SWAYAM COURSE ON INDIAN JUDICIAL SYSTEM: LEGAL AID

AND ENVIRONMENTAL PROTECTION

COURSE CO-ORDINATOR : Prof. (Dr.) G. B. REDDY

Professor of Law, University College of Law,
Osmania University, Hyderabad.
SUBJECT EXPERT & AUTHOR : Prof. (Dr.) NIMUSHAKAVI VASANTHI
Professor of Law, NALSAR University of Law,
Justice City, Shameerpet, Hyderabad.
TEACHING ASSISTANT : Dr. S.B. Md. IRFAN ALI ABBAS
Visiting Faculty, University College of Law
Osmania University, Hyderabad.
_________________________________________________________________________________________________________________________

LESSON-4: HIGH COURTS IN INDIA

– COMPOSITION, JURISDICTION AND FUNCTIONS

Introduction

The Indian Judiciary has a unified structure although the Constitution follows a
federal structure with independent legislatures and executive. The Judiciary is unified
with the Supreme Court as the apex court and a High Court for each State. The High Court
exercises supervisory jurisdiction over all the courts in the State. The High Court is the
apex court for the State. In terms of antiquity certain High Courts such as the High Courts
of Bombay, Calcutta and Madras were established before the Federal Court i.e. the present
Supreme Court was created. Although they are under the supervisory jurisdiction of the
Supreme Court they have the same jurisdiction and powers as the Supreme Court and in
some cases have original jurisdiction and wider powers.

Origin of High Courts

Before the establishment of the High Courts in Calcutta, Madras and Bombay there
were two existing judicial systems for administering justice i.e. the Supreme Court and
the Sadar Diwani and Sadar Nizamat Adalat. The first High Courts were established in
1862 in Bombay, Calcutta and Madras by the Indian High Courts Act 1861. These
abolished the Supreme Courts and the Sadar Adalats which were established earlier by
the Regulating Act 1773. Thus, a single body was conferred with all jurisdictions i.e. civil,
criminal and constitutional matters. The jurisdiction of these Courts was defined by
Letters Patent issued by the Crown. The Crown gave them power to exercise all civil,
criminal, intestate, testamentary, admiralty and matrimonial jurisdiction. It also

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conferred on them original and appellate jurisdiction and all such powers and authority
with respect to the administration of justice in the presidency, as was thought fit.

An appeal to Privy Council lay from the judgment of the High Court in civil cases
when the amount involved is Rs. 10,000 or more or if the High Court certified that the
case is fit one for appeal. And in case of criminal cases from its original jurisdiction or if
the High Court certified that the case is fit one for appeal. The Government of India Act
1935 established the Federal Court which heard appeals from the High Courts. This
removed the appeal to the Privy Council.

Composition of High Courts

Part VI of the Indian Constitution deals with the States. Articles 214 to 231 of
Chapter V of this part deal with the High Courts in the States. These provisions require
that there be a High Court in every State of the Country and these courts are courts of
record which means that all the submissions and the decisions made are recorded and
available in written form.

The judges of the High Court are appointed by the President of India in
consultation with the Chief Justice of India, the Governor of the State and the Chief Justice
of that High Court. The judges hold office until the age of retirement unlike some countries
where the judges hold office for life. The judges are selected both from the Bar, i.e. from
lawyers who have at least 10 years of standing and from the lower judiciary i.e. from
District Judges who have 10 years of experience in that post. The judges of the High Court
may be transferred from one High Court to another by the President after consultation
with the Chief Justice of India.

This power to transfer judges has been the site of a long battle involving questions
of independence of the judiciary. In Union of India v. Sankalchand1, the government had
admitted before the court that there was no justification for transferring a judge from one
court to the other. This transfer was challenged as being without the consent of the judge
and without a proper consultation with the Chief Justice of India. This case saw the

1
1977 AIR 2328

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beginning of the Supreme Court decisions on the independence of the judiciary and the
court held that the threat of transfer at the whims and fancies of the executive constitutes
a major threat to that independence. The transfer of a judge can only be made in public
interest and a transfer which is not in public interest can be challenged as
unconstitutional. The term consultation although not meaning concurrence has to be a
full consultation not merely a formality.

The subsequent decisions of [Link] v. Union of India2, Supreme Court Advocates

on Record Association v. Union of India3, Special Reference No.1 of 19984 and the NJAC case
(Supreme Court Advocates on Record Association and others v. Union of India5) have
strengthened the position with regard to the independence of the judiciary and also the
appointment of judges. The Supreme Court in the process of this litigation has evolved
the principle of judicial primacy in the appointment and transfer of judges. The collegium
system of appointment of judges which involves the Chief Justice of India and other senior
judges plays a determinative role in the appointment of judges.

Functions of High Court

Jurisdiction

Art. 225 of the Constitution of India states that the jurisdiction of the High Court shall
be the same as it was before the Constitution came into force. This means that the
jurisdiction of the Courts under the old acts continued even after the Constitution came
into force in 1950.

Writs

Article 226 of the Constitution confers upon the High Court a special jurisdiction to
prevent the infringement of fundamental rights and other rights by the issue of writs such
as habeas corpus, mandamus, certiorari, quo warranto, prohibition and any other direction
or order. This jurisdiction is notwithstanding any power that the Supreme Court has in

2
1981 Supp. SCC 87
3
1993 (4) SCC 441
4
1998 (7) SCC 739
5
2016 (5) SCC 1

3
enforcing fundamental rights under part III of the Constitution. Thus, the High Court may
enforce a variety of rights including the fundamental rights. Its jurisdiction is thus wider
than the jurisdiction of the Supreme Court under A.32 where the Supreme Court only
enforces the fundamental rights. The High Court can issue a writ, direction or order to
any government or authority if the cause of action in whole or in part arises within its
jurisdiction. These writs are known as prerogative writs as they originated in the King’s
power of superintendence over the due observance of law by his officers and tribunals. It
is a discretionary power and must be distinguished from the appellate power that the
High Court has been conferred by various statutes regarding civil and criminal powers.

Among these writs, the writ of habeas corpus is a very important writ which actually
means to bring or produce the body. This can be filed when there is an allegation that the
State has held a person without authority. This is an important measure to ensure that
those authorities that are entrusted with the maintenance of law and order to not resort
to arbitrary and illegal detentions. The writ of mandamus is issued against a government
authority directing it to do any act that it has a duty to perform but has not performed it.
The writ of certiorari lies against an order of the lower court in cases where it refuses to
exercises its jurisdiction or exceeds its jurisdiction.

The writ jurisdiction of the High Court’s is very popular as it does not involve a lengthy
procedure that is usually involved in civil and criminal cases. It is also very effective when
dealing with cases against the State. The cases where the High Court has invoked its
powers include matters of allotment of land, correcting the orders of the lower courts
when they have wrongly exercised or failed to exercise their powers, or have made an
error apparent on the face of the record, preventive detention and Public Interest
Litigation. The High Courts have been approached with regard to disputes regarding the
imposition of President’s rule in the States and corruption cases involving sitting Chief
Ministers and other cases of significance. The High Courts have proved that they are not
subordinate courts of the Supreme Court but are on par with the Supreme Court with
regard to exercising their judicial functions.

The removal of the jurisdiction of the High Court by way of establishing Tribunals has
been struck down by the Supreme Court as violating the basic structure of the

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Constitution. In [Link] Kumar v. Union of India6 the seven judge bench of the Supreme
Court held that the exclusion of the jurisdiction of the High Court was unconstitutional.
All decisions of the Administrative Tribunals are subject to scrutiny by the High Court.

Judicial Review

One of the most important function that is performed by the High Courts and the
Supreme Court is the judicial review of executive and legislative actions of the State. The
historical reason for the establishment of these courts was to provide for remedies
against arbitrary action of the representatives of the State. The famous trial of Warren
Hastings, the Governor General of the East India Company saw serious allegations of
violation of rights of Indians under the East India Company and in order to provide some
semblance of justice the Supreme Court was established.

Judicial Review has been held to be the basic Structure of the Indian Constitution in
the Basic Structure Case. The Kesavananda Bharati vs State of Kerala case is known as the
Basic Structure case. This case came to be filed as certain amendments were made to the
Indian Constitution which the petitioners claimed violated their right to property. The
Court held that the right to property was not a part of the basic structure of the
Constitution and the State had the right to abridge the right to property to further
important social justice goals. The amendments also tried to take the matters beyond the
purview of the Courts and exclude the review powers of the Courts. The amendment
stated the constitutional amendments were not law and hence the courts could not hear
matters that constitutional amendments were not valid. The Supreme Court held that is
power of review of all State Action included the power to review constitutional
amendments as both the Supreme Court and the High Court had the power to interpret
the constitution. All actions of the State including constitutional amendments had to be
in consonance with the basic structure of the Constitution. The power to examine if State
action was in consonance with the constitution is the power of judicial review and this
cannot be taken away even by an amendment to the Constitution.
Under this power of judicial review, the Court can examine if any law passed by the
legislature of the State is constitution or not. All order, directions, notification, rules and

6
AIR 1997 SC 1125

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regulations made by the State executive can also be subject to scrutiny and be held to be
unconstitutional and arbitrary.

The doctrine of arbitrariness that was evolved by the Supreme Court in the Maneka
Gandhi v. Union of India case7, means that if any action of the State has been taken without
following the principles of natural justice, i.e. the duty to act fairly, give reasons for
decisions, and to hear the parties before deciding a matter, the action can be held to be
unconstitutional. In the case of Maneka Gandhi, the passport authority impounded her
passport without giving her an opportunity of being heard. The court held that this action
violated her right to equality and liberty as it was taken without following the principles
of natural justice.

Interim Relief

The High Court has the power to grant interim relief if the circumstances warrant an
immediate order. These are also known as stay orders which are interim orders until the
matter has been disposed of finally. The Court will grant stay only if it believes that not to
do so would lead to irreversible damage and to address an injustice until the parties are
heard fully.

No Limitation

The power of the High Court to entertain any matter under its writ jurisdiction is not
barred by any limitation. The general principle of delay and laches which apply with
regard to other civil proceedings do not apply to writ jurisdiction. If the delay is properly
explained the High Court will not refuse a remedy to the petitioner.

7
AIR 1978 SC 597

6
 Writ Petition against Private Parties

The jurisdiction of the High Court is wide enough to take into account not only State
parties but other parties who have been discharging important public functions. In the
case of the Zee Telefilms8 which is also known as the BCCI case, the Court held that the
Supreme Court cannot issue any directions against the BCCI (Board of Cricket Control of
India) as it was not a State, the High Court can issue a suitable remedy. In reply to the
argument that if there is any violation of any constitutional or statutory obligation or
rights of citizens, the relief may be obtained under A. 226 even though under A. 32 the
Supreme Court may not be available.

The Court relied on Andi Mukta Sadguru Shree Muktajee Vanda Swami Suverna Jayanti
Mahotsav Smarak Trust v. V.R.Rudani9 to hold that
“Article 226 confers wide powers on the High Courts to issue writs in the nature of
prerogative writs. This is a striking departure from English Law. Under Article 226, writs
can be issued to ‘any person or authority’. The term authority must receive a liberal meaning
unlike the term in Article 12 which is relevant only for the purpose of enforcement of
fundamental rights under Article 32.”

Letters Patent Appeals

The High Courts of Bombay, Calcutta and Chennai have provisions for extra-ordinary
civil jurisdiction under the Letter Patent Appeal in certain matters. These are matters
where the Original Civil Jurisdiction of the High Court exists. In all other matters the High
Court is only an appellate Court.

Criminal Jurisdiction

The earlier High Courts had original criminal jurisdiction but the Criminal Procedure
Code, 1973 abolished the original criminal jurisdiction. The High Court is the appellate
court in all criminal matters. Bail petitions may also be filed in the High Court after the
trial court has refused bail.

8
2005 (4) SCC 649
9
1989 (2) SCC 691

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 Appellate Jurisdiction

The High Court hears appeals and revision petitions from the orders and
judgments of all the subordinate courts in the State. These include civil matters such as
land and contract matters, criminal matters and matrimonial matters. The writ
proceedings under Article 226 are of a summary nature and are not suitable for raising
disputed questions of fact which are best dealt with by the lower courts and an appeal
and review will lie to the High Court on whether the lower court does not appreciate
evidence properly or fails to appreciate the law adequately. The High Court in appellate
proceedings has a wider jurisdiction and can re-appreciate evidence and overturn the
judgments of the lower courts on both facts and law.

Supervisory Jurisdiction

The High Court exercises supervisory jurisdiction over all courts and tribunals
throughout the territories in relation to which it exercises jurisdiction. The High Court
can call for returns from such courts, make and issue general rules and regulations
regarding the practice and proceedings of such courts. It may also settle tables of fees and
also has the power to transfer cases from subordinate court to it. The jurisdiction of the
High Court may be extended to any Union territory or there can be a common court for
two or more States.

The appointment of district judges shall be made by the Governor in consultation with
the High Court. The High Court exercises control over the posting and promotion as well
as the grant of leave to persons belonging to the judicial service of a State.

Administrative Functions

The Chief Justice of the High Court is in charge of the administrative work of the Court
and he also distributes the work among his judges of the High Court. He is also consulted
in the appointment of the judges of the High Court.

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Conclusion

We have examined the role of the High Court, the function that it performs and its
position in the judicial hierarchy. We have observed that the High Court performs a
judicial function on par with the Supreme Court although an appeal will lie to the
Supreme Court from the High Court.

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