Constitution law-II CLASS WORK

Lalit Khatana
BALLB IVTH SEM
1805170039

Appointment and Conditions of Office of a Judge of a High

Court:
Every Judge of a High Court shall be appointed by the President. In making the

appointment, the President shall consult the Chief Justice of India, the Governor of

the State (and also the Chief Justice of that High Court in the matter of appointment

of a Judge other than the Chief Justice).

 Tenure:
A Judge of the High Court shall hold office until the age of 62 years. Every Judge,

permanent, additional or acting, may vacate his office earlier in any of the following

ways; (i) by resignation in writing addressed to the President; (ii) by being appointed

a Judge of the Supreme Court or being transferred to any other High Court, by the

President; (iii) by removal by the President on an address of both Houses of

Parliament (supported by the vote of 2/3 of the members present) on the ground of

proved misbehaviour or incapacity,. The mode of removal of a Judge of the High

Court shall thus be the same as that of a judge of the Supreme Court .

 Salary and Allowances of the Judges:

It is provided that the judges of the High Court shall draw such salaries and

allowances, as the Parliament may by law fix from time to time. According to the

revision in 1998 the salaries are: the Chief Justice Rs. 30,000 p.m.; any other judge

Rs. 26,000 p.m. In addition they will also be entitled to receive other prescribed

allowances.
By providing the expenditure salaries and allowances the judges shall be charged on

the consolidated fund of State Article 360 (4) (b).These cannot be reduced except in

financial emergency. Nor can the allowances and rights be varied by Parliament to

the disadvantage of a judge during his/her term of office.

Control of the Union over High Court:

The control of the Union over a High Court in India is exercised in the following

matters:

(i) Appointment, (Article 217), transfer from one High Court to another (Article 222)

and removal [Article 217(1)] and determination of dispute as to age of Judges of High

Courts [Article 217 (3)]; (ii) the Constitution and organisation of High Courts and the

power to establish a common High Court for two or more States (Article 231); and

(iii) to extend the jurisdiction of a High Court to, or to exclude it jurisdiction from, a

Union Territory, are all exclusive powers of the Union Parliament (Article 231).

 Jurisdiction of High Courts:

The constitution does not attempt detailed definitions or classification of the

different types of jurisdiction of the High Courts. It was presumed that the High

Court’s which were functioning with well- defined jurisdiction 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, provided that the High Courts would retain their

existing jurisdiction and any future law that was to be made by the Legislatures.

Besides, the original and appellate jurisdiction, the Constitution

vested in the High Court’s four additional powers:
(1) The power to issue writs or orders for the enforcement of Fundamental Rights or

for any other purpose;

(2) the power of superintendence over subordinate courts;

(3) the power to transfer cases to themselves pending in the subordinate courts

involving interpretation of the Constitution; and

(4) the power to appoint officers.

a) Original and Appellate Jurisdiction:

The High Courts are primarily courts of appeal. Only in matters of admiralty,

probate, matrimonial, contempt of Court, enforcement of Fundamental Rights and

cases ordered to be transferred from a lower court involving the interpretation of the

Constitution to their own file, they have original jurisdiction.

The High Courts of Bombay, Calcutta and Madras exercise original civil jurisdiction

when the amount involved exceeds specified limit. In criminal cases it extends to

case committed to them by Presidency Magistrates.

On the appeal side they entertain appeals in civil and criminal cases from their

subordinate courts as well as from their original side. For historical reasons and as a

result of the specific provisions in the Government of India Act, 1935, no High Court

has any original jurisdiction in any matter concerning revenue. In 1950 Constitution

removed this restriction.

(b) Power of Superintendence and Transfer:

Every High Court has a power of superintendence over all courts and tribunals

throughout the territory in relation to which it exercises jurisdiction, excepting

military tribunals [Art. 227]. This power of superintendence is a very wide power in
as much as it extends to all courts as well as tribunals within the State, whether such

court or tribunal is subject to the appellate jurisdiction of the High Court or not.

Further, this power of superintendence would include a revisional jurisdiction to

intervene in case of gross injustice or non-exercise of abuse of jurisdiction, even

though no appeal or revision against the orders of such tribunal was otherwise

available.

However, this jurisdiction of High Court has been taken away in respect of

Administrative Tribunals set up under Article 323A, by the administrative Tribunals

Act. 1985. If the High Court is satisfied that a case pending in a court subordinate to

it involves a substantial question of law as to the interpretation of the Constitution, it

may transfer the case of itself.

After the case has come to the file of the High Court, it may dispose of the whole case

itself, or may determine the constitutional questions involved and return the case to

the court from which it has been withdrawn together with a copy of its judgement on

such question and direct it to dispose of the case in conformity with such judgement.

The Constitution, thus, denies to subordinate courts the right to interpret the

Constitution so that there may be the maximum possible uniformity as regards

constitutional decisions. It is accordingly, the duty of the subordinate courts to refer

to the High Court a case which involves a substantial question of law as to the

interpretation of the Constitution and the case cannot be disposed of without the

determination of such question. The High Court may also transfer the case to itself
upon the application of the party in the case.

(c) Writ Jurisdiction:

Article 226 of the Constitution empowers every High Court, throughout the

territories in relation to its which exercises jurisdiction to issue to any person or

authority, including in appropriate cases, any Government, within those territories,

directions, orders or writs, including writs in the nature of habeas corpus,

mandamus, prohibition, quo warrantor and certiorari, or any of them, for the

enforcement of any of the Fundamental Rights and for any other purpose.

The Constitution by Forty-second amendment omitted the provision “for any other

purpose”, but the Forty-fourth amendment has restored it. The peculiarity of this

jurisdiction is that being conferred by the Constitution, it cannot be taken away or

abridged by anything short of an amendment of the Constitution itself.

Although the Supreme Court and the High Courts have concurrent jurisdiction in the

enforcement of Fundamental Rights, the Constitution does not confer to the High

Court’s the special responsibility of protecting Fundamental Rights as the Supreme

Court is vested with such a power.

Under Article 32 the Supreme Court is made the guarantor and protector, of

Fundamental Rights whereas in the case of High court the power to enforce

Fundamental Rights is part of their general jurisdiction.

The jurisdiction to issue writs under these Articles is larger in the case of High Court

in as much as while the Supreme Court can issue them only where a fundamental

right has been infringed, a High Court can issue them not only in such cases but also

where an ordinary legal right has been infringed, provided a writ is a proper remedy

in such cases, according to well-established principles.

(d) Court of Record:

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 to be of evidentiary value and that

they cannot be questioned when produced before any court and that it has the power
to punish for contempt of itself. Neither the Supreme Court nor the Legislature can

deprive a High Court of its power of punishing contempt of itself.