MODULE 7

HIGH COURTS

7.1 Appointment and removal of Judges

INTRODUCTION

The State Judiciary consists of a High Court and a system of subordinate courts. The High Court
is at the apex of the State judicial system. The High Courts come below the Supreme Court in
India’s judicial hierarchy. The institution of the High Courts is fairly old as it dates back to 1862
when under the Indian High Courts Act, 1861, High Courts were established at Calcutta,
Bombay and Madras. In course of time, other High Courts also came to be [Link]
Constitution builds the structure of the High Courts, on the pre-existing foundations.
● According to Article 214 - each State in India has a High Court .
● As per Article 231(1)-Parliament may, however, establish by law a common High Court
for two or more States .For instance The Gauhati High Court is the common High Court
of seven States of North East India.

The High Courts play a very significant role in the scheme of administration of justice. The
enormity of the task assigned to the High Courts can be appreciated by having a look at the wide
and varied jurisdiction assigned to these courts.

The High Courts enjoy civil as well as criminal, ordinary as well as extraordinary, and general
as well as special jurisdiction. The High Courts enjoy an original jurisdiction in respect of
testamentary, matrimonial, company and guardianship matters. Original jurisdiction is conferred
on the High Courts under several statutes. The High Courts enjoy extraordinary jurisdiction
under Arts. 226 to issue various writs. Several statutes confer an advisory jurisdiction on the
High Courts. Each High Court has supervisory powers over the subordinate courts under it. Each
High Court, being a Court of record enjoys the power to punish for its contempt as well as of its
Subordinate Courts.

In order to maintain the highest standards of administration of justice and to preserve the
character and quality of the work at present being done by the High Courts, it is essential that the
High Court should function as a whole and only at one place in the [Link] ,Several High
Courts have Benches apart from the principal one, with separate territorial jurisdictions.

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The Chief Justice is the administrative authority of the High Court. He plays a very important
role in the consultative process relating to appointment of Judges of the High Court

COMPOSITION OF THE HIGH COURT

(a) STRENGTH OF A HIGH COURT

Article 216- A High Court consists of the Chief Justice and such other Judges as the President
may appoint from time to time.
In this way, the number of Judges in a High Court is flexible and it can be settled by the Central
Executive from time to time keeping in view the amount of work before a High Court.

The question of justiciability of the adequacy of the Judge-strength in a High Court has been
considered by the Supreme Court in Supreme Court Advocates-on-Record Association v. Union
of India The Court has emphasized that it is necessary to make a periodical review of the Judge
strength of every High Court with reference to the felt need for disposal of cases, taking into
account the backlog of cases and the expected future filing. This is essential to ensure speedy
justice. Article 216 casts a duty on the Central Executive to periodically assess the Judge
strength of each High Court. Article 216 is to be interpreted not in isolation, but as a part of the
entire constitutional scheme, conforming to the constitutional purpose and its [Link] Court
has ruled that fixation of Judge strength in a High Court is a justiciable matter.

On the question of fixation of the strength of the Judges of a High Court, the Supreme Court had
observed in Subhesh Sharma v. Union of India "For the availability of an appropriate
atmosphere where a Judge would be free to act according to his conscience it is necessary,
therefore, that he should not be overburdened with pressure of work which he finds it physically
impossible to undertake. This necessarily suggests that the Judge strength should be adequate to
the current requirement and must remain under constant review in order that commensurate
Judge strength may be provided."

(b) APPOINTMENT OF JUDGES

Article 217(1)- The High Court Judges are appointed by the President after consulting the Chief
Justice of India, the Governor of the State concerned and, in case of appointment of a Judge
other than the Chief Justice, the Chief Justice of the High Court to which the appointment is to
be made.

Art. 217(1)says that the President appoints these Judges after consulting the Chief Justice of
India, the State Governor and the Chief Justice of the High Court concerned. The Central
Executive and the State Executive provide the political input in the process of selection of the
Judges.
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Law Commission in its XIV Report, opined that the High Court Judges were not always
appointed on merit because of the influence of the State Executive. Accordingly, the
Commission suggested that the Chief Justice of the High Court should have a bigger role to play
in the matter of appointment of the Judges; that it should be only on his recommendation that a
Judge be appointed, and also that concurrence, and not only consultation, of the Chief Justice of
India be needed for this [Link] Government of India did not accept this recommendation.
On the other hand, it stated that, as a matter of course, the High Court Judges had been appointed
with the concurrence of the Chief Justice of India.

I. S.P. GUPTA V. INDIA

In 1982, the matter regarding appointment of the High Court Judges as well as of the Supreme
Court Judges came before the Supreme Court by way of public interest litigation.
Several writ petitions were filed in the various High Courts under Art. 226 by several lawyers
practising in the various High [Link] these petitions were transferred to the Supreme Court
for disposal. The main question considered by the Court was: of the several functionaries
participating in the process of appointment of a High Court Judge whose opinion amongst the
various participants should have primacy in the process of selection?

The majority was of the opinion that the opinions of the Chief Justice of India and the Chief
Justice of the High Court were merely consultative and that "the power of appointment resides
solely and exclusively in the Central Government" and that the Central Government could
override the opinions given by the constitutional functionaries (viz., the Chief Justice of India
and the Chief Justice of the concerned High Court). This meant that the view of the Chief Justice
of India did not have primacy in the matter of appointment of the High Court Judges; that the
primacy lay with the Central Government which could decide after consulting the various
constitutional functionaries and that the Central Government was not bound to act in accordance
with the opinions of all the constitutional functionaries consulted, even if their opinions be
identical.

The majority in Gupta thus gave a literal meaning to the word ‘consultation’ in Arts. 124(2)and
217(1) in relation to all consultees and final decision in the matter was left in the hands of the
Central Executive. The majority thus took an extremely literal and positivistic view of Art
217(1). In reality, this view made consultation with the Chief Justices inconsequential in the
matter of appointment of High Court Judges.
However, even after Gupta, the Central Government always maintained that it had, as a matter of
policy, not appointed any Judge without the name being cleared by the Chief Justice of India

II. SUBHESH SHARMA V UNION OF INDIA

The majority ruling in Gupta to the effect that in the consultative process leading to the
appointment of a High Court Judge, the view expressed by the Chief Justice of India would have
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as much significance as the opinion of the State Governor, or the Chief Justice of the High Court
concerned, came to be criticised in course of time by a Bench of the Supreme Court in Subhesh
Sharma. The Bench emphasized that an independent, non-political judiciary was crucial to
sustain the democratic political system adopted in India. The Bench now expressed the view that
consistent with the constitutional purpose and process, "it became imperative that the role of the
institution of the Chief Justice of India be recognised as of crucial importance in the matter of
appointments to the Supreme Court and the High Courts of the States".

The Bench in Subhash also criticised the developing practice of a State sending up names for
appointment to the High Court direct to the Central Government instead of sending the same to
the Chief Justice of the High Court concerned. According to the Bench of the Court: "This is a
distortion of the constitutional scheme which is wholly impermissible".The Bench opined that
primacy be given to the views of the Chief Justice of India in the matter of selection of the High
Court Judges. This would improve the quality of selection. In India, judicial review is "a part of
the basic constitutional structure" and "one of the basic features of the essential Indian
Constitutional policy". Therefore, "to contemplate a power for the Executive to appoint a person
despite of his being disapproved or not recommended by the Chief Justice of the State and the
Chief Justice of India would be wholly inappropriate and would constitute an arbitrary exercise
of the power".

III. SUPREME COURT ADVOCATES-ON-RECORD ASSOCIATION V. INDIA

As a consequence of the observations of the Bench in Subhesh, a Bench of 9 Judges was
constituted to reconsider the matter.
In Supreme Court Advocates-on-Record Association v. Union of India,in a majority opinion
delivered by VERMA, J., the Court has sought to interpret the constitutional provisions
concerning the High Courts so as to strengthen the "foundational features and the basic structure
of the Constitution.

The majority now gave up literal interpretation and adopted a wider meaning of the
constitutional provisions concerning the judiciary. The word ‘consultation’ in Art. 217(1) was
given a broad meaning. The majority now insisted that the main concern of the constitution is the
selection of the most suitable person for the superior judiciary. Thus, the majority view
expressed in S.P. Gupta Case
(i) that the last word in appointment of High Court Judges rests with the government; and
(ii) that the Chief Justice of India has no place of primacy in selection of High Court Judges
were now overruled.

Accordingly, the Court has ruled that "in the choice of a candidate suitable for appointment, the
opinion of the Chief Justice of India should have the greatest weight as he is best suited to know
the worth of the appointee; the selection should be made as a result of a participatory
consultative process in which the Executive has the power to act as a mere check on the exercise
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of power by the Chief Justice of India, to achieve the constitutional purpose. Thus, the executive
element in the appointment process is reduced to the minimum and any political influence is
eliminated.

No question of primacy would arise when the decision is reached in this manner, by consensus,
without any difference of opinion". However, if conflicting opinions do emerge at the end of the
process, then the primacy must lie in the final opinion of the Chief Justice of India, "unless for
very good reasons known to the Executive and disclosed to the Chief Justice of India, that
appointment is not considered to be suitable.

The Court has further emphasized that the primacy of the opinion of the Chief Justice of India in
this context means, in effect, "primacy of the opinion of Chief Justice of India formed
collectively, that is to say, after taking into account the views of his senior colleagues who are
required to be consulted by him for the formation of his opinion".41 The Chief Justice of India is
expected "to take into account the views of his colleagues in the Supreme Court who are likely to
be conversant with the affairs of the concerned High Court. The Chief Justice of India may also
ascertain the views of one or more senior Judges of that High Court". The majority of the Judges
has emphasized that this process would achieve the constitutional purpose of selecting the best
available for composition of the Supreme Court and the High Courts which is so essential to
ensure the independence of the judiciary, and, thereby, to preserve democracy.

The law laid down by the Supreme Court in the Supreme Court Advocates-on-Record case has
one great advantage, viz., to minimise political influence in the appointment of High Court
Judges as the Central Government could no longer appoint a Judge bypassing the Chief Justice
of India.

IV. IN RE:PRESIDENTIAL REFERNCE CASE

The ruling of the Supreme Court in the Supreme Court Advocates case regarding appointment of
the High Court Judges has been elaborated and articulated further by another 9 Judge Bench in In
Re : Presidential Reference.

The Court has now clarified that although the opinion of the Chief Justice of India has
"primacy" in the matter of appointment of a High Court Judge, it is not solely the opinion of the
Chief Justice of India alone but it is "reflective of the opinion of the judiciary which means that it
must necessarily have the element of plurality in its formation". Therefore, the Chief Justice of
India should form his opinion in regard to a person to be recommended for appointment as a
High Court Judge in consultation with his two senior-most puisne Judges. They would in making
their decision take into account the opinion of the Chief Justice of the High Court, which "would
be entitled to greatest weight", the views of other High Court judges who may have been
consulted and the views of the Supreme Court Judges "who are conversant with the affairs of the
concerned High Court."
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All these views should be expressed in writing and conveyed to the Government of India along
with the recommendation.

The Court has emphasized that the plurality of Judges in the formation of the opinion of the
Chief Justice of India is an in-built check against the likelihood of arbitrariness or bias. In view
of this safeguard, Judicial review of the appointment of a High Court Judge is available only on
the following grounds:
(i) if, in making the decision as regards the appointment of a High Court Judge, the views of the
Chief Justice and the senior Judges of the High Court concerned, and of the Supreme Court
Judges having knowledge of that High Court, have not been sought or considered by the Chief
Justice of India and his two seniormost colleagues;
(ii) if the appointee lacks eligibility for appointment as a High Court Judge.
But the opinion of the Chief Justice touching the merit of the decision is not justiciable—only
the decision making process is subject to review.

(c) QUALIFICATIONS FOR A HIGH COURT JUDGE

Article 217(2)- A person to be appointed as a High Court Judge should be a citizen of India; he
must have held a judicial office in India, or been an advocate of a High Court, for at least ten
years.

Unlike the Supreme Court, the Constitution makes no provision for appointment of a jurist as a
High Court Judge. Legal History was made in India when in Kumar Padma Prasad v. Union of
India, for the first time, the Supreme Court quashed the appointment of Shri K.N. Srivastava,
Secretary (Law and Justice), Mizoram Government, as a High Court Judge on the ground that he
was not qualified to be appointed as such.

The appointment of Shri Srivastava as a High Court Judge was challenged through a writ petition
moved in the Gauhati High Court by a practising advocate and the High Court granted a stay on
the warrant of appointment. Shri Srivastava then moved the Supreme Court against the High
Court order and moved a transfer petition of the writ petition from the High Court to the
Supreme Court.
Referring to Art. 217(2)(a), the Court pointed out that the question was whether Shri Srivastava
had held a judicial office for 10 years. The term ‘judicial office’ has not been defined in the
Constitution but, according to the Court, holder of ‘judicial office’ under Art. 217(2)(a) means a
person who exercises only judicial functions, determines causes inter partes and renders
decisions in a judicial capacity. He must belong to the judicial service which as a class is free
from executive control and is disciplined to hold the dignity, integrity and independence of
judiciary.

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 In view of the Court, the expression ‘judicial office’ "means an office which is a part of judicial
service as defined under Art 236(b) of the Constitution". The Supreme Court ruled that Shri
Srivastava was not qualified to be appointed as a High Court Judge as he had held no judicial
office in a judicial service. The Court ruled that the office of Legal Remembrancer-cum-
Secretary (Law and Judicial) of the State Government held by him was a nonjudicial office under
the control of the Executive. All the other offices held by him were neither judicial nor part of
any judicial service. He also did not complete a period of ten years as a member of the State
Judicial Service.

(d) THE CHIEF JUSTICE

The administration of the High Court including the power to constitute Benches and the
allocation of cases to puisne judges is with the Chief Justice. The requirement under a statute of
consultation with the Chief Justice before appointment of either a sitting or retired judge as a
member of a Tribunal under that statute, cannot be equated with Art. 217 of the Constitution and
does not require the Chief Justice to consult senior colleagues before making a recommendation.

(e) ACTING CHIEF JUSTICE

Article 223-The President may appoint one of the Judges of the High Court as its act ing Chief
Justice in case the office falls vacant, or the Chief Justice is unable to perform his duties by
reason of absence or otherwise.
The Acting Chief Justice has all the powers of the Chief Justice "without any limitation or rider",
although it is a rule of prudence not to take any major decisions which could await the decision
of the would Chief Justice.

(f) ADDITIONAL JUDGES

Article 224(1)- The President may appoint duly qualified persons as additional Judges of a High
Court, for a period not exceeding two years, when it appears to him that because of temporary
increase in business or arrears of work therein, the number of Judges of that Court should be
increased.

(g) ACTING JUDGE

Article 224(2)- A duly qualified person may also be appointed as an act ing Judge of a High
Court when any of its Judges, other than the Chief Justice, is unable to perform his duties due to
absence or otherwise, or when a permanent Judge of the High Court is appointed as its acting
Chief Justice. An act ing Judge holds office until the permanent Judge resumes his duties.

(h) APPOINTMENT OF RETIRED JUDGES

Article 224A- 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. While
so sitting and act ing, he is entitled to such allowance as the President may by order determine.

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He has all jurisdiction, powers and privileges of a High Court Judge, but is not regarded as a
Judge of the High Court for any other purpose.
He is, thus, a Judge of the High Court for purposes of jurisdiction, powers and privileges but not
for any other purpose. He can, therefore, hear an election petition. Since an ad hoc judge is not
otherwise deemed to be a judge of the High Court, the period of service as an ad-hoc judge
cannot be included for the purposes of determining pensionary benefits.

(i) OATH BY JUDGES

Article 219- Before entering upon his office, a person appointed as a High Court Judge is to
make and subscribe an oath or affirmation in the prescribed form before the Governor of the
State, or his nominee for the purpose.

(j) SALARIES OF JUDGES

Article 221(1)- The salaries payable to a High Court Judge are determined by Parliament by law
and, untill provision is made for the purpose, such salaries as are specified in the Second
Schedule to the Constitution.
Further, Parliament is empowered to determine by law such matters as allowances payable to a
High Court Judge and his rights in respect of leave of absence and pension.
Article 221(2)- Parliament may regulate these matters from time to time but never to the
disadvantage of a Judge after his appointment.
Thus, it has been held that the rights of a Chief Justice of a High Court to receive pension and
other benefits, can not be altered to his disadvantage, after his appointment.

(k) PRACTICE AFTER RETIREMENT

Article 220- A person who has held office as a permanent Judge of a High Court is debarred
from act ing and pleading in any Court or before any authority in India except the Supreme Court
and other High Courts.
The Law Commission adversely commented on the practice of the High Court Judges setting up
practice after their retirement, as it greatly detracted from the dignity of the High Courts and the
administration of Justice generally. The Commission, therefore, suggested that the retirement age
of the High Court Judges be extended from 60 to 65 years and a total ban imposed on a retired
High Court Judge resuming practice in any [Link] Commission’s recommendation was
partially accepted; the age of retirement of a High Court Judge was raised from 60 to 62, but ban
on his practice after retirement was not imposed.

(l) FILLING UP VACANCIES

In Subhesh Sharma v. Union of India, the Supreme Court has taken into consideration a matter
of great public significance, viz., the question of delay in filling up the vacancies in the
sanctioned posts of the Judges in the Supreme Court and the High Courts, and fixing the strength
of the Judges in each High Court.

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The strength of the Judges in the Supreme Court is fixed by law by Parliament. In case of the
High Courts, the power lies in the President to fix the judicial strength for each High Court. It is
common experience, that a number of these posts remain vacant for long. The Supreme Court
has now emphasized that for Rule of Law to prevail, judicial independence is of "prime
necessity". To make available to a Judge a proper atmosphere in which he may be free to act
according to his conscience, it is necessary to ensure that the Judge is not overburdened with
pressure of work. "This necessity suggests that the Judge strength should be adequate to the
current requirement and must remain under constant review in order that commensurate judicial
strength may be [Link] point has been emphasized upon from time to time by various
bodies.
The Supreme Court has pointed out that keeping the load of work in view which comes before
the High Courts, the judicial strength in no High Court is adequate. The Court has, therefore,
suggested to the Government of India, that the matter should be reviewed from time to time and
steps be taken for determining the sanctioned strength in a pragmatic manner on the basis of the
existing need.

Another matter raised by the Court is the delay in filling vacancies of Judges. The Court has
emphasized upon quick action to fill up the posts. The Court has observed in this connection:
"Backlog in the courts, has become a national problem. The adjudicatory process is being
blamed for not equalling itself to the challenge of the times. There is a general complaint that the
judicial system is on the verge of collapse. It is, therefore, the obligation of the constitutional
process to keep the system appropriately manned. We have found no justification for the
sluggish move in such an important matter".

(m) TRANSFER OF JUDGES

The question of transfer of a Judge from one High Court to another has raised controversies from
time to time. During the emergency of 1975, 16 High Court Judges were transferred from one
High Court to another. It was widely believed that the Government did so as a punitive measure
to punish those Judges who had dared to give judgments against it.
Article 222(1) empowers the President to transfer a Judge from one High Court to another after
consulting the Chief Justice of India.
Under Art. 222(2), the transferred Judge is entitled to receive, in addition to his salary, such
compensatory allowance as may be determined by Parliament by law, and until so determined, as
the President may fix by order.
Art. 222(1) stands, neither the consent of the Judge is necessary to his transfer nor is the opinion
of the Chief Justice binding on the Government.

In India v Sankalchand Himatlal Sheth,a Judge of the Gujarat High Court was transferred to
the Andhra Pradesh High Court without his consent. He challenged his transfer through a writ
[Link] regards the interpretation of Art. 222, the Court divided 3:2.
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The minority took the view that to preserve judicial integrity and independence, the word
‘transfer’ in Art. 222 should be interpreted to mean only ‘consensual transfer’, i.e., transfer of
the Judge with his consent and not otherwise because transfer constitutes a stigma on the Judge
and is very inconvenient to him. On the other hand, the majority took a more literal view of Art.
222 and held that Art. 222 does not require consent of a Judge to his transfer from one to another
High Court.
As a safeguard against misuse of power by the Executive, the majority ruled that ‘consultation’
with the Chief Justice as envisaged by Art. 222 has to be ‘full and effective consultation’ and not
a mere formality. The opinion given by the Chief Justice would be entitled to the greatest weight
and any departure from it would have to be justified by the Government on strong and cogent
grounds.
The majority also emphasized that the proposal to transfer a judge/Chief Justice should be
initiated only by the Chief Justice of India and that transfer could be resorted to only as an
exceptional measure and only in public interest. Transfer made thus ought not to be considered
as punitive. Transfer of a Judge from one High Court to another is a non-justiable matter.
Transfer of a Judge ought not to be made as a punishment.
A High Court Judge can be punished only according to Art. 217(1) read with Art. 124(4),67
and not otherwise.

Again, the question of transfer of High Court Judges was raised in S.P. Gupta v. Union of India
. BHAGWATI, J., reiterated the minority view in Sankalchand that a Judge could not be
transferred without his consent. In any case, he said that the transfer of a Judge could be
exercised only in public interest and that transfer of a judge by way of punishment could never
be in public interest. Transfer being a serious matter, the burden of sustaining the validity of the
transfer order must rest on the [Link] the instant case, BHAGWATI, J., ruled that the
transfer of the Chief Justice was bad because:
(1) there was no full and effective consultation between the Central Government and the Chief
Justice of India before the decision was taken to transfer him;
(2) transfer was made by way of punishment and not in public interest.

● The majority view was that the transfer of the Chief Justice was valid. The consent of the
Judge was not necessary for purposes of his transfer. Still the power of transfer vested in
the Central Government was not absolute, but was subject to two conditions:
(i) public interest;
(ii) effective consultation with the Chief Justice of India.
● An order of transfer would become a justiciable issue and be liable to be quashed if—(a)
it was not in public interest, or (b) it was passed without full and effective consultation;
and (c) if the opinion of the Chief Justice was brushed aside or ignored without cogent
reasons.

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 ● It was emphasized by the majority that transfer of a Judge could not be made for the
purpose of punishing him. Therefore, a Judge can never be transferred on the grounds of
misbehaviour or incapacity.

★ On January 28, 1983, the Government of India formally announced its policy of having
the Chief Justices of all the High Courts from outside the concerned State. For this
purpose, the Government intended to use the provisions of Art. 217 or 222 relating to
appointments or transfers. Another idea was to have one-third of the Judges in each High
Court from outside the State.

Before giving his opinion, the Chief Justice of India has to consult the Chief Justice of the High
Court from where the Judge is to be transferred and any Supreme Court Judge whose opinion
may be significant for the purpose, as well as the views of at least one other senior High Court
Chief Justice, or any other person whose views are considered relevant by the Chief Justice of
India.
The question of transfer of a Judge is justiciable but only on a limited basis, i.e., transfer is being
made without the recommendation of the Chief Justice of India and only the transferred judge
has locus standi to question his transfer and no one else.

In Dalpatray Bhandari v. Union of India, the Supreme Court has reiterated the proposition that
a writ petition challenging the transfer of a Judge, filed by a person other than the Judge himself,
was not maintainable. "No one other than the transferred judge himself can question the validity
of a transfer".

In Re Presidential Reference,the Supreme Court has further elucidated its ruling in Supreme
Court Advocates on the transfer of a High Court Judge. The Court has now stated that before
recommending the transfer of a Judge of one High Court to another as a judge, the Chief Justice
of India must consult a plurality of Judges. He must take into account the views of:
(i) the Chief Justice of the High Court from which the Judge is to be transferred;
(ii) any Judge of the Supreme Court whose opinion may have significance in the case;
(iii) the Chief Justice of the High Court to which the transfer is to be effected.
All these views are to be expressed in writing and should be considered by a collegium
consisting of the Chief Justice and the four senior-most puisne Judges of the Supreme Court. The
collegium should consider the response of the Judge to be transferred. These views and those of
the four senior-most judges should be conveyed to the Government of India along with the
proposal for transfer.

The matter of transfer of a High Court Judge was raised again before the Supreme Court in K.
Ashok Reddy v Government of India It was argued that judicial review being a basic feature of
the Constitution, exclusion of judicial review in the matter of transfer could not be regarded as
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good law. There could be arbitrariness in transferring a High Court Judge. The Supreme Court
rejected the contention. The Court observed :
"Every power vested in a public authority is to subserve a public purpose, and must invariably
be exercised to promote public interest. This guideline is inherent in every such provision, and so
also in Art. 222. The provision requiring exercise of this power by the President only after
consultation with the Chief Justice of India, and the absence of the requirement of consultation
with any other functionary, is clearly indicative of the determinative nature, not mere primacy, of
the Chief Justice of India’s opinion in this matter."
The consent of the Judge is not required for his transfer. The Chief Justice of India will
recommend transfer of a Judge only in public interest, for promoting better administration of
justice throughout the country, or at the request of the concerned Judge.

The primacy of the judiciary in the matter of appointments and its determinative nature in
transfers introduces the judicial element in the process, and is in itself a sufficient justification
for the absence of the need for further judicial review of those decisions.

Judicial review is ordinarily needed as a check against possible executive excess or arbitrariness.
Plurality of Judges in the formation of the opinion of the Chief Justice of India is another in built
check against the likelihood of arbitrariness or bias. Further, the guideline of "public interest" is
sufficient guideline for the proper exercise of the power and to ensure exclusion of the possibility
of any arbitrariness in the exercise of power under Art. 222.
Judicial review of transfer of a Judge is not excluded but only limited.

(n)PROPRIETY OF APPOINTING ADDITIONAL JUDGES

It has already been mentioned above that under Art. 224(1), provision has been made for
appointment of additional Judges for a term not exceeding two years at a time.
It has been emphasized that it is the duty of the President to provide for adequate strength of
permanent Judges in each High Court commensurate with the load of work before it. Then, it has
been said that an additional Judge ought not to be appointed when there is a vacancy of a
permanent Judge. It would not be proper to appoint an addition judge while keeping a permanent
post vacant or unfilled. Further, it has been emphasized that the permanent strength of each High
Court should be periodically reviewed. If the increase in work in Court is permanent, then resort
ought to be had to Art. 216 and not to Art. 224. The purpose of additional judges is to meet
temporary increase in work or arrears.

In India, the present position is that nearly one-third of the High Court Judges are additional
Judges, A practice has developed over time that a person is appointed first as an additional judge
and, then, when a permanent vacancy arises, he is promoted to be a permanent Judge. Since an
additional Judge can be appointed for a maximum period of two years, at one time, his tenure
extended from time to time for a period of not more than two years at a time, and so his position
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remains vulnerable until he becomes a permanent [Link] various Judges participating in the
Gupta decision," sought to strengthen the position of the additional Judges to some extent so as
to ensure their independence. The highest point was reached in this connection in the opinion of
Gupta, J., who practically assimilated the position of an addtional judge to that of a permanent
Judge. According to him, the only consideration in extending his tenure is whether the volume of
work pending in the court requires his re-appointment. His tenure must be two years.
An additional Judge like a permanent Judge could be removed by following the procedurs laid
down in Arts 124(4) and (5) read with Art 218. Dropping an additional Judge at the end of his
initial appointment on the ground that there are allegations against him without properly
ascertain ing the truth of the allegations may be expedient but it is destructive of judicial
independence. Also, in the matter of re-appointment of an additional Judge, the opinion of the
Chief Justice of India should have primacy over the opinion of the Chief Justice of the concerned
High Court.

The upshot of the majority decision in the Gupta case was to place a large reservoir of power in
the hands of the Central Executive as regards appointment of High Court Judges. By refusing
primacy of the opinion of the Chief Justice of India, the Central Executive was conceded power
to decide finally as to whom to appoint when there was no unanimity of opinion among the three
constitutional authorities concerned, viz., the State Executive, the Chief Justice of the concerned
High Count and the Chief Justice of India.

(o)TENURE

● A High Count Judge (whether permanent, additional or acting) retires at the age of sixty-
years (Arts. 217(1) and 224(3))
● Any question as to the age of a High Court Judge is to be decided by the President after
con ing the Chief Justice of India, and his decision is final [Art. 217(3)]. Thus, the
jurisdiction to de termine the Judge's age is vested exclusively in the President.
Consultation with the Chief Ju of India is, however, mandatory, but his advice is not
binding on the President.
● No Court can claim jurisdiction to decide the question of age of a High Court Judge. No
question of propriety, correctness or validity of the decision by the President can be
raised before the Court .
● It has been held by the Supreme Court in JP Mitter v Chief Justice of Kolkata High
Court that the President should follow natural justice, and before reaching his decision on
the question, he ought to give to the Judge concerned a reasonable opportunity to give his
version, and produce evidence in support of the age stated by him at the time of his
appointment. "How this should be done, is, of course, for the President to decide, but the
requirement of natural justice that the Judge must have a reasonable opportunity to put

13
 before the President his contention, his version and his evidence, is obviously implicit in
the provision itself .
● After the President had made his decision in the above case, again the concerned Judge
questioned the decision on several grounds. The Supreme Court in its decision ruled
against the Judge, upheld thedecision of the President and laid down several important
propositions as regards Art. 217(3).
● The Supreme Court has emphasized that in deciding the age of the Judge, the President is
to consult only the Chief Justice of India and none else.
● As regards determination of the age of a Supreme Court Judge under Art. 124(2A),
Parliament is to set up an authority for the purpose." No such authority has been set up as
yet. Therefore, for the present, the only method appears to be is to ask for quo warranto
against the Judge concerned from the High Court and, finally, the matter can go on
appeal to the Supreme Court.

(p)RESIGNATION

A High Court Judge may resign from his office by writing to the President. [Proviso (a) to Art.
2171)]. Resignation takes effect from the date on which the Judge of his own volition chooses to
sever his connection with his [Link] is nothing in the Constitution which expressly or
impliedly forbids the withdrawal of a communication by the Judge to resign his office before the
arrival of the date on which it was intended to take effect. A prospective resignation does not,
before the intended future date is reached,become a complete, and operative act of 'resigning his
office' by the Judge within the contemplation of proviso (a) to Art. 217(1).

(q)REMOVAL OF JUDGE

● High Court Judge may be removed from office in the same manner as a Supreme Coun
Judge i.e on the two Houses of Parliament passing a resolution for his removal, by a
special majority, for proved misbehaviour or incapacity.
● Parliament has enacted the Judges (Inquiry) Act, 1968, to regulate the procedure for
investigation and proof of misbehaviour or incapacity of a Supreme Court or a High
Court Judge for presenting an address by Parliament to the President for his removal. A
notice of a motion for present such an address may be given by 100 members of the Lok
Sabha on 50 members of the Rajya Sabha The Speaker or the Chairman may either admit
or refuse to admit the motion. If it is admitted. then the Speaker /Chairman is to constitute
a committee consisting of a Supreme Court Judge, a Chief Justice of a High Court and a
distinguished jurist.
● The report of the Committee is to be laid before the House or Houses concerned. If the
Committee exonerates the Judge of the charges, then no further action is to be taken on
the motion for his removal If the Committee finds the Judge to be guilty of misbehaviour
or suffering from an incapacity. The House can take up consideration of the motion. On
14
 the motion being adopted by both Houses according to the relevant constitutional
provision [Art 124(4) or 218), an address may be presented to the President for removal
of the Judge. Rules under the Act are to be made by a com mittee consisting of 10
members from the Lok Sabha and 5 members from the Rajya Sabha.
● The Court has emphasized that bad conduct or bad behaviour of a Judge, even though not
impeachable, may yet be improper conduct not befitting the standard of a Judge. The bad
conduct of a Judge has a rippling effect on the reputation of the judiciary as a whole.

(r)OFFICER AND EXPENSES

The officers and servants of a High Court are appointed by its Chief Justice, or such other judge
or officer of the Court, as the Chief Justice may direct [Art. 229(1)]. This power of the Chief
Justice is subject to three exceptions:

1. The Governor may by rules require that, in cases mentioned in the rules, no person, not
al- ready attached to the Court, is to be appointed to any office connected therewith
except after consultation with the State Public Service Commission [Proviso to Art
229(1)].
2. Subject to any law of the State Legislature, the conditions of service of officers and
servants of the High Court may be prescribed by rules made by the Chief Justice, or any
other Judge or of ficer of the Court as he may authorize for the purpose (Art. 229(2)).
3. Such of the rules as relate to salaries, allowances, leave or pensions require the approval
of the State Governor (Proviso to Art. 229(2)).
The article assumes that unless the Chief Justice has not only applied his mind or acted on the
basis of the recommendations of a committee constituted for the purpose, but also framed Rules
fixing the scales of pay of its employees, the State Government cannot be asked to fix the pay
scales of the employees of the High Court.

When the State Government refused to recommend Draft Rules forwarded by the Chief Justice
inter alia relating to the pay-scales of the employees of the High Court on the ground of financial
constraints, the Supreme Court directed the Chief Justice in consultation with the Government to
constitute a Special Pay Commission consisting of judges and administrators, to submit a report
to the Supreme Court on the basis of which "the Chief Justice and the Government shall thrash
out the problem and work out an appropriate formula in regards to pay scales to be fixed High
Court employees.
The Supreme Court has emphasized in M. Gurumoorthy v. Accountant General, Assam &
Nagaland, that in the matter of appointment of officers, etc., of the High Court, it is the Chief
Justice or his nominee who is to be the supreme authority, and the State Government cannot
interfere except to the limited extent provided in Art. 229. Thus, the post of the Registrar of the
High Court can be filled only by the Chief Justice and not by the Government.

15
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, are charged upon the
Consolidated Fund of the State, and any fees or other moneys taken by the Court, form part of
that Fund (Art. 229(3)).

Commenting on Art. 229, the Supreme Court has observed: "the objects of this Article was to
secure the independence of the High Court which cannot be regarded as fully secured unless the
authority to appoint supporting staff with complete control over them is vested in the Chief
Justice. There is imperative need for total and absolute administrative independence of the High
Court." But the Supreme Court has emphasized that the Chief Justice of the High Court ought
not to exercise his power under Art. 229 in an arbitrary manner.

7.2 Jurisdiction under Articles 226 and 227

According to Article 215 - A High Court is a Court of record and has all the powers of such a
Court including the powers to punish for its contempt.

As a Court of record, the High Court is entitled to preserve its original record in perpetuity.
Besides, as a Court of record the High Court has twofold powers:

(i) it has power to determine the question about its own jurisdiction; and

(ii) it has inherent power to punish for its contempt.

In Sukhdev v. Teja Singh, the Supreme Court refused to transfer contempt proceedings filed
against the petitioner in the Pepsu High Court to some other High Court. The Constitution vests
in the High Court itself the powers to deal with its contempt and, therefore, transfer of contempt
proceedings from the Pepsu to another High Court would deprive the High Court of the
jurisdiction vested in it by the Constitution.

In R.L Kapur v. State of Tamil Nadu the Supreme Court Has emphasized that as a Court of
record under Art. 215 the High Court possesses inherent power and jurisdiction, not derived from
the Contempt of Courts Act which does not affect that power or confer a new power or
jurisdiction. In view of Art. 215, no law made by a legislature could take away the jurisdiction
conferred on the High Court nor it could confer it afresh by virtue of its own authority.

The Supreme Court has ruled in Mohd. Ikram Hussain v. State of Uttar Pradesh, that the
Constitution preserves the power of a High Court to punish for its contempt and such power is
also inherent in a Court of record. The only curbs on such a power are those imposed by the
Contempt of Courts Act which limits the term for which a person can be imprisoned for 6

16
months' simple imprisonment. In the instant case, it has been ruled that disobedience of an order
of the High Court amounts to contempt of the Court. A direction given by the High Court in a
proceeding for writ of habeas corpus for the production of the body of a person has to be carried
out and if disobeyed the contemner is punishable by attachment and imprisonment.

In State of Bihar v. Subhash Singh, a case of non-compliance of an order of the High Court by
an executive officer. While disposing of a writ petition, the High Court directed the concerned
officer to consider the case of the writ petitioner and dispose it of with a reasoned order within
two months. When this did not happen, the Court imposed the costs on the officer personally for
non-compliance of its order. On appeal to the Supreme Court, the Court refused to interfere as
the delay in complying with the High court order was of 17 months and the concerned officer
had not explained the reasons for the delay When the Court directs an officer to discharge its
duties expeditiously and if it is not done, the official concerned is required to explain to the Court
as to the circumstances in which he could not comply with the direction issued by the Court. If
there was any unavoidable delay, he should have sought further time for compliance. In the
instant case, the concerned official took no such step.

Article 225 of the Constitution of India empowers the High Court to make rules regarding
proceedings and other matters connected to the High Court,

Under Art. 226(1), a High Court is empowered to issue directions, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the
enforcement of a Fundamental Right and for any other purpose. High Courts exercise
discretionary and equitable jurisdiction under Art. [Link] power of the High Court to entertain
a petition under Art. 226 is an original power whereas the power of the Supreme Court while
entertaining an appeal under Art. 136 is an appellate power. The significant point to note is that
under Art. 226, the power of a High Court is not confined only to issue of writs; it is broader than
that for a High Court can also issue any directions to enforce any of the Fundamental Rights or
"for any other purpose".

Power under Article 226 can be exercised by the High Court to reach injustice wherever it is
found.86 But the Court has also set its own limits saying that even a wrong decision is not open
to challenge unless it be mala fide. The doctrine of fairness does not convert the writ courts into
appellate authorities over administrative authorities. Unless the action of the authority is mala
fide, even a wrong decision taken by it is not open to [Link] jurisdiction thus conferred
on a High Court is to protect not only the Fundamental Rights but even any other legal right as is
clear from the words 'any other purpose'

Article 226 provides an important mechanism for judicial review of administrative action in the
country. India is a democratic country governed by Rule of Law. Public authorities exercise
various types of powers--executive, adjudicatory, legislative. It is necessary that public
authorities act according to law and so they are subjected to judicial review. Judicial review of

17
the action of the public authorities, is an essential part of Rule of Law and the courts have been
expressly entrusted with the power of judicial review as sentinel in qui vive. In L. Chandra
Kumar a Seven Judge Bench of the Supreme Court held that the power of judicial review under
Art. 226 of the Constitution was one of the basic features of the Constitution. Hairing held so, the
court at the same time held a litigant cannot straight away invoke the High Court's constitutional
jurisdiction at the first instance but must approach the Administrative Tribunal first. But even
after considering the Seven Judge Bench decision in L. Chandra Kumar a two Judge Bench of
the Supreme Court in relation to dismissal of two lakh employees by State Govt. for going on
strike, held that the High Court was empowered to exercise its extra ordinary jurisdiction under
Art. 226 to meet unprecedented extraordinary situations with no parallel and the availability of
alternative remedy before Administrative Tribunal would not be a bar.

The great advantage of Art. 226 is that its scope cannot be curtailed or whittled down by
legislation. The jurisdiction of the High Court under Art. 226 cannot be taken away by any
legislation. Even when the Legislature declares the action or decision of an authority final, and
ordinary jurisdiction of the courts is barred, a High Court is still entitled to exercise its writ
jurisdiction which remains unaffected by legislation

WRIT JURISDICTION NOT APPELLATE BUT SUPERVISORY IN NATURE

The Supreme Court has emphasized time and again that the power of the High Court under Art.
226 is supervisory in nature and is not akin to appellate power. The main purpose of this power
is to enable the High Court to keep the various authorities within the bounds of their powers, but
not to sit as an appellate body over these authorities.

INTER-RELATIONSHIP OF ARTS. 32 AND 226

Article 226 operates "notwithstanding anything in article 32" [Art. 226(1)]. Thus, Art. 32 and
Art. 226 exist independently of each other. Article 226 is wider in scope than Art. 32. Under Art.
32, the Supreme Court may issue writs for the enforcement of Fundamental Rights only; under
Art. 226, on the other hand, a High Court may enforce not only a Fundamental Right but also
any other legal right. Although under the Constitution, Arts. 32 and 226 exist independently of
each other, the courts have by their process of interpretation introduced the doctrine of res
judicata to discourage multiple and overlapping writ petitions in the High Court and the Supreme
Court to get the same relief in the same factual situation.

ARTS. 226 AND 136 COMPARED

The scope of Art. 136 has already been discussed earlier.54 Art. 226 differs from Art. 136 in
several [Link] under Art. 136, the Supreme Court hears appeals from courts or tribunals,
and not from any administrative body, under Art. 226, a High Court can issue a writ to any
authority, quasi-judicial or administrative or legislative. That way, Art. 226, is broader in scope

18
than Art. 136. But, from another point of view as Art. 136 confers appellate jurisdiction on the
Supreme Court, Art. 226 confers only a writ jurisdiction on a High Court, and the scope allowed
to a Court in its appellate jurisdiction is much wider than what is available to a Court in its writ
[Link] Art. 136, the Supreme Courtcan go into questions of fact as well as of law and
can give any remedy which appears to it to be suitable in the circumstances of the case. A High
Court's powers under Art. 226 are not so broad. The High Court does not act as a Court of appeal
under Art. 226.

Art. 227(1) - every High Court has the power of superintendence over all courts and tribunals
within its territorial jurisdiction.

Art. 227(4) -every High Court has the power of superintendence over all courts and tribunals
within its territorial jurisdiction except those which are constituted by or under a law relating to
the armed forces.

This power of superintendence and control over all Subordinate Courts and tribunals is both of
administrative and judicial nature, and, such power could be exercised suo motu. However the
power of superintendence does not imply that the High Court can influence the subordinate
judiciary to pass any order or judgment in a particular manner. It is settled law that this power of
judicial superintendence must be exercised sparingly and only to keep subordinate courts and
tribunals within the bounds of their authority and not to correct mere errors.

SCOPE OF ARTICLE 227

Where a statutory right to file an appeal has been provided for, it is not open to High Court to
entertain a petition under Article 227 of the Constitution. Even if a remedy by way of an appeal
has not been provided for against the order and judgment of a District Judge, the remedy
available to the aggrieved person is to file a revision before the High Court under Section
115CPC. Where remedy for filing a revision before the High Court under Section 115CPC has
been expressly barred by a State enactment, only in such case a petition under Article 227 of the
Constitution would lie and not under Article 226 of the Constitution. It is also not permissible to
a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the
evidence upon which the inferior Court or tribunal purports to have passed the order or to correct
errors of law in the decision.

The High Court will usually interfere under Art. 227, if a Court or tribunal acts arbitrarily, or
declines to do what is legally incumbent on it to do and thereby refuses to exercise jurisdiction
vested in it by law, or exceeds its jurisdiction. It has been held by the Supreme Court that the
High Court does not exercise its jurisdiction under Art. 227 if an alternative remedy is
available.67 But this is not an inflexible rule and there may be circumstances when, despite the
existence of an alternative remedy, the High Court may deem it fit to intervene under Art.
[Link] a High Court refuses to exercise its power of superintendence, the Supreme Court

19
may itself, on an appeal from the High Court's order, exercise the same powers in a suitable
case.69 The High Court's jurisdiction under Art. 227 cannot be controlled by a statute and it can
be exercised even when a tribunal's decision is declared to be final and conclusive.

INTER-RELATION BETWEEN ARTS. 226 AND 227

Jurisdiction under Art. 226 has to be invoked by an aggrieved party, but supervisory jurisdiction
under Art. 227 can be exercised suo motu as well. Remedies under Articles 226 and 227 are not
available for correcting mere errors of fact or law. They are available only when (i) error is
manifest and apparent on face of record, and (ii) grave injustice or gross failure of justice has
been occasioned thereby. Further, ordinarily neither is available when an alternative efficacious
remedy by way of appeal or revision is available to the person aggrieved but in a given situation.

In MMTC a 3 Judge Bench of the Supreme Court undertook an exhaustive study of the
interrelation between Article 226 and 227 quoting a number of earlier observations of the Court
converging to the view that the distinction between the two jurisdictions stands almost
obliterated in practice and viewed the broad general difference between them as follows:

(a) A writ petition under Art. 226 was an exercise of the High Court's original jurisdiction
whereas that under Art. 227 was of supervisory and in that sense it was akin to appellate,
revisional or 'corrective' jurisdiction.

(b) In the case of a writ of certiorari, the records of the proceedings are certified and then sent up
by the inferior court or tribunal is brought up before the High Court and it may 'simply annul or
quash the proceedings and do no more' whereas in its supervisory jurisdiction the Court can go
further in that after quashing the proceedings it may also 'give such direction as the facts and
circumstances of the case.

In Saurya devi rai v. Ram chandra rai it was held that In appropriate cases High Court may
make an order in supersession or substitution of order of subordinate Court as the Court should
have made in the facts and circumstances of the case; and (iii) Jurisdiction under Art. 226 has to
be invoked by an aggrieved party, but supervisory jurisdiction under Art. 227 can be exercised
suo motu as [Link] power of the High Court under Articles 226 and 227 of the Constitution is
always in addition to the revisional jurisdiction conferred on it. The curtailment of revisional
jurisdiction of the High Court does not take away and could not have taken away the
constitutional jurisdiction of the High Court.

In Baby v. Travancore Devaswom Board, it was held that There are many situations where a
petition can be filed under both the Articles. The Supreme Court has ruled that where the fact
justifies a party filing a petition either under Art. 226 or Art. 227, and a party chooses to file the
petition under both the Articles, in fairness to the petitioner concerned, the Court should treat the

20
petition as having been filed under Art. 226 as this will protect petitioner's right to file an intra-
Court appeal from the single Judge to the Division Bench.

ALTERNATIVE LEGAL REMEDY

A High Court does not ordinarily issue a writ when an alternative efficacious remedy is
available. Under Art. 226, the High Court does not decide disputes for which remedies under the
general law are available. Ordinary remedies are not sought to be replaced by Art. 226. In State
of West Bengal v. North Adjai Coal Co., the Supreme Court has held that normally before a writ
petition under Art. 226is entertained, the High Court would insist that the party aggrieved by the
order of a quasi-judicial tribunal should have recourse to the statutory authorities which have
power to give relief.

In Baby v. Travancore Devaswom Board The Supreme Court has stated recently that once an
election is over the aggrieved candidate ought to pursue his remedy in accordance with the
relevant statutory provisions and the Court will not ordinarily interfere with the elections under
Art. 226. The Court will not ordinarily interfere where there is an appropriate or equally
efficacious remedy available, particularly in relation to election disputes.

In the case of Union of India v. T.R. Verma, the Supreme Court stated: “It is well settled that
when an alternative and equally efficacious remedy is open to a litigant, he should be required to
pursue that remedy and not to invoke the special jurisdiction of the High Court to issue a
prerogative writ.

QUESTIONS OF FACT

In a writ petition, theoretically, the High Court has jurisdiction to determine questions both of
fact and law. But, usually, the Court is reluctant to go into questions of fact which require oral
evidence for their determination. The attitude of the courts is that questions of fact are best
determined in an ordinary civil suit after adducing evidence, and not in a writ petition Ordinarily,
therefore, a writ is not issued to determine questions relating to immovable property. The reason
is that this may involve determination of questions of fact and such questions are best decided in
a civil suit because questions of fact cannot be decided without evidence, both oral or
documentary.

TERRITORIAL JURISDICTION TO ISSUE WRITS

A High Court exercises its writ jurisdiction throughout the territories in relation to which it
exercises its jurisdiction.

The High Court can issue a writ--

21
(1) to a person or authority having its location or residence within the Court's territorial
jurisdiction; or,

(2) if the cause of action either wholly or partly arises within the High Court's territorial
jurisdiction.

The High Court can issue a writ even when the person resides, or the authority is located, outside
its territorial jurisdiction if the cause of action wholly or partially arises within the Court's
territorial jurisdiction. This is a very useful constitutional provision [Art. 226(2)] as a High Court
within whose jurisdiction a cause of action arises is competent to issue writs to the Central
Government located at New Delhi.

It is the duty of the High Court before which the writ petition is filed to ascertain whether any
part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends on
the facts of each case. When an order is challenged, cause of action arises.--

(i) at the place where the order was made, as well as;

(ii) at the place where its consequences fall on the person concerned.

Reference may be made here to ONGC v. Utpal Kumar [Link] petitioner company, having its
registered office in Calcutta, read in a Calcutta newspaper the ONGC advertisement inviting
tenders at Delhi for works to be executed in Gujarat. In response to this advertisement, the
petitioner company sent its tender from Calcutta to the Delhi address. All the bids were analysed
at Delhi and the petitioner company's bid was rejected on the ground that it did not fulfil the
requisite experience criteria stipulated in the [Link] company made representations from
Calcutta against non-consideration of its offer but the same were rejected by ONGC at Delhi.
The company then filed a writ petition against ONGC in the Calcutta High Court which issued
direction to ONGC to consider the petitioner's [Link] appeal by ONGC, the Supreme Court
quashed the High Court order on the ground of lack of jurisdiction in the High Court as no part
of the cause of action arose within the territorial jurisdiction of the Calcutta High Court.

7.3 L. Chandra Kumar v. Union of India

The issues that were dealt with in this case emanated generally from the controversy that was
generated by the constitutional amendments that inserted Articles 323A and 323B. These
provisions essentially did away with the jurisdiction of High Courts in service matters. In various
cases which included Kesavananda Bharati and Sampat Kumar, the Courts tried to put an end to
various questions that arose in this respect. However, these judgements had the exact opposite
effect because instead of answering these questions they gave rise to various other questions and

22
controversies in this regard. The issue was finally laid to rest in the landmark case of L. Chandra
Kumar v. Union of India.

After Articles 323A and 323B of the Constitution came into effect, the Central Administrative
Tribunal was established with five different Benches with effect from November 1, 1985.
However, even before the establishment of these benches, several petitions were filed before the
Supreme Court challenging the constitutional validity of the articles in question. The petitioners
raised various contentions in this regard but the main contention was that the provisions were
unconstitutional because they exclude the jurisdiction of the high courts which went against the
basic structure of the Constitution.

Given below are the main issues before the court in the L Chandra Kumar case.

1. The first issue that was raised in this instant case was whether the exclusion of the
jurisdiction of the High Court through Articles 323-A (2) (d) and 323-B (3) (d) was
against the doctrine of judicial review that was a basic feature of the Constitution. The
Court while delving upon this issue took recourse to various laws like the Administrative
Tribunals Act, along with the Sampat Kumar Judgement and the Constitutional Assembly
debates. The court, after careful consideration of the above-mentioned events, concluded
that judicial review is indeed a basic feature of the Indian Constitution. Also, the court
relied on the opinion of Dr Ambedkar, who was the Chairman of the Drafting Committee
of the Constitution, on Article 25 (present Article 32) where he contended that this
Article is the Indian Constitution’s very soul.
2. The second issue was whether the Tribunals constituted either under Article 323B
or Article 323A of the Indian Constitution, have the competence to test the constitutional
validity of a statutory rule or provision. In this respect, the Court stated that in the face of
an unprecedented rise in the number of litigations, it is important to provide for
alternative forums for judicial review. This meant that the view taken in Sampat Kumar
case was right as it propounded the theory of alternative institutional mechanism to deal
with the massive pile-up of cases in various High Courts. More importantly, while
dealing with such issues the Court held that the decisions of the Tribunals will be subject
to judicial review by the High Courts under article 226.
This served two purposes, first, it retained the High Courts’ power of judicial review and
secondly, the Tribunals will filter out litigation if they were false or frivolous before the
jurisdiction of High Court is invoked.

L Chandra Kumar Case Judgement

The central theme of the entire judgement was that the Tribunals cannot and will not be a
substitute for the power of judicial review that the Constitution bestows upon the High Courts.
The Tribunals will act as supplementary institutions to assist the High Court while they perform

23
their function. Moreover, the Tribunals will remain under the supervision of the High Courts and
can in no way be considered as institutions parallel to the High Courts.

Some of the important outcomes of the judgement were as follows:

 The power of judicial review vested in the Supreme Court and High Courts by Articles
32 and 226 respectively is a part of the basic structure of the Constitution.
 That there is the supervision of the Supreme Court and High Court over these Tribunals
was also part of the basic structure of the Constitution.
 Judicial review of legislative action in exercise of power by subordinate judiciary or
Tribunals created under ordinary legislation cannot be to the exclusion of the High Courts
and the Supreme Court. However, they can perform supplemental – as opposed to
substitution – role in this respect.
 Tribunals constituted under Articles 323A and 323B have the authority to test vires of
subordinate legislation, but they cannot test vires of their parent statutes. All the decisions
of tribunals would be under scrutiny before a Division Bench of their respective High
Courts under Articles 226/227. An appeal cannot lie directly to the SC under Article 136.
This direction would be operative prospectively.
 Appointing administrative members to the Tribunals need not be ceased.
 Until a fully independent agency for the administration of all such Tribunals can be set-
up, it is desirable that all such Tribunals should be, as far as possible, under a single nodal
ministry which will be in a position to oversee the working of these Tribunals. For a
number of reasons that ministry should appropriately be the Ministry of Law.

_____________________________________________________________________

In the case of L. Chandra Kumar v. Union of India a seven judge bench of sc held that the power
of judicial review under article 226 was one of the basic feature of contitution

It was held that-

1. The fundamental element of the judgement was that the High Courts' right to judicial
reviens cannot & will not be replaced by the Tribunals
2. The Tribunale will continue to oversee the HC in its responsibilities.
3. The [Link] will continue to oversee the Toubunals, which cannot be considered separate
from the [Link].

OUTCOMES OF THE CASE

24
 1. THE TRIBUNALS ESTABLISHED by Ar 324A&B may examin the validity of
subsidiary legislation but they are not permitted to examin the validity of their parent
statute.
2. The SC and HC cannot be excluded from judicial review of legislative action taken in
exercise of power by inferior judges formed under regular legislation
3. Acc. To article 136 an appeal cannot be made directly to the SC
4. ACC to article 226 and 227 a division bench of each HC would review each tribunals
rulling

CONCLUSION

Since High Tribunals are constitutional courts, eliminating their authority & judicial review
authority would go against the Constitution. Also, their decisions should be susceptible to
judicial review to lessen the workload on HC & SC

7.4 Contempt of Court

A high court is a court of record and has all the powers of such a court including the power to
punish for its contempt under article 215. This power is similar with supreme court power. As a
court of record the high court is entitled to preserve its original record .besides the court of
record the high court has two fold power ~

1. It has power to determine the question about its own jurisdiction

2. It has inherited power to punish for its contempt

High court lacks power under Ar 215 to initiate proceedings for contempt of SC. If the Supreme
Court does not exercise power to punish for contempt of itself under article 129,then subordinate
court cant exercise such power .

In the case of sukhdev vs teja singh In the supreme court refused to transfer Contempt
proceedings filed against the petitioner in Punjab HC to Some other HC. The Constitution vests
in the HC itself the power to deal with its contempt and therefore, transfer of contempt
proceeding from the Punjab high court to another HC would deprive the HC of the jurisdiction
vested in it by the Constitution.

In the Case of Md. Ikram ve, State of UP . It was held that the Constitution preserve the power
of a HC to punish for its contempt and such power is also inherent in the court of record. The
only curbs on such a power are the only those imposed by the contempt of court act which limits
the term for which a person can be imprisoned for 6 month simple imprisonment.

25
The supreme court can take cognizance of suo moto of the contempt of high court under article
129. The SC is the higest court of record . It is charged with the duties and responsibilities of
correcting the lower courts and tribunals and of protecting them from those whose misconduct
tends to prevent the due performance of their dutie. Ars. 129 vests powers in the supreme courts
to punish for contempt of itself in its Capacity as the highest Court of record and also as a Court
charged with the appellatte and superintending Powers over the lower courts and tribunals as
detailed in the [Link] HC ought not to pass an order holding a person guilty of its
contempt and imposing on him punishment thereton without issuing him a showCause notice, on
giving him an Opportunity to explain the alleged Contemptuous conduct.

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