Lesson 7- The Judiciary: The State High Courts Important Notes

 

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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