Lesson 7- The Judiciary: The State High Courts
The constitution of India has provided a single integrated
judiciary with the Supreme Court at the top. At the state level, the
constitution provides a High Court which is the highest organ of the judicial
administration in the states. Article 214 of the constitution provides that
there shall be High Court for each state. However, the parliament can by law
establish a common High court for two or more states, or for two or more states
and a Union territory.
Composition of High Court
Under article 216, every high court shall consist of a Chief
Justice and such other Judges as the President may, from time to time appoint.
As far the article 217, the Chief Justice of a High Court is appointed by the
President in consultation with the Chief Justice of India and the Governor of
the State.
Appointment of judges
The High Court of the state consists of a Chief Justice and
such other judges as the President may from time to time determine. This
implies that the strength of the High Court has not been fixed by the
constitution and is determined by the president. It is not the same for all by
the president.
The Chief Justice of the High Court is appointed by the
president in consultation with the Chief Justice of India and the Governor of
the state concerned. The other judges of the High Court are appointed by President
in consultation with the Chief Justice of India, the Chief Justice of the High
Court and Governor of the state. The President also appoints additional judges
for a period not exceeding two years to dispose pending work.
‘According to Article 223 when the office of the Chief
Justice of a High Court is vacant or when any such Chief Justice is, by reason
of absence or otherwise, unable to perform the duties of his office, the duties
of the office shall be performed by a judge of the court as the President may
appoint’.
Term and Removal
Chief justice and judges of the High Court hold office until
the age of 62 years and are removable in the same manner as a judge of the
supreme court, article 220 restricts any persons who have held as a permanent judge
of a High Court to plead or act in any court or before any authority in India
except the supreme court and the other High Courts. A judge of a High Court can
also resign his office by writing to the president.
Qualification
A person to be eligible for appointment as a judge of a High
Court must possess the following qualifications. (a) He must be citizen of
India; (b) he must have held a judicial office for at least ten years or (c) be
an advocate of a High Court or Courts for at least ten years. It may be
observed that while an eminent jurist can be appointed as judge of the Supreme
Court, he cannot be appointed as the judge of a High Court.
Oath
Before entering upon his office, a judge of High Court has
to take an oath in the prescribed form before the Governor of the state or some
other person appointed by him for that purpose. In the oath, the judge affirms
that he will bear true faith and allegiance to the constitution of India and
will perform the duties of the office of the office without fear and favour,
affection or ill-will and will uphold the Constitution and the laws.
Jurisdiction of the High Court
Article 225 of the constitution deals with the general
jurisdiction of the High Court and provides that, subject to the provisions of
this constitution and to the provision of any laws of the appropriate
legislature made by virtue of power conferred on that legislature by this
constitution, the jurisdiction of, and the law administered in, any existing
High Court, and the respective powers of the judges thereof in relation to the
administration of justice in the court, including any power to make rules of
court and to regulate the sittings of the court and members thereof sitting
alone or in division Court before the commencement of this constitution.
Writ jurisdiction
The High Courts issue to any person or authority within its
jurisdiction, directions, order or writs including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of
them for the enforcement of fundamental rights or any other purpose. It may be
observed that the use of words ‘any other purpose’ makes the jurisdiction of
the High Court more extensive than that of the Supreme Court. While the Supreme
Court jurisdiction extends to the enforcement of a legal right or a legal duty.
Supervisory jurisdiction
The high court exercises supervision over all courts and
tribunals within its jurisdiction by virtue of Article 227 of the constitution
of India. For this purpose, it can call returns from them, make and issue
general rules, and prescribe forms for regulating the practice and the
procedure of such courts, settle table of fees to be given to the sheriff,
clerks, attorney, advocates and pleaders.
The High courts can withdraw cases from subordinate courts
to itself, to dispose them off. Article 228 says that ‘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, the
determination of which is necessary for the disposal of the case, it shall
withdraw the case itself, or determine the case to the court from which the
case has been so withdrawn, together with a copy of its judgment on such
question, and the said court shall on receipt thereof proceed to dispose off
the case in conformity with such judgment.’ The High court can also transfer
cases from one lower court to another lower court for disposal.
There are two types of courts in every district- Civil Court
and Criminal Court. Besides the District court, there are courts of sub-judges,
massif courts and courts of small causes. Below the Session courts are the
courts of First-class Magistrates. In metropolitan cities like Delhi, Mumbai,
Kolkata and Chennai these magistrates are known as metropolitan magistrates.
Apart from this, there are courts of Second Class and Third-Class Magistrates
also.
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Extension of jurisdiction of High Court
The right to extend or exclude jurisdiction of a High Court
over any Union territory rests with the parliament. The legislature of the
state does not enjoy any power to increase, restrict or abolish the
jurisdiction of the High Court. High courts of India have been vested with
quite extensive and effective powers.
A Court of record
Every high court is also a court of record and has all the
powers of such a court including the power to punish for its contempt. The 42nd
Amendment Act of 1976 curtailed the jurisdiction of the High Courts in various
spheres. However, the 44th Amendment Act 1979 restored the original
jurisdiction and position of the high Courts. It may be observed that these
powers of the High Court are similar to the powers of the Supreme Court.
Power to regulate its working
The chief justice of the High Court is authorized by the
constitution to appoint officers and servants of the High Court. However, the
governor of the state can require him to consult the state public service
commission in this connection. The condition of service of the officers and
servants of the High Court are also laid down by the Chief Justice of the court
or some other judges or officers of the court authorized by the Chief Justice
to make rules for the purpose.
A survey of the powers and functions of the High Court shows
that it is primarily a supervisory court which exercises supervision over the
subordinate courts and tribunals within its jurisdiction. At the same time, it
also acts as the guardian of the fundamental liberties of the people of the
country against possible encroachment by the legislature and the executives.
The actual working of the High Court since the inauguration
of the constitution has amply demonstrated that they have given precedence to
the writ petitions over other works and knocked down a number of statutes and
executive orders on the ground that they encroached on the Fundamental Rights
of the citizens. It has played a vital role in protecting the freedom of the
citizens and acted as guardian of their rights.
Judicial Review
Judicial review, broadly speaking, means the power of the
judiciary to review any order or act of the public authority, both executive
and legislative and to pronounce upon the constitutional validity when
challenged by the effected person. This power is based upon a simple rationale
that the constitution is the supreme law of land and any authority, if it
ventures to go beyond the limitation laid down by the constitution, will be
curbed. Obviously, it is a far-reaching power.
It is emphatically, the province and duty of the judicial
department, to say what the law is; those who apply the rule to particular
cases, must of necessity expound and interpret that rule. If two laws conflict
with each other, the court must decide on the operation of each.
However, the Indian constitution does not, in so many words,
assigns the power of judicial review to the judiciary. It is implicit in
Articles 13, 32 and 226. Article 13 (1) says that “all laws in force in the
territory of India immediately before the commencement of this provisions of
this part (part III i.e. Chapter on Fundamental Rights), shall, to the extent
of such inconsistency, be void.” Article 13(2) clearly prohibits the state from
making any law which takes away or abridges the fundamental rights and any law
which does so, will be void to the extent. Article 32 and 226 deals with the
powers of the Supreme Court and the High court respectively with regard to the
protection of Fundamental rights by issuing various kinds of writs.
The adoption of Federal system and the incorporation of the
fundamental rights in the constitution are responsible for the unique position
of the Supreme Court in India. It has to see that the Union and the State
Governments keep within their respective spheres and the Fundamental rights
granted by the constitution are not violated. For this purpose, it has been
granted the powers to pronounce on the constitutionality of Federal as well as
State laws.
However, the Supreme Court has not accepted all these restrictions
tamely and at times asserted its authority by declaring some of these
amendments as null and void. It asserted that curbs on judicial review were
against the basic scheme of the constitution. In simple words, the Supreme
Court, through its power of judicial review, has tried to ensure that the basic
structure of the constitution is not changed and the rule of law established
under the constitution is not thwarted. There are several examples to cite
where the court has exercised the power of judicial review.
The working of the Supreme Court during the first three
decades can be described as an arena of struggle between the legislature and
the judiciary in relation to Fundamental Rights and power of amendment. But by
evolving the doctrine of basic structure of the Constitution the Supreme Court
limited the power of the Parliament to amend the Constitution.
Judicial activism
Judicial activism refers to the interference of the
judiciary in the legislative and executive fields. It mainly occurs due to the
non-activity of the other organs of the government. Judicial activism is a way
through which relief is provided to the disadvantaged and aggrieved citizens.
Judicial activism is providing a base for policy making in competition with the
legislature and executive.
Judicial activism is the rendering of decisions, which are
in tune with the temper and tempo of the times. Judicial activism has arisen
mainly due to the failure of the executive and legislatures to act. Secondly,
it has arisen also due to the fact that there is a doubt that the legislature
and executive have failed to deliver the goods. Thirdly, it occurs because the
entire system has been plagued by ineffectiveness and inactiveness.
Its emergence can be traced back to 1893, when justice Mahmood
of Allahabad High Court delivered a dissenting judgment. It was a case of under
trial who could not afford to engage a lawyer. So the question was whether the
court could decide his case by merely looking in his paper. Justice Mahmood
held that the pre-condition of the case being heard would be fulfilled only
when somebody speaks.
According to Upendra Baxi, if the executive or legislature
defaults on its legal and constitutional obligations, courts cannot for long
take a view that violations of rights involved in such defaults are of no
concerns to them. What therefore emerges is that provisions of judicial
function can be constructed only in the context of the work being done by other
branches of the institution.
The following trends were the cause of the emergence of
judicial activism- expansion of rights of hearing in the administrative
process, excessive delegation without limitation, expansion of judicial review
over administration, promotion of open government, indiscriminate exercise of
contempt power, exercise of jurisdiction when non-exist, over extending the
standard of rules of interpretation in its search to achieve economic, social
and educational objectives and passing of orders which are unworkable.
As justice A.M. Ahmedi had opined “judicial activism has
been more or less thrust upon Indian judiciary”. The reluctance of the
legislature and the executive to take hard and unpleasant decisions have
compelled the judiciary to become active. When a sensitive issue remains unattended
to and unresolved people become restive and seek courts to come across a
solution. But this era of judicial activism is a temporary one. In our
democracy the legislative, the executive, the judiciary and the media have
their mutually reinforcing roles which cannot be usurped by a single authority.
Public interest litigation
Public Interest Litigation popularly known as PIL can be
broadly defined as litigation in the interest of that nebulous entity: the
public in general. Prior to 1980s, only the aggrieved party could personally
knock the doors of justice and seek remedy for his grievance and any other
person who was not personally affected could not knock the doors of justice as
a proxy for the victim or the aggrieved party.
Two judges of the Supreme Court, Justice V.R. KrishnaIyer
and P.N. Bhagawati recognized the possibility of providing access to justice to
the poor and the exploited people by relaxing the rules of locus standi. In the
series of path breaking pronouncements, for instance, S.P. Gupta v. Union of
India, 1982, the supreme court of India, through public interest litigation,
has granted access to persons inspired by public interest to invite judicial
intervention against abuse power or misuse of power or inaction of the
Government. Justice P.N Bhagawati in this case articulated the concept of PIL.
The PIL involves issues connected with a set of Fundamental
rights like right to free legal aid, right to human treatment in the prison,
right against torture, issues related to protection of environment. It also
involves other issues like degraded bonded labour, women prisoners, humiliated
inmates of protective homes, custodial violence, domestic workers,
rehabilitation and compensation for the rape victims, sexual harassment of
working women in the place of work, children, slum dwellers, construction
workers etc. Article 32 emerged as a forum of PIL in recent years and it has
become a byword for judicial involvement in social, political and economic
affairs of the society.
The Supreme Court with its wide jurisdiction and powers
reflected the concern with providing social equality and the rule of law. It
has acted judiciously in changing socioeconomic structure for the progress of
the nation. The existence of this court gives a feeling of security among the
citizens. It acts as an independent authority which puts check on extreme
actions upholds the constitutional values. The court should not allow its
process to be abused by politicians and other to delay legitimate
administrative action or to gain in a political objective. However, PIL has
been criticized for adding to the arrears of the courts of consuming too much
time and of making litigation a vital issue.
In a democratic polity, the independence of judiciary is
valuable in itself. The independence of judiciary has three dimensions- (1)
freedom from encroachment from other organs; (2) freedom from the executive and
the legislative interference; (3) decisions should not be influenced by either
the executive or the legislature and should be delivered without favour and
fear. To strengthen the judiciary, one may even add that the Cabinet Ministers
and members of Parliament should refrain from criticizing the judges and their
judgments. It is important to provide freedom than only we can expect judiciary
to perform its assign role independently and to the best of its ability.
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