The High Courts
The Constitution provides for a High Court for each State. Parliament may, however, establish by law a common High Court for two or more States or for two or more States and a Union Territory (articles 214 and 231). Like the Supreme Court, each High Court is also to be a Court of record and of original and appellate jurisdiction with all the powers of such a court including the power to punish for its contempt (article 215). Judges of the High Court are appointed by the President after consultation with the Chief Justice of India, the Governor of the State and in case of appointment of all judges other than the Chief Justice, the Chief Justice of the High Court. To be appointed a High Court judge, a person must be a citizen of India with ten years of service in a judicial office or ten years of experience as a High Court advocate. On appointment, every High Court judge must take an oath of office.
Every High Court judge shall hold office until he attains the age of 62. He cannot be removed from his office except in the manner provided for the removal of a judge of the Supreme Court. Further, to ensure the independence of the office of a High Court judge, it is laid down that after being a permanent Judge of a High Court, a person shall not plead in any court in India except the Supreme Court or other High Courts. Every High Court judge is entitled to a salary and allowances as may be settled by Parliament by law or as specified in the Second Schedule to the Constitution. In addition, they are entitled to the use of the free official residence and an allowance.
Judges may be transferred from one High Court to another by the President after consulting the Chief Justice of India. However, the Supreme Court has held that a High Court judge cannot be transferred without his consent. The President may appoint an acting Chief Justice for a High Court. Also, in case of need, the President may appoint additional and acting judges of the High Court for a period not exceeding two years. The Chief Justice of a High Court may, with the consent of the President, appoint a retired judge to sit and act as a judge (Articles 223, 224,224A).
Every High Court shall consist of a Chief Justice and such other Judges as the President may deem it necessary to appoint from time to time (Article 216). Each High Court has powers of superintendence over all the courts and tribunals, other than those set up under any law relating to armed forces, in the area of its jurisdiction (Article 227). Where any High Court is satisfied that a case pending in the lower courts involves a substantial question of law as to the interpretation of the Constitution, it may withdraw the case and either itself decides it or determine the said question of law and return the case to the Court for determination (Article 228).
Every High Court has full control over its staff. The salaries and allowances of the judges and of the High Court staff are all charged on the Consolidated Fund of the State. Appointments of officers and staff of a High Court are made by the Chief Justice of the Court or by such other or officer of the Court as he may decide. The terms and conditions of service of the staff and officers of the Court should appropriately be settled by rules made by the Chief Justice and approved by the President (Article 229).
The jurisdiction of a High Court may be extended to or excluded from a Union Territory (Article 230). Article 226 lays down that every High Court shall have power throughout the territory under its jurisdiction to issue to any person or authority directions, orders or writs including writs of habeas corpus, prohibition, certiorari and quo warranto or any of them for the enforcement of the fundamental rights or for any other purpose. Thus, while the Supreme Court’s writ jurisdiction extends only to cases of violation of Fundamental Rights, the High Courts under Article 226 enjoy much wider powers and can issue writs in all cases of breach of any right.
This becomes obvious from the use of the term “for any other purpose”. The High Court may set aside an illegal order. may declare the law or the right, may order relief by way of, for example, refund of illegal tax etc. Just as the law declared by the Supreme Court is binding on all courts in India that declared by the High Court is binding on all subordinate courts within the State or within the territory covered by the jurisdiction of the High Court.
Subordinate Courts
The Judiciary of a state consists of a High Court and a hierarchy of subordinate courts, also known as Lower courts. The subordinate courts are so called because of their subordination to the state High Court. They function below and under the High Court at district and lower levels. Articles 233 to 237 in Part VI of the Constitution make the following provisions to regulate the organisation of subordinate courts and to ensure their independence from the executive.
Appointment of District Judges :
The appointment, posting and promotion of district judges in a state are made by the Governor of the state.
A person to be appointed as district judge should have the following qualifications :
a) He should not already be in the service of the Central or the state government.
b) He should have been an advocate or a pleader for seven years. c) He should be recommended by the High Court for an appointment.
The expression district judge’ includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, Chief Judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge.
Appointment of other judges :
The appointment of the person (other than district judges ) to the judicial service of a state are made by the governor of the state after consultation with the State Public Service Commission and the High Court. The expression Sudicial service’ means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of the district judge.
Control over Subordinate Courts :
The control over district courts and other subordinate courts including the posting, promotion and leave of persons belonging to the judicial service of a state and holding any post inferior to the post of district judge is vested in the high court. This control is vested in the High Court to secure the independence of the subordinate judiciary. The Constitution also empowers the governor to apply the above provisions regarding subordinate courts to any class or classes of the magistrate in the state.