The Constitution of the High Court in India Today I want to discuss with my dear facebook friends about the Constitutional status of High Courts in India and I humbly hope that it will give some information to those my friends who are not so much acquainted with law. The Chapter V of Part VI from Art. 214 to 231 of the Constitution of India deals with the provisions of the High Courts in the States in India. The every High Courts in the states is the highest court of appeal from both the judicial i.e the subordinate courts and quasi-judicial bodies until or unless its jurisdiction is specifically barred under Art. 323-A and 323-B. The High Courts is also the superior and higher authority of all the subordinate courts in regards to both the judicial and administrative capacity within which the High Courts exercises its jurisdiction. The Art. 214 of the Constitution of India specifically provides the provisions for the High Courts for States which reads as “there shall be a High Court for each State.” Hence the Constitution opens the scope for establishing/constituting of a High Court for each state. Previously there were 18 High Courts in India but after creation of three new states in the year 2000 viz., Uttaranchal, Chattisgarh and Jharkhand, three extra new High Courts have been created under Art. 214 of the Constitution thereby incrising the numbers of High Courts in India from 18 to 21 and also again it has been increased upto 24 by the virtue of North- Eastern Areas ( Reorganisation ) and Other Related Laws (Amendment) Act, 2012 thereby constituting three more High Courts in the North- Eastern states i.e Manipur, Meghalaya and Tripura. There are in total five High Courts in India having their common jurisdiction over more then one state/union territory constituted in view of the power exercised by the Parliament under Art. 231. The Calcutta High Court is the oldest High Court in India, established on 2nd July 1862. The numbers of the Judges of the High Courts vary from one High Court to another depending on the area that the High Court covers and the number of cases that it handles. The High Court is the only court, other then the Supreme Court which has been vested and empowered to interpret the Constitution. The constitution of the High Court:- The Art. 216 of the Constitution of India provides the provision for the constitution of the High Court in the state. It lays down the provision as every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. Unlike for the Supreme Court of India wherein the strength of Judges are fixed by the Constitution there is no specific numbers of Judges for the High Courts. In my humble opinion, the numbers of the Honble Judges of the High Courts in India are determined/fixed in according to the extention/area of the territorial jurisdiction of the Honble Courts over which the Honble Courts exercise their jurisdiction, the numbers of domiciles within the state and also the numbers of filing and pendency of the cases. But as it is provided in the instant Art. 216 it is the absolute discretion of the President of India to determine the numbers of Honble Judges as he deems necessary and fit and proper from time to time or in different circumstances. But in the case of S.P Gupta Vs. Union of India 1981 supp SCC 87 (Judges case) this descretion of the President was interpreted /ascertained by the Honble Supreme Court and held that to review the strength of each High Court and the arrears of the peding cases before the same is the Constitutional obligation of the President. Again in the case of Supreme Court Advocate-on-Record Association v. Union of India, A.I.R 1994 S.C 268, 281( Second Judges Case) the Honble Supreme Court made the hands of the President, the Chief Justice of India and the Chief Justice of the concern High Court strong and thereby enabled them to take the positive action and laid down the judicial precedent thereby directing the Honble Chief Justice of India and the Honble Chief Justice of concerned High Court to execrise their uptimum administrative powers in regard to the appointment of the Honble Judges of the High Courts and also directed them to take the periodical review of the strength of Judges in the interest of effective administration of justice and directed them to submit such recommendations about such strength to the President. The Art. 217 prescribes the provisions relating to the appointment and conditions of the office of a Judge of a High Court and in clause (1) it furthermore prescribes as every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the state, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and for “shall hold office untill he attains the age of sixty-years”. [ shall hold office, in the case of an additional or acting Judge as provided in Art. 224, and in any other case, untill he attains the age of [Sixty-two years.] provided that- (a) a Judge may, by written under his hand addressed to the President, resign his office; (b) a Judge may be removed from his office by the President in the manner provided in Cl. (4) of Art. 124 for the removal of a Judge of the Supreme Court; (c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India. Perusing the Art. 217 and comparing it with Art. 124 of the Constitution there appears the certain differences in between these two provisions. In the both cases for the appointment of the Honble Judge of the Supreme Court and the Honble Judge of the High Court it is the President, the de jure head of the Union Executive who plays the vital roles in the both cases. At the appointment of the Judge of the Supreme Court the President shall take the consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose but in the case of the appointment of the Judge of a High Court the President shall have Constitutional obligation to take consultation from the Chief Justice of India, the Governor of the State, and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. Hence after comparing between these two what appears is that for the appointment of the Judge of a High Court the Governor, who is the de jure head of the state executive and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court has also Constitutional role. But in the case of the appointment of the Judge of the Supreme Court these Constitutional post has here nothing to do. Furthermore for the appointment of the Judge of a High Court the Constitution specifically envisages vital role to the Chief Justice of India. These above all are the bare provisions and the spirits of the Constitution and also the directions to the Executive and Judiciary in India but how so far these provisions of the Constitution have been accurately and impartially applied and enforced in the case of the appointment of the Judge of a High Court this is a matter to think about and has ever been the great subject matter of disscussions among the members of legal fraternity. Likewise in the case of appointment of the Judge of the Supreme Court there are also several instances of disputes and differences at the time of appointment of the Judge of a High Court so far and for the several times disputes reached at the door of the Supreme Court of India for its intervention but it is still fruitless. This instance for the first time in the judicial history of India took place widely ( after Sankalchand Sheths case AIR 1977 SC 2328 ) in the case of S. P Gupta & others v. Union of India A.I.R 1982 SC 149 also popularly known as the Judges Transfer case the Honble Supreme Court in its Constitutional bench comprising 7 Honble Judges in 4:3 majority held that all the three functionary as has been laid down in Art. 217 of the Constitution viz. The Chief Justice of India, the Chief Justice of the High Court and the Governor of a State have equal importance in the consultation process for the appointment of the Judge of a High Court and there is no superiority of opinion of another over other. The Sureme Court furthermore held that the consultation which has been mentioned in the Art. 217 is merely “consultative” and not the “concurrence” and the President is not bound by it. The power to appoint the Judges of the Higher Courts is vested to the Union Executive or the Central Government. But in the later stage this judgement of the Honble Court was highly criticised by the members of legal fraternity on the ground that it affected the indenpendenc of judiciary. But in the another historic case of S.C. Advocate- On- Record v. Union of India (1993) 4 SCC 441 a nine judge Constitutional Bench of the Supreme Court by a 7:2 majority overruled its earlier judgment of Judges Transfer case and declared its redundancy and thereby restored the pride and the independence of judiciary . The majority of Judges opined that there should be the primacy of the opinion of the Chief Justice of India and the consultation with the two seniormost Judges was made mandatory for the appointment and transfer of the Judges of the Higher courts though the process of appointment must be initiated by the Chief Justice of the High Court. The Honble Court also held that the appointment to the office of the Chief Justice of India should be made on the basis of seniority. Again In re Presidential Reference, A I R 1999 SC 1 popularly known as “Appointment and Transfer of Judges case” a nine Judges of Constitutional Bench of Supreme Court has unanimously emphasized on “integrated participatory consultative process” and furthermore held that the recommendations made by the Chief Justice without consulting the collegium as laid down in eralier second Judges Transfer case are not binding on the Government. The qualifications for appointment:- The requisite qualifications for appointment of the Judge of the High Court in India has been prescribed in Art.217(2) which lays down the provisions as a person shall not be quilified for appointment as a Judge of a High Court unless he is a citizen of India and- (a) has for at least ten-years held a judicial office in the territory of India; or (b) has for at least ten-years been an advocate of a High Court or of two or more such Courts in succession; The explanation added to the clause (2) of Art. 217 explains and describes the computation of the different services which a person who is going to be the Judge of the High Court has already served in different capacity for the purpose of as a whole. It lays down as explanation.- For the purpose of this clause- (a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law; (b) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the persion has held judicial office or the office of a member of a Tribunal or any post, under the Union or a State, requiring special knowledge of law after he becomes an advocate; (c) in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High -Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be. The term and removal of the Judges:- The Judge of a High Court shall hold office untill he attains the age of 62 years. Art. 217(3) provides that if any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final. And in regards to the removal of the Judge of a High Court the manner of removal and the grounds are alike to that of the Judge of the Supreme Court. Art. 218 speaks to that effect that the provisions of Clause (4) and (5) of Art. 124 shall apply in relation to a High -Court as they apply in relation to the Supreme Court with the substitution of references to the High- Court for references to the Supreme Court. The status of High Courts in India:- A details numbers, their year of establishment and the sources of establishment, territorial jurisdiction and seats of the High Courts in India have been given hereinunder as:- 1. Allahabad :- Established on 11th June 1866 by the virtue of Indian High Courts Act 1861 -Territorial Jurisdiction-Uttar Pradesh-Seated at Allahabad (Bench at Lucknow); 2. Andhra Pradesh :- Established on 5th July 1954 by the virtue of Andhra State Act, 1953 -Territorial Jurisdiction-Andhra Pradesh-Situated at Hyderabad; 3. Bombay :- Established on 14th August 1862 by the virtue of Indian High Courts Act 1861 - Territorial Jurisdiction-Maharashtra, Goa, Dadra & Nagar Haveli, and Daman & Diu - Situated at Bombay (Benches at Nagpur, Panaji, Goa, Aurangabad and Daman & Diu); 4. Calcutta :- Established on 2nd July 1862 by the virtue of Indian High Courts Act 1861 -Territorial Jurisdiction- West Bengal – Situated at Calcutta (Circuit Bench at Port Blair); 5. Delhi :- Established on 31st October 1966 by the virtue of Delhi High Court Act, 1966 - Territorial Jurisdiction-Delhi-Situated at Delhi; 6. Guwahati :- Established on 1st March 1948 by the virtue of the Government of India Act, 1935 -Territorial Jurisdiction- Assam, Nagaland, Mizoram & Arunachal Pradesh -Seated at Guwahati (Benches at Kohima, Aizwal and Itanagar, ) 7. Gujarat :- Established on 1st May 1960 by the virtue of the Bombay Reorgansisation Act, 1960 - Territorial Jurisdiction – Gujarat -Seated at Ahmedabad; 8. Himachal Pradesh :- Established in the year 1971 by the virtue of the State of Himachal Pradesh Act, 1970- Territorial Jurisdiction -Himachal Pradesh – Seated at Shimla; 9. Jammu & Kashmir :- Established on 28th August 1943* in the year 1928 by the virtue of the Letters Patent issued by the Maharaja of Kashmir – Territorial Jurisdiction -Jammu & Kashmir – Seated at Srinagar and Jammu; 10. Karnataka :- Established in the year 1884 by the virtue of the Mysore High Court Act, 1884 - Territorial Jurisdiction -Karnataka- Seated at Bangalore (Circuit Benches at Hubli-Dharwad & Gulbarga); 11. Kerala:- Established in the year 1958 by the virtue of the State Reorganisation Act 1956 -Territorial Jurisdiction- Kerala & Lakshdweep – Seated at Earnakulam; 12. Madhya Pradesh :- Established on 2nd January 1936 * in the year 1956 by the virtue of the Government of India Act, 1935 – Territorial Jurisdiction -Madhya Pradesh – Seated at Jabalpur ( Benches at Gwalior and Indore) 13. Madras :- Established on 15th August 1862 by the virtue of the Indian High Courts Act 1861 – Territorial Jurisdiction -Tamil Nadu & Ponddicherry – Seated at Madras ( Bench at Madurai); 14. Manipur :- Established on 25th March 2013 by the virtue of the North-Eastern Areas ( Reorganisation) and Other Related Laws ( Amendment) Act, 2012- Territorial Jurisdiction – Manipur – Seated at Imphal ; 15. Meghalaya : Established on 25th March 2013 by the virtue of the North- Eastern Areas ( Reorganisation ) and Other Related Laws ( Amendment ) Act, 2012 -Territorial Jurisdiction – Meghalaya -Seated at Shillong ; 16. Nainital :- Established on 9th November 2000 by the virtue of the Uttar Pradesh Reorganisation Act, 2000 – Territorial Jurisdiction – Uttaranchal- Seated at Nainital; 17. Orissa :- Established on 3rd April 1948 by the virtue of the Orissa High Court Order, 1948 - Territorial Jurisdiction -Orissa-Seated at Cuttack; 18. Patna :-Established on 2nd September 1916 by the virtue of the Government of India Act, 1915 -Territorial Jurisdiction – Bihar – Seated at Patna (Bench at Ranchi); 19. Punjab & Haryana :- Established on 8th November 1947 * in the year 1966 by the virtue of the High Court (Punjab) Order, 1947 -Territorial Jurisdiction – Punjab, Haryana, Chandigarh – Seated at Chandigarh; 20. Raipur :- Established 11th January 2000 by the virtue of Madhya Pradesh Re-organisation Act, 2000 – Territorial Jurisdiction- Chattisgarh – Seated at Raipur ; 21. Rajasthan :- Established on 21st June 1949 by the virtue of the Rajasthan High Court Ordinance, 1949 – Territorial Jurisdiction – Rajasthan :- Seated at Jodhpur ( Bench at Jaipur); 22. Ranchi :- Established on 15th November 2000 by the virtue of Bihar Reorganisation Act, 2000 – Territorial Jurisdiction – Jharkhand – Seated at Ranchi; 23. Sikkim :- Established on 16th May 1975 by the virtue of the 36th Amendment to the Indian Constitution – Territorial Jurisdiction – Sikkim – Seated at Gangtok; 24. Tripura :- Established on 26th March 2013 by the virtue of the North- Eastern Areas ( Reorganisation ) and Other Related Laws (Amendment) Act, 2012- Territorial Jurisdiction – Tripura – Seated at Agartala ; Hence above all are the details and the provisions for the constitution of the Honble High Courts in India which is very wide and extensive in nature. Right from the existence of these, the High Courts in India have played a vital and remarkable role to protect the largest democracy of the world. The contributions given by the High Courts in the filed of human right, especially in the rights of the women and child, guidance given by it to make fair and clean environment, abolition of child and bonded labour system including women trafficking or immoral trafficking, reformations in the election laws and several directions given to the Govt. And Election Commissions to implement it, elemination of the corruptions and free and compulsory education, smooth functioning of public distribution system is appreciable. So many social changes have been taken by these initiation this fact also we can not deny. Last but not the least is that, though there are appropriate actions taken by the High Courts to provide social justice but despite of that we are very far from our destination, the lacunea in it is that which is non -execution or improper execution of the order or the guidance/directions of the Honble Courts. Lastly I hereby conclude todays my writing stating that all the “We the people of India” should be concerned and bothered at least to keep minimum expectation or standard so that we can claim ourselves to be the citizen of the largest democracy of the world without any hesitation or true Indian. These all are for the purpose of kind informations to my dear readers and facebook friends...............! Jai Hind.....................! Soliciting Yours kind suggestions......................! Sourav Subba, B.A (Law) LL.M, WBJS Date: 12.12.2014 Place: Diamond Harbour, Calcutta.
Posted on: Fri, 12 Dec 2014 03:10:00 +0000