open to Indian lawyers who had no British qualifications could take part in the administration of the courts. They were an amalgamation of original jurisdiction (the old Supreme Courts) and the appellate jurisdiction (the Sadar Nizamat Adalats). The judge Bench consisting of a Chief Justice and up to 15 Judges. They could either be Barristers with 5 years of experience or civil servants with 10 years of experience.
The Government of India Act 1935 rejected the rule of the High Courts that said one-third of the judges must be barristers and one third should be members of the Indian Civil Service.
Article 225 of the Indian constitution removed their restriction on reviewing cases relating to revenue. Their jurisdiction was also expanded to enforcing Fundamental rights through writ petitions.
Jurisdiction of the High Court
Article 226 defines the powers of the high court. It gives the power to the High Court to issue writs. They have the power to issue orders or writs to ‘any person, authority, or Government which falls within the territories under their jurisdiction to enforce the Fundamental Rights.
These writs are-
It is a writ requiring a person under arrest of illegal detention to be brought before a judge or brought into court. This is especially to ensure that the person be released if lawful grounds for detention can not be proved.
In a recent case, the Bombay High Court stated that a writ of Habeas Corpus will not be maintainable even if the remand order was illegal if other remedies like a bail application are available to the aggrieved. The MP HC also stated that a writ of habeas corpus is not maintainable if the aggrieved has been detained under the Witness Protection Scheme 2018.
A writ issued as a command to an inferior court or ordering a person to perform their job or public or statutory duty.
The Supreme Court held that a writ of mandamus can not be issued to legislate or amend a law.
This writ is issued as a command to prevent an inferior court or tribunal from exceeding its jurisdiction.
This writ is to inquire into the legality of the claim of a person or public office. It stops people from holding an office which they are not entitled to. This writ is applicable to the public offices only and not to private offices.
The Supreme Court held that the HC cannot issue Quo warranto unless it is based on indisputable facts.
This writ is passed to squash an order passed by an inferior court.
In civil cases, an appeal can be made against a district court’s decision. They can also make an appeal directly from a subordinate court if the dispute has a value higher than Rs 5000, or if there is a substantial question of law.
For criminal cases, appeals can be made against the Session and Additional Session courts. This is if the sessional judge has given imprisonment for 7 years or more, or has awarded capital punishment.
They also have jurisdiction over cases relating to State and Center law. With regards to constitutional cases, the case must have a substantial question of law in order to be considered by the high court.
The relation between the Supreme Court and the High Court
The Supreme Court is the apex court of Justice.
The High Court is the highest court of authority in the state its jurisdiction falls under.
The Chief Justice of India heads it.
The Chief Justice of the High Court heads it.
Supreme Court has supreme power over all the courts in India.
The High Court has supreme power over only the tribunal and other subordinate courts in its state.
The Chief Justice of India is appointed by the President and the other judges of the Supreme Court are appointed by the President on the recommendation of the CJI.
The Chief Justice of India is appointed by the President on the recommendation of Chief Justice of India and Governor of the state. The judges of the high court are appointed by the President of India after consulting the Chief Justice of India, the governor of that state and the Chief Justice of the High Court.
The judges of the Supreme Court retires at 65.
The judges of the high court retire at 62.
The Supreme Court is the highest court of appeal and there is no other court above it.
The judge of the high court can plead to the Supreme Court.
There is one Supreme Court in India.
There is a total of 25 High Courts in India.
Problems faced by the High Court
One of the main problems of the High Courts is the issue of pending cases. In the right conscious world, people are filing many more petitions that must be reviewed and analyzed by the high court of India. The government also contributes to excessive litigation and is the largest litigant in India. While there are a number of these cases are important, a majority of their cases are usually one department suing another department due to disputes and leaving it up to the courts to decide.
Despite the increase in litigations, the current judge population is 10 to a million. And this is not because of a paucity of seats. Half the judge seats are vacant due to the judiciary and executive locking heads when it comes to the appointment of judges.
Pending cases are a big hurdle to the path to justice. When there is a delay injustice, the common man loses his faith in the justice system. The judicial system becomes overburdened with all the cases and becomes more inefficient.
It is clear that the High Courts are overburdened with cases. Some ways to help with that are setting up parallel courts that can help resolve matters at the grass-root level. Some of these courts are-
Fast Track Courts
By the recommendations of the 11th Finance Commission, these courts were sanctioned to dispose of old pending cases. It has helped to clear more than 10 lakhs cases out of 19 lakh cases.
These courts go from door to door in rural India to help with the backlog of cases in those areas. They not only educate rural folk about their rights and responsibilities, but they also create a bond between the judiciary and the community.
The Legal Services Act of 1987 enabled weaker sections of society to receive free and competent legal services to ensure their justice. Thus Lok Adalats were set up and are alternative dispute redressal mechanisms. Lok Adalats have no court fee and are presided over by the members of the Lok Adalat. It is their job to persuade the parties to come to an agreement.
In this article, we have not only discussed the history and executive structure of the High Court, but we have also tried to identify it’s problem areas and state what solutions the government has taken in order to solve them.
- Larby, C. J. B. “The Centenary of the High Courts of Calcutta, Bombay and Madras.” The International and Comparative Law Quarterly, vol. 12, no. 3, 1963, pp. 1044–1048. http://www.legalserviceindia.com/article/l452-Litigation-&-Delays-in-India.html