Powers and Functions of High court in India
Powers and Functions of High court in India The Constitution of India has not made any clear and detailed description of theinpowers and of the High Court as it has done the case offunctions the Supreme Court. The Constitutions says that the Jurisdiction of the High Court shall be the same as immediately before the commencement of the Constitution, subect to the pro!isions of the constitution and the laws made by the appropriate legislature. The powers and functions of the High Court can be di!ided as follows" #riginal Jurisdiction" $ll matters relating to re!enues are included in the srcinal urisdiction of the High court. %esides, ci!il and criminal cases are also supposed to belong to the srcinal urisdiction. %ut only the High Courts at &ol'ata, (umbai and Chennai can ha!e the )rst trial in ci!il and criminal cases. The srcinal criminal urisdiction of the High Court has, howe!er, been abolished by the Criminal Procedure code, *+-. $t present the criminal cases are tried in the city sessions Courts in &ol'ata, (umbai and Chennai. $ppellate Jurisdiction" The High Court is the highest court of appeal in the state. It has appellate urisdiction in ci!il and criminal cases. a. In ci!il cases, appeal can be made to the High Court against the decisions of the istrict Judges and the Subordinate Judges.
b. $gain, when any court subordinate to the High Court decides an appeal from the decision of an inferior court, a second appeal can be made to the High Court only on /uestion of law and procedure. c. %esides, appeal from the decision of a single Judge of the High Court itself also lies to the High Court. In criminal cases appeals against the decisions of " $ Sessions Judge or an $dditional Sessions Judge, where the sentence is of imprisonment e0ceeding years1 or $ssistant Sessions Judge, (etropolitan (agistrate or other Judicial (agistrates in certain speci)ed cases other than 2petty3 cases can be made to the High Court. Powers of issuing irections, #rder or 4rits" The High Court has been empowered to issue writs of habeas corpus, mandamus, and prohibition certiorari and /uo warranto for the enforcement of the fundamental rights and 2for other purposes3. The Supreme Court can issue the writs only for the enforcement of fundamental rights and not for other purposes. The power of the High Court to issue writs in the nature of habeas corpus cannot be curtailed e!en during emergency. Judging the !alidity of laws" In the srcinal Constitution the High Courts were gi!en powers of udging the !alidity of the Central and the State laws. %ut the 56nd $mendment of the Constitution too' away the powers of the High Courts to determine the !alidity of the central laws and put !arious conditions on their powers of udging the
!alidity of the State laws. Howe!er, the 5-rd Constitutional 7$mendment8 $ct, *+9 has restored these powers to the High Courts.
Powers of superintendence" :!ery High Court has a general power of superintendence o!er all the lower courts and tribunals within its urisdiction e0cept military courts and tribunals. %y !irtue of this power the High Court can call for returns from such courts1 ma'e and issue general rules and prescribe forms for regulating the practice and proceedings of such courts1 and prescribe forms in which boo's, entries and accounts shall be 'ept by the o;cers of any such court.
Powers of taking up cases" If a case is pending before a sub
Control over sub of the subordinate courts including the istrict Court. #ther powers" %esides the abo!e powers, the High Court performs some other functions"
?i'e the Supreme Court, the High Court also acts as a Court of @ecord. It has the power to punish for contempt of itself. The High Courtfunctions. can frame the re/uired rules to carry out its udicial Powers of High Court in India The High Court occupies a !ery important and critical position in the udicial system of India. $rticle 6*5 of the Indian constitution pro!ide that AThere shall be a High Court in each State.B Two or more states also may ha!e a common High Court. $ High Court consists of a Chief Justice and such other udges as the President may appoint. The President appoints the udges of the High Courts in consultation with the Chief Justice of India, the =o!ernor of the concerned state and in the case appointment of a Judge other than the Chief Justice, with the Chief Justice of the concerned High Court. To be appointed as a Judge of High Court, a person should be 7a8 a citien of India, 7b8 has been a Judge in a lower court for at least *D years, or 7c8 has been an ad!ocate for at least *D years, in a High Court, and 7d8 is an eminent urist in the opinion of the President. $ Judge of a High Court remains in o;ce up to E6 years of life. The Judge holds o;ce, during good beha!iour. He may !acate his o;ce through resignation1 he may be appointed a Judge of the Supreme Court or may be mo!ed to another High Court. $ Judge may be remo!ed for pro!ed incapacity or misbeha!ior. The procedure of
impeachment of a High Court Judge is the same as the procedure of Impeachment of a Supreme Court Judge. In terms of $rticle 66, a High Court has the power of superintendence and control o!er all courts and tribunals within its urisdiction e0cept military tribunals. It may call for returns from all courts under it. It also frames rules and regulations guiding udicial practice in courts. The constitution empowers the High Court to withdraw a case from a lower court and try the case itself, if it in!ol!es substantial /uestion of law. Superior Judges li'e the istrict Judge, Sessions Judge etc are appointed by the =o!ernor in consultation with the Chief Justice of the High Court. The High Court has been !ested with wide powers to try ci!il and criminal cases. It has srcinal and appellate urisdiction in both types of cases. eedless to say those cases of !ery high claims or !ery serious crimes are tried in the srcinal side of High Court. The High Court has gi!en the right to issue writs for the protection of fundamental rights of the citiens under $rticles -6 and 66E. The competence of the High Court in this )eld is larger than that of the Supreme Court. The Supreme Court can issue writs only in Cases of infringement of fundamental rights. %ut the High Court can issue writs also in cases of infringement of ordinary legal rights. The High Court enoys a pi!otal position in the udicial system of India. It ser!es at the only lin' between the Supreme Court of India which is the only $ll India Court, and the State
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The High Courts of India: Composition, Appointment of Judges and other Details!
$rticle 6*5 says that e!ery State has a High Court operating within its territorial urisdiction. %ut the Parliament has the power to establish a common High Court for two or more States 7$rticle 6-*8. For Instance, Punab and Haryana ha!e a common High Court. Similarly there is one High Court for $ssam, agaland, (eghalaya, (anipur and Tripura. In India, neither the State e0ecuti!e nor the State ?egislature has any power to control the High Courts or two after its Constitution or organisation. It is only Parliament which can do it. In case of nion Territories the Parliament may by law e0tend the urisdiction of a High Court to or e0clude the urisdiction of a High Court from any nion Territory, or create a High Court for a nion Territory. Thus elhi, a nion Territory, has a separate High Court of its own while the (adras High Court has urisdiction o!er Pondicherry, the &erala High Court o!er ?a'shadweep and (umbai High Court o!er adra and agar Ha!eli, the &ol'ata High Court o!er $ndaman and icobar Islands, the Punab High court o!er Chandigarh.
Composition of High Courts: 7i8 :!ery High Court shall consists of a Chief Justice and such other udges as the President of India may from time to time appoint. 7ii8 %esides, the President has the power to appoint 7a8 $dditional Judges for a temporary period not e0ceeding two years, for the clearance of areas of wor' in a High Court1 7b8 an acting udge, when a permanent udge of a High Court 7other than Chief Justice8 is temporarily absent or unable to perform his duties or is appointed to act temporarily as Chief Justice. %ut neither an additional nor an acting Judge can hold o;ce beyond the age of E6 years 7by *th $mendment8 $ct age of retirement raised from ED to E6.
Appointment and Conditions of Office of a Judge of a High Court: :!ery Judge of a High Court shall be appointed by the President. In ma'ing the appointment, the President shall consult the Chief Justice of India, the =o!ernor of the State 7and also the Chief Justice of that High Court in the matter of appointment of a Judge other than the Chief Justice8.
Tenure: $ Judge of the High Court shall hold o;ce until the age of E6 years.
:!ery Judge, permanent, additional or acting, may !acate his o;ce earlier in any of the following ways1 7i8 by resignation in writing addressed to the President1 7ii8 by being appointed a Judge of the Supreme Court or being transferred to any other High Court, by President1 7iii8 by remo!al by the President onthe an address of both Houses of Parliament 7supported by the !ote of 6- of the members present8 on the ground of pro!ed misbeha!iour or incapacity,. The mode of remo!al of a Judge of the High Court shall thus be the same as that of a udge of the Supreme Court.
Salary and Allowances of the Judges: It is pro!ided that the udges of the High Court shall draw such salaries and allowances, as the Parliament may by law )0 from time to time. $ccording to the re!ision in *++9 the salaries are" the Chief Justice @s. -D,DDD p.m.1 any other udge @s. 6E,DDD p.m. In addition they will also be entitled to recei!e other prescribed allowances. %y pro!iding the e0penditure salaries and allowances the udges shall be charged on the consolidated fund of State $rticle -ED 758 7b8.These cannot be reduced e0cept in )nancial emergency. or can the allowances and rights be !aried by Parliament to the disad!antage of a udge during hisher term of o;ce.
Independence of Judges Ensured: As in the case of the Judges of the Supreme Court, the Constitution seeks to maintain the independence of the Judges of the High Courts !" a num!er of provisions:
7i8 %y laying down that a Judge of the High Court shall not be remo!ed, e0cept in the manner pro!ided for the remo!al of a Judge of the Supreme Court 7$rticle 6*981 7ii8 by pro!iding that the e0penditure in respect of the salaries and allowances of of the Judges be charged on the Consolidated Fund the Stateshall K$rticle 6D6 7-8 7d8L1 7iii8 by specifying in the Constitution the salaries payable to the Judges and pro!iding that the allow< ances of a Judge or his rights in respect of absence or pension shall not be !aried by Parliament to his disad!antage after his appointment 7$rticle 66*8 e0cept under a Proclamation of Financial :mergency K$rticle -ED 7587b8L 7i!8 by laying down that after retirement a permanent Judge of High Court shall not plead or act in a Court or before any authority in India, e0cept the Supreme Court and a High Court other than the
Control of the Union oer High Court: #he control of the $nion over a High Court in India is e%ercised in the following matters: 7i8 $ppointment, 7$rticle 6*8, transfer from one High Court to another 7$rticle 6668 and remo!al K$rticle 6*7*8L and determination of dispute as to age of Judges of High Courts K$rticle 6* 7-8L1 7ii8 the Constitution and organisation of High Courts and the power to establish a common High Court for two or more States 7$rticle 6-*81 and 7iii8 to e0tend the urisdiction a High Court to, or toare e0clude it urisdiction of from, a nion Territory, all e0clusi!e powers of the nion Parliament 7$rticle 6-*8.
Jurisdiction of High Courts: The constitution does not attempt detailed de)nitions or classi)cation of the di>erent types of urisdiction of the High Courts. It was presumed that the High Court3s which were functioning with well< de)ned urisdiction at the time of the framing of the Constitution would continue with it and maintain their position as the highest courts in the States. The Constitution, accordingly, pro!ided that the High Courts would retain their e0isting urisdiction and any future law that was to be made by the ?egislatures.
&esides, the srcinal and appellate 'urisdiction, the Constitution vested in the High Courts four additional powers: 7*8 The power to issue writs or orders for the enforcement of Fundamental @ights or for any other purpose1 768 the power of superintendence o!er subordinate courts1 7-8 the power to transfer cases to themsel!es pending in the subordinate courts in!ol!ing interpretation of the Constitution1 and 758 the power to appoint o;cers.
!a" Original and Appellate Jurisdiction: The High Courts are primarily courts of appeal. #nly in matters of admiralty, probate, matrimonial, contempt of Court, enforcement of Fundamental @ights and cases ordered to be transferred from a lower court in!ol!ing
the interpretation of the Constitution to their own )le, they ha!e srcinal urisdiction. The High Courts of %ombay, Calcutta and (adras e0ercise srcinal ci!il urisdiction when the amount in!ol!ed e0ceeds speci)ed limit. In criminal cases it e0tends to case committed to them by Presidency (agistrates. #n the appeal side they entertain appeals in ci!il and criminal cases from their subordinate courts as well as from their srcinal side. For historical reasons and as a result of the speci)c pro!isions in the =o!ernment of India $ct, *+-, no High Court has any srcinal urisdiction in any matter concerning re!enue. In *+D Constitution remo!ed this restriction.
!#" $ower of Superintendence and Transfer: :!ery High Court has a power of superintendence o!er all courts and tribunals throughout the territory in relation to which it e0ercises urisdiction, e0cepting military tribunals K$rt. 66L. This power of superintendence is a !ery wide power in as much as it e0tends to all courts as well as tribunals within the State, whether such court or tribunal is subect to the appellate urisdiction of the High Court or not. Further, this power of superintendence would include a re!isional urisdiction to inter!ene in case of gross inustice or non
Howe!er, this urisdiction of High Court has been ta'en away in respect of $dministrati!e Tribunals set up under $rticle -6-$, by the administrati!e Tribunals $ct. *+9. If the High Court is satis)ed that a case pending in a courtof subordinate to it in!ol!es a substantial /uestion law as to the interpretation of the Constitution, it may transfer the case of itself. $fter the case has come to the )le of the High Court, it may dispose of the whole case itself, or may determine the constitutional /uestions in!ol!ed and return the case to the court from which it has been withdrawn together with a copy of its udgement on such /uestion and direct it to dispose of the case in conformity with such udgement. The Constitution, thus, denies to subordinate courts the right to interpret the Constitution so that there may be the ma0imum possible uniformity as regards constitutional decisions. It is accordingly, the duty of the subordinate courts to refer to the High Court a case which in!ol!es a substantial /uestion of law as to the interpretation of the Constitution and the case cannot be disposed of without the determination of such /uestion. The High Court may also transfer the case to itself upon the application of the party in the case.
!c" %rit Jurisdiction: $rticle 66E of the Constitution empowers e!ery High Court, throughout the territories in relation to its which e0ercises urisdiction to issue to any person or authority, including in appropriate cases, any =o!ernment, within those territories, directions, orders
or writs, including writs in the nature of habeas corpus, mandamus, prohibition, /uo warrantor and certiorari, or any of them, for the enforcement of any of the Fundamental @ights and for any other purpose. The Constitution by Forty
!d" Court of &ecord:
The High Court is a court of record and has all the powers of such a court including the power to punish for contempt of itself. The two characteristics of a court of record are that the records of such a Court are admitted be of e!identiary !alue and that they cannot beto /uestioned when produced before any court and that it has the power to punish for contempt of itself. either the Supreme Court nor the ?egislature can depri!e a High Court of its power of punishing contempt of itself.
Officers and Serants and the E'penses of High Courts: Article (() of the Constitution sa"s: 7i8 $ppointments of o;cers and ser!ants of a High Court are made by the Chief Justice of the High Court. 7ii8 Subect to the pro!isions of any law made by the ?egislature of the State, the conditions of ser!ice of #;cers and ser!ants of a High Court shall be such as may be prescribed by the rules made by the Chief Justice of the High Court. 7iii8 The administrati!e e0penses of the High Court including all salaries, allowances, etc. are charged upon the Consolidated Fund of the State.
