Every State has a High Court operating within its territorial jurisdiction and every High Court is a Court of Record which has all the powers of such a Court including the power to punish for contempt of itself. Neither the Supreme Court nor the legislature can deprive a High Court of its power of punishing contempt of itself.
We have already seen the position of the Supreme Court with the inauguration of the new Constitution in 1950, and how it affected the position of the High Courts by bringing them directly under the Supreme Court as parts of a single, integrated, hierarchical, all-India judicial system.
The Constitution does not, however, vest in the Supreme Courts any direct administrative control over the High Courts which would substantially affect their functioning as independent judicial institutions.
The position of the High Courts under a federal Constitution like that of India is substantially different from that of the State Court under most other federations, notably that of the United States of America. There, the State Courts are constituted under the State Constitutions and, as such, do not in any way link them up with the federal judicial system.
The method of appointment and conditions of service of the judges of the State Courts as well as their respective jurisdictions vary from State to State. In India, on the contrary, there is uniformity in all these matters and the Constitution lays down detailed provisions dealing with them.
Neither the State executive nor the State legislature has any power to control the High Court, or to alter the constitution or organisation of the High Court. Whatever that is permissible, short of a constitutional amendment, is vested in Parliament. These provisions have great importance in determining the independence of the High Courts.
Unlike the Supreme Court, there is no fixed minimum number of judges for the High Court. The President, from time to time, will fix the number of judges in each High Court and it varies from court to court. For example, the Jammu and Kashmir High Court has at present only five judges whereas the Calcutta High Court has as many as thirty-seven judges.
Every judge of the High Court is appointed by the President of India after consolation with the Chief Justice of India, the Governor of the State and, in the case of the appointment of a judge other than the Chief Justice, the Chief Justice of the High Court concerned.
If he is appointed on a permanent basis, he will hold office until he completes the age of 62 years. The minimum qualifications prescribed for appointment are Indian citizenship and at least ten years’ experience either as an advocate of a High Court in India or a judicial officer in the territory of India.
In computing the ten-year period for the purpose of appointment, experience as an advocate can be combined with that of a judicial officer, A judge of the High Court can be removed from office only for proved misbehavior or incapacity ant only in the same manner in which a judge of the Supreme Court is removed.
The Chief Justice and the other judges of the High Court are paid monthly salaries of Rs. 30,000 and 26,000 respectively. In addition, they are also entitled to certain allowances and a pension on retirement. The salary and allowances of a judge of the High Court cannot be varied to his disadvantage after his appointment.
Further, these sums are charged on the Consolidated Fund of the State and, as such, are excluded from voting in the State Legislature. The Constitution imposes on retired judges of High Courts certain restrictions with respect to legal practice after retirement.
According to this, they cannot practice before any court except the Supreme Court and High Courts other than those in which they were judges. These provisions which are almost identical with those dealing with the judges of the Supreme Court are intended to safeguard the independence of the High Courts.
There are, however, certain special provisions which make the organisation and functioning of the High Court different from those of the Supreme Court. Of these, the power of the President to transfer a judge from one High Court to another seems to be the most important one.
Every such transfer is to be made only after consolation with the Chief Justice of India. The provision may not seem to be quite in harmony with the concept of judicial independence. Yet, it has some justification.
The services of a competent judge may be required in any part of the country as a matter of national interest, and this provision enables the President to choose such a judge from any of the High Courts in the country.
This will also facilitate the better selection of judges and to keep the question above State or regional barriers. Secondly, unlike the provisions in regard to the Supreme Court, there is a provision for the appointment of additional and acting judges to the High Court.
Additional judges are appointed for a period not exceeding two years, in order to meet any temporary increase in the work of the Court or to dispose of arrears of accumulated work. An acting judge is appointed in the place of a permanent judge of the Court when the latter is away on leave or on some other duty.