Unit 3: State and Local Governments PDF

UNIT-III State and Local Governments: Executive of the States: Introduction: India is a federation in which power is clearly demarcated between Union and States. Indian Constitution is the largest written constitution in the world wherein the powers of state legislatures are well-defined in part VI...

UNIT-III State and Local Governments: Executive of the States: Introduction: India is a federation in which power is clearly demarcated between Union and States. Indian Constitution is the largest written constitution in the world wherein the powers of state legislatures are well-defined in part VI of the Indian Constitution. Being federal in nature, Indian Constitution has made provision for uniform structure of government for state governments similar to that of central government barring Jammu &Kashmir. States in India enjoy freedom within the limits imposed by the Constitution. Since, India does not comply with the norm of classical federalism; there are many unitary features in its Constitution which puts severe restrictions on the authority of states. As states in India have also adopted the similar parliamentary pattern, the state governments too have the provision of actual head and nominal head. Governor in state is the nominal head whereas Chief Minister exercises real executive authority along with its council of ministers. State legislatures too, consist of two houses commonly known as Legislative Assembly (Vidhan Sabha) and Legislative Council (Vidhan Parishad) although it is not a uniform phenomena and it depends on the size and willingness of the state government. As in the case of union government, Legislative Assembly is more powerful than legislative council. The state legislatures are empowered to frame laws for their respective states on the subjects mentioned in the State Subject. Legislatures of states usually consist of Governor and state legislature and state legislatures are further divided into two houses namely Legislative Assembly and Legislative Council. While Legislative Assembly is found in every state, Legislative Council may or may not exist in a state. The Constitution makes the provision that the second chamber may be abolished where it exists as well as it may be created where it is not present by a simple procedure. It does not involve constitutional amendment. In order to bring such amendment, the state assembly must pass a resolution by a special majority i.e. two-thirds of the members actually present and voting for creation or abolition of the council. This extraordinary arrangement was made in the Constitution for the states however; same was not done in case of Union Legislatures. The reason for not making it mandatory was that states being of poorer resources may find it difficult to have second chamber. Taking advantage of this provision the state of Andhra PROTIMA SIKARI Pradesh created Legislative Council in 1957 and abolished it in 1985. Similarly West Bengal and Punjab too abolished their legislative Councils in 1969. The Governor Governor is the formal head of the State executive and executive authority of the State is vested in him. He exercises his executive authority either directly or through officers subordinate to him. Chief –Minister and his Council of Ministers aid and advise him in discharging his duties. Normally, for each state Governor is appointed. However, under Article, 153 the same person may be appointed as Governor of two or more States. He also acts as a link between Centre and State and his role becomes very crucial when state is under President Rule. During emergency period, he applies his discretionary powers. Although, in some cases he looks as replica of the President at the Centre, however, unlike President, he is not merely a figurehead, but plays a very crucial role in smooth functioning of the Government. While, the criteria of having Governors in each state being discussed in the Constituent Assembly, there was lot of confusion regarding their mode of selection. Originally, it was suggested that he should be directly elected. However, deadlock between Governor and Chief Minister, it was finally decided to have nominated Governor. Similarly, there was also debate regarding appointing Governor as the head of the state in true spirit of parliamentary democracy or nominating him. However, it was, ultimately decided that he should be nominated by the Centre. The confusion that prevailed in determining the criteria to be followed in the appointment of the Governor surfaced because there was no precedence in British Parliamentary arrangement (from where, India borrowed the principle of Parliamentary democracy) to suggest that what norm should govern the functioning of the Governors. Finally, the Constitutional experts agreed that, he should act in a restrained manner under normal circumstances and apply his extraordinary authority, when situation goes out of hand. Appointment: Article 153 lays down that there shall be a Governor for each State. However, the same person may be appointed as Governor for two or more states. The Governor is appointed as per the conditions laid down in Article 158 of the Indian Constitution. Sarkaria Commission has recommended that in order to maintain neutral and unbiased constitutional position of the PROTIMA SIKARI Governor, someone who is detached figure and not intimately connected with politics be appointed as Governor. Generally, while appointing Governors in India, two conventions are followed. 1) The Governor is appointed from outside the State. However, there have been examples in the past when this convention was not followed. 2) Under normal circumstances, the States are consulted by the Centre before appointing Governors. However, this is often violated and more particularly if it is opposition ruled state then the chances of consultation is very minimal. Removal Governor is normally appointed for a period of 5 years or he may continue in his office till his successor takes over from him. He may also offer his resignation before expiry of his term on personal grounds or may be asked to resign if he fails to discharge his duties as per the Constitution. Although, the grounds for his removal by the President is not specified in the Constitution. They may also be transferred to other States as it has happened on several occasions. Constitution remains silent on the issue of transfer of Governor. Powers and Functions of the Governor Unlike, President of India, Governors of States does not have military or diplomatic power which is normally granted to the Head of the State. However, he too, enjoys similar legislative, executive, judicial powers similar to that of President. The Governor is bestowed with various powers which may be bracketed into different categories. 1. Executive powers 2. Legislative powers 3. Financial powers 4. Judicial Powers 5. Discretionary Powers Executive Powers The Governor is the Chief Executive of the State and all the executive functions of the State are performed in the name of the Governor. Article 154 of the Indian Constitution has clearly stated that the Executive power of the state shall remain vested in the Governor. Governors in India have similar powers and responsibilities at the State level as that of the President of India PROTIMA SIKARI at the centre. In discharging his duties and responsibilities, he is aided and advised by the Council of Ministers headed by the Chief- Minister, except where application of discretionary power by the Governor is required. Although, Governor appoints the Chief- Minister but his role is very limited in the sense that as long as Chief- Minister enjoys majority support, they can remain in office and also they are accountable to the State Legislature and not to the Governor. However, if the Governor feels that Chief-Minister has lost majority support, he may anytime ask him to prove his majority on the floor of the house within a specified period. Governor has power to dismiss even a State Government which has majority, if he feels that it is not working according to the provisions of the Constitution. Although, under normal circumstances, Governor and Chief- Minister works together and Chief-Minister always remains in touch with the Governor and briefs him about the major policy decisions of the Government. On the other hand, Governor may ask for certain specific information from the Chief-Minister about certain specific issues. The Governor of the State has also the power to appoint the Advocate General of the State and he remains in office during the pleasure of the Governor. Legislative Powers Although, the Governor is not a member of the State Legislature, but he is an integral part of it and thus enjoys a variety of powers. For Example, he has the right to address the legislature and to send message to it. He also summons, prorogues [Art. 174(1)] and dissolves the State Legislature [Article 174(2) (b)]. He also addresses the first session of State Legislature after election and at the beginning of each new session. He may also send messages with respect to any bill to the House and House will consider the message. The Governor is also empowered to nominate a member of the Anglo-Indian community to the Legislative Assembly in case the community does not get adequate representation in the Legislative Assembly. Another important power of the Governor is the power to give assent to the Bill passed by the State Legislature. A Bill cannot become an Act unless it gets assent of the Governor. He exercises wide ranging powers in this regard. For Example, he may either give his assent to any Bill or withhold his assent or reserve the Bill for the assent of the President (Article200).Another important power of the Governor is to issue ordinances when the State Legislature is not in session (Article 213). Financial Powers PROTIMA SIKARI The Governor of the State also enjoys limited financial powers as well. For example, a Money Bill can be introduced in the Legislative Assembly only on the recommendation of the Governor. The annual Budget is also presented with the recommendation of the Governor. The Contingency Fund remains at his disposal. However, in exercising his financial powers, he is advised by the Chief Minister. Judicial Powers Article 161 confers limited powers to the Governor to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the Executive power of the State extends. The Governor is also consulted by the President while appointing Chief Justice and other Judges of the High Court. Discretionary Powers A discretionary power of Governor means the power of the Governor which he exercises as per his own individual judgment or without the aid and advice of the council of ministers. However, the Constitution has also vested him with the power to act as per his own discretion. During normal circumstances, he may act according to the aid and advise of the council of ministers, however, he may or may not act as per the advise of the council of ministers. Discretionary powers of the Governor may be divided into two parts. i) Specific Discretionary Powers ii) Circumstantial Discretionary powers Specific Discretionary powers are the one which are specified and mentioned in the Constitution under which Governor may use his discretion. Circumstantial Discretionary powers are not defined by the Constitution. These are implied powers which are exercised by the Governor as per circumstances which may vary. Many a times, when Governor exercises this power, his role becomes controversial. The Governors in Indian State are bestowed with wide amount of discretionary powers which makes their position very significant. Art. 163(1) clearly states that “There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is or under this Constitution required to exercise his function or any of them in his discretion. In the exercise of his discretionary power, Governor will not be required to act according to the advice of his ministers or even to seek their advice. PROTIMA SIKARI The clause 2 of the same Article further says that…. Anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion. Constitution has not elaborated in detail the discretionary powers of the Governor and therefore it is said that the power to decide his discretion is itself a discretionary power of the Governor. Some of the discretionary powers of the Governor are: Dismissal of the ministry, imposition of President’s rule, withholding of a bill etc. Under Article 356, the Governor may also 12 recommend to the President for the imposition of the President’s rule in the state if he feels that there is complete breakdown of the Constitutional machinery. And the state cannot be carried on in accordance with the Constitutional provisions. He may also dismiss the state government and dissolve the Legislative Assembly. The Governor applies his discretionary powers if any Bill passed by the state legislature contravenes with constitutional provisions or may not be in the national interest. He may reserve such Bills for the consideration of the President. Similarly, the Governor may exercise his discretion, if he is convinced that state government is indulged in anti-national activities, which may pose threat to national security. Another discretionary power of the Governor is enshrined in the Article 175(1) of the Constitution, which envisages that Governor can address either house of the State Legislature either together or separately. Conventionally speaking, the address of the Governor is prepared by the party in power and it contains apart from other issues, political agenda of the ruling party. Hence, it raises the question that whether Governor can refuse to read such address drafted by the ruling party or decline to do so. The normal opinion in this regard is that he may exercise his discretion and avoid reading such objectionable portion of the speech. The application of discretionary powers by the Governor, especially in favour of the party in power at the centre and contrary to the interest of the ruling party of the state has created bitter animosity in centre-state relations. In order to check the abuse of authority by the Governor, in the famous Bommai case the Hon’ble Supreme Court delivered its landmark judgment, stating that the state Legislative Assembly will not be dissolved and kept in suspended animation till the issue gets finally resolved by the Court. Thus, we see that Governor enjoys considerable amount of power in Indian political system and plays a key role in centre-state relations. Unfortunately, due to the partisan role of some of the state Governors, the strain has developed in centre-state relations. Although, it has been PROTIMA SIKARI observed that in the era of coalition politics, this tendency has been curtailed to a very great extent. In order to further improve the relation between two federal units, the recommendation of the Sarkaria Commission need to be adhered. It recommended that, active politicians should 13 not be appointed as state Governors and Chief Minister should be consulted before appointing the Governor. The office of the Governor is very crucial as he has to play a very significant role in the governance of the state. The problem occurs when Governor begins to act under the dictation of the central government. Being a Constitutional head, it is expected from the Governor that he would act in a reasonable and rational manner even while exercising his discretionary authority and moreover, he must have materials to sustain his judgment. Otherwise, the Constitution would have to be credited with granting its approval to malafide and unreasonable exercise of discretionary power by the Governor. The Chief Minister The chief minister is the head of the government of the state. The governor of the state is the nominal head of the government while the real executive decision is being taken by the chief minister. As a result, you see the CM as the executive leader of the state. Process of choosing a Chief Minister The Indian Polity and Constitution makes no mention of the details of the chief minister’s selection. One thing is certain: the Chief Minister of a state is selected by the people of that state. The Chief Minister of the state is selected by the leader of the political party that receives the most votes. If no party obtains a majority, then the government gets to use its discretion and appoint a Chief Minister. Position of the Chief Minister The position of the Chief Minister is similar to that of the Prime Minister at the central level although his area of activities remains confined to his state. The chief minister in the state exercises real authority in selecting his cabinet colleagues and allocating portfolio to them. He presides over the meeting of the cabinet and is the chief spokesperson of the Government. Besides discharging day to day activities of the government, Chief Minister also acts as a bridge PROTIMA SIKARI between State Legislature, The Council of Ministers and the Governor. Chief Minister performs various roles as the head of the government which are as follows. Being head of the Government, he presides over the meetings of the Cabinet, keeps the Governor informed about the developments in the state, initiates welfare policies for the state, allocates portfolios to the ministers, keeps check on their activities, interacts with Union Government and various ministries and demand money for the various policies and programmes. He may also tender his resignation at any time, and may ask the Governor to dissolve the House. It is up to the Governor to accept such advice or not. Although, the Powers and responsibilities of the Chief Minister are well defined in the Constitution, in actual practice, it depends on various factors. For example, the position of a Chief Minister heading a coalition government or belonging to a national party is distinct from the position of a Chief Minister belonging to a regional political party owing to the functional space available to them. Various leaders of regional political parties like Nitish Kumar, Karunanidhi, Jaylalita, Naveen Patnaik, Mulayam Singh, Mayawati etc. wields enormous clout. The strong position of the Chief Minister helps him in various ways like selecting his cabinet colleagues to providing stable government in the state. Earlier, many Chief Ministers, in order to accommodate various groups used to have unwieldy cabinet but after 91st Constitutional amendment a ceiling has been fixed, limiting their size of the ministries to 15 per cent of the total strength of the State Legislative Assembly. Chief Minister is also concerned with the welfare of the state government and in this regard he has to maintain regular and smooth contact with the central Government. Chief Ministers pay regular visit to New Delhi and interacts with various ministries of the Government so that various developmental activities in the state could be initiated. Chief Ministers pays visit to Planning Commission and meet the Chairman and apprise him about the various financial requirement of the state and seek fund for that. Thus, we see that position of the Chief Minister is very crucial in the governance of the state. Many states that were lagging far behind have surged ahead because of the presence of an able and visionary Chief Minister. The example of Bihar, Gujarat can be cited in this regard. Powers and Functions of the Chief Minister Being real head of the Government, Chief Minister is bestowed with many powers and responsibilities. They are as follows: PROTIMA SIKARI i) According to Article 163, there shall be a Council of Ministers with Chief Minister as its head to aid and advice the Governor in the exercise of his functions except in the cases where Governor acts in his own discretion. ii) ii) He selects his cabinet colleagues and also allocates portfolios to them. He is authorized to reshuffle his cabinet anytime and may drop any minister from his cabinet. iii) iii) Chief Minister presides over the meeting of his cabinet and also co-ordinates the activities of the various ministries. iv) iv) Chief Minister also communicates the Governor regarding all the decisions of the Council of Ministers. He acts as a channel of communication between Governor and his Council of Ministers. He also acts as a link between the legislature and his ministers. v) The sessions of the L He is the state’s true executive chief. The ministers are appointed by the governor of the state only on the advice of the chief minister. As a result, you can see that the actual power is in the hands of the chief minister. vi) The Chief Minister may tender his resignation any time and then advise the Governor to dissolve the Legislative Assembly even if its term has not expired. He may also recommend for President rule. However, it is up to the Governor to accept such advice or not. vii) vii)All the Bills have prior approval of the Chief Minister, before being introduced in the Legislative Assembly and he also ensures that it gets passed in the Legislative Assembly. viii) The Chief Minister also recommends the portfolios or the designation allotted to the ministers by the governor ix) All meetings are presided over by the chief minister. He directs how the cabinet will work and the coordination of the cabinet ministers for the efficient operation of the ministry. x) The Chief Minister is required by the Indian Polity and Constitution to convey to the Governor all decisions of the Council of Ministers related to the administration and affairs of the State, as well as legislative initiatives. xi) The Chief Minister serves as the only point of contact between the Cabinet and the Governor. The Governor has the right to be notified of the Council of Ministers’ decisions by the Chief Minister PROTIMA SIKARI  xii) It is the chief minister of the state who provides any information connected to the administrative activities of the state government or any legislative proposals that the Governor may request The Council of the ministers The Chief Minister and the Council of Ministers has a similar structure to the Central Council of Ministers in Indian Polity and Constitution. The Chief Minister presides over the state council. As you have read about the tasks of the chief minister, you are aware that they are appointed by the governor of the state on the advice of the chief minister. In the council, there are three types of ministers:  Cabinet Members  State Ministers  Ministers of State The following are the primary functions of the Council of Ministers:  The ministers are in charge of developing all the state government’s policies. However, they are passed only on the permission of the chief minister  They make decisions on public health, employment, water storage, independent universities, land tenures, and so forth  The finance minister delivers the state budget to the state legislature, which contains all receipts and expenditures for the upcoming financial year  Only a Minister has the authority to introduce such a Bill, which must be approved by the Governor. When it comes to money, the Executive takes the initiative Types of responsibilities There are two sorts of accountability: group/collective responsibility and individual responsibility. 1. Collective Responsibility  According to Article 164, the council of ministers is collectively responsible to the state’s legislative assembly PROTIMA SIKARI  This means that all ministers have joint accountability for any omissions and commissions before the legislative assembly  They work as a team and either sink or swim as a unit  When the legislative assembly passes a no-confidence resolution against the council of ministers, all ministers, including those on the legislative council, must resign 2. Individual Responsibility  It is covered in article 165. The ministers, according to this, must serve at the governor’s pleasure  This indicates that the governor has the authority to fire a minister if the council of ministers has the support of the legislative assembly  The governor, once again, can only remove any minister with the advice and agreement of the chief minister; otherwise, he cannot  If the chief minister is dissatisfied with a minister’s performance, he may ask him to resign or suggest the governor dismiss him Conclusion At the state level, the Governor, like the President, serves as a nominal leader, while the real powers are exercised and implemented by the Council of Ministers, which is led by the Chief Minister. Members of the State Council of Ministers are also collectively and individually accountable to the Lower House of the State Legislature for their actions of omission as well as commission. Let’s check out the details of The Chief Minister and the Council of Ministers. Legislative Councils The provision regarding Legislative Council is made in the Article 171 of the Indian Constitution. The strength of the house varies however, the minimum strength is fixed as 40 and the maximum is determined on the basis of strength of the Legislative Assembly. The total strength should not exceed one third of the Legislative Assembly of the state. The composition of the council consists of partially nominated and partially elected members. 5/6 of the total numbers of the Council are indirectly elected and 1/6 will be nominated by the Governor. Those who are nominated by the Governor are persons having special knowledge in literature, science, art, co-operative movement and social service. The PROTIMA SIKARI members are elected through indirect method of proportional representation by the single transferable vote system. Tenure Like Rajya Sabha, the Council is a permanent body and is not subject to dissolution. One- third of its members retire on the expiry of every second year. [Art.172 (2)] The Chairman and Deputy Chairman Article 182 of the Constitution has provision of The Chairman and Deputy Chairman. They preside over all the sessions of the Council except where a resolution for their removal is under consideration. They never participate in voting except where there is a tie, they exercise their casting vote. Article 183 lays down rules through which they may either vacate their office or if a resolution of the council passes by its majority for their removal. Qualification As per provisions laid down under Article 173 in order to be member of state legislature a person should be a an Indian citizen and in the case of a seat in Legislative assembly not less than 25 years of age and in the case of a seat in the Legislative Council not less than 30 years of age. The disqualification criterion is discussed in the Article 191 of the Indian Constitution under which certain norms have been laid down for the disqualification of the members. The disqualification criterion is as follows: a) Those members who hold any office of profit under central or state governments. However, state may by law declare certain offices as not attracting disqualification. b) Is of unsound mind. c) Is an undischarged insolvent. d) Is not a citizen of India or has voluntarily acquired citizenship of another country. e) Is disqualified by law made by Parliament PROTIMA SIKARI Powers and Functions of the legislative Council In order to pass an ordinary Bill, a procedure similar to that of Parliament is followed. An ordinary Bill may originate in either House of State Legislature in which there is a provision of two houses. Ordinary Bills other than Money Bills can originate in either House. In case of Money Bills, the Legislative Council must return the Bill to the Legislative Assembly along with its recommendations and suggestions within 14 days from the date of its receipts. However, in case of Non-Money Bills, certain restrictions have been placed on Legislative Council under Article 197. It stipulates that if a Bill is passed by State Legislature and transmitted to the Legislative Council, it may A) Rejected by the Council B) Three months have passed from the date on which the Bill was laid before the Council and the Council has not passed it., or C) The Bill is passed by the Council with certain amendments to which the Assembly does not agree. D) In such case, assembly may pass the bill once again with or without amendments as suggested by the Legislative Council and transmit it to the Legislative Council for reconsideration. If, however, the Bill is passed by the Legislative assembly for the second time, despite having certain delaying powers of Council, the Bill shall be deemed as passed. So, what we observe, that Legislative Council can delay the passage of a Bill for three months initially and second time for a month but ultimately, the will of the Legislative Assembly prevails. Apart from that, since there is no provision of joint sitting to iron out differences between both houses, the will of Legislative Assembly ultimately prevails. Control over Executive As in the centre, the Council of Ministers headed by the Chief Minister is collectively responsible to the Legislative Assembly and not to the Council. The council has hardly any power to influence the governments except raising questions for its deeds or misdeeds. State Legislative Assembly PROTIMA SIKARI State Legislative Assembly is also known as popular chamber which consists of directly elected members from territorial constituencies. The number of Assembly members should not be more than 500 nor less than 60. However, after the creation of smaller states, the minimum number has been reduced in respect of some states like Sikkim, Arunachal Pradesh and Goa. At present, the biggest state Assembly is Uttar Pradesh and smallest is that of Sikkim having just 32 members. Moreover, provisions have been made to reserve seats for women, S.Cs and S.Ts in legislative Assemblies. Apart from that, Governor has the power to nominate on member from the Anglo-Indian community as he deems fit (Article 333). Tenure The tenure of state Legislative Assembly is 5 years as laid down in Article 172. It may be dissolved earlier also by the State Governor. Governors very often misused their authority at the direction of central government and imposed emergency under Article 356.In 1977, Janata Government imposed emergency in 9 Congress ruled states and when Congress came back to power it imposed emergency in 9 states where it was not in power. This could only be checked when in S.R. Bommai v. Union of India (1994) case, a 9 judge bench advised the government to follow the recommendation of Sarkaria Commission and avoid dissolution of state Assemblies. However, in case of proclamation of emergency, the period of the Assembly can be extended by the law of the Parliament for a period of one year at a time and not exceeding six months after the proclamation ceases to have effect. [Article 172(2)]. The Speaker and the Deputy Speaker The Legislative Assembly of each state must choose from its members Speaker and the Deputy speaker (Article 178). They may also resign from their post if they cease to be member of the Assembly or may offer their resignation or if a resolution to this effect has been passed by a majority of the members of the Assembly. They preside over the meetings of the Legislative Assembly except when the process of their removal is under process. Powers and Functions of Legislative Assembly PROTIMA SIKARI The Legislative Assembly of state is the most powerful house and it has wide array of Legislative, Executive and Financial powers. It makes laws on the subject mentioned in the state list as well as Concurrent List. The powers of Legislative Council in this regard are very limited and at most it can delay the legislation. Under its executive power, Legislative Assembly, exercises control over the Council of Ministers headed by the Chief- Minister. The Council of Ministers is collectively responsible to the Executive for its policies and programmes. Apart from moving resolutions and motions, it can also move a no-confidence motion against the Government. By passing the no-confidence motion, the Assembly can bring down the Government. Legislative Assembly is also vested with the financial power and without its concurrence, no taxes can be levied, no appropriation can be made, no taxes can be introduced and money bill cannot be introduced. Finally, it also has power with regard to Constitutional amendment under article 356. Once, the bill is passed by the Parliament, it is referred to the states for ratification. Relations between the Two Houses of the State Legislature Normally speaking, the relation between two houses remains cordial and even in case of conflict, due to the strength of the Lower House, its will prevails. At the most, Legislative Council can only delay the passage of the bill and it is up to the Legislative Assembly to either incorporate the changes proposed by the Council or pass the Bill in its original form. PROTIMA SIKARI Introduction to State Judiciary Introduction to State Judiciary- Subordinate Courts are the primary courts of India that work at the ground level. Subordinate Courts have been established in each district of every state in India. Civil courts, Criminal Courts and Revenue courts are some examples of the subordinate courts. High courts are higher than subordinate courts and lower than supreme courts in the hierarchy of the judicial system in India. The judge of a high court can be a person who has the citizenship of India and has experience of working in a judicial office in any part of India for 10 years at least or the person has been part of a high court as an advocate for a decade, i.e.,10 years. So, there is no minimum age requirement to become the judge of the high court but a judge can hold office up to a maximum of 62 years of age. The Judges of high court can resign to the president if they want and they can also be removed by the president if the parliament recommends to do so. The state judiciary in the Indian system has been used to handle jurisdiction over revenue matters also which had not been given to high courts in the colonial era. State Judiciary and Functions- The highest state judicial body of the state in India is called the High Court. 25 high courts have been established in India. In these 25, 3 high courts have jurisdiction in more than one state. Bombay High Court also deals with cases of Daman and Diu, Goa, Maharashtra and Dadra and Nagar Haveli. The high court of Guwahati gives justice to people of Nagaland, Arunachal Pradesh, Assam and Mizoram. Punjab and Haryana High Court which has territorial jurisdiction over Punjab, Haryana and Chhattisgarh. Similarly, the judicial system of Union Territories of India is also linked with some state high courts, for example- Calcutta high court has judicial reach in Andaman and Nicobar Islands. Madras high court also has jurisdiction over Puducherry. Role of State Judiciary- In India, one Chief Justice who is called the Chief Justice of India (CJI) and some other judges are appointed in the Supreme Court. In the same manner, if we talk about state judiciary and functions assigned to it, every high court has a chief justice and some other judges. In our constitution, the number of judges in a high court is not decided, it is left to the discretion of the president. The president of India designates High Courts’ judges. Firstly, the chief justice is designated to his post, then after consulting with the governor of the respective state and PROTIMA SIKARI chief justice of India, the president of India appoints other judges too. After the third judges’ case (1998), the Supreme Court gave a verdict that the chief justice of India should consult with collegium of two senior most judges of the Supreme Court for a fair ‘consultation’ process. Role of state judiciary also extends to 7 types of jurisdictions- Original Jurisdiction, Appellate Jurisdiction, Writ Jurisdiction, Control over subordinate courts, Supervisory jurisdiction, also it is ‘A court of record’, it has been given power of judicial review. Introduction to state judiciary has been incorporated with more writ jurisdiction to high courts than supreme court in India. The supreme court can issue writs only to enforce fundamental rights whereas high courts can issue writ over any or all kinds of legal rights. About Indian Judiciary Inspired by the Government of India Act of 1935, the Indian Constitution has established a single-integrated judicial system with a three-tier structure: o The Supreme Court o The High Courts o The Subordinate Courts (District Courts, and other Lower Courts) This single system of courts enforces both Central and State Laws across the country. High Court The High Court is the apex court in the judicial administration of a State under the integrated judicial system established by the Constitution of India. The High Courts have been envisaged as: o The highest court of appeal in the state o The guarantor of Fundamental Rights o The guardian of the Constitution of India, and o The interpreter of the Constitution of India. Constitutional Provisions Related to High Courts Articles 214 to 231 in Part VI of the Indian Constitution deal with the provisions related to the High Courts. The constitutional provisions mentioned under these articles deal with the organization, independence, jurisdiction, powers, and procedures of the High Courts. The Parliament and State Legislature both are authorized to regulate these provisions. PROTIMA SIKARI Territorial Jurisdiction of High Court o The Constitution of India provides for a High Court for each State. o However, the 7th Constitutional Amendment Act of 1956 authorized the Parliament to establish a common High Court for two or more States or for two or more States and a Union Territory. For example- The Union Territories of Jammu and Kashmir and Ladakh have a common High Court. o The territorial jurisdiction of a High Court is co-terminus with the territory of a State. o The territorial jurisdiction of a common High Court is co-terminus with the territory of a State as well as a Union Territory. o The Parliament can extend the jurisdiction of a High Court to any Union Territory or exclude the jurisdiction of a High Court from any Union Territory. Composition of Judges of High Court The Constitution does not specify the strength of a High Court and leaves it to the discretion of the President. Thus, every High Court consists of a Chief Justice and such other Judges as determined by the President. The President determines the strength of a High Court from time to time depending upon the workload of the High Court. Appointment of Judges of High Court The Chief Justice and other judges of the High Court are appointed by the President of India as can be seen in the following sections. Appointment of Chief Justice of High Court The Chief Justice is appointed by the President after consultation with the Governor of the concerned State and the Chief Justice of India. Appointment of Other Judges of High Court  Other judges of the High Court are appointed by the President after consultation with the Governor of the State, the Chief Justice of India, and the Chief Justice of the concerned High Court.  In the case of a common High Court for two or more States, the Governors of all the States concerned are consulted by the President of India.  As per the Second Judges Case (1993), consultation with the Chief Justice of India means concurrence and advice tendered by the Chief Justice of India is binding on the President. PROTIMA SIKARI   As per the Third Judges Case (1998), the Chief Justice of India should consult a collegium of 2 senior-most judges of the Supreme Court before recommending the name to the President. The recommendations made by the Chief Justice of India, without consulting the collegium, are not binding on the President. Qualifications of Judges of High Court A person to be appointed as a judge of a High Court should have the following qualifications: o He/she should be a citizen of India, and o He/she should have a judicial office in the territory of India for ten years. Been an advocate of a High Court (or High Courts in succession) for ten years. Unlike in the case of the Supreme Court, the Constitution makes no provision for the appointment of a distinguished jurist as a judge of a High Court. There is no minimum age for appointment as a judge of a High Court prescribed by the Constitution. Oath and Affirmations of Judges of High Court The Chief Justice and the Judges of the High Court make and subscribe to an oath or affirmation before the Governor of the State or some person appointed by him for this purpose. In his/her oath, a judge of a High Court swears:  to bear true faith and allegiance to the Constitution of India.  to uphold the sovereignty and integrity of India.  to duly and faithfully and to the best of his/her ability, knowledge, and judgment perform the duties of the office without fear or favour, affection or ill-will.  to uphold the Constitution and the laws. Tenure of Judges of High Court The Constitution has not fixed the tenure of a judge of the High Court. However, the Constitution contains the following four provisions in this regard: o He/she holds office until he attains the age of 62 years. Any question regarding his/her age is to be decided by the President after consultation with the Chief Justice of India and the decision of the President is final. o He/she can resign from his/her office by writing to the President. o He/she can be removed from his/her office by the President on the recommendation of the Parliament. PROTIMA SIKARI  o He/she vacates his/her office when he/she is appointed as a judge of the Supreme Court or when he/she is transferred to another High Court. Removal of Judges of High Court A judge of the High Court can be removed from his/her office by an order of the President.They can be removed on the following two grounds:  proved misbehaviour  incapacity The procedure relating to the removal of a judge of the High Court is regulated by the Judges Enquiry Act (1968) and is the same as that for a judge of the Supreme Court. As per the Act, the process of removal goes as follows:  A removal motion signed by 100 members in the case of Lok Sabha or 50 members in the case of Rajya Sabha is to be given to the Speaker/Chairman. The Speaker/Chairman may admit the motion or refuse to admit it.  If the motion is admitted, then the Speaker/Chairman constitutes a three-member committee to investigate the charges. The Committee consists of the Chief Justice of India or a Judge of the Supreme Court, a Chief Justice of a High Court, and a distinguished jurist.  If the committee finds the judge guilty of the charges, then both the Houses of Parliament can take up the motion for consideration. The motion must be passed by both Houses of Parliament with a Special Majority (50% of the total membership of the House + two-thirds of the members present and voting). Once passed by both Houses of Parliament, an address is presented to the President for the removal of the judge. Finally, the President passes an order, removing the judge. Transfer of Judges of High Court The President of India can transfer a judge of one High Court to another High Court after consulting the Chief Justice of India. As per Third Judges Case (1998), in case of transfer of a judge of the High Court, the Chief Justice of India should consult, in addition to a collegium of 4 senior most judges of the Supreme Court, the Chief Justices of the two High Courts concerned. The sole opinion of the Chief Justice of India does not constitute the consultation process. PROTIMA SIKARI Acting, Additional and Retired Judges of High Court Acting Chief Justice The President of India can appoint a judge of the High Court as acting Chief Justice of the High Court when: o the office of Chief Justice of the High Court is vacant, or o the Chief Justice of the High Court is temporarily absent, or o the Chief Justice of the High Court is unable to perform the duties of his/her office. Acting Judge The President can also appoint a duly qualified person as an acting judge of a High Court when a judge of that High Court is: o unable to perform the duties of his/her office due to absence or any other person o appointed to act temporarily as Chief Justice of that High Court. o An acting judge holds office until the permanent judge resumes his/her office. However, he/she cannot hold office after attaining the age of 62 years. Additional Judge The President can appoint duly qualified persons as additional judges of a High court for a temporary period not exceeding two years when: o there is a temporary increase in the business of the High Court, o there are arrears of work in the High Court. o An additional judge cannot hold office after attaining the age of 62 years. Retired Judges The Chief Justice of a High Court of a State can request a retired judge of that High Court or any other High Court to act as a judge of the High Court of that State for a temporary period. The Chief Justice of a High Court of a State can do so only with the previous consent of the President and also of the person to be so appointed. Allowances of such a judge are determined by the President of India. He/she enjoys all the jurisdiction, powers, and privileges of a judge of that High Court. But, he/ she will not otherwise be deemed to be a judge of that high court. PROTIMA SIKARI Jurisdiction and Powers of High Court The Constitution does not contain detailed provisions w.r.t. the jurisdiction and powers of a High Court. It only lays down that the jurisdiction and powers of a High Court are to be the same as immediately before the commencement of the Constitution, with some additions such as revenue matters, writ jurisdiction, power of superintendence, consultative power, etc. The present jurisdiction and powers of a High Court are governed by multiple sources, including:  the constitutional provisions,  the Letters Patent,  the Acts of Parliament,  the Acts of State Legislature,  the Indian Penal Code, 1860,  the Criminal Procedure Code, 1973, and  the Civil Procedure Code, 1908. The extensive jurisdiction and powers of the High Court can be classified into the following categories: Original Jurisdiction The original jurisdiction of the High Court i.e. its power to hear disputes in the first instance, not by way of appeal, includes the following:  Disputes relating to the election of members of Parliament and State Legislatures.  Regarding revenue matters or an act ordered or done in revenue collection.  Enforcement of fundamental rights of citizens.  Cases ordered to be transferred from a subordinate court involving the interpretation of the Constitution to its own file.  The four High Courts (i.e., Calcutta, Bombay, Madras and Delhi High Courts) have original civil jurisdiction in classes of higher value. Writ Jurisdiction  As per Article 226 of the Indian Constitution, the High Court is empowered to issue writs for the enforcement of Fundamental Rights and any ordinary legal right.  The writ jurisdiction of the High Court is not exclusive but concurrent with the writ jurisdiction of the Supreme Court. PROTIMA SIKARI  o It means, when the fundamental rights of a citizen are violated, the aggrieved party has the option of moving either the High Court or the Supreme Court directly.  However, the writ jurisdiction of the High Court is wider than that of the Supreme Court. o While the Supreme Court can issue writs only for the enforcement of fundamental rights, the High Court can issue writs for the enforcement of Fundamental Rights as well as any ordinary legal right. Read our detailed article on Writ Jurisdiction of the High Court. Appellate Jurisdiction  The High Court is primarily a court of appeal and hears appeals against the judgments of Subordinate Courts functioning within the territorial jurisdiction of the State.  The Appellate Jurisdiction of the Supreme Court can be classified under the following two heads: Appeals in Civil Matters The civil appellate jurisdiction of a High Court is as follows:  First appeals from the orders and judgments of the district courts, additional district courts, and other subordinate courts lie directly to the high court, on both questions of law and fact.  Second appeals from the orders and judgments of the district court or other subordinate courts lie to the high court in the cases involving questions of law only, and not questions of fact.  Some High Courts have provision for intra-court appeals. Under this, when a single judge of the High Court has decided a case, an appeal from such a decision lies to the division bench of the same High Court.  Appeals from the decisions of the administrative and other tribunals lie to the division bench of the State High Court. Appeals in Criminal Matters Appeals from the judgments of Sessions Court and Additional Sessions Court lie to the High Court if the sentence is one of imprisonment for more than seven years.  A death sentence or capital punishment awarded by a Sessions Court or an Additional Sessions Court should be confirmed by the High Court before it can be executed, whether there is an appeal by the convicted person or not. PROTIMA SIKARI Supervisory Jurisdiction o A High Court has the power of superintendence over all courts and tribunals functioning in its territorial jurisdiction, except military courts or tribunals. o This power of superintendence of a High Court extends to all courts and tribunals whether they are subject to the appellate jurisdiction of the High Court or not. o The following points are to be noted w.r.t. the Supervisory Jurisdiction of High Courts: o It covers not only administrative superintendence but also judicial superintendence, o it is a revisional jurisdiction, o it can be suo-motu (on its own) and not necessarily on the application of a party. Control over Subordinate Courts A High Court has administrative control and other powers over the Subordinate Courts, which include the following:  It is consulted by the Governor in the matters of appointment, posting and promotion of district judges and in the appointments of persons to the judicial service of the state (other than district judges).  It deals with the matters of posting, promotion, grant of leave, transfers, and discipline of the members of the judicial service of the state (other than district judges).  It can withdraw a case pending in a subordinate court if it involves a substantial question of law that requires the interpretation of the Constitution. It can then either dispose of the case itself or determine the question of law and return the case to the subordinate court with its judgment.  Its law is binding on all subordinate courts functioning within its territorial jurisdiction in the same sense as the law declared by the Supreme Court is binding on all courts in India. A Court of Record As a Court of Record, the High Court has the following powers: The judgments, proceedings, and acts of the Supreme Court are recorded for perpetual memory and testimony. These records are admitted to be of evidentiary value and cannot be questioned when produced before any court. Thus, these judgments are recognized as legal precedents and legal references. It has the power to punish for contempt of not only itself but also contempt of subordinate courts. However, a High Court shall NOT take cognizance of a contempt alleged to have been PROTIMA SIKARI committed in respect of a subordinate court, where such contempt is an offense punishable under the Indian Penal Code, 1860. The power to review and correct its own judgment, order, or decision. It is to be noted that while the Constitution specifically confers the power of review on the Supreme, such specific power of review has not been conferred on the High Courts by the Constitution. Power of Judicial Review It refers to the power of the High Court to examine the constitutionality of legislative acts and executive orders of both the Central and the State Governments. If, on examination, they are found to be violative of the Constitution, they will be declared illegal, unconstitutional, null, and void by the High Court. Independence of High Courts The Constitution has made the following provisions to safeguard and ensure the independent and impartial functioning of High Courts:  Mode of Appointment – The judges of the High Court are appointed by the President in consultation with the members of the judiciary itself. This ensures that the judicial appointments are not based on any political or practical considerations.  Security of Tenure – The judges of the High Court have been given security of tenure. They can be removed by the President only in the manner and on the grounds mentioned in the Constitution.  Fixed Service Conditions – The service conditions of the judges of the High Court cannot be changed to their disadvantage after their appointment, except during a Financial Emergency.  Expenses Charged on Consolidated Fund – The salaries and allowances of the judges of a High Court are charged on the Consolidated Fund of the State and are non·votable by the State Legislature. Note: the pension of a High Court judge is charged on the Consolidated Fund of India, not the Consolidated Fund of State.  Bar on Parliamentary Interference – The conduct of judges of the High Court in the discharge of their duties cannot be discussed in Parliament or State Legislature, except when an impeachment motion is under consideration by the Parliament.  Ban on Post-Retirement Practice – The retired judges of the High Court are prohibited from pleading or acting in any court or before any authority within the territory of India, except the Supreme Court and the other High Courts. This ensures that they do not favor anyone in the hope of future favor.  Power to Punish for its Contempt – The High Court can punish any person for its contempt. Thus, its actions and decisions cannot be criticized and opposed by anybody. PROTIMA SIKARI   Freedom to Appoint its Staff – The Chief Justice of a High Court can appoint officers and servants of the High Court and prescribe their service conditions, without any interference from the Executive.  Protection of Jurisdiction – The Parliament and State Legislature are not authorized to curtail the jurisdiction and powers of the High Court. However, the Parliament can extend the same. Conclusion The High Court stands as the pinnacle of judicial administration of the State embodying the essence of justice, independence, and constitutional supremacy. With its extensive jurisdiction, it ensures the rule of law and upholds the fundamental rights and liberties of residents of the concerned state. As India continues to evolve, the High Court’s role will continue to remain critical in navigating the legal landscape and shaping the nation’s future. PROTIMA SIKARI