High Courts in India: Structure, Constitutional Provisions and Judge Appointments – (Part 01)

🇮🇳 The State Judiciary: High Courts in India

1. Introduction: The Apex of State Justice

The Indian judiciary operates under a single integrated system inherited from the Government of India Act, 1935, with the Supreme Court at the apex, the High Courts (HCs) below it, and the subordinate courts at the bottom. The High Court stands as the highest court in the judicial hierarchy of a state, functioning as the primary guarantor of fundamental rights and the guardian of the Constitution at the state level.

The provisions relating to the High Courts are enshrined in Part VI, Chapter V of the Indian Constitution, covering Articles 214 to 231.

2. Historical & Constitutional Evolution

A. Historical Genesis (Pre-1950)

The foundation of the modern High Court system was laid during the British Raj.

Milestone	Act/Event	Key Provision	Significance for Modern India
1861	Indian High Courts Act, 1861	Abolished the existing Supreme Courts and Sadar Adalats (civil/criminal) in the Presidency towns.	Established a unified judicial system for each Presidency, a precursor to the modern integrated system.
1862	Establishment	High Courts were established in Calcutta, Bombay, and Madras (in that order), which are the oldest High Courts in India.	Consolidated criminal and civil jurisdiction and introduced Letters Patent, which defined their jurisdiction.
1935	Government of India Act, 1935	Established a Federal Court (at the Centre) and provided the structural model for provincial High Courts.	The Constitution of India heavily borrowed the High Court provisions (e.g., control over subordinate courts) from this Act.

B. Constitutional Provisions (Part VI: Articles 214-231)

The Constitution provides the legal framework for the High Courts:

Article No.	Subject Matter	Key Provision
Article 214	High Courts for States	Provides that there shall be a High Court for each State.
Article 215	High Courts to be Courts of Record	Every High Court shall be a Court of Record and shall have all the powers of such a court, including the power to punish for contempt of itself.
Article 216	Constitution of High Courts	Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem necessary to appoint. (No fixed constitutional strength)
Article 217	Appointment and Conditions of HC Judge's Office	Lays down the procedure for appointment, qualifications, and the maximum age limit (62 years).
Article 222	Transfer of a Judge	Empowers the President, after consultation with the CJI, to transfer a Judge from one High Court to another.
Article 231	Establishment of a common High Court for two or more States	The 7th Constitutional Amendment Act of 1956 empowered Parliament to establish a common High Court for two or more States or for two or more States and a Union Territory. (Example: Punjab and Haryana High Court)

3. Structure and Composition

A. Composition and Strength (Article 216)

The Constitution provides for the composition of a High Court but does not specify a fixed minimum or maximum number of Judges.

Chief Justice: The head of the High Court.
Other Judges: Such other Judges as the President may deem necessary.
Determination of Strength: The strength of a High Court is determined by the President from time to time, based on the volume of work and arrears of cases. This is unlike the Supreme Court, where the maximum strength is fixed by Parliament.

B. Types of Judges (Articles 217 and 224)

Type of Judge	Constitutional Provision	Appointing Authority	Condition / Tenure
Permanent Judge	Article 217	President	Holds office until the age of 62 years.
Additional Judge	Article 224(1)	President	Appointed for a temporary period not exceeding two years to clear a temporary increase in court work or arrears.
Acting Judge	Article 224(2)	President	Appointed when the Chief Justice is temporarily absent, or unable to perform his duties, or when he is appointed to act temporarily as the Chief Justice.
Acting Chief Justice	Article 223	President	Appointed when the office of the Chief Justice is vacant or the Chief Justice is unable to perform his duties.

C. Qualifications for Appointment (Article 217(2))

A person shall not be qualified for appointment as a Judge of a High Court unless:

He is a Citizen of India.
He has for at least ten years held a judicial office in the territory of India; OR
He has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.

Note: The Constitution does not prescribe a minimum age for appointment, nor does it include a 'distinguished jurist' clause for High Courts, unlike for the Supreme Court.

4. Appointment of High Court Judges: The Collegium System

The procedure for the appointment of a High Court Judge is laid down in Article 217 of the Constitution, but its actual operation and mechanics are entirely governed by the Collegium System, a mechanism evolved through judicial pronouncements (the 'Three Judges Cases').

A. Constitutional Mandate (Article 217)

The President of India appoints a High Court Judge after consulting the:

Chief Justice of India (CJI)
Governor of the State concerned
(For a Judge other than the Chief Justice): The Chief Justice of the High Court concerned

B. The Collegium System for High Courts

The consultation process mandated by Article 217 has been interpreted and shaped by the Supreme Court, making the opinion of the Judiciary paramount.

Case / Judicial Precedent	Year	Key Principle Established	Impact on Appointment
First Judges Case (S.P. Gupta v. UoI)	1981	"Consultation" does not mean "concurrence." The Executive (President/Government) has the final say.	Executive Primacy over Judicial Appointments.
Second Judges Case (SC Advocates-on-Record Association v. UoI)	1993	Overruled the 1981 judgment. Held that "Consultation" means "Concurrence." Introduced the Collegium System.	Judicial Primacy: CJI must consult his two senior-most colleagues (Collegium of CJI + 2).
Third Judges Case (In re Special Reference 1 of 1998)	1998	Clarified the composition for Supreme Court appointments (CJI + 4). For High Court appointments, the SC Collegium remains CJI + 2 senior-most Judges.	Emphasised the principle of "Plurality of Judges" in the decision-making process for appointments.
NJAC Case (SC Advocates-on-Record Association v. UoI)	2015	Struck down the 99th Constitutional Amendment Act, 2014, and the NJAC Act as unconstitutional.	Upheld the Collegium System again, reiterating that Judicial Independence is part of the Basic Structure of the Constitution.

C. Flowchart: Procedure for Appointing a High Court Judge (Puisne Judge)

This procedure is followed as per the current Memorandum of Procedure (MoP) based on the Collegium system.

Key Takeaway: The High Court Collegium (CJ + 2 senior-most HC Judges) initiates the proposal, but the final, determinative recommendation to the President is made by the Supreme Court Collegium (CJI + 2 senior-most SC Judges).

5. Terms of Office, Oath, and Removal

A. Tenure and Conditions (Article 217(1))

Tenure: A High Court Judge holds office until he attains the age of 62 years. (The original age of 60 was raised to 62 by the 15th Constitutional Amendment Act, 1963).
Resignation: A Judge may resign by writing under his hand addressed to the President of India.
Age Dispute: Any question regarding the age of a High Court Judge is decided by the President after consultation with the Chief Justice of India, and the decision of the President is final.

B. Oath and Salaries (Articles 219 and 221)

Oath or Affirmation (Article 219): A High Court Judge makes and subscribes an oath or affirmation before the Governor of the State or some person appointed by him.
Salaries and Allowances (Article 221):
- Salaries, allowances, and privileges are determined by Parliament.
- They are charged upon the Consolidated Fund of the State (which makes them non-votable by the State Legislature).
- Pensions are charged on the Consolidated Fund of India.

C. Removal (Article 217(1) Proviso (b) read with Article 124(4))

A High Court Judge can be removed by the President only on the grounds of:

Proved Misbehaviour
Incapacity

The procedure for removal is the same as that for a Supreme Court Judge and is governed by the Judges (Inquiry) Act, 1968.

Step	Body/Authority	Action	Requirement
1. Motion Initiation	Lok Sabha / Rajya Sabha	A notice of motion is given.	LS: 100 members must sign; RS: 50 members must sign.
2. Admission & Committee	Speaker/Chairman	If admitted, the Presiding Officer constitutes a three-member investigation committee (Chief Justice/Judge of SC, Chief Justice of HC, a distinguished jurist).	The motion may also be refused.
3. Investigation	Inquiry Committee	Investigates the charges and submits its report.	If the committee finds the Judge guilty, the House proceeds with the motion.
4. Parliamentary Approval	Both Houses (Lok Sabha & Rajya Sabha)	The motion must be passed by a Special Majority in each House: (a) A majority of the total membership of that House, AND (b) A majority of not less than two-thirds of the members of that House present and voting.	The resolution is then presented to the President.
5. Removal	President of India	Passes an order to remove the Judge.

Note: No High Court Judge has been removed till date through this procedure. An impeachment motion against Justice V. Ramaswami (SC Judge) was passed in Lok Sabha, but failed to secure the required special majority.

6. Practice Questions & Advanced Learning

✅ Multiple Choice Questions (MCQs)

Q1. The number of Judges in a High Court is determined by which of the following authorities? (a) The Parliament of India (b) The Governor of the concerned State (c) The Chief Justice of the concerned High Court (d) The President of India

Q2. Which Constitutional Amendment Act introduced the provision for a Common High Court for two or more States? (a) 42nd Amendment Act (b) 7th Amendment Act (c) 15th Amendment Act (d) 44th Amendment Act

Q3. The final, binding recommendation for the appointment of a High Court Judge is made by the Collegium comprising: (a) The Chief Justice of India, the Chief Justice of the High Court, and the Governor. (b) The Chief Justice of India and the two senior-most Judges of the Supreme Court. (c) The Chief Justice of the High Court and the two senior-most Judges of the High Court. (d) The Chief Justice of India and four senior-most Judges of the Supreme Court.

Q4. A High Court Judge can be removed from office on the grounds of proved misbehaviour or incapacity by an order of the President passed after the address is passed by which of the following majority in each House of Parliament? (a) Simple majority (b) Special majority (Art. 368) (c) Absolute majority (d) Special majority (Art. 124(4))

Q5. Arrange the following landmark cases in chronological order regarding the evolution of the Collegium System:

S.P. Gupta v. Union of India (First Judges Case)
Supreme Court Advocates-on-Record Association v. UoI (Second Judges Case)
National Judicial Appointments Commission (NJAC) Case
In re Special Reference 1 of 1998 (Third Judges Case)

(a) 1 - 2 - 4 - 3 (b) 1 - 4 - 2 - 3 (c) 2 - 1 - 3 - 4 (d) 1 - 3 - 2 - 4

MCQ	Correct Answer	Detailed Explanation
Q1	(d)	Article 216 states that the High Court shall consist of a Chief Justice and such other judges as the President may from time to time deem necessary to appoint.
Q2	(b)	The 7th Amendment Act of 1956 inserted Article 231, empowering Parliament to establish a common High Court for two or more states/UTs.
Q3	(b)	The SC Collegium for High Court appointments consists of the CJI and two senior-most Supreme Court Judges, as established in the Third Judges Case (1998). The High Court Collegium (CJI + 2 HC Judges) initiates, but the SC Collegium makes the final, binding recommendation.
Q4	(d)	The removal procedure, identical to that for a SC Judge, requires a Special Majority as specified in Article 124(4) (which is applied to HC Judges via Article 218) and the Judges (Inquiry) Act, 1968.
Q5	(a)	1. (1981) $\rightarrow$ 2. (1993) $\rightarrow$ 4. (1998) $\rightarrow$ 3. (2015). This sequence traces the shift from Executive primacy to Judicial primacy, its formalisation, clarification, and subsequent challenge/reaffirmation.

🔍 Scenario-Based Question

Scenario: The Governor of State 'X' receives a recommendation from the State's High Court Collegium for the appointment of Advocate 'A' as a Judge. The Governor, after consulting the Chief Minister, rejects the name, citing an adverse report from the State Police on the Advocate's social media activity.

Question: Under the current constitutional and judicial framework, what is the fate of this recommendation, and what are the next possible steps according to the Memorandum of Procedure (MoP)?

Answer:

Constitutional Mandate: Article 217 requires the President (who acts on advice) to consult the Governor and the Chief Justice of India (CJI).
Fate of the Recommendation: The Governor cannot unilaterally reject the recommendation. The Governor must forward the entire file, including the adverse report and the Chief Minister's advice, to the Union Law Minister, who will then place it before the Supreme Court Collegium (CJI + 2).
Next Steps (MoP):
- The Supreme Court Collegium will consider the adverse report and the opinion of the Governor/CM.
- The SC Collegium may reject the name, accept the name, or reiterate the name.
- Reiteration: If the SC Collegium, after considering the fresh material (the adverse report), reiterates its recommendation, the Central Government is bound to issue the warrant of appointment for Advocate 'A'. This principle of reiteration being binding stems from the judicial primacy established in the Second Judges Case (1993).

Recommended Books

You can explore these highly recommended resources for a deeper understanding.

Indian Polity (English) by M Laxmikanth for UPSC CSE 2025 | 7th edition (latest) | Civil Services Exam - Prelims, Mains and Interview | State PSCs exams/ PCS exams - by M Laxmikanth
Oswaal NCERT One For All Book for UPSC & State PSCs | Indian Polity Classes 6-12 - by Oswaal Editorial Board
Bharat Ki Rajvyavastha (भारत की राजव्यवस्था) - M Laxmikanth for UPSC CSE

👉 High Courts in India: Structure, Constitutional Provisions & Judge Appointments (Part 1)