High Court - Rau's IAS

The State Judiciary consists of a High Court and a system of courts subordinate to the High Court within the territory of the State.

Article 214 provides: “There shall be a High Court for each state. However, Clause (1) of Article 231 enables Parliament to establish, a common High Court for two or more States or for two or more States as a Union Territory.

Name of the High Court	Territorial Jurisdiction
Bombay	Maharashtra, Goa , Daman and Diu, Dadar and Nagar Haveli
Madras	Tamil Nadu and Pondicherry
Kolkata	West Bengal, Andaman and Nicobar islands
Guwahati	Assam, Nagaland, Mizoram and Arunachal Pradesh
Kerala	Kerala and Lakshadweep
Punjab and Haryana	Punjab, Haryana and Chandigarh

Constitution of High Courts (Article 216) Article 216 provides: “Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem necessary to appoint.” The Constitution, thus, does not prescribe any minimum number of Judges, which a High Court shall consist of. It is the President who shall determine the number of Judges to be appointed High Court from time to time. It has, however, been held that the President is under a constitutional obligation to review in a pragmatic way, the strength of each High Court vis-a-vis the arrears of cases pending.

Qualifications for Appointment as a Judge (Article 216)

A person to be qualified for appointment as a Judge of a High Court
- He must be a citizen of India; and
- must have for at least ten years held a judicial office in the territory of India; or
- must have for at least ten years been an advocate of a High Court or of two or more such Courts in succession.

Appointment of Judges (Article 217(1))

Clause (1) of Article 217 provides that every judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the chief justice of India, the Governor of the state, and in the case of appointing of a judge other than the chief justice , the chief justice of the High Court.
In SC Advocates-on-Record Association vs. Union of India,” the High Court. Court, by a majority of 7:2, laid down principles to be followed in appointing the Judges of the High Courts.
- The process of appointment must be initiated by the Chief Justice of the concerned High Court.
- In this matter, significance should be attached to the views of the Chief Justice of India formed after taking into account the views of his colleagues in the Court.
In Re: Presidential Reference, the majority referred to the judgment in the Second Judges case, and held:
- The opinion of the CJI is reflective of the opinion of the Judiciary which means that “it must necessarily have the element of plurality in its formation.
- The expression “consultation with the CJI” in Article 217(1) requires consultation with a plurality of Judges in the formation of the opinion of the CJI.
- The CJI is obliged to comply with the norms and the requirement of the consultation process in making his recommendations to the Government of India.
- The CJI should form his opinion in the same manner as he forms it in regard to a recommendation for appointment to the Supreme Court, that is to say, in consultation with his senior most puisne, Judges constituting collegium.

Additional and Acting Judge (Article 224)

Clause (1) of Article 224 empowers the President to appoint, duly qualified persons, to be additional judges of the High court for such period, not exceeding two years, as he may specify. President may appoint the additional Judges if it appears to him that reason of any temporary increase in the business of the High Court of arrears of work therein, the number of Judges of that Court for the time being, be increased.
Clause (2): When any Judge of a High Court other than the Chief Justice is by reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, the President may appoint a duly qualified person to act as a Judge of that Court until the permanent Judge has resumed his duties.
Clause (3): No person appointed as an additional or acting Judge of a High Court shall hold office after attaining the age of sixty-two years.

Ad hoc Judges (Article 224-A):

Article 224-A empowers the Chief Justice of a High Court to request with the previous consent of the President, a retired Judge of a High Court to sit and act as a Judge of that Court until the permanent Judge has resumed his duties.
An ad hoc judge appointed in terms of the provisions of Article 224-A does not become a part of the High Court. He is appointed for reasons specified in the Notification issued by the President in this behalf.
He is only entitled to such allowance as the President may by order determine.

Acting Chief Justice (Article 223):

Article 223 provides that 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 such one of the other Judges of the Court as the President may appoint for the purpose.

Transfer of a judge from one High court to another (Article 222)

Clause (1) of Article 222 provides that a Judge of one High Court may be transferred to another High Court by the President after consultation with Chief Justice of India. When a Judge is so transferred he shall be entitled to receive in addition to his salary, such compensatory allowance as may be determined by Parliament, by law, and until so determined such compensatory allowance as may be fixed by President by order.
In S.C. Advocates-on-Record Association. vs. Union of India, the question related to the interpretation of the expression consultation with the Chief Justice of India” has been settled by 9 judge bench.
- Before recommending the transfer of a puisne Judge of one High Court to another High Court, the CJI must consult a plurality of Judges.
- It is imperative that the CJI should obtain the views of the Chief Justice of the High Court from which the proposed transfer is to be effected as also the Chief Justice of the High Court to which the transfer is to be effected.
- The CJI should also take into account the views of one or more Supreme Court Judges which would assist in the process of deciding whether or not a proposed transfer should take place.

Controversy with respect to Transfer

The transfer of chief justice Sanjib Banerjee from the Madras High Court to the Meghalaya High Court has given rise to a controversy over the question whether judicial transfers are made only for administrative reasons or have any element of ‘punishment’ behind them. In 2019, Justice Vijaya K. Tahilramani, another Chief Justice of the Madras High Court who was transferred to Meghalaya, chose to resign.

In Union of India vs Sankalchand H sheth, the Supreme Court rejected the idea that High Court judges can be transferred only with their consent. It reasoned that the transfer of power can be exercised only in public interest; secondly, the President is under an obligation to consult the Chief Justice of India, which meant that all relevant facts must be placed before the Chief Justice of India; and thirdly, that the Chief Justice of India had the right and duty to elicit and ascertain further facts from the judge concerned or others.
SP Gupta vs UOI: The apex court ruled that the circular from the Law Minister proposing that additional judges in all High Courts may be asked for their consent to be appointed as permanent judges in any other High Court, and to name three preferences. The Minister’s reasoning was that such transfers would promote national integration and help avoid parochial tendencies.

Reason that transfers are controversial

Transfer orders become controversial when the Bar or sections of the public feel that there is a punitive element behind the decision to move a judge from one High Court to another.

As a matter of practice, the Supreme Court and the government do not disclose the reason for a transfer. If the reason is because of some adverse opinion on a judge’s functioning, disclosure would impinge on the judge’s performance and independence in the court to which he is transferred.
On the other hand, the absence of a reason sometimes gives rise to speculation whether it was effected because of complaints against the judge, or if it was a sort of punishment for certain judgments that inconvenienced the executive.

Term of Office [Article 217(1)]:

It provides that a Judge of the High Court holds office until the age of 62 years. However, a Judge may resign his office before reaching the age of by writing under his hand addressed to the President.

Determination of Age of a Judge [Article 217(3)]:

Clause (3) of Article 217 provides: “If any question arises as to the age of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.
A Judge of a High Court can be removed only on the ground of proved misbehaviour or incapacity. Both Houses of Parliament must present an address to the President for the purpose, passed, in the same Session. The address must be supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House, present and voting.

Oath or Affirmation (Article 219):

Article 219 requires that every person appointed to be a Judge of a High Court shall, before he enters upon his office, make and subscribe before the Governor of the State, or some person appointed in that behalf by him, and/or affirmation according to the form set out for the purpose in the Third Schedule

Bar on Practice (Article 220):

Article 220 imposes a restriction on a Judge of a High Court practising being a permanent Judge.It provides that a person who has held office permanent Judge of a High Court shall not plead or act in any court or before any authority in India except the Supreme Court and other High Courts.
It may be noted that the bar against practice, applies only to a permanent Judge of a High Court. It does not apply on Additional Judges, who practise in any court including the High Court to which they belonged. Same would be the case of an acting Judge.

Salaries and Allowances (Article 221):

Article 221(1) provides that the Judges of the High Court shall be paid such salaries as may be determined by Parliament by law.” The High Court and the Supreme Court Judges (Conditions of Service) Amendment Act, 2018, has raised the salary of the Chief Justice of High Court to Rs. 2,50,000/- p.m. and that of a Judge of the High Court to Re 2,25,000/- p.m.
Clause (2) of Article 221 says that every Judge of the High Court shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by Parliament, by laws and until so determined, to such allowances and rights as were specified in second schedule.
It has further been declared that neither the allowances of a Judge nor his rights, shall be varied to his disadvantage after his appointment.
In order to further strengthen, the salaries and allowances of Judges of the High Courts, have been charged on the Consolidated Fund of State.