Every State has a High Court operating within its territorial jurisdiction and every High Court is a court of record which has all the powers of such a court including the power to punish for contempt of itself. However, there are High Courts catering to a number of States such as Guwahati, Punjab & Haryana, Madras, Calcutta and Bombay High Courts. Neither the Supreme Court nor the legislature can deprive a High Court of its power of punishing a contempt of itself (Article 215).
We have already seen the position of the Supreme Court with the inauguration of the Constitution in 1950 and how it affected the position of the High Courts by bringing them directly under the Supreme Court as parts of a single, integrated, hierarchical, all-India judicial system. The Constitution does not, however, vest in the Supreme Court any direct administrative control over the High Courts which would substantially affect their functioning as independent judicial institutions.
Similarly, neither the State executive nor the State legislature has any power to control the High Court or to alter its constitution. Whatever is permissible short of a constitutional amendment is vested in Parliament. These provisions have great importance in determining the independence of the High Courts.
Unlike the Supreme Court, there is no fixed minimum number of judges for the High Court. The President, from time to time, will fix the number of judges in each High Court and it varies from court to court. For example, the Assam High Court had at one time only six judges, whereas the Allahabad High Court had as many as thirty-four judges. The Calcutta High Court has thirty-nine judges.
Every judge of the High Court is appointed by the President of India after consultation with the Chief Justice of India, the Governor of the State and, in the case of the appointment of a judge other than the Chief Justice, the Chief Justice of the High Court concerned. If he is appointed on a permanent basis, he will hold office until he completes the age of sixty-two years. The minimum qualifications prescribed for appointment are Indian citizenship and at least ten years’ experience either as an advocate of a High Court in India or a judicial officer in the territory of India. In computing the ten-year period for the purpose of appointment, experience as an advocate can be combined with that of a judicial officer. A judge of the High Court can be removed from office only for proved misbehaviour or incapacity and only in the same manner in which a judge of the Supreme Court is removed.
The Chief Justice and the other judges of the High Court are paid monthly salaries of Rs. 2,50,000 and Rs. 2,25,000, respectively. In addition, they are also entitled to certain allowances and a pension on retirement. The salary and allowances of a judge of the High Court cannot be varied to his disadvantage after his appointment. Further, these sums are charged on the Consolidated Fund of the State concerned and, as such, are excluded from voting in the State legislature. The Constitution imposes on retired judges of the High Courts certain restrictions with respect to legal practice after retirement. According to this, they cannot practise before any court except the Supreme Court and the High Courts other than those in which they were judges. These provisions which are almost identical with those dealing with the judges of the Supreme Court are intended to safeguard the independence of the High Courts.
Jurisdiction of the Existing High Courts
The Constitution does not attempt detailed definitions and classification of the different types of jurisdiction of the High Courts as it has done in the case of the Supreme Court. This is mainly because most of the High Courts at the time of the framing of the Constitution had been functioning with well-defined jurisdictions, whereas the Supreme Court was a newly-created institution necessitating a clear definition of its powers and functions. Moreover, the High Courts were expected to maintain the same position that they originally had as the highest courts in the States even after the inauguration of the Constitution. It was provided, therefore, that the High Courts would retain their existing jurisdiction subject to the provisions of the Constitution and any future law that was to be made by the appropriate legislature. The High Courts have also been given full powers to make rules to regulate the business before them and such other incidental power as is required in relation to the administration of justice which falls within their jurisdiction.
Apart from the normal original and appellate jurisdiction, the Constitution vests four additional powers in the High Courts. These are :
1. the power to issue writs or orders for the enforcement of the Fundamental Rights or for any other purpose;
2. the power of superintendence over all courts in the State;
3. the power to transfer cases to itself from subordinate courts concerning the interpretation of the Constitution; and
4. the power to appoint officers and staff of the High Court.
One of the Directive Principles is the separation of the judiciary from the executive. The Constitution envisages that the judiciary at the lower levels is made completely independent of the executive.
The constitutional provisions dealing with the subordinate courts, therefore, are intended to secure a two-fold objective. First, to provide for the appointment of district and subordinate judges and their qualifications. Secondly, to place the whole of the civil judiciary under the control of the High Court. It is the subordinate judiciary that comes into most intimate contact with the ordinary people in the judicial field. Therefore, it is particularly necessary that its independence is maintained.
The Constitution draws a distinction between two categories of subordinate courts, namely, the district courts and others. Judges of the district courts are appointed by the Governor in consultation with the High Court. Further, Article 233(2) of the Constitution specifies that a person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
Appointment of persons, other than district judges, to the judicial service of a State is made by the Governor in accordance with rules made by him in that behalf after consultation with the High Court and the State Public Service Commission. The practice that exists in most States at present is that the Public Service Commission conducts competitive examinations for the selection of candidates for appointment in the State judicial service. The Commission lays down certain minimum educational and professional qualifications for candidates who intend to compete in these examinations. At least three years’ experience as an advocate or a pleader is one of the principal qualifications. The selected candidates are given special training for a certain period before regular appointment to the service and thereafter, they come under the superintendence of the High Court in the discharge of their responsibilities.
Article 235 of the Constitution specifies the nature and extent of the High Courts’ control over the subordinate judiciary. According to that Article, the High Court exercises control over the district courts and the courts subordinate to them, in matters such as posting, promotions and the granting of leave to all persons belonging to the State Judicial Service. The Governor is empowered to extend the scope of these provisions in order to include different classes of magistrates in the State who do not belong to the regular judicial service.
The structure and function of the subordinate courts are uniform throughout the country. Each State,
for the purpose of judicial administration, is divided into a number of districts, each under the jurisdiction of a district judge. Under him is a hierarchy of judicial officers exercising varying types of jurisdiction.