The High Courts

Article 216. Every High Court "shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint." There is no fixed strength, unlike the Supreme Court, and no Act of Parliament sets one.

Article 217, appointment and qualifications. As with article 124(2), the printed words "on the recommendation of the National Judicial Appointments Commission referred to in article 124A" were substituted by the Constitution (Ninety-ninth Amendment) Act, 2014, and the Legislative Department's footnote records that the amendment was struck down on 16 October 2015. The pre-amendment text therefore governs, and appointment is by the President after consultation with the Chief Justice of India, the Governor of the State, and, for a judge other than the Chief Justice, the Chief Justice of the High Court. A judge holds office until he attains the age of sixty-two years, three years less than a Supreme Court judge. Qualification under article 217(2) is either ten years' judicial office in India or ten years as an advocate of a High Court. Any question about a judge's age is decided by the President after consultation with the Chief Justice of India, and that decision is final.

Articles 218 to 224A. Article 218 applies article 124(4) and (5) to High Court judges, so removal is on the same ground and by the same address of both Houses of Parliament. Article 219 requires the oath before the Governor. Article 220 forbids a person who has been a permanent judge of a High Court from pleading or acting in any court or before any authority in India "except the Supreme Court and the other High Courts". Article 221 protects salaries and pensions from being varied to a judge's disadvantage. Article 222 provides for transfer, article 223 for an acting Chief Justice, article 224 for additional judges appointed for not more than two years and acting judges, neither of whom may hold office after sixty-two, and article 224A for retired judges to sit with their consent. Articles 217, 218 and 222 are the subject of [The Appointment of Judges] and [Transfer and Removal of Judges].

Jurisdiction

Article 225, the continued jurisdiction. Subject to the Constitution and to laws made by the appropriate Legislature, "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" shall be the same as immediately before the Constitution commenced. This is the reason a Bombay or Calcutta High Court has an ordinary original civil jurisdiction that other High Courts do not.

Article 226, the writ jurisdiction. "Notwithstanding anything in article 32", every High Court may issue to any person or authority, including in appropriate cases any Government, within its territories, "directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose." Three clauses follow. Clause (2) extends the power to a High Court in whose territory the cause of action wholly or in part arises, even though the authority sits elsewhere. Clause (3) provides that an ex parte interim order stands vacated if an application to vacate it, made by a party who was given neither the papers nor a hearing, is not disposed of within two weeks. Clause (4) says the power is "not in derogation of the power conferred on the Supreme Court by clause (2) of article 32." The article has its own chapter, [Article 226].

Article 227, superintendence. "Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction." Clause (2) gives particular powers: to call for returns, to make general rules and prescribe forms regulating the practice and proceedings of such courts, and to prescribe the forms of books, entries and accounts. Clause (3) lets it settle tables of fees. Rules, forms and tables under clauses (2) and (3) must not be inconsistent with any law in force and require the previous approval of the Governor. Clause (4) excludes superintendence over any court or tribunal "constituted by or under any law relating to the Armed Forces."

Two of these powers have been held to be beyond Parliament's reach altogether. In L. Chandra Kumar v. Union of India the Supreme Court held that the power of judicial review vested in the High Courts by article 226 and in the Supreme Court by article 32, and the power of the High Courts to exercise judicial superintendence over all courts and tribunals within their jurisdiction, are both part of the basic structure of the Constitution. The case is worked in full, from its own report, in [Tribunals]; no citation is printed here.

Article 228, transfer to itself. If a High Court "is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case", then "it shall withdraw the case" and may either dispose of the case itself, or determine the question of law and return the case with a copy of its judgment, and the subordinate court "shall on receipt thereof proceed to dispose of the case in conformity with such judgment."

Two words in that article are worth underlining. The withdrawal is mandatory, "shall", once the High Court is satisfied. What it does after withdrawing is discretionary, "may", and there are exactly two options.

Article 229. Appointments of a High Court's officers are made by the Chief Justice of that Court, and its administrative expenses are charged on the Consolidated Fund of the State, which puts them outside the annual vote of the State legislature. That is a financial guarantee of independence, and it is the exact counterpart of article 146(3) for the Supreme Court.

Articles 226, 227 and 228 compared

What it does NOT mean

Article 227 is not a second appeal. It is superintendence, and it is exercised to keep subordinate courts and tribunals within their authority, not to re-decide facts. A petition that simply reargues the evidence is asking the High Court to do what article 227 does not permit.

Article 228 is not a transfer between courts of equal rank. It moves a case upward, out of a subordinate court and into the High Court, and only for one reason. A general power to transfer cases within a State comes from other law, not from article 228.

A High Court's powers are not exhausted by Chapter V. Article 225 continues a jurisdiction the Constitution never lists, which is why two High Courts can have different jurisdictions on identical facts.

The High Court's writ power is not the Supreme Court's. Article 226 is wider in subject, because it runs "for any other purpose" and not only for fundamental rights, and narrower in territory, because it is confined to the territories in which the Court exercises jurisdiction and to causes of action arising there.

A worked example

Anil sues his landlord in a Civil Judge's court in Nagpur. The landlord relies on a State rent statute. Anil pleads that the section relied on violates article 14. The trial court also refuses him an adjournment in terms he says show bias.

Step one, which article for the constitutional point? Article 228. The case is pending in a court subordinate to the Bombay High Court, and it involves a substantial question of law as to the interpretation of the Constitution.

Step two, is the question necessary for the disposal of the case? That is the second condition, and it is not automatic. If Anil succeeds on a pure question of construction of the rent statute, the constitutional point never arises, and article 228 is not attracted.

Step three, if it is attracted, what must the High Court do? It shall withdraw the case. It has no discretion about that. It then chooses between deciding the whole case itself and deciding only the constitutional question and sending the case back, bound by its answer.

Step four, and the adjournment? That is not a constitutional question, so article 228 does not reach it. The complaint about how the trial court is conducting the case is a matter for article 227, superintendence over a subordinate court.

Step five, and if he wanted the section struck down without waiting? He could petition under article 226, which is an original proceeding and does not depend on any suit being pending. He would then have to explain why the pending suit is not the appropriate remedy.

Step six, what he cannot do. He cannot ask the High Court under article 227 to reappreciate the evidence, and he cannot ask under article 228 for anything except the constitutional question and the fate of the case that raises it.

Quick revision

• Article 214: a High Court for each State. Article 231: Parliament may establish a common High Court for two or more States.
• Article 215: every High Court is a court of record with an inherent power to punish for contempt of itself.
• Article 216: a Chief Justice and such other judges as the President deems it necessary to appoint. No fixed strength.
• Article 217: appointment after consultation, the National Judicial Appointments Commission words having been struck down in 2015; retirement at sixty-two; ten years' judicial office or ten years at the Bar.
• Article 218 applies article 124(4) and (5), so removal is by the same address of both Houses of Parliament.
• Article 220: a former permanent judge may plead only in the Supreme Court and the other High Courts.
• Article 225 continues the pre-Constitution jurisdiction of existing High Courts.
• Article 226: writs for fundamental rights and for any other purpose; clause (2), cause of action; clause (3), an ex parte interim order lapses if a vacation application is not decided in two weeks.
• Article 227: superintendence over all courts and tribunals, except those under Armed Forces law; rules and forms need the Governor's previous approval.
• Article 228: the High Court shall withdraw a case raising a substantial constitutional question necessary for its disposal, and may then decide the case or answer the question and return it.
• Article 229(3): the High Court's administrative expenses are charged on the Consolidated Fund of the State.

Test yourself

1. Where does a High Court's jurisdiction come from? Answer with the article and explain why the answer surprises people.

2. Distinguish articles 227 and 228. Give one dispute each would reach and the other would not.

3. What are the two conditions in article 228, and which of the High Court's two steps is mandatory?

4. Compare articles 32 and 226. In what respect is each wider than the other?

5. Why are the administrative expenses of a High Court charged on the Consolidated Fund of the State rather than voted?