The primary duty of the judiciary is to uphold the Constiution and the laws without fear or favour, without being biased by political ideology or economic theory. Article 214 says that there shall be a High Court in each State. Parliament may, however, establish by law a common High Court for two or more States [article 231(1)]. High Court plays very significant role in the scheme of administration of justice. The High Courts enjoy civil as well as criminal, ordinary as well as extraordinary, and general as well as special jurisdiction. The High Court enjoys an original jurisdiction in respect of testamentary, matrimonial, company and guardianship matters.
According to article 215, every High Court is declared to be a court of record. There are two characteristics of a court of record: (I) The records of such a court are admitted to be of evidentiary value and they cannot be questioned when produced in a court, and (II) It has the power to punish for contempt itself.
The High Court also have the power to review and correct their decisions, even though no specific power of review is conferred on the High Court as is conferred on the Supreme Court under article 137.
Article 216 provides for Constitution of High Court. It reproduced the provisions of section 220(1) of the Government of India Act, 1935. This article differs from article 124, which provides for the Constitution of Supreme Court, in two, respects-
(i) article 124 fixes a maximum limit of number of judges, article 216 does not fix any limit;
(ii) number of Judges can be increased or decreased under article 216 by the President but under article 124 increase of judges beyond the maximum limit of 7 judges is left to Parliament to be determined by law.
S.P. Gupta v. President of India, MANU/SC/0080/1981 : AIR 1982 SC 149: 1982 Rajdhani LR 389: 1981 Supp SCC 87: (1982) 2 SCR 365. The court held that the President is under a constitutional obligation to review the strength of each High Court vis-a-vis the arrears of cases pending therein.
Article 217 provides for qualifications for appointment of a High Court Judge. According to this article for appointment to the post of a High Court Judge. The candidate must possess the following qualification:-
(1) He must be a citizen of India,
(2) He must-
(i) have held a judicial office for at least 10 years, or
(ii) be an advocate of a High Court or High Courts of at least 10 years standing.
Constitution (Forty-second Amendment) Act, 1976 had amended article 217 inserting sub-clause (c) in clause (2) which made an eminent jurist eligible to become a Judge of a High Court but the Constitution (Fourty-fourth Amendment) Act, 1978 has deleted sub-clause (c). An eminent Jurist can be appointed as Judge of the Supreme Court but he cannot be appointed as Judge of a High Court.
Removal of High Court Judges.-
The object of article 218 is to secure the independence of High Courts. With his object in view, it provides for the application of clauses (4) and (5) of article 124 to Judges of High Court also. These clauses relate to removal of Supreme Court Judges. This article thus ensures the same security to the High Court Judges as is available to Supreme Court Judges under articles 124(4) and 124(5).
Every person appointed to be a Judge of the 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, an oath or affirmation according to the form set out for the purpose in the Third Schedule".
No person who, after the commencement of this Constitution, has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts.
Explanation. In this article, the expression "High Court" does not include a High Court for a State specified in Part B of the First Schedule or it existed before the commencement of the Constitution (Seventh Amendment) Act, 1956.
(1) There shall be paid to the Judges of each High Court such salaries as may be determined by Parliament by law and until provision in that behalf is so made, such salaries as are specified in the Second Schedule.
(2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time-to-time to be determined by or under law made by Parliament and, until so determined to such allowances and rights as are specified in the Second Schedule:
Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.
(1) The President may, after consulation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court.
(2) When a Judge has been or is so transferred, he shall during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, 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 the President may by order fix.
In re Presidential Reference, MANU/SC/1146/1998 : AIR 1999 SC 1: 1998 AIR SCW 3400: JT 1998 (7) SC 304: MANU/SC/1146/1998 : (1998) 7 SCC 739: 1998 (4) SCJ 200: (1998) 5 SCALE 629: 1998 (8) Supreme 140. A nine-judge Bench of the Supreme Court has unanimously held that in case of transfer of High Court Judges, the Chief Justice of India must consult four, senior-most Judges of the Supreme Court and in addition to the collegium of four Judges the CJI is required to consult the Chief Justice of the two High Courts. The collegium should make the decision in consensus and unless opinion of the collegium is in confirmiy with that of the CJI no recommendation is to be made.
When the office of 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 purposes.
(1) If by reason of any temporary increase in the business of High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, the President may appoint duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify.
(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.
(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.
Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court:
Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.
(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.
Article 226 empowers High Court to issue within their territorial jurisdiction directions orders, or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of fundamental rights or for any other purpose. Clause (4) provides that the power Conferred on the High Court shall not be in derogation of the powers conferred on the Supreme Court by clause (2) of article 32. People are, therefore, granted double protection in cases of violation of fundamental rights. They can directly approach the Supreme Court under article 32 or High Court under article 226.
(1) Remedy under article 32 is itself a fundamental right and therefore, normally, the court cannot refuse to entertain the application. In Romesh Thappar v. State of Madras, MANU/SC/0006/1950 : AIR 1950 SC 124 1950 SCJ 418: 51 Cr LJ 1514: 1950 SCR 594, Patanjali Shastri, J., delivering the majority judgment observed:
"The article 32 does not merely confer power on the court as article 226 does on the High Courts to issue certain writs for the enforcement of the rights conferred by Part III or any other purpose as part of its general jurisdiction. Article 32 provides a remedy for the enforcement of those rights and this remedial right is itself made a fundamental right by being included in Part III. This court is thus constituted a protection and guarantor of fundamental rights and it cannot consistently with the responsibility so laid upon it."
(2) The Jurisdiction of the Supreme Court is throughout the territory of India but the territorial jurisdiction of the High Court is not so wide. A High Court can entertain a petition only if the cause of action arises within its local limits.
(3) The remedy provided under article 32 is available only for the enforcement of fundamental rights guaranteed in Part III. The High Court's jurisdiction under article 226 in this sense is wider. They are empowered to grant remedy under article 226 for enforcement of fundamental rights or for any other purpose.
The question whether a judgment of the High Court under article 226 will attract the principle of res judicata under article 32 is discussed later.
(1) Writ of Certiorari.-
The writ of certiorari is an order of the High Court issued to inferior courts, tribunals or authorities to transmit to it the record of proceeding pending with them for scrutiny and if necessary, for quashing the same. It is observed by Atkin, L.J. that the writ of certiorari may issue "whenever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority."
Radheshyam Khare v. State of Madhya Pradesh, MANU/SC/0005/1958 : AIR 1959 SC 107: 1959 SCJ 6: 1959 Nag LJ 49: 1959 MPLJ 185: MANU/SC/0005/1958 : 1959 SCR 1440. The Supreme Court observed that it consists of four components viz, (a) a body of persons; (b) having legal authority; (c) to determine questions affecting the rights of subjects; and (d) having the duty to act judicially.
In determining the jurisdiction of writ of certiorari, the courts in India have some time been mainly guided by the principle laid down in Nakudda Ali v. Jayaratne, AIR 1951 AC 66. The Supreme Court simply demolishes the order of the inferior tribunal which it consider to be without jurisdiction or palpably erroneous, but it does not substitute its own views for those of the inferior tribunal.
Province of Bombay v. Khushaldas S. Advani, MANU/SC/0034/1950 : AIR 1950 SC 222: 1950 SCJ 451: 86 CLJ 330: 1950 SCR 621: (1950) 2 MLJ 703. The Supreme Court held that an error of law, which is apparent on the face of records can be corrected. The Superior Court simply demolishes the order of the inferior tribunal which it consider to be without jurisdiction.
Writ lies on Judicial Bodies.-
This writ can be availed of only to remove or to adjudicate upon the validity of judicial acts. The expression 'judicial acts' include the exercise of quasi-judicial functions by administrative bodies or authorities or persons obliged to exercise of quasi-judicial functions. But administrative bodies or authorities or persons obliged to exercise such functions are used in contrast which are purely ministerial acts. The Supreme Court has laid down two propositioning for ascertains whether an authority is to act judicially-
(1) If the statute empowers an authority to decide disputes arising out of a claim made by one party under the statute, which claim is opposed by another party, then prima facie, and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
(2) If a statutory authority has power to do any act which will prejudicially affect the subject, then although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will be a quasi-judicial act provided the authority is required by the statute to act judicially.
Grounds on which writ can be issued.-
The writ of certiorari is issued to a judicial or quasi-judicial body on the following grounds-
(a) where there is want or excess of jurisdiction,
(b) where there is a violation of procedure or disregards of principles of natural justice,
(c) where there is error of law apparent on the face of the record but not error of a fact.
(a) Want of or excess of jurisdiction.-
The writ of certiorari is issued to a body performing judicial or quasi-judicial function for correcting errors or jurisdiction, as when an inferior court or tribunal acts without jurisdiction, or in excess of it, or fails to exercise it. The want of jurisdiction may arise from the nature of the subject-matter so that the inferior court had no authority to enter on the enquiry or upon some part of it.
(b) For correcting error of law apparent on the face of record.-
The writ is also issued for correcting an error of law apparent on the face of record. It cannot be issued to correct an error of fact. What is an error of law apparent on the face of record is to be decided by the courts on the facts of each case.
Hari Vishnu Kamath v. Ahmad Ishaque, MANU/SC/0001/1954 : AIR 1955 SC 223: 1955 SCA 105: 1955 SCJ 267: 1955 SCR 1104. The Supreme Court held that no error could be said to be error on the face of the record if it was not self-evident and if it required an examination or argument to establish it. An error of law which is apparent on the face of the record can be corrected by a writ of certiorari but not on error of fact, howsoever, grave it may appear to be.
(c) Disregard of Principles of Natural Justice.-
A writ of certiorori also lies against a court or tribunal when it acts in violation of the principles of natural justice. Two principles of natural justice are generally accepted.-
(1) the court or tribunal should be free from bias and interest,
(2) Audi Altrum Partem i.e., the parties must be heared before the decision is given.
When it will not lie.-
The writ of certiorari cannot be issued against a private body. Co-operative Electricity Supply Society Limited incorporated under the Co-operative Societies Act, is a private body and not a public body discharging public function and the writ petition is, therefore, not maintainable against such a private society.
(2) Writ of Prohibition.-
Writ of prohibition is issued by a superior court to an inferior court, tribunal or other public body having judicial or quasi-judicial function to prevent it from assuming jurisdiction which it does not possess or exceeding jurisdiction or acting in contravention of the law of the land or principles of natural justice. It commands such court, body or tribunal to refrain from doing something which it is about to do.
Against whom lies.-
The writ of prohibition was issued only against a public authority or an authority set up by a statute exercising judicial or quasi-judicial functions. It did not lie against a private authority. Where a statutory authority having no judicial or quasi-judicial function act illegally, mandamus may be issued and if it is about to act, injunction may be proper remedy, not prohibition. The writ of prohibition will not issue against a legislature to retrain from exercising legislatives functions but it can issue against a body or authority used with or authorised to make or enforce subordinate legislation.
Who can apply.-
The person whose legal right is violated is entitled to apply for the writ of prohibition.
Conditions for issue of prohibition.-
(1) Like writ of certiorari, prohibition can be issued only against authorities exercising judicial or quasi-judicial functions.
(2) The writ can be issued only where such judicial or quasi-judicial authority assumes jurisdiction which does not have or exceeds the jurisdiction which it has or where proceedings are in contravention of law or principles of natural justice.
(3) At the time of the issue of the writ, proceedings must be pending.
(4) Where proceedings are partly within the jurisdiction of such authority and partly in excess of its jurisdiction, the writ will lie only against that part of the proceedings which is in excess of its jurisdiction.
(5) The authority should also continue to function. If before the issue of the writ the authority becomes functus, officio, prohibition will not be appropriate remedy.
(6) There should not be deliberate concealment or misstatement of material facts which may mislead the court.
Alternative Remedy.-
In case of certiorari, the existence of alternative remedy may be a ground for reflecting petition but where there is usurpation of jurisdiction, the fact that alternative remedy is available is irrelevant and prohibition has to be issued as a matter of right.
Bengal Immunity Company Ltd. v. State of Bihar, MANU/SC/0083/1955 : AIR 1955 SC 661: 1955 SCA 1140: 1955 SCJ 672: (1955) 6 STC 446: (1955) 2 SCR 603. The Supreme Court held that the existence of an alternative remedy may be more material in case of writ of certiorari, but where the inferior court assumes jurisdiction which it does not possess, writ of prohibition will issue as of right.
Prohibition to be rarely issued:-
The Supreme Court and the High Courts have power to issue writs including writ of prohibition. A writ of prohibition is normally issued only when the inferior court or tribunal-
(1) Proceeds to act without or in excess of jurisdiction;
(2) Proceeds to act in violation of rules of natural Justice;
(3) Proceeds to act under the law which itself is ultra vires or unconstitutional;
(4) Proceeds to act in contravention of fundamental rights.
(3). Mandamus:-
It is an order issued by the Supreme Court or a High Court to any government, Court, public authority or corporation or person invested with public duty commanding such government, court, public authority, corporation or person to perform some public duly in which the petitioner has sufficient legal interest.
It is in nature of command requiring any specific act to be done or not to be done by any person holding public office, permanent or temporary or by a corporation or inferior court.
The purpose of this writ is to protect legal rights, to enforce constitutional limitations, to correct error of law and violations of principles of natural justice and to compel any person or authority to perform a public duty cast upon him by law. It cannot be issued to enforce departmental instruction not having statutory force.
Who can apply.-
Only the person, whose legal right is directly affected by the non-performance of the public duty, can apply for writ of mandamus. He must advice evidence before the court that a demand for the performance of duty was made and the officer or public body concerned refused to do that duty.
Against whom mandamus lies.-
The writ of mandamus will lie against a person holding public office permanently or temporarily or public body or corporation or an inferior court or tribunal. It does not lie against a private individual. Mandamus will lie against a government or its officers where the government or the officer exceeds the limits of his powers or fails to comply with the conditions imposed by a statute for exercise of such powers.
Public Office.-
Public office refers to any position established by law to which certain duties or services are attached which incumbent officer is duty bound to perform. The duty in question being public, they involve exercise of some governmental or attests quasi-governmental authority by the incumbent officer.
Conditions of issue of mandamus.-
A writ of mandamus will be issued if the following conditions are satisfied-
(1) The petitioner has a legal right to compel the opponent to perform legal duty cast on the opponent. In other words, he must have a judicially enforceable right.
(2) The writ of mandamus and certiorari are issued for enforcement of an existing legal right, not for establishing it.
(3) The duty must be of public nature.
(4) The duty must be of a mandatory nature. Where the duty is not imperative but of discretionary nature mandamus will not lie.
(4) Quo warranto.-
By quo warranto proceedings a person holding any public office or franchise is called upon to show by what authority or right he holds that office. If the court finds that holder of the office has no valid title it will oust the person by issuing writ of quo-warrant.
The writ has two-fold purpose. It protects a citizen from being deprived of public office unlawfully by usurpers and controls the executive action in matters of appointments of public officers.
Who can apply.-
In quo warranto proceedings, the petitioner does not necessarily seek to enforce his right but challenges the validity of the claim of the holder of a public office and as such can be applied for by any person whether he has any personal interest or not. For instance-offices of Advocate-General or a Speaker or public offices. Petition can be moved by any person on the ground that the holder of the office is an usurper without valid claim.
Conditions for issue of Quo warranto.-
A writ of quo warranto can be issued if the following conditions are satisfied:
(1) The office in question must be a public office. It must be established that the office held by the usurper is a public office. A public office means an office in which public have an interest. The writ of quo-warranto will not issue in respect of an office of private nature.
Jamalpur Arya Samaj v. Dr. D. Ram, AIR 1954 Pat 297: ILR 33 Pat 157. The writ of quo warranto against the members of the working committee of the Bihar Raj Arya Pratinidhi Sabha a private religious organization was refused because the office was not a public office.
(2) The office must be of substantive character. Quo warranto will lie only where office in dispute is of substantive character i.e., an office independent in title.
G.D. Karkare v. T.L. Shevde, MANU/NA/0099/1950 : AIR 1952 Nag 330: ILR (1952) Nag 409. A substantive office means an office independent in title as distinguished from a deputy or servent. It was held that quo warranto would issue if the office is permanent even if it is held by the holder at the pleasure of the State. The office may be high or low.
(3) The holder should not be legally qualified to hold the office. The purpose of the writ is to prevent usurpation of a public office. It will, therefore, not lie where the holder of the office is legally entitled to hold it. Even where a person initially occupies the office illegally but becomes qualified to hold it before the hearing, the court will refuse to issue quo warranto.
Hari Shankar Prasad Gupta v. Sukhdeo Prasad, MANU/UP/0128/1954 : AIR 1954 All 227: ILR (1954) 1 All 447: 1953 All LJ 678. The writ was refused on the ground that although the holder of the office was not qualified on the date of appointment, he acquired the necessary qualifications while the writ petition was pending.
(4) The holder of the office against whom writ is claimed must have assumed the office. But it is not necessary that he must have assumed the name of the office because whether a person has usurped an office or not is a question of substance.
(5) The holder of the office must have ceased to hold it once he cease to hold an office, the writ will become infructuous.
(5). Habeas Corpus:-
Habeas Corpus literally means 'have the corpus or bring the body'. By issuing this writ the court orders the person detaining another person to produce the detainee before the court to enable it to examine the legality of the detention. This writ is the most important one from the point of view of maintaining liberty of movement. The main purpose of the writ is to set at large a person who has been illegally detained by any person or authority.
Who can apply?.-
A writ petition is normally filed by the person whose right is violated but an application for habeas corpus can also be moved by any other person who is related to or has interest in the detainee. Such other person will have to give reasons as to why the detainee could not make the affidavit himself.
An advocate in his capacity of an advocate cannot file application on behalf of the detainee unless he holds power-of-attorney from the detainee.
Against whom issued.-
Writ of Habeas Corpus is issued against any person or authority, who has illegally detained any person, unlike other writ habeas corpus can be issued even against a private individual.
Usha Devi v. Kailash Narain Dixit, MANU/MP/0008/1978 : AIR 1978 MP 24: 1977 MPLJ 311: 1977 Hindu LR 360. The petitioner's son aged four and a half years was forcibly detained by the respondent who was grandfather of the minor son. The writ was issued by the High Court on the ground that the petitioners being mother and father were natural guardian and entitled to the custody of the child.
Ghulam Sarwar v. Union of India, MANU/SC/0062/1966 : AIR 1967 SC 1335: (1967) 1 SCA 246: 1967 Cr LJ 1204: (1967) 2 SCR 271. In that case after the petition was dismissed by the High Court, the petitioner approached the Supreme Court under article 32. The Supreme Court held that High Court's order will not operate as res judicata and decided the petition. It will make no difference as to whether the application for habeas corpus in the High Court was filed under article 226 or section 300 of Cr.P.C.
Conditions for grant of habeas corpus.-
The writ of habeas corpus will be issued in the following circumstances:
(i) Where the detention is prima facie illegal i.e., there is no law supporting it.
(ii) Where the detention is under some provision of law:
(a) if the provision is unconstitutional, or
(b) If the detention is not in conformity with the procedure established by that law
(1) The essential ground for issue for the writ of habeas corpus is illegality of detention. If, therefore, detention is held legal, the writ will not be issued.
Batul Chandra Ghosh v. State of West Bengal, MANU/SC/0637/1972 : AIR 1974 SC 2285: 1974 Cr LJ 1314. The petitioner was detained under West Bengal (Prevention of Violent Activities) Act, 1970. He challenged the constitutional validity of his detention by a writ petition under article 32 of the Constitution. It was established that the detenu and his associates, armed with daggers and bombs and other lethal weapons attacked the house of a person and some of the inmates by hurling bombs and thereby created panic in the locality. The detention of the petitioner was held valid and his writ petition for habeas corpus was dismissed.
(2) At the time of issue of writ, illegal detention must continue. The purpose of the writ is to set at large a person who has been wrongly detained. If by the time the petition is decided, the detention is withdrawn and he is released, the writ becomes infructuous and the court will not issue the writ of habeas corpus.
Prosecution for criminal offence is no bar to issue of habeas corpus.-
A person cannot contend that the writ of habeas corpus should not issue merely because he was already proceeded against for criminal offence.
Capt. Dushyant Somal v. Smt. Sushma Somal, MANU/SC/0540/1981 : AIR 1981 SC 1026: 1981 Cr LJ 719: (1981) 2 SCC 977: 1981 SCC (Cri) 413. The proceedings under section 363 of Indian Penal Code were launched against the father for snatching away the child from lawful custody of the mother. During the pendency of the proceeding the mother applied for writ of habeas corpus. The father contended that the writ should not issue because criminal proceedings were already started against him. The court rejected the contention and sentenced him to imprisonment for not obeying the direction of the court.
(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of the foregoing provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.
(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
The power of Superintendence under article 227 is of an administrative as well as of judicial nature. If necessary the High Court can interfere with the administrative orders of inferior courts. Thus an order made under section 36 of the Legal Practitioner Act declaring a person to be a tout is made in exercise of administrative jurisdiction and will be open to revision under article 227. Judicial orders not only of courts in the ordinary sence but also of tribunals are amenable to the supervisory jurisdiction of the High Court, and it is in regard to the orders of tribunals the power of the High Court has very frequently been invoked.
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 this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may-
(a) either dispose of the case itself, or
(b) determine the said question of law and return 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 of the case in conformity with such judgment.
(1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct:
Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose:
Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.
(3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund.
(1) Parliament may by law extend the jurisdiction of a High Court to, or exclude the jurisdiction of a High Court from, any Union territory.
(2) Where the High Court of a State exercises jurisdiction in relation to a Union territory-
(a) nothing in this Constitution shall be construed as empowering the Legislature of the State to increase, restrict or abolish that jurisdiction; and
(b) the reference in article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts in that territory, be construed as a reference to the President.
(1) Notwithstanding anything contained in the preceding provisions of this Chapter, Parliament may by law establish a common High Court for two or more States or for two or more States and a Union territory.
(2) In relation to any such High Court,-
(a) the reference in article 217 to the Governor of the State shall be construed as a reference to the Governors of all the States in relation to which the High Court exercises jurisdiction;
(b) the reference in article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts, be construed as a reference to the Governor of the State in which the Subordinate Courts are situate; and
(c) the reference in articles 219 and 229 to the State shall be construed as a reference to the State in which the High Court has its principal seat:
Provided that if such principal seat is in a Union territory, the references in articles 219 and 229 to the Governor, Public Service Commission, Legislature and Consolidated Fund of the State shall be construed respectively as references to the President, Union Public Service Commission, Parliament and Consolidated Fund of India.
In each State, there is a system of subordinate courts below the High Court. The Constitution makes provisions in articles 233-237 to regulate the organization of these courts and to ensure independence of the subordinate judges.
The Supreme Court has emphasized again and again on the maintenance of independence and integrity of the subordinate judiciary which is close to the people. Accordingly, the court has through its various decisions provided the independence of these courts from executive control and, to this effect, has expanded the control of the High Courts over the subordinate judiciary. So as to strengthen the independence of the subordinate courts from executive control.
The subordinate judiciary constitutes a very important segment of the judicial system as it is in these courts that the judiciary comes in close contact with the people. It is, therefore, so essential to maintain the independence and integrity of the subordinate judiciary and for this purpose articles 233-237 have been placed in the Constitution. These articles have been so interpreted by the Supreme Court as to strengthen the control of the High Court on the subordinate judiciary. It is thus incumbent on each High Court to maintain and uphold the honour and integrity of the subordinate judiciary in the concerned State.
All India Judges Association v. Union of India, MANU/SC/0251/2002 : AIR 2002 SC 1752: 2002 AIR SCW 1706: JT 2002 (3) SC 503: MANU/SC/0251/2002 : (2002) 4 SCC 247: 2002 (2) SCJ 598: (2002) 5 SRJ 246: (2002) 3 SCALE 291: 2002 (3) Supreme 180. The Supreme Court observed that an independent and efficient judicial system is one of the basic structures of the Constitution. If sufficient number of judges are not appointed justice would not be available to the people, thereby determining the basic structure.
Appointment of District Judge.-
Under article 233(1) appointment, posting and promotion of District Judge in a State are made by the Governor in consultation with the High Court. Under article 233(2), a person not already in the 'service of the State' is eligible to be appointed as a District Judge only if-
(a) he has been for not less than seven years an advocate or a pleader, and
(b) is recommended by the High Court for such appointment.
From the tenor of article 233, it appears that there are two sources of recruitment of District Judges viz.-
(a) service of the Union or the State,
(b) members of the Bar.
Chandra Mohan v. State of Uttar Pradesh, AIR 1966 SC 1987: (1967) 1 SCA 209: (1967) 1 SCWR 153: (1967) 1 SCR 77: 1967 (2) SCJ 717. Some judicial officers were appointed as District Judges. The Supreme Court held-
"The setting, viz., the chapter dealing with subordinate courts in which the expression the service appears indicates that the service mentioned therein means service pertaining to courts."
Appointment of Subordinate Judges.-
According to article 234 appointment of persons other than District Judge, to the State Judicial Service is made by the Governor in accordance with the rules made for the purpose after consultation with the State Public Service Commission and the High Court.
Consultation with the High Court under article 234 is mandatory. If rules are made by the State Government without consulting the High Court then such rules would be ultra vires.
Ashok Kumar Yadav v. State of Haryana, MANU/SC/0026/1985 : AIR 1987 SC 454: (1985) 4 SCC 417: 1986 SCC (Lab) 88: 1985 3 Serv LR 200: 1986 2 Lab LN 804. The Court has laid down a procedure to recruit Subordinate Judges where the High Court will have a substantial rate of play.
High Court Control over District and Subordinate Courts.-
According to article 235, the control over district and subordinate courts is vested in the High Court, including the posting and promotion of, and the grant of leave to, persons belonging to the State judicial service, and holding a post inferior to that of a District Judge. However, the High Court is not authorised to deal with any such person otherwise than in accordance with the conditions of service prescribed under the law.
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