The High Courts under the Constitution

Those three consultees are the same three whose relative weight S. P. Gupta and the Second Judges Case argued about, and the next chapter but four is where that argument is set out.

The provisos to 217(1): a Judge may resign by writing addressed to the President; may be removed by the President in the manner provided in article 124(4) for a Judge of the Supreme Court, which is the address of both Houses on proved misbehaviour or incapacity; and the office is vacated on appointment to the Supreme Court or on transfer to another High Court.

217(2): a person is qualified only if he is a citizen of India and has for at least ten years held a judicial office in the territory of India, or has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.

217(3): if a question arises as to the age of a Judge, it shall be decided by the President after consultation with the Chief Justice of India, and the President's decision is final.

Article 218 is the article that makes the removal procedure work for High Court Judges, and it does it in one sentence: the provisions of clauses (4) and (5) of article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court, with the substitution of references to the High Court for references to the Supreme Court. So the address of both Houses, the two special majorities, the same session and the ground of proved misbehaviour or incapacity all apply to a High Court Judge, and Parliament's power under article 124(5) to regulate the procedure for investigation and proof applies as well. A student who cites only article 217 for the removal of a High Court Judge has left out the article that supplies the machinery.

Set article 217 against the earlier statutes and the change is easy to state: the Act of 1861 gave tenure during Her Majesty's pleasure, the Act of 1935 gave a retiring age of sixty and no removal procedure, and article 217 gives a retiring age of sixty-two and a removal procedure as difficult as the Supreme Court's.

Articles 219 to 221: oath, practice and salary

219: every person appointed a Judge shall, before entering on his office, make and subscribe an oath or affirmation before the Governor of the State, in the form in the Third Schedule.

220: no person who has held office as a permanent Judge of a High Court after the commencement of the Constitution shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts.

Read article 220 beside article 124(7). A retired Supreme Court Judge may not plead or act anywhere; a retired High Court Judge may not plead or act except in the Supreme Court and in other High Courts, that is, not in his own. The reason for the difference is obvious once stated: a High Court Judge who could return to practise before his former colleagues would be in an impossible position, and one who practises elsewhere is not.

221: the Judges' salaries are as specified in the Second Schedule, and their allowances, leave and pension are as Parliament may determine, provided that neither shall be varied to his disadvantage after appointment. This is article 125 for High Courts, and it descends through section 221 of the Act of 1935 and section 104 of the Act of 1915.

Articles 222 to 224A: transfer, acting and additional judges

222(1): the President may transfer a Judge from one High Court to any other High Court. Here too the printed text carries the struck-down NJAC words; the law is transfer after consultation with the Chief Justice of India. Clause (2) provides a compensatory allowance for a transferred Judge.

Article 222 is the article the First and Second Judges Cases were partly about. S. P. Gupta held that a transfer could be made without the Judge's consent; the Second Judges Case held that a transfer must be initiated by the Chief Justice of India and that his recommendation binds the executive, and that a transfer is not justiciable except on the ground that it was made without his recommendation.

223: when the office of Chief Justice of a High Court is vacant or he is unable to act, the duties are performed by such one of the other Judges as the President may appoint.

224: additional Judges may be appointed for a period not exceeding two years if there is a temporary increase in business or arrears; and an acting Judge may be appointed when a Judge other than the Chief Justice is temporarily absent or is acting as Chief Justice. No additional or acting Judge shall hold office beyond the age of sixty-two.

224A: the Chief Justice of a High Court may, with the previous consent of the President, request a retired Judge of that or any other High Court to sit and act as a Judge of that High Court; while so sitting he has all the jurisdiction, powers and privileges of a Judge but is not otherwise deemed to be one. (The printed text again carries NJAC words that are not law.)

Article 225: the continuity article

This is the article that connects Module III to Modules I and II, and it deserves to be quoted almost in full.

Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution.

Every phrase of that is section 223 of the Government of India Act 1935, which itself preserved what the Letters Patent of 1865 had given, which in turn was what the Indian High Courts Act 1861 had merged out of the Supreme Courts and the Sadar Adalats.

So when a student asks why the Bombay High Court has an original side and the High Court of a State created in 1960 does not, the answer runs backwards through article 225, section 223, the Letters Patent, the Act of 1861 and the Supreme Court's charter of 1823. That is the single most useful thing in this chapter.

Article 225 also removed one thing: the proviso to the article, as originally enacted, dealt with the restriction on the exercise of original jurisdiction in revenue matters, which section 226 of the Act of 1935 had continued from the Settlement Act of 1781. That restriction is gone. The rule that ran from 1781 to 1950 ended with the Constitution, and a student who can say that has traced a rule from Kamaluddin's habeas corpus to its repeal.

Article 231: one High Court for two or more States

Parliament may by law establish a common High Court for two or more States, or for two or more States and a Union territory, and the article makes consequential provision about the Governor's functions and the appointment of officers. That is how, for example, one High Court serves more than one State today, and it descends from section 229 of the Act of 1935, which allowed His Majesty to constitute, reconstitute or amalgamate High Courts by letters patent on an address from a Provincial Legislature.

A worked example

Compare a Bombay High Court judge in 1930 with one in 1960.

What beginners get wrong

"Article 217 fixes the retiring age at sixty-five." Sixty-five is the Supreme Court, article 124(2). A High Court Judge retires at sixty-two, article 217(1), raised from sixty by the Fifteenth Amendment.

"A retired High Court Judge cannot practise anywhere." He may not plead or act in any court or before any authority except the Supreme Court and the other High Courts. The Supreme Court's rule, article 124(7), is absolute.

"The Constitution fixed the number of High Court judges." Article 216 fixes no number. The maxima in the Acts of 1861, 1915 and 1935 are gone.

"Article 225 gives the High Courts their jurisdiction." It preserves the jurisdiction they already had. Where that jurisdiction came from is the subject of Module II.

Limits and criticism

The High Courts under the Constitution are stronger than they have ever been, and two weaknesses are worth naming.

The strength of a court is settled by the executive. Article 216 leaves the number of Judges to the President, that is, to the Government on the recommendation of the collegium, and vacancies in the High Courts are a standing and public problem. Compare the certainty of a statutory maximum, which at least made the establishment visible.

And the additional Judge is a real vulnerability. Article 224 allows appointment for up to two years, and the question of what happens when an additional Judge's term expires was the very question S. P. Gupta was brought to decide. A judge whose continuance depends on a fresh decision is not in the same position as one appointed until sixty-two, and no amount of drafting elsewhere in Chapter V removes that.

Quick revision

• 214: a High Court for each State. 215: court of record, contempt of itself. 216: Chief Justice and such Judges as the President appoints, no maximum.
• 217: appointment by the President by warrant; tenure to sixty-two; qualification ten years' judicial office or ten years an advocate; removal as under article 124(4); age questions decided by the President after consulting the Chief Justice of India. The NJAC words are printed but struck down.
• 219 oath before the Governor; 220 no practice afterwards except in the Supreme Court and other High Courts; 221 salary not variable to his disadvantage.
• 222 transfer by the President; the Second Judges Case requires the Chief Justice of India to initiate it and binds the executive to his recommendation. 223 acting Chief Justice. 224 additional Judges for up to two years, and acting Judges. 224A retired Judges.
• 225: jurisdiction and law preserved as immediately before the Constitution. Through s.223 of the Act of 1935 to the Letters Patent of 1865 and the Act of 1861. The revenue restriction of 1781 is gone.
• 231: a common High Court for two or more States.

Test yourself

1. At what age does a High Court Judge retire, and how does that compare with 1861 and 1935? Sixty-two, under article 217(1) as amended by the Fifteenth Amendment. Under the Indian High Courts Act 1861 a Judge held office during Her Majesty's pleasure with no retiring age; under section 220(2) of the Government of India Act 1935 he held office until sixty.

2. Explain the difference between article 124(7) and article 220. A retired Judge of the Supreme Court may not plead or act in any court or before any authority in India at all. A retired permanent Judge of a High Court may not do so except in the Supreme Court and in the other High Courts, so he may not practise in his own former court.

3. What does article 225 preserve, and what chain does that preservation run back through? The jurisdiction of, and the law administered in, every existing High Court, and its Judges' powers including the power to make rules and regulate sittings, as they were immediately before the Constitution. It preserves what section 223 of the Act of 1935 preserved, which was what the Letters Patent of 1865 gave, which was what the Indian High Courts Act 1861 merged out of the Supreme Courts and the Sadar Adalats.

4. What rule that had run since 1781 ended with the Constitution? The exclusion of the High Courts' original jurisdiction in matters concerning the revenue, imposed by the Settlement Act of 1781, carried into the letters patent, restated in section 106(2) of the Act of 1915 and section 226 of the Act of 1935.

5. What is an additional Judge, and why is the office constitutionally significant? A Judge appointed under article 224 for a period not exceeding two years because of a temporary increase in business or arrears. It is significant because his continuance depends on a fresh decision, which is a weaker position than appointment until sixty-two, and the treatment of an additional Judge whose term expired was the question in S. P. Gupta.