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except the Supreme Court and the other high courts. This ensures
that they do not favour any one in the hope of future favour.
7. Power to Punish for its Contempt
A high court can punish any person for its contempt. Thus, its
actions and decisions cannot be criticised and opposed by
anybody. This power is vested in a high court to maintain its
authority, dignity and honour.
8. Freedom to Appoint its Staff
The chief justice of a high court can appoint officers and servants
of the high court without any interference from the executive. He
can also prescribe their conditions of service.
9. Its Jurisdiction cannot be Curtailed
The jurisdiction and powers of a high court in so far as they are
specified in the Constitution cannot be curtailed both by the
Parliament and the state legislature. But, in other respects, the
jurisdiction and powers of a high court can be changed both by
the parliament and the state legislature.
10. Separation from Executive
The Constitution directs the state to take steps to separate the
judiciary from the executive in public services. This means that the
executive authorities should not possess the judicial powers.
JURISDICTION AND POWERS OF HIGH COURT
Like the Supreme Court, the high court has been vested with quite
extensive and effective powers. It is the highest court of appeal in
the state. It is the protector of the Fundamental Rights of the
citizens. It is vested with the power to interpret the Constitution.
Besides, it has supervisory and consultative roles.
However, the Constitution does not contain detailed provisions
with regard to the jurisdiction and powers of a high court. It only
lays down that the jurisdiction and powers of a high court are to be
the same as immediately before the commencement of the
Constitution. But, there is one addition, that is, the Constitution
gives a high court jurisdiction over revenue matters (which it did
not enjoy in the pre-con-stitution era). The Constitution also
confers (by other provisions) some more additional powers on a
high court like writ jurisdiction, power of superintendence,
consultative power, etc. Moreover, it empowers the Parliament
and the state legislature to change the jurisdiction and powers of a
high court.
At present, a high court enjoys the following jurisdiction and
powers:
1. Original jurisdiction.
2. Writ jurisdiction.
3. Appellate jurisdiction.
4. Supervisory jurisdiction.
5. Control over subordinate courts.
6. A court of record.
7. Power of judicial review.
The present jurisdiction and powers of a high court are
governed by (a) the constitutional provisions, (b) the Letters
Patent, (c) the Acts of Parliament, (d) the Acts of State
Legislature, (e) Indian Penal Code, 1860, (f) Cirminal Procedure
Code, 1973, and (g) Civil Procedure Code, 1908.
1. Original Jurisdiction
(a) Matters of admirality and contempt of court.
(b) Disputes relating to the election of members of Parliament
and state legislatures.
(c) Regarding revenue matter or an act ordered or done in
revenue collection.
(d) Enforcement of fundamental rights of citizens.
(e) Cases ordered to be transferred from a subordinate court
involving the interpretation of the Constitution to its own file.
(f) The four high courts (i.e., Calcutta, Bombay, Madras and
Delhi High Courts) have original civil jurisdiction in cases of
higher value.
Before 1973, the Calcutta, Bombay and Madras High Courts
also had original criminal jurisdiction. This was fully abolished by
the Criminal Procedure Code, 1973.
2. Writ Jurisdiction
Article 226 of the Constitution empowers a high court to issue
writs including habeas corpus, mandamus, certiorari, prohibition
and quo warranto for the enforcement of the fundamental rights of
the citizens and for any other purpose. The phrase ‘for any other
purpose’ refers to the enforcement of an ordinary legal right. The
high court can issue writs to any person, authority and
government not only within its territorial jurisdiction but also
outside its territorial jurisdiction if the cause of action arises within
its territorial jurisdiction8 .
The writ jurisdiction of the high court (under Article 226) is not
exclusive but concurrent with the writ jurisdiction of the Supreme
Court (under Article 32). It means, when the fundamental rights of
a citizen are violated, the aggrieved party has the option of
moving either the high court or the Supreme Court directly.
However, the writ jurisdiction of the high court is wider than that of
the Supreme Court. This is because, the Supreme Court can
issue writs only for the enforcement of fundamental rights and not
for any other purpose, that is, it does not extend to a case where
the breach of an ordinary legal right is alleged.
In the Chandra Kumar case9 (1997), the Supreme Court ruled
that the writ jurisdiction of both the high court and the Supreme
Court constitute a part of the basic structure of the Constitution.
Hence, it cannot be ousted or excluded even by way of an
amendment to the Constitution.
3. Appellate Jurisdiction
A high court is primarily a court of appeal. It hears appeals against
the judgements of subordinate courts functioning in its territorial
jurisdiction. It has appellate jurisdiction in both civil and criminal
matters. Hence, the appellate jurisdiction of a high court is wider
than its original jurisdiction.
(a) Civil Matters
The civil appellate jurisdiction of a high court is as follows:
(i) First appeals from the orders and judgements of the district
courts, additional district courts and other subordinate courts
lie directly to the high court, on both questions of law and fact,
if the amount exceeds the stipulated limit.
(ii) Second appeals from the orders and judgements of the
district court or other subordinate courts lie to the high court in
the cases involving questions of law only (and not questions
of fact).
(iii) The Calcutta, Bombay and Madras High Courts have
provision for intra-court appeals. When a single judge of the
high court has decided a case (either under the original or
appellate jurisdiction of the high court), an appeal from such a
decision lies to the division bench of the same high court.
(iv) Appeals from the decisions of the administrative and other
tribunals lie to the division bench of the state high court. In
1997, the Supreme Court ruled that the tribunals are subject
to the writ jurisdiction of the high courts. Consequently, it is
not possible for an aggrieved person to approach the
Supreme Court directly against the decisions of the tribunals,
without first going to the high courts.
(b) Criminal Matters
The criminal appellate jurisdiction of a high court is as follows:
imprisonment for more than seven years. It should also be
noted here that a death sentence (popularly known as capital
punishment) awarded by a sessions court or an additional
sessions court should be confirmed by the high court before it
can be executed, whether there is an appeal by the convicted
person or not.
(ii) In some cases specified in various provisions of the Criminal
Procedure Code (1973), the appeals from the judgements of
the assistant sessions judge, metropolitan magistrate or other
magistrates (judicial) lie to the high court.
4. Supervisory Jurisdiction
A high court has the power of superintendence over all courts and
tribunals functioning in its territorial jurisdiction (except military
courts or tribunals). Thus, it may–
(a) call for returns from them;
(b) make and issue, general rules and prescribe forms for
regulating the practice and proceedings of them;
(c) prescribe forms in which books, entries and accounts are to
be kept by them; and
(d) settle the fees payable to the sheriff, clerks, officers and legal
practitioners of them.
This power of superintendence of a high court is very broad
because, (i) it extends to all courts and tribunals whether they are
subject to the appellate jurisdiction of the high court or not; (ii) it
covers not only administrative superintendence but also judicial
superintendence; (iii) it is a revisional jurisdiction; and (iv) it can be
suo-motu (on its own) and not necessarily on the application of a
party.
However, this power does not vest the high court with any
unlimited authority over the subordinate courts and tribunals. It is
an extraordinary power and hence has to be used most sparingly
and only in appropriate cases. Usually, it is limited to, (i) excess of
jurisdiction, (ii) gross violation of natural justice, (iii) error of law,
5. Control over Subordinate Courts
In addition to its appellate jurisdiction and supervisory jurisdiction
over the subordinate courts as mentioned above, a high court has
an administrative control and other powers over them. These
include the following:
(a) It is consulted by the governor in the matters of appointment,
posting and promotion of district judges and in the
appointments of persons to the judicial service of the state
(other than district judges).
(b) It deals with the matters of posting, promotion, grant of leave,
transfers and discipline of the members of the judicial service
of the state (other than district judges).
(c) It can withdraw a case pending in a subordinate court if it
involves a substantial question of law that require the
interpretation of the Constitution. It can then either dispose of
the case itself or determine the question of law and return the
case to the subordinate court with its judgement.
(d) Its law is binding on all subordinate courts functioning within
its territorial jurisdiction in the same sense as the law
declared by the Supreme Court is binding on all courts in
India.
6. A Court of Record
As a court of record, a high court has two powers:
(a) The judgements, proceedings and acts of the high courts are
recorded for perpetual memory and testimony. These records
are admitted to be of evidentiary value and cannot be
questioned when produced before any subordinate court.
They are recognised as legal precedents and legal
references.
(b) It has power to punish for contempt of court, either with
simple imprisonment or with fine or with both.
The expression ‘contempt of court’ has not been defined by the
Constitution. However, the expression has been defined by the
Contempt of Court Act of 1971. Under this, contempt of court may
be civil or criminal. Civil contempt means wilful disobedience to
any judgement, order, writ or other process of a court or wilful
breach of an undertaking given to a court. Criminal contempt
means the publication of any matter or doing an act which–(i)
scandalises or lowers the authority of a court; or (ii) prejudices or
interferes with the due course of a judicial proceeding; or (iii)
interferes or obstructs the administration of justice in any other
manner.
However, innocent publication and distribution of some matter,
fair and accurate report of judicial proceedings, fair and
reasonable criticism of judicial acts and comment on the
administrative side of the judiciary do not amount to contempt of
court.
As a court of record, a high court also has the power to review
and correct its own judgement or order or decision, even though
no specific power of review is conferred on it by the Constitution.
The Supreme Court, on the other hand, has been specifically
conferred with the power of review by the constitution.
7. Power of Judicial Review
Judicial review is the power of a high court to examine the
constitutionality of legislative enactments and executive orders of
both the Central and state governments. On examination, if they
are found to be violative of the Constitution (ultra-vires), they can
be declared as illegal, unconstitutional and invalid (null and void)
by the high court. Consequently, they cannot be enforced by the
government.
Though the phrase ‘judicial review’ has no where been used in
the Constitution, the provisions of Articles 13 and 226 explicitly
confer the power of judicial review on a high court. The
constitutional validity of a legislative enactment or an executive
order can be challenged in a high court on the following three
grounds:
(a) it infringes the fundamental rights (Part III),
(b) it is outside the competence of the authority which has
framed it, and
(c) it is repugnant to the constitutional provisions.
The 42nd Amendment Act of 1976 curtailed the judicial review
power of high court. It debarred the high courts from considering
the constitutional validity of any central law. However, the 43rd
Amendment Act of 1977 restored the original position.
Table 34.1 Name and Jurisdiction of High Courts
Name Year of Territorial Seat
establishment Jurisdiction
1. Allahabad 1866 Uttar Pradesh Allahabad
(Bench at
Lucknow)
2. Andhra 2019 Andhra Pradesh Amaravati
Pradesh
3. Bombay13 1862 Maharashta, Mumbai
Goa, Dadra and (Benches at
Nagar Haveli Nagpur,
and Daman and Panaji and
Diu Aurangabad)
4. Calcutta13 1862 West Bengal Kolkata
and Andaman (Circuit
and Nicobar Bench at
Islands Port Blair)
5. Chhattisgarh 2000 Chhattisgarh Bilaspur
6. Delhi 1966 Delhi Delhi
7. Guwahati 194810 Assam, Guwahati
Nagaland, (Benches at
Mizoram and Kohima,
Arunachal Aizawl and
Pradesh14 Itanagar)
8. Gujarat 1960 Gujarat Ahmedabad
9. Himachal 1971 Himachal Simla
Pradesh Pradesh
10. Jammu and 1928 Jammu and Srinagar and
Kashmir Kashmir and Jammu
Ladakh
11. Jharkhand 2000 Jharkhand Ranchi
12. Karnataka 188411 Karnataka Bengaluru
13. Kerala 1956 Kerala and Ernakulam
Lakshadweep
14. Madhya 1956 Madhya Jabalpur
Pradesh Pradesh (Benches at
Gwalior and
Indore)
15. Madras13 1862 Tamil Nadu and Chennai
Puducherry
16. Manipur15 2013 Manipur Imphal
17. Meghalaya15 2013 Meghalaya Shillong
18. Orissa16 1948 Odisha Cuttack
19. Patna 1916 Bihar Patna
20. Punjab and 187512 Punjab, Chandigarh
Haryana Haryana and
Chandigarh
21. Rajasthan 1949 Rajasthan Jodhpur
(Bench at
Jaipur)
22. Sikkim 1975 Sikkim Gangtok
23. Telangana17 1954 Telangana Hyderabad
24. Tripura15 2013 Tripura Agartala
25. Uttarakhand 2000 Uttarakhand Nainital
Table 34.2 Articles Related to High Courts at a Glance
Article No. Subject Matter
214. High Courts for states
215. High Courts to be courts of record
216. Constitution of High Courts
217. Appointment and conditions of the office of a
Judge of a High Court
218. Application of certain provisions relating to
Supreme Court to High Courts
219. Oath or affirmation by judges of High Courts
220. Restriction on practice after being a permanent
judge
221. Salaries etc., of judges
222. Transfer of a judge from one High Court to
another
223. Appointment of acting Chief Justice