There shall be a High Court for each State (Art.214), though Parliament may by law establish a common High Court for two or more States or Union Territories (Art.231). Each High Court consists of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint (Art.216). Unlike the Supreme Court, no maximum strength is fixed by the Constitution or by any general law.
Legal Framework
| Provision | Subject | Key Rule |
|---|---|---|
| Art.214 | High Courts for States | A High Court for each State |
| Art.215 | Court of record | Each High Court is a court of record with power to punish for contempt of itself |
| Art.216 | Constitution | Chief Justice and such other Judges as the President deems necessary; no fixed maximum |
| Art.217(1) | Appointment | 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; holds office until the age of sixty two |
| Art.217(2) | Qualifications | Citizen of India, and either ten years in a judicial office in India, or ten years as an advocate of a High Court or of two or more such courts in succession |
| Art.217(3) | Question of age | Determined by the President after consultation with the Chief Justice of India, and his decision is final |
| Art.218 | Removal | Arts.124(4) and (5) apply, so the procedure is the same as for a Supreme Court Judge |
| Art.220 | Bar on practice | A retired permanent Judge may not plead or act before any court or authority in India except the Supreme Court and other High Courts |
| Art.221 | Salaries | Charged on the Consolidated Fund of the State; not to be varied to a Judge's disadvantage during his term |
| Art.222 | Transfer | The President may transfer a Judge from one High Court to another after consultation with the Chief Justice of India, with a compensatory allowance |
| Art.223 | Acting Chief Justice | Appointed by the President when the office is vacant |
| Art.224 | Additional and acting Judges | Additional Judges for not more than two years to clear arrears; acting Judges while a permanent Judge is absent |
| Art.224A | Retired Judges | May sit and act as a Judge of the High Court at the request of the Chief Justice with the President's previous consent |
| Art.226 | Writ jurisdiction | Power to issue writs for the enforcement of fundamental rights and for any other purpose |
| Art.227 | Superintendence | Power of superintendence over all courts and tribunals within the High Court's territorial jurisdiction |
| Art.228 | Transfer of cases | Withdrawal of a case from a subordinate court involving a substantial question of constitutional interpretation |
| Art.229 | Officers and servants | Appointed by the Chief Justice; expenses charged on the Consolidated Fund of the State |
Note on qualifications: There is no "distinguished jurist" route for a High Court, unlike Art.124(3)(c) for the Supreme Court. Note also that judicial office and practice at the Bar are alternatives in the text, though the Supreme Court has recognised that a combination of the two may be counted.
Appointment and the Collegium
Article 217(1) requires consultation with three functionaries, but the meaning of consultation is the same as under Art.124(2) and is governed by the same line of cases. Following the Second and Third Judges cases, the collegium for a High Court appointment or transfer consists of the Chief Justice of India together with the two senior-most Judges of the Supreme Court, and the views of the senior-most Judge of the High Court concerned, and of the Chief Minister and Governor of the State, are placed before it. The Chief Justice of India's opinion so formed has primacy.
Transfer of Judges under Art.222
Facts: A Judge of the Gujarat High Court was transferred to the Andhra Pradesh High Court without his consent. He challenged the transfer, contending that Art.222 could not be used to transfer a Judge against his will, and that in any event the consultation with the Chief Justice of India had been perfunctory.
Issue: Whether a Judge may be transferred without his consent, and what the consultation with the Chief Justice of India requires.
Held: Consent is not a requirement of Art.222, so a transfer without consent is competent. But the power is not unfettered. A transfer may be made only in the public interest and never by way of punishment, since a punitive transfer would strike at the independence of the judiciary. The consultation with the Chief Justice of India must be full and effective, meaning that he must be furnished with all the relevant material and given a real opportunity to express an informed view.
Relevance: The foundational case on Art.222. Note that the primacy of the Chief Justice's opinion came later, with the Second Judges case; Sankalchand Sheth established the public interest limitation and the quality of consultation required.
Writ Jurisdiction under Art.226
Every High Court may issue to any person or authority, including in appropriate cases any Government, within its territorial jurisdiction, 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 the fundamental rights and for any other purpose.
| Feature | Position |
|---|---|
| Purpose | Fundamental rights and any other purpose, so it extends to the enforcement of ordinary legal rights |
| Territorial reach | Art.226(2) extends the power to authorities outside the territorial jurisdiction where the cause of action arises wholly or in part within it |
| Nature | Discretionary, and therefore subject to self-imposed restraints such as delay, alternative remedy, and the conduct of the petitioner |
| Interim orders | Art.226(3) provides for vacation of an interim order where the application is not disposed of within two weeks |
| Relation to Art.32 | Concurrent as regards fundamental rights, but wider in subject matter |
Facts: Articles 323A and 323B, inserted by the 42nd Amendment, permitted the establishment of administrative tribunals and provided by Art.323A(2)(d) and Art.323B(3)(d) for the exclusion of the jurisdiction of all courts, except the Supreme Court under Art.136, in the matters entrusted to those tribunals. The exclusion of High Court jurisdiction was challenged.
Issue: Whether the jurisdiction of the High Courts under Arts.226 and 227 and of the Supreme Court under Art.32 can be excluded by constitutional amendment.
Held: The power of judicial review vested in the High Courts under Arts.226 and 227 and in the Supreme Court under Art.32 is part of the basic structure of the Constitution and cannot be ousted. Art.323A(2)(d) and Art.323B(3)(d), and the provisions of the Administrative Tribunals Act, 1985 excluding High Court jurisdiction, were held unconstitutional to that extent. Tribunals may function as courts of first instance in the areas assigned to them, and litigants must ordinarily exhaust that remedy, but their decisions remain subject to the writ jurisdiction of the High Court, and an appeal to a Division Bench was directed as the route.
Relevance: The single most important case on Art.226. It establishes both that the writ jurisdiction is unamendable and that tribunals are subordinate to it.
Facts: A petition under Art.226 was resisted on the ground that the statute provided an alternative remedy which the petitioner had not exhausted, and that the High Court ought therefore to have declined jurisdiction altogether.
Issue: Whether the existence of an alternative statutory remedy is an absolute bar to the exercise of jurisdiction under Art.226.
Held: It is not. The rule requiring exhaustion of alternative remedies is a rule of self-imposed restraint or of convenience and discretion, not a rule of jurisdiction. The Court identified three well recognised exceptions in which a High Court will entertain a petition despite an alternative remedy: where a fundamental right is being enforced; where there is a violation of the principles of natural justice; and where the order or proceeding is wholly without jurisdiction or the vires of a statute is challenged.
Relevance: The standard authority on the alternative remedy objection. Learn the three exceptions, which are frequently asked.
Illustrations
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Consultation with three functionaries: A Judge is appointed to a High Court without consulting the Chief Justice of that High Court. The appointment is defective, Art.217(1) requiring his consultation for a Judge other than the Chief Justice.
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No distinguished jurist route: An eminent academic with no judicial or Bar experience is proposed for a High Court. He is not qualified, Art.217(2) offering only the judicial office and advocate routes.
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Transfer without consent: A Judge is transferred from one High Court to another against his wishes, on the collegium's recommendation and for reasons of judicial administration. Applying Sankalchand Himatlal Sheth (1977), consent is not required and the transfer is valid if made in the public interest.
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Punitive transfer: A Judge is transferred immediately after delivering a judgment against the State, with no administrative justification. Applying the same case, a transfer by way of punishment is impermissible and the order is open to challenge.
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Additional Judge: An additional Judge is appointed for three years to clear arrears. Art.224(1) permits appointment for a period not exceeding two years, so the term is excessive.
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Cause of action outside the State: An order is made by a Union authority in Delhi affecting a petitioner in Telangana, part of the cause of action arising in Telangana. The Telangana High Court has jurisdiction under Art.226(2).
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Tribunal decisions reviewable: A statute provides that decisions of an administrative tribunal shall be final and not questioned in any court. Applying L Chandra Kumar (1997), the exclusion of the High Court's jurisdiction under Art.226 is unconstitutional.
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Alternative remedy: A petitioner moves under Art.226 without exhausting a statutory appeal, alleging that the order was made without any hearing. Applying Whirlpool Corporation (1998), the breach of natural justice is a recognised exception and the petition may be entertained.
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Bar on practice: A retired High Court Judge appears before the Supreme Court and before another High Court. Both are permitted, Art.220 excepting the Supreme Court and other High Courts from the bar.
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Superintendence: A subordinate court proceeds in a manner outside its jurisdiction. The High Court may intervene under Art.227 in exercise of its power of superintendence, quite apart from Art.226.
Recall Check
- Which three functionaries must be consulted under Art.217(1), and when is the third required?
- State the two qualifications under Art.217(2) and note what is absent as compared with Art.124(3).
- What are the three exceptions to the alternative remedy rule laid down in Whirlpool?
Key Cases
Union of India v Sankalchand Himatlal Sheth (1977) Union of India v Sankalchand Himatlal Sheth 1977
Issue: Whether a High Court Judge may be transferred without consent, and what consultation with the Chief Justice of India requires.
Rule: Consent is not required, but a transfer must be in the public interest and never punitive, and the consultation must be full and effective.
Held: The transfer was competent under Art.222, subject to those limitations.
L Chandra Kumar v Union of India (1997) L Chandra Kumar v Union of India 1997
Issue: Whether the writ jurisdiction of the High Courts can be excluded in favour of tribunals.
Rule: Judicial review under Arts.226 and 227 and Art.32 is part of the basic structure and cannot be ousted.
Held: Art.323A(2)(d) and Art.323B(3)(d) were struck down to the extent that they excluded High Court jurisdiction; tribunals function as courts of first instance subject to writ review.
Whirlpool Corporation v Registrar of Trade Marks (1998) Whirlpool Corporation v Registrar of Trade Marks 1998
Issue: Whether an alternative statutory remedy bars a petition under Art.226.
Rule: The rule is one of self-imposed restraint, not of jurisdiction.
Held: Three exceptions recognised: enforcement of a fundamental right, breach of natural justice, and want of jurisdiction or a challenge to vires.
Distinctions
| Basis | Art.32 | Art.226 |
|---|---|---|
| Court | Supreme Court | High Courts |
| Purpose | Fundamental rights only | Fundamental rights and any other purpose |
| Status | Itself a fundamental right | A constitutional power, not a fundamental right |
| Discretion | The remedy is guaranteed | Discretionary |
| Suspension | Could be suspended during a Proclamation of Emergency under Art.359 | Not so suspended in the same terms |
| Reach | The whole territory of India | Territorial jurisdiction, extended by the cause of action rule in Art.226(2) |
| Basis | Art.226 | Art.227 |
|---|---|---|
| Nature | Issue of writs, directions and orders | Power of superintendence |
| Against whom | Any person, authority or Government | Courts and tribunals within the territorial jurisdiction |
| Purpose | Enforcement of rights | Keeping subordinate courts and tribunals within the bounds of their authority |
| Exercise | On a petition by an aggrieved person | May be exercised even without a formal petition, being supervisory |
| Excluded | None specific | Courts and tribunals relating to the Armed Forces |
| Basis | Supreme Court Judge | High Court Judge |
|---|---|---|
| Retirement age | 65 | 62 |
| Consultees on appointment | Such Judges as the President deems necessary, and always the Chief Justice of India | Chief Justice of India, the Governor, and the Chief Justice of the High Court |
| Collegium | Chief Justice plus four senior-most Judges | Chief Justice plus two senior-most Judges |
| Salaries charged on | Consolidated Fund of India | Consolidated Fund of the State |
| Transfer | Not applicable | Permitted under Art.222 |
| Practice after retirement | Barred in every court and authority | Permitted in the Supreme Court and other High Courts |
Flashcards
What is the constitution of a High Court under Art.216?
A Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint. No maximum is fixed.
Who must be consulted before appointing a High Court Judge?
The Chief Justice of India, the Governor of the State, and, for a Judge other than the Chief Justice, the Chief Justice of that High Court.
What is the retirement age of a High Court Judge?
Sixty two years.
What are the qualifications under Art.217(2)?
Ten years in a judicial office in India, or ten years as an advocate of a High Court or of two or more such courts in succession.
Is the consent of a Judge required for a transfer under Art.222?
No. Sankalchand Himatlal Sheth (1977) held consent is not required, but the transfer must be in the public interest and not punitive.
For how long may an additional Judge be appointed?
For a period not exceeding two years (Art.224(1)).
In what respect is Art.226 wider than Art.32?
Art.226 may be exercised for the enforcement of fundamental rights and for any other purpose, so it covers ordinary legal rights as well.
What does Art.226(2) add?
Jurisdiction over authorities outside the High Court's territorial limits where the cause of action arises wholly or in part within them.
Can the writ jurisdiction of the High Courts be excluded by amendment?
No. L Chandra Kumar (1997) held it to be part of the basic structure.
What is the status of tribunals after *L Chandra Kumar*?
They act as courts of first instance in their assigned areas, but their decisions remain subject to the High Court's writ jurisdiction.
Is an alternative remedy a bar to a petition under Art.226?
No. It is a rule of self-imposed restraint, with exceptions for fundamental rights, natural justice, and want of jurisdiction or a vires challenge.
Where may a retired High Court Judge practise?
Only in the Supreme Court and in other High Courts (Art.220).
What does Art.228 provide?
Withdrawal by the High Court of a case pending in a subordinate court which involves a substantial question of law as to the interpretation of the Constitution.
Exam Scenario
Problem: Justice Menon, a permanent Judge of the High Court of State A, delivers a judgment quashing a major State project. Three weeks later she is transferred to the High Court of State B, the file recording only that the transfer is "in the interest of better administration of justice", and the Chief Justice of India was informed by a single letter to which no material was attached. In the same State, a newly enacted law establishes a tribunal for service disputes and provides that its decisions shall be final and shall not be questioned in any court. An aggrieved officer, without approaching the tribunal, moves the High Court under Art.226 contending that he was dismissed without any hearing and that the law establishing the tribunal is void. Advise.
Step 1: Test the transfer against Art.222 and Sankalchand
Apply Union of India v Sankalchand Himatlal Sheth (1977) on three fronts, of which only the first fails.
| Ground | Rule | On these facts |
|---|---|---|
| Absence of consent | Art.222 does not require the Judge's consent | Not a ground of challenge |
| Punitive purpose | The power may be exercised only in the public interest and never by way of punishment | Strong inference of punishment. A transfer three weeks after an adverse judgment, supported only by a formulaic recital |
| Quality of consultation | Consultation with the Chief Justice of India must be full and effective | Not satisfied. A bare letter with no material attached cannot produce an informed view |
Step 2: Add the collegium requirement from the later cases
Under the Second and Third Judges cases the transfer must proceed on the recommendation of the collegium of the Chief Justice of India and the two senior-most Judges, whose opinion has primacy.
An executive initiated transfer that merely informs the Chief Justice inverts that scheme. The order is open to challenge on all three grounds.
Step 3: Strike down the finality clause
Apply L Chandra Kumar v Union of India (1997). The exclusion of the High Court's jurisdiction under Arts.226 and 227 is unconstitutional, judicial review by the High Courts being part of the basic structure.
The clause is void to that extent, and the tribunal's decisions remain subject to writ review.
Step 4: Work through the officer's petition in this sequence
- Start with the general rule. L Chandra Kumar requires litigants ordinarily to exhaust the tribunal remedy, the tribunal being a court of first instance, so the High Court would normally direct him there.
- Then take the dismissal limb. Whirlpool Corporation v Registrar of Trade Marks (1998): the alternative remedy rule is one of discretion, and a dismissal without any hearing falls within the recognised exception for breach of natural justice, so the High Court may entertain the petition.
- Then take the vires limb. The tribunal cannot pronounce on the constitutionality of its own parent Act, and a vires challenge is itself a Whirlpool exception, so this limb must in any event be heard by the High Court.
Consent is not a ground. Art.222 contains no requirement of consent, so the challenge must rest on the purpose of the transfer and on the quality of the consultation.
"Full and effective" is a real test. A single letter with no material attached informs the Chief Justice of India but does not consult him, and that alone vitiates the order.
A finality clause is void only so far as it ousts writ review. L Chandra Kumar leaves the tribunal standing as a court of first instance while preserving Arts.226 and 227.
The alternative remedy rule is discretionary, not jurisdictional. Whirlpool means the High Court may entertain the petition, and the two limbs must be kept apart: natural justice for the dismissal, and want of competence for the vires challenge.
Conclusion. The transfer is vulnerable as punitive and for defective consultation, the finality clause is void so far as it ousts Art.226, and the High Court may entertain both limbs of the officer's petition notwithstanding the tribunal remedy.
See Also
- Supreme Court: Composition and Appointment of Judges : the Judges cases which govern consultation under Art.217 and transfers under Art.222.
- Subordinate Judiciary : the courts over which the High Court exercises control under Arts.227, 233 and 235.
- Independence of Judiciary and Judicial Accountability : the structural guarantees, including the bar on punitive transfers.