Judiciary In India - Part 2

JUDICIARY IN INDIA - PART2

High Court - Judiciary of India:
•    The High Court of India operates below the Supreme court.
•    It is at the top position in Judicial Administration of state.
•    Originated in 1866, high courts were set up in Calcutta, Bombay, and Madras. In the Constitution, there is a provision for the High court in each state but by 7th amendment act of 1956 one or more state can have common high court.
•    The Constitution of India provides for a high court for each state, but the Seventh Amendment Act of 1956 authorized the Parliament to establish a common high court for two or more states or for two or more states  and a union territory
•    At present, there are 24 high courts in the country
•    three are common high courts
•    Delhi is the only union territory that has a high court of its own (since 1966)
•    Parliament can extend the jurisdiction of a high court to any union territory or exclude the jurisdiction of a high court from any union territory

Organization of High Court:
•    Consists of a chief justice and such other judges as the president may from time  to  time  deem  necessary to appoint
•    the Constitution does not specify the strength of a high court and leaves it to the discretion of the president. the President determines the strength of a high court from time to time depending upon its workload.

Judges:
Appointment of Judges:
•    appointed by the President, chief justice is appointed by the President after consultation with the chief justice of India and the governor of the state concerned.

Qualifications of Judges:
•    a citizen of India, held a judicial office in the territory of India for ten years, or have been  an  advocate of a high court (or high courts in succession) for ten years
•    the Constitution has not prescribed a minimum age for appointment as a judge of a high court

Oath or Affirmation:
•    make and subscribe an oath or affirmation before the governor of the state or some person appointed by him for this purpose

Composition:
•    A chief justice and other judges.
•    President determines the strength of high court from time to time.

Powers of High Court:
•    The High Court is the highest court of appeal in the state.
•    It has the supervisory and consultative role.
•    The High Court of a State has all jurisdiction powers given to supreme court except other powers.
•    The Parliament and the state Legislature are responsible to change the jurisdiction and powers of the High Courts.

Note – The President can appoint a judge of High Court as acting chief justice of the high court. He can appoint additional Judge for a temporary period. A Retired judge of a High court can act a Judge of concerned High Court for a temporary period. Also, a High Court can punish any person for its contempt.

Tenure of Judges:
•    The Constitution has not fixed the tenure of a judge of a high court
•    four provisions in this regard- holds office until he attains the age of 62 years, resign  his office by  writing to the president, removed from his office by the President on the recommendation of the Parliament, vacates his office when he is appointed as a judge of the Supreme Court or when he is transferred to another high court

Removal of Judges:
•    The Removal of the Judges of the High Court is done by an order of the President after an address by parliament has been presented to him.
•    The Address must be supported by a special majority of each house of Parliament.
•    The process of impeachment is followed by removal of High Court Judge is same as Supreme Court.
•    Removed from his office by an order of the President, President can issue the removal order only after an address by the Parliament has been presented to him in the same session  for  such  removal,  address must be supported by a special majority of each House of Parliament (i.e., a majority of the total membership of that House and majority of not less than two-thirds of the members of that House present and voting,
•    The Judges Enquiry Act (1968) regulates the procedure relating to the removal  of a  judge  of a  high court by the process of impeachment:

1. A removal motion signed by 100 members (in the case of Lok Sabha) or 50 members (in the case of Rajya Sabha) is to be given to the Speaker/Chairman.
 

2. The Speaker/Chairman may admit the motion or refuse to admit it.
 

3. If it is admitted, then the Speaker/Chairman is to constitute a three-member committee to investigate into the charges.
 

4. The committee should consist of (a) the chief justice or a judge of the Supreme Court, (b) a chief justice of a high court, and (c) a distinguished jurist.
 

5. If the committee finds the judge to be guilty of misbehavior or suffering from an incapacity, the House can take up the consideration of the motion.
 

6. After the motion is passed by each House of Parliament by special majority, an address is presented to the president for removal of the judge.
 

7. Finally, the president passes an order removing the judge. no judge of a high court has been impeached so far.

Salaries and Allowances:
•    Determined from time to time by the Parliament, In 2009, the salary of the chief justice was increased from `30,000  to `90,000 per month and that of a judge  from `26,000    to `80,000 per month.

Transfer of Judges:
•    President can transfer a judge from one high court to another after consulting the Chief Justice of India

Acting Chief Justice:
President can appoint a judge of a high court as an acting chief justice of the high court when:
1. the office of chief justice of the high court is vacant
2. the chief justice of the high court is temporarily absent
3.the chief justice of the high court is unable to perform the duties of his office

Additional and Acting Judges:
President can appoint duly qualified persons as additional judges of a high court for a temporary period not exceeding two years when:
1. there is a temporary increase in the business of the high court; or
2. there are arrears of work in the high court

Retired Judges:
•    the chief justice of a high court of a state can request a retired judge of that high court or any other high court to act as a judge of the high court of that state for a temporary period
•    can do so only with the previous consent of the President and also of the person to be so appointed

Independence of High Court
Security of Tenure: can be removed from office by the president only in the manner and on the grounds mentioned in the Constitution. This means that they do not hold their office during the pleasure of the president, though they are appointed by them.

Fixed Service Conditions
Expenses Charged on Consolidated Fund- salaries and allowances of the judges, the salaries, allowances and pensions  of the staff as well  as the administrative  expenses  of a high court are  charged on the consolidated fund  of the state, pension of a high court judge is charged on the Consolidated Fund of India and not the state
•    Conduct of Judges cannot be Discussed
•    Ban on Practice after Retirement
•    Power to Punish for its Contempt
•    Freedom to Appoint its Staff
•    Its Jurisdiction cannot be Curtailed
•    Separation from Executive

Jurisdiction and Powers of High Court:
At present, a high court enjoys the following jurisdiction and powers:
1.    Original jurisdiction.
2.    Writ jurisdiction.
3.    Appellate jurisdiction.
4.    Supervisory jurisdiction.
5.    Control over subordinate courts.
6.    A court of record.
7.    Power of judicial review.

The present jurisdiction and powers of a high court are governed by (a) the constitutional provisions, (b)  the Letters Patent, (c) the Acts of Parliament, (d) the Acts of State Legislature, (e) Indian  Penal Code, 1860, (f) Cirminal Procedure Code, 1973, and (g) Civil Procedure Code, 1908