ConstitutionLegal Notes

PCS (J) Notes: The State Judiciary (Art. 214 – Art. 237)

 

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The State Judiciary (Art. 214 – Art. 237)

 

The Judiciary in State consist of a High Court and a system of courts subordinate to the High Court. Article 214 provides that there shall be a High Court in each State. However under Article 231 (1) Parliament can establish by law a common High Court for two or more States or for two or more States or a Union Territory.

 

Constitution of High Court

Every High Court shall consist of a Chief Justice and such other judges as the President may, from time to time, deem necessary to appoint (Art. 216). Thus, the Constitution does not fix any maximum number of judges of a High Court.

 

Appointment of the Judges

Positon prior to 99th amendment of the Constitution:

Article 217 provided that every judge of a High Court would be appointed by the President. The President would appoint the Chief Justice of a High Court after consultation with the Chief Justice of India and the Governor of the State concerned. In case of appointment of Judge other than Chief Justice, he would even consult the Chief Justice of the High Court.

In Supreme Court Advocates-on-record Association  vs. Union of India[1], A nine judge bench of the Supreme Court by a 7:2 majority over ruled the ‘Judges Transfer Case’ and held that in matter of appointment and transfer of Judges, greatest significance must be attached to the view of the Chief Justice of India.

 

Position after 99th amendment of the Constitution:

After the Constitution (Ninety-ninth amendment) Act, 2014, every judge of the High Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointment Commission (NJAC) referred to in Article 124-A.

 

 

Qualifications

According to Article 217 (2) person to be qualified for appointment of High Court Judge:

  1. Must be a citizen of India
  2. Must have held a judicial office for at least 10 years, in the territory of India,
  3. Must have been an advocate of a High Court or two or more such courts in succession for at least 10 years.

 

Oath, Salary and Allowances

A High Court Judge must, before he enters upon his office, make and subscribe before the Governor of the State, and oath or affirmation in the prescribed form. (Art. 219)

The Judges of High Court are entitled to such salaries as are specified in the Second Schedule. They are also entitled to such allowances in respect of leave and pension as determined by the Parliament by law from time to time. (Art. 221)

 

Term and Removal of Judges

A judge of the High Court shall hold office until he attains the age of 62 years. If a question arises as to the age of the judge of the High Court, then it shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final in this regard. [Art. 217 (3)]

A judge may however be removed from the office by the President in the manner provided in clause (4) of Article 124 for the removal of the judge of the Supreme Court, namely by an order of the President passed by an address by each House of the Parliament supported by a majority of the total membership of that House and by a majority of not less than one-thirds of the member of that House present and voting and has been presented to the President for such removal on the ground of proved misbehaviour or  incapacity.

In C. Ravi Chandran Iyer vs. Justice A.M. Bhattacharjee[2], the Supreme Court held that only the Chief Justice of India can be prime mover for taking any action against an erring judge. An in-house procedure by judiciary can be adopted by the Chief Justice of India and no other procedure like pressure can be adopted.

The office of a judge also falls vacant by his appointment by the President to be the Judge of the Supreme Court or being transferred to any other High Court. A judge may also resign from his office by writing to the President (Art. 220)

 

Transfer of Judges

Article 222 empowers the President to transfer a judge from one High Court to another. However, this must be done in consultation with the Chief Justice of India, and the Judge so transferred is entitled to an additional compensatory allowance.

In S.P. Gupta vs. Union of India[3],where the transfer of Chief Justice of Patna High Court to the Madras High Court was challenged. The Court by a majority held in this case that the consent of the concerned Judge is not a pre-condition to a transfer.

 

Restriction after Retirement

Article 220 prohibits a person who has held office as a permanent judge of High Court from acting or pleading in any court or before any authority in India except the Supreme Court and other High Court. This prohibition is necessary in order to maintain the independence of the judiciary.

 

Powers of the High Court

  1. Power to issue certain Writs (Art. 226)

Article 226 empowers the High Court to issue any person or authority, including the Government (in appropriate cases), directions, order or writs in nature of Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo-warranto or any of them-

  1. For any of the rights conferred by Part III of the Constitution
  2. For any other purpose.

 

  1. Power of Superintendence (Art. 227)

Article 227 retains the power of superintendence over all Courts and Tribunals except those dealing with the armed forces functioning in the State with the High Court. This power has made the High Court responsible for the entire administration of Justice in the State. It is both judicial as well as administrative in nature. The Constitution does not place any restriction on its power of superintendence over the subordinate Courts. It may be noted the Supreme Court has no similar power vis-a-vis the High Court.

 

  1. Power to withdraw cases to itself (Art. 228)

If subordinate that a case pending in court subordinate to it involves a substantial question of law as to the interpretation of the Constitution, the High Court has power to withdraw cases.

 

  1. Appointment of officers and servants and the expenses of the High Court (Art. 229)

Appointment of officers and servants of a High Court are made by the Chief Justice of the Court. The administrative expenses of the High Court are to be charged upon the consolidated funds of the State.

 

  1. Control over subordinate courts (Art. 235)

Every High Court has control over district court and courts subordinate thereto, including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of the State.

 

 

References

 

  • Pandey J.N., CONSTITUTIONAL LAW OF INDIA, Central Law Agency, 53rd Edn, 2016.
  • (1993) 4 SCC 441
  • (1995) 5 SCC 457
  • 1981 Supp. SCC 87

[1] (1993) 4 SCC 441

[2] (1995) 5 SCC 457

[3] 1981 Supp. SCC 87

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