Judges of High Court

High Court in States

• High Court is the highest judicial court in a state in single integrated judicial system of India.
• It is termed as the second-highest in the country after Supreme Court of India.
• The judiciary in a state consists of a high court and a hierarchy of subordinate courts.
• The High Court occupies the top position in the judicial administration of a state.

Organisation of High Court 

• Described by Article 216 of Indian Constitution.
• Every High Court (whether exclusive or common) consist of Chief Justice and such other judges as President may from time to time deem necessary to appoint.
• Constitution does not specify strength of High Court and leaves it to the discretion of the President.

Constitutional Provisions

 

 

Appointment of Judge

• The judges of a high court are appointed by the President.
• Chief Justice of High Court is appointed by the President after consultation with the Chief Justice of India and the Governor of the state concerned.
• For other judges of High Court, Chief Justice of the concerned High Court is also consulted. In case of a common high court for two or more states, the governors of all the states concerned are consulted by the president.

Judges Cases

• First Judges case (1982) – Supreme Court opined that “consultation” does not mean “concurrence” and it only implies exchange of views.
• Second Judges case (1993) – the Supreme Court ruled that no appointment of a judge of the high court can be made, unless it is in conformity with the opinion of the chief justice of India.
• Third Judges case (1998) – Supreme Court opined that in case of the appointment of HC judges, the CJI should consult a collegium of two senior-most judges of the Supreme Court. The sole opinion of the CJI alone does not constitute the ‘consultation’ process.
• Fourth Judges case (2015) – The Court opined that the new system National Judicial Appointments Commission (NJAC) would affect the independence of the judiciary and declared both the 99th Constitutional Amendment 2014 as well as the NJAC Act as unconstitutional and void. The involvement of political executive in appointment procedure was against the “Principles of Basic Structure” i.e. “Independence of Judiciary”.

Procedure to Appointment of Judges

• Third Judges case (1998) – SC opined that in case of the appointment of High Court judges, the chief justice of India should consult a collegium of two senior-most judges of the SC. (Sole opinion of the CJI alone does not constitute the “consultation” process.
• CJI then needs to submit this recommendation to the Central government as part of the record.
• After receipt of the final recommendation of the CJI, the Minister of Law and Justice will put up the recommendation to the PM who will advise the President in the matter of appointment.

Qualification of Judge High Court

• To be appointed as a judge of high court, one should have following qualifications –
  1. He should be a citizen of India.
  2. He should have held a judicial office in the territory of India for ten years or He should have been an advocate of a high court for ten years.
  3. Constitution has not prescribed a minimum age for appointment as a judge of a High Court.
• Unlike in the case of the Supreme Court, Constitution makes no provision for appointment of a “distinguished jurist” as a judge of a HC in the opinion of president.

Oaths and Affirmations

• A person appointed as a judge of a high court, before entering upon his office, has to make and subscribe an oath before the governor of the state or some person appointed by him for this purpose.
• In his oath, a judge of a high court swears –
  1. to bear true faith and allegiance to the Constitution of India;
  2. to uphold the sovereignty and integrity of India;
  3. to duly and faithfully and to the best of his ability, knowledge and judgement perform the duties of the office without fear or favour, affection or ill-will; and
  4. to uphold the Constitution and the laws.

Salaries and Allowances

• The salaries, allowances, privileges, leave and pension of the judges of a high court are determined from time to time by the Parliament.
• They cannot be varied to their disadvantage after their appointment except during a financial emergency (Article 360).
• The retired chief justice and judges are entitled to 50% of their last drawn salary as monthly pension.
• Salaries of judges of High Court are charged upon “consolidated fund of state”. However, pensions of judges of High Court are charged upon “consolidated fund of India”.

Tenure of Judges of High Court

• The Constitution has not fixed the tenure of a judge of a high court.
• However, it makes the following four provisions in this regard –
  • He holds office until he attains the age of 62 years (65 years in case of SC). Any questions regarding his age is to be decided by the president after consultation with the CJI of SC and the decision of the president is final.
  • Resignation by writing to the president.
  • He can be removed from his office by the President on the recommendation of the Parliament.
  • He vacates his office when he is appointed as a judge of the Supreme Court or when he is transferred to another high court.

Removal of Judges

• Judge of a high court can be removed in the same manner and on the same grounds as a judge of the Supreme Court.
• A judge of a HC can be removed from his office by an order of the President on recommendations of parliament.
• The address must be supported by a special majority of each House of Parliament.
• Grounds of removal are – Proved misbehaviour or incapacity.
• Procedure relating to the removal of a judge of a high court is govern by The Judges Enquiry Act (1968) by the process of impeachment –
  • A removal motion signed by 100 members (Lok Sabha) or 50 members (Rajya Sabha) is to be given to the Speaker/Chairman.
  • The Speaker/Chairman may admit or refuse to admit motion.
  • If it is admitted, then the Speaker/ Chairman is to constitute a three-member committee to investigate into the charges.
  • The committee should consist of following members-
    • The chief justice or a judge of the Supreme Court,
    • The Chief justice of a high court, and
    • a distinguished jurist.
  • If the committee finds the judge to be guilty of misbehaviour or suffering from an incapacity, the House can take up the consideration of the motion.
  • After the motion is passed by each House of Parliament by special majority, an address is presented to the president for removal of the judge.
  • Finally, the president passes an order removing the judge.
• It is interesting to know that no judge of a high court has been impeached so far.

Transfer of Judge

• A High Court judge is also liable to get transferred to other High Courts.
• The President can transfer a judge from one high court to another after consulting the Chief Justice of India.
• Transfer of judges is done with an aim to ensure proper and just trial for every case fought in the court of law.

Procedure for Transfer of Judges

• • Constitutional provisions – Transfer of Judges from one High Court to another High Court is made by the President after consultations with the CJI under Article 222 (1) of the Constitution.
  • The SC derives its power to select, appoint and transfer judges from its verdicts in Third Judges Cases, (1998).
  • From the SC decisions on the subject of judges’ transfer, following are important –
    1. Transfer of a judge cannot be a punitive measure.
    2. Transfer can be ordered only on ‘public interest’ for the ‘better administration of justice’.
    3. Transfer can be ordered by President only on the basis of consensus of the CJI after effective consultation.

Acting Chief Justice of High Court

• President can appoint a judge of a high court as an acting chief justice of High Court –
  1. Office of chief justice of High Court is vacant; or
  2. Chief justice of High Court is temporarily absent; or
  3. Chief justice of High Court is unable to perform the duties of his office.

Additional and Acting Judges

• President can appoint duly qualified persons as additional judges of a High Court for a temporary period not exceeding two years when –
  1. Temporary increase in the business of the High Court; or
  2. Arrears of work in the High Court.
• President can also appoint a duly qualified person as an acting judge of a High Court when a judge of that high court (other than the chief justice) is –
  1. Unable to perform the duties of his office due to absence or any other reason; or
  2. Appointed to act temporarily as chief justice of that high court.
• An acting judge holds office until the permanent judge resumes his office.
• However, both the additional or acting judge cannot hold office after attaining the age of 62 years.

Retired Judges

• The chief justice of a High Court of a state can request a retired judge of that High Court or any other HC to act as a judge of the High Court of that state for a temporary period.
• He can do so only with the previous consent of the President and also of the person to be so appointed.
• Such a judge is entitled to such allowances as the President may determine.

 

 

So, this is all about the introductory post on the Judges of High Court – Appointment, Tenure, Oath, Salaries, Removal, Transfer etc. If you want to read more notes on Indian Polity – Click Here.

In the Next Post (Click Here), we will learn about the Jurisdiction and Powers of High Court.

 

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