The Constitution of India makes a number of provision concerning the high Courts. While a detailed discussion of these provisions lies in the realm of constitutional Law, a general picture of the High Courts as it emerges thereunder maybe painted here.
1) A Court of Record :--
A High Court is a court of Record and as such can punish for its contempt. The judges of a High Court are appointed by the President (See..Powers of The President) after consulting the chief justice of India, the Governor (See... Powers of the Governor) of the State concerned, and the chief justice of the High Court to which the appointment is to be made. This provision regarding appointment of high Court judges was drafted with a view to their independence. The Constitution makers realized that the high Courts were destined to play a very significant role in administration of fundamental rights of the people being guaranteed by the Constitution. They were therefore very much concerned with the question of ensuring judicial independence.
2) Number of judges :
The number of judges of a High Court is fixed by the president from time to time. In this way, flexibility is maintained with respect to the number of judges in a High Court which can be settled by the central executive keeping in view the quantum of work before the Court.
3) Eligibility :
A person to be eligible for appointment as a High Court judge must be a citizen of India and must either have held a judicial office in India, or been an advocate of a High Court, for at least ten years. Comparing the provision with the qualifications prescribed formerly for a High Court judge under the government of India Act, 1935, the following changes would appear to have been made in this respect : A barrister is not entitled ipso facto to be appointed as a high Court judge ; he can be so appointed only when he has been practicing in a High Court or has held a judicial office for at least ten years; the period of judicial service qualifying a person to be appointed as a High Court judge has been raised from five to ten years : a civil servant can now be appointed to a High Court only if the has held a judicial office for ten years : previously, a civil servant became eligible for the high Court judgeship after acting as district judge for three years. Thus, it will be seen that significant changes have been made in the qualifications for appointment as a high Court judge. Provision has been made for appointment of ad hoc judges in a high Court. The chief justice of a high Court may, with the previous consent of the president. Request a retired high Court judge to sit and act as a judge of the high Court. As such, he a has all jurisdiction, powers and privileges of a high Court judge, but he is not regarded as a judge of the high Court for any other purpose.
Provision has also been made for appointment of additional judges in the high Courts. This provision has been considered below.
4) Integrity and independence :
The Constitution makes a number of provisions to preserve the integrity of the high Courts, and to render them independent of the executive control so that they may discharge their judicial functions without fear or favor. The judges have a fixed tenure and they retire at the age of sixty two years. A high Court judge cannot be removed from office earlier except when the two houses o Parliament pass an address on the ground of proved misbehavior or incapacity by a majority of the total membership of each house, and by a majority of not less than two thirds of the members present band voting . This provision gives to the high Court judges the same security of tenure as the judge enjoy in England. This is an innovation as no such provision existed in the government o India Act, 1935. Under that Act, a judge could be removed on an adverse report by the privy council on the ground of misbehavior or of infirmity of mind or body.
5) Salaries :
The salaries of the high Court judges have been prescribed in the second schedule to the Constitution and recently the judges Salaries have been raised. The allowance, leave and pension of a high Court judge cannot be varied to his disadvantage after his appointment. The security of tenure and emoluments are the two essential requisites for securing an independent judiciary and the Constitution seeks to provide both in an ample measure. A high Court judge after retirement is debarred from acting and pleading in any Court or before any authority in India except the supreme Court and other high Courts. The expenses of a high Court are charged upon the consolidated fund of the state concerned. In addition, the conduct of a high Court judge in the discharge of his duties cannot be discussed in any legislature, central or state, except on motion for his removal as mentioned above. The ban on legislative discussion of the conduct of a high Court judge insulated him from local political pressures. In this connection, reference may be made to the famous Keshar Singh case. The utter Pradesh legislative Assembly asked two judges of the Allahabad high Court to appear before it to answer a charge of committing contempt of the house. The supreme Court ruled, in an advisory opinion, that the Assembly could not discuss the conduct of a high Court judge and so it has no power to take action against a judge for its contempt alleged to have been committed by him in the discharge of his duties.
Transfer :
Art. 222 authorized the president to transfer a judge from one high Court to another after consulting the chief justice of India. This provision has caused some difficulty as a judge can be transferred without his consent. This can compromise judicial independence to some extent. This point has been discussed later in this chapter.
1) A Court of Record :--
A High Court is a court of Record and as such can punish for its contempt. The judges of a High Court are appointed by the President (See..Powers of The President) after consulting the chief justice of India, the Governor (See... Powers of the Governor) of the State concerned, and the chief justice of the High Court to which the appointment is to be made. This provision regarding appointment of high Court judges was drafted with a view to their independence. The Constitution makers realized that the high Courts were destined to play a very significant role in administration of fundamental rights of the people being guaranteed by the Constitution. They were therefore very much concerned with the question of ensuring judicial independence.
2) Number of judges :
The number of judges of a High Court is fixed by the president from time to time. In this way, flexibility is maintained with respect to the number of judges in a High Court which can be settled by the central executive keeping in view the quantum of work before the Court.
3) Eligibility :
A person to be eligible for appointment as a High Court judge must be a citizen of India and must either have held a judicial office in India, or been an advocate of a High Court, for at least ten years. Comparing the provision with the qualifications prescribed formerly for a High Court judge under the government of India Act, 1935, the following changes would appear to have been made in this respect : A barrister is not entitled ipso facto to be appointed as a high Court judge ; he can be so appointed only when he has been practicing in a High Court or has held a judicial office for at least ten years; the period of judicial service qualifying a person to be appointed as a High Court judge has been raised from five to ten years : a civil servant can now be appointed to a High Court only if the has held a judicial office for ten years : previously, a civil servant became eligible for the high Court judgeship after acting as district judge for three years. Thus, it will be seen that significant changes have been made in the qualifications for appointment as a high Court judge. Provision has been made for appointment of ad hoc judges in a high Court. The chief justice of a high Court may, with the previous consent of the president. Request a retired high Court judge to sit and act as a judge of the high Court. As such, he a has all jurisdiction, powers and privileges of a high Court judge, but he is not regarded as a judge of the high Court for any other purpose.
Provision has also been made for appointment of additional judges in the high Courts. This provision has been considered below.
4) Integrity and independence :
The Constitution makes a number of provisions to preserve the integrity of the high Courts, and to render them independent of the executive control so that they may discharge their judicial functions without fear or favor. The judges have a fixed tenure and they retire at the age of sixty two years. A high Court judge cannot be removed from office earlier except when the two houses o Parliament pass an address on the ground of proved misbehavior or incapacity by a majority of the total membership of each house, and by a majority of not less than two thirds of the members present band voting . This provision gives to the high Court judges the same security of tenure as the judge enjoy in England. This is an innovation as no such provision existed in the government o India Act, 1935. Under that Act, a judge could be removed on an adverse report by the privy council on the ground of misbehavior or of infirmity of mind or body.
5) Salaries :
The salaries of the high Court judges have been prescribed in the second schedule to the Constitution and recently the judges Salaries have been raised. The allowance, leave and pension of a high Court judge cannot be varied to his disadvantage after his appointment. The security of tenure and emoluments are the two essential requisites for securing an independent judiciary and the Constitution seeks to provide both in an ample measure. A high Court judge after retirement is debarred from acting and pleading in any Court or before any authority in India except the supreme Court and other high Courts. The expenses of a high Court are charged upon the consolidated fund of the state concerned. In addition, the conduct of a high Court judge in the discharge of his duties cannot be discussed in any legislature, central or state, except on motion for his removal as mentioned above. The ban on legislative discussion of the conduct of a high Court judge insulated him from local political pressures. In this connection, reference may be made to the famous Keshar Singh case. The utter Pradesh legislative Assembly asked two judges of the Allahabad high Court to appear before it to answer a charge of committing contempt of the house. The supreme Court ruled, in an advisory opinion, that the Assembly could not discuss the conduct of a high Court judge and so it has no power to take action against a judge for its contempt alleged to have been committed by him in the discharge of his duties.
Transfer :
Art. 222 authorized the president to transfer a judge from one high Court to another after consulting the chief justice of India. This provision has caused some difficulty as a judge can be transferred without his consent. This can compromise judicial independence to some extent. This point has been discussed later in this chapter.
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