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JUDICIARY
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Objectives
High Court
Composition
Powers and Functions

INTRODUCTION
India has a single integrated and hierarchical judicial system to
administer both the Centre and the State laws. Part V of the Indian
Constitution deals with the union judiciary. Most of the countries
with a federal constitution have separate judicial system to manage
the Central and the State laws. The Supreme Court is at the apex
of the hierarchy followed by the High Court at the State level with
similar powers. Subsequently the lower courts to manage matters
of lesser significance at the bottom of the pyramid.
The Constitution of India has laid down that there shall be a High
Court in each State (Article 214) but Parliament has the power to
establish a common High Court for two or more States (Article
231). The High Court is the highest court of the judiciary at the
State. Every High Court shall consist of a Chief Justice and such
other Judges as the President of India may from time to time
appoint. Furthermore, the President has the power to appoint
additional judges for a temporary period not exceeding two years,
for the clearance of arrears of work in a High Court and also an
acting Judge, in case of absence of a permanent judge to carry on
his work till he resumes office. The President on consultation with
the Chief Justice of India, the Governor of the State (and also the
Chief Justice of the High Court in case of appointment of judges
other then the Chief Justice) appoints all the Judges of the High
Court. A Judge of the High Court can hold office till the age of 62
years.
Composition of the High Courts:
The High Court of the State comprises of the Chief Justice and
such other judges as determined by the President of India from
time to time. The Constitution has not determined the exact number

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of judges comprising a High Court and the number varies from
state to state.
Qualifications:
Article 217(2) of the Constitution of India lays down the
qualifications for the appointment of the Judge of the High Court
as:a)
he must be the citizen of India and should not have crossed
the age of 62 years
b)
he should a have held a judicial office for at least 10 years
within India
c)
he should have been a advocate of a High Court or two or
more such courts for at least 10 years.
Independence of the Judges:
The Constitution in order to maintain the independence of the
judges of the High
Court has made the following provisions:
a) By providing that the Judge of the High Court shall not be
removed, except in the manner provided for the removal of the
Judge of Supreme Court. He can be removed from office if a
resolution is passed with special majority by the Parliament on
ground of proved misbehaviour or incapacity (Article 218).
b) By providing that the expenditure in respect of salaries and
allowances of the Judges shall be charged on the Consolidated
Fund of the State [Article 202(3)(d)].
c) By specifying in the Constitution the salaries payable to the
Judges and providing that the allowances of a Judge or his rights in
respect of absence or pension shall not be varied by Parliament to
his disadvantage after his appointment (Article 221), except under a
Proclamation of financial emergency [Article 360(4)(b)];
d) By laying down that after retirement a permanent Judge of High
Court shall not make pleas or act in a Court or before any authority
in India, except the Supreme Court and a High Court other than the
High Court in which he has held his office (Article 220).
The territorial jurisdiction of the High Court is co-terminus with the
territorial limits of the state except where the Parliament has
extended the jurisdiction of the High Court for two or more states or
to a Union Territory. The jurisdiction of the Bombay High Court
extends to Goa and that of Calcutta High Court extends to

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Andaman and Nicobar Islands and that of Kerala High Court
extends to the Lakshadweep.

POWERS AND FUNCTIONS OF THE HIGH COURTS:

The Constitution of India determines the jurisdiction of the High
Court and has not changed since the commencement of the
Constitution. The Civil and Criminal Procedure Code primarily
govern their civil and criminal jurisdiction. The High Courts of the
state enjoy the following powers:
Original Jurisdiction:
The High Courts of the presidency towns of Calcutta, Bombay and
Madras had original jurisdiction on both civil and criminal cases
arising within their respective presidency towns. The Criminal
Procedure Code of 1973 took away entirely the original criminal
jurisdiction of the High Courts. City Civil Courts have been
established to handle civil cases within the same area, but that has
not completely taken away the original jurisdiction of the High
Courts as it continues to retain action on higher value cases.
Appellate Jurisdiction:
The Appellate Jurisdiction of the High Court is both civil and
criminal. On the civil side, an appeal to the High Court is either a
First appeal or Second appeal. Appeal from the decisions of District
Judges and from those of Subordinate Judges in cases of a higher
value lies directly to the High Court on questions of fact as well as
of law. When the District Judge or Subordinate Judge decides an
appeal from the decision of an inferior Court, a second appeal lies
to the High Court from the decision of the lower appellate Court, but
only on question of law and procedure, as distinguished from
question of fact. Whenever
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Vanita Banjan
in criminal cases the Sessions Judge or Additional Sessions Judge
gives a sentence of imprisonment exceeding 7 years or an
Assistant Sessions Judge, Metropolitan Magistrate or other Judicial
Magistrates decide on certain specified cases other than petty
cases, an appeal lies to the High Court.
Power of Superintendence:
All the Courts and tribunals throughout the territory except military
tribunals come under the superintendence of the High Court of that
State (Article 227). This power also includes revisional jurisdiction

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to intervene in cases of gross injustice or abuse of jurisdiction, even
though no revision against the orders of such tribunal was
otherwise available.
Writ Jurisdiction:
The Constitution of India confers the power of issuing writs to every
High Court of the State. Therefore the High Courts can issue the
writ of Habeas Corpus, Mandamus, Prohibition, Quo warranto and
Certiorari to any person or authority including the government in
those territories. The power of the High Court in matter of writ
jurisdiction is larger than that of the Supreme Court. The apex court
can issue them only in case of violation of fundamental rights
whereas the High Court can issue them not only in case of violation
of fundamental rights but also in case of an ordinary legal right
(provided it is a proper remedy in such cases).
Control over Sub-ordinate courts:
The High Court is the highest court in the State and thus has got an
administrative control over the subordinate judiciary within the
territory. The Subordinate Courts include District Judges, Judges of
the City Civil Courts as well as the Metropolitan Magistrates and
members of the judicial service of the State. The control over the
Judges of these Subordinate Courts is exercised by the High
Courts in the following matters:
a) The High Court is to be consulted by the Governor in the matter
of appointing, posting and promoting district judges (Article 233).
b) The High Court is consulted along with the State Public Service
Commission, by the Governor in appointing persons (other than
district judges) to the judicial service of the state (Article 234).
c) The control over district courts and courts subordinate thereto,
including the positing and promotion of, and the grant of leave to,
persons belonging to the
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judicial service and holding any post inferior to the post of a district
judge is vested in the High Court (Article 235).
Check your progress:
a)
Discuss the powers and functions of the High Court.
b)
What are the provisions made in the Constitution to ensure
the independence of the High Court?

Lets sum up:

India has adopted a federal system of government but has
prominent features of a unitary system. In keeping with the federal
system the Constitution of India provides for a two-tier Government
one at the Centre and other at the State level. All States have the
Legislative Assembly but only few have the Legislative Council. The
Legislative Assembly has real powers to make laws while the
Legislative Council has limited role to play and often works as an
advisory body. State Legislatures have full powers to make laws on
all items in the State List and as long as there are no difference of
opinion between the Centre and the States perspective on the
items in the Concurrent List then the States can legislate on them
as well. The state legislature monitors the day-to-day work of the
executive by asking questions and keeping them on their toes. In
an eventuality of mis-governance the legislature has the powers to
pass a no-confidence motion and get the Chief Minister and the
Council of Minister to resign from office.
The State Executive consists of the Governor and Council of
Ministers with Chief Minister as its head. Article 163 of the
Constitution vests all executive powers to the Governor, which he
shall exercise with the aid and advice of the Council of Ministers.
The Governor has executive, discretionary, legislative, financial and
judicial powers. The Governor like the President is the nominal
head where as the Chief Minister and his Council of Ministers are
the real executive. The Governor appoints the leader of the majority
party in the State Legislative Assembly as the Chief Minister.
Ministers are appointed and allocated their portfolios by the
Governor on the advice of the Chief Minister. The Governor is
appointed by the President of India normally for a term of five years
but actually holds office during pleasure of the President.
India has a single integrated judiciary with the Supreme Court as
the apex body and the High Court at the State level and other
subordinate courts below it. The Jurisdiction of the High Court is not
necessarily restricted to a single state but can be shared between
two or more states. The High Court enjoys original and appellate
jurisdiction, it has the power of superintendence and control over
subordinate courts. The Writ jurisdiction of the High Court is wider
than that of the Supreme Court as it extends to matters beyond
fundamental right to ordinary legal right.
Suggested Readings:

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Basu, Durga Das, Introduction to the Constitution of India, New
Delhi, Prentice Hall
oflndia, 1997.
Jha, Rajesh K. (Consultant Editor), Fundamentals of Indian Political
System, Delhi,
Pearson, 2012.
Mishra, Sweta (Consultant Editor), Managing State Governments,
Delhi, Pearson,
2012.
<http://www.constitution.org/cons/india/p06170.html>
internet
accessed on 17th June
2014.

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