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Posted by on Mar 11, 2014 in Judiciary |

High Court – Composition and Independence

The High Court is act as highest court in concerned states under integral system of judiciary in India. The Parliament may establish a common high court for two or more states and a Union Territory (as of now there are total 21 High Courts). Articles 214 to 231 in Part VI of the Constitution describe organization, jurisdiction and powers of High Court.

Appointment of Judges

  • The constitution says that High Court shall consist of Chief Justice (CJ) and other judges in number as may be prescribed by President. The CJ and judges shall be appointed by President and CJ shall be appointed after consultation with CJI and governor of the concerned state. But while appointing judges other than CJ, the CJ of High Court shall be consulted. But not clear whether consultation is advisory or binding.
  • Second Judges Case (1993) – The SC ruled that the advice given by CJI is binding on President while appointing judges of High Court.
  • Third Judges Case (1998) – The SC held that sole opinion of CJI is not sufficient in appointment of judges. So to create primacy of consultative process, the SC held that
    • There shall be a Collegium of CJI and two senior most judges of SC to tender advice to President;
    • The recommendation made by collegium on basis of consensus but in case of difference of opinion no one would be appointed if CJI dissents;
    • The collegium shall consult with CJ of High Court concerned and views of judges of other High Courts ‘who may be consultedand ‘other judges of SC shall be noted ‘who are conversant with affairs of High Court concerned while making decision. All these views shall be conveyed to Govt of India along with recommendations of collegium.
    • Transfer of Judges – while transfer of a judge of High Court, CJI shall consult with collegium of 4 senior most judges of SC and CJs of concerned High courts where transfer takes place.

The advice of CJI is not binding on the govt or President if advice is in conflict with norms and requirements.

  • Acting CJ of High Court – The President can appoint a judge of High Court as an acting CJ if office of CJ is vacant or he is absent or he is unable to perform his duties.
  • In absence of quorum of judges of High Court to hold session of court, the President can appoint a person (who is qualified to be appointed) as an
    • Additional judge of High Court for temporary period not more than 2 yrs if work load of High Court is increased.
    • Acting judge of HC when a judge of that High Court is unable to perform his duties or acting as CJ. The acting judge hold office till that permanent judge resumes his office.

Qualifications and Tenure

  • The Constitution has not described minimum age of appointment and any tenure of office. He shall remain in office till attain age of 62 years.
  • A person shall not be qualified for appointment as a Judge of the High Court unless
    • He is a citizen of India;
    • He has been for at least 5 yrs a judge  of one or of two or more High Court in succession;
    • He has been for at least 10 yrs a advocate  of one or of two or more High Court in succession;
    • He is, in opinion of the President, a distinguished jurist.

Impeachment of a Judge

A judge of High Court can be removed or impeached by Parliament on ground of ‘proved misbehaviour’ or ‘incapacity’. The procedure to remove a judge as regulated by Judges Enquiry Act (1968) is as follows:-

  • A motion addressed to the President shall be signed by at least 100 members of LS or 50 members of RS is delivered to the Speaker of Chairman;
  • The motion is investigated by a committee of 3 members which shall consist of a) CJI or a judge of SC, b) a CJ of a High Court and c) a distinguished jurist.
  • If committee found judge to be guilty of misbehaviour or incapacity then house can take consideration of motion with report of committee.
  • If motion is passed in each house by special majority (i.e. passed by majority of total membership of house or majority of 2/3rd of present and voting) then address is presented to the President.
  • The Judge assumes to be removed from office as soon as President issues order of removal.
  • But till now no judge of High Court has been impeached.

Independence of High Court

  • Appointment – As after second and third judges case, the appointment of a judge of High Court lies within judiciary itself and completely aloof from powers of executive and legislature.
  • Tenure – The security of tenure is guaranteed till retirement age of 65 yrs as High Court judge can’t be removed except by address of President which is subjected to procedure as above defined.
  • Emoluments – The Judges are entitled to fix salary and service conditions as determined by Parliament. But can’t be changed to their disadvantage after appointment except in case of Financial Emergency. The expenses of High Court are charged on Consolidated Fund of State which is not subjected to vote of State legislature.
  • Retirement – The High Court judge shall not plead or act in any court or before any authority within territory of India. But retired judge can be appointed as judge of High Court for temporary period as deem fit by CJ of High Court.
  • Conduct of Judges – The conduct of judges of High Court can’t be discussed in Parliament unless any motion of impeachment has been moved.
  • Powers – Both Parliament and state legislature are not authorized to cut the powers and jurisdiction of High Court as guaranteed by constitution.
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