Like the Attorney General (Article 76), the highest law officer in the state is known as the Advocate-General. The Advocate-General is appointed by the state and holds office during the pleasure of the state government. Apart from the Advocate-General there are Additional Advocates General and Government Advocates who attend to litigations in the courts in the state on behalf of the state, its agencies and the Central Government if they are required to do so.
Wednesday, November 13, 2013
Public Prosecutor for the High Court-Section 24
Though the ordinary original criminal jurisdiction of the High Court
has been abolished by the New Code, yet the Code of Criminal Procedure
1973 provides for the appointment of a Public Prosecutor under section
24 thereof for the High Court for conducting all cases and appeals
before it (the High Court) under the Code, and as such all the general
provisions of the Code are applicable to such public prosecutors as
well, as far as possible.
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has been abolished by the New Code, yet the Code of Criminal Procedure
1973 provides for the appointment of a Public Prosecutor under section
24 thereof for the High Court for conducting all cases and appeals
before it (the High Court) under the Code, and as such all the general
provisions of the Code are applicable to such public prosecutors as
well, as far as possible.
Judicial Commissioner’s Court
For the Union Territory of Goa, Daman and Diu and Dadra and Nagar Haveli, a Judicial Commissioner's Court was established under the Goa, Daman and Diu (Judicial Commissioner's Court) Regulation 1963 made by the President under Article 240. Later it was declared to be the High Court for the purpose of the Constitution under the Goa, Daman and Judicial Commissioner's Court (Declaration as High Court) Act, 1964. With the establishment of a Bench of the Bombay High Court the Judicial Commissioner's Court has been abolished. Now the State of Goa and the Union Territories of Daman and Diu, Dadra and Nagar Haveli, fall under the jurisdiction of the High Court at Bambay.
Tuesday, November 12, 2013
Appointment and conditions of the Office of a judge of a High Court
Every judge of a High Court is appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India and the Governor of the state. A Judge of the High Court holds office until he attains the age of 62 years.
The High Court is the highest Court of Justice in the state and for questions of law. It is the only court, other than the Supreme Court, which is vested with the jurisdiction to interpret the Constitution. High Courts have original as well as the appellate jurisdiction, as provided in Civil Procedure Code.
The Constitution, which provides for certain basic safeguards (which have been called fundamental rights), also provides for a quick and inexpensive remedy for the enforcement of such rights. In the sphere of the states High Courts were given new and wide powers for issuing directions or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc., for any other purpose being also included with a view apparently placing all the High Courts in this country in somewhat same position as the Court of King's Bench in England under Article 226 of the Constitution.
The power to issue the writs and orders under Article 226 belongs to all the High Courts in India. Such power extends to all persons or authorities, including even governments, within the jurisdiction of the High Court, whether original or appellate. This being a constitutional power, the power under Article 226 is not fettered by anything contained in any statutory provision. The power under Article 226 includes not only the power to issue writs mentioned in it but also to issue directions, orders or writs in the nature thereof.
The jurisdiction under Article 226 extends to revenue matters unlike under the Government of India Act.
Although introduced with the best of intentions, this remedy of enforcement of fundamental and other rights has become a much oppressive. Everyday a large number of writs are filed in the High Court and in some High Courts it takes more than ten years to decide a writ. Appeal from a decision of the writ court lies to the Division Bench in the High Court itself and thereafter lies to the Supreme Court and there it takes more than ten years.
As a result of the reorganisation of the states through various enactments enacted by the Parliament as well as regulations made as empowered Articles 3 and 4 and other Articles of the Constitution of India, the latest position regarding the number of High Courts, their territorial jurisdiction and the provision of law under which they came into existence are to be given later on.
The High Court is the highest Court of Justice in the state and for questions of law. It is the only court, other than the Supreme Court, which is vested with the jurisdiction to interpret the Constitution. High Courts have original as well as the appellate jurisdiction, as provided in Civil Procedure Code.
The Constitution, which provides for certain basic safeguards (which have been called fundamental rights), also provides for a quick and inexpensive remedy for the enforcement of such rights. In the sphere of the states High Courts were given new and wide powers for issuing directions or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc., for any other purpose being also included with a view apparently placing all the High Courts in this country in somewhat same position as the Court of King's Bench in England under Article 226 of the Constitution.
The power to issue the writs and orders under Article 226 belongs to all the High Courts in India. Such power extends to all persons or authorities, including even governments, within the jurisdiction of the High Court, whether original or appellate. This being a constitutional power, the power under Article 226 is not fettered by anything contained in any statutory provision. The power under Article 226 includes not only the power to issue writs mentioned in it but also to issue directions, orders or writs in the nature thereof.
The jurisdiction under Article 226 extends to revenue matters unlike under the Government of India Act.
Although introduced with the best of intentions, this remedy of enforcement of fundamental and other rights has become a much oppressive. Everyday a large number of writs are filed in the High Court and in some High Courts it takes more than ten years to decide a writ. Appeal from a decision of the writ court lies to the Division Bench in the High Court itself and thereafter lies to the Supreme Court and there it takes more than ten years.
As a result of the reorganisation of the states through various enactments enacted by the Parliament as well as regulations made as empowered Articles 3 and 4 and other Articles of the Constitution of India, the latest position regarding the number of High Courts, their territorial jurisdiction and the provision of law under which they came into existence are to be given later on.
High Courts-Article 215 of the Constitution of India
Each of the states in the first schedule of the constitution has a
High Court within the meaning of Article 215 which defines a 'High
Court.' Parliament has the power to establish a common High Court for
two or more states, in exercise of which power the High Court of Assam
had been made a common High Court for Assam, Nagaland, Tripura,
Manipur, etc. The jurisdiction of a High Court is co-terminus with the
territory of a state.
All the High Courts originally form integral parts of a single system
although their territorial jurisdictions are defined. No High Court
can claim superiority over the other. All the High Courts have the
same status under the constitution. Judges of the different High
Courts also belong to the same family even though there may be slight
variations in the authorities who are to be consulted at the time of
their appointment. However, they do not constitute anything like a
single all-India cadre. Each judge is appointed to a particular High
Court though he may be transferred to another High Court only by
virtue of the express provision in Article 222 of the constitution of
India.
Each High Court is a court of record which means that it has the power
to determine questions about its own jurisdiction and the power to
punish for contempt of itself.
Once appointed, any judge of the High Court, including even
an Additional, Acting or ad hoc Judge (Articles 224-224A) has a single
vote in the matter of deciding a case which has been heard by a Bench
of which he is a member and the Chief Justice, if he is on the Bench,
has no primacy on this point. The case will be decided according to
the majority of the equal votes of all Judges comprising the Bench. It
is not unusual for a chief Justice to be outvoted by two or more
junior Judges of the court. Administratively, however, the chief
Justice has some special functions and powers which the puisne judges
do not have.
The Supreme Court of India is the final appellate court in India and
as such, decisions of High Court or any judge thereof may be reversed
by the Supreme Court in exercise of its appellate jurisdiction under
Article 132,133,134,135 and 136. However, for the purposes of appeal,
there is no provision in the Constitution which makes a High Court
administratively subordinate to the Supreme Court in the same manner
as members of the state judiciary below the High Court are
'subordinate' to the High Court.
Each of the states in the first schedule of the constitution has a
High Court within the meaning of Article 215 which defines a 'High
Court.' Parliament has the power to establish a common High Court for
two or more states, in exercise of which power the High Court of Assam
had been made a common High Court for Assam, Nagaland, Tripura,
Manipur, etc. The jurisdiction of a High Court is co-terminus with the
territory of a state.
All the High Courts originally form integral parts of a single system
although their territorial jurisdictions are defined. No High Court
can claim superiority over the other. All the High Courts have the
same status under the constitution. Judges of the different High
Courts also belong to the same family even though there may be slight
variations in the authorities who are to be consulted at the time of
their appointment. However, they do not constitute anything like a
single all-India cadre. Each judge is appointed to a particular High
Court though he may be transferred to another High Court only by
virtue of the express provision in Article 222 of the constitution of
India.
Each High Court is a court of record which means that it has the power
to determine questions about its own jurisdiction and the power to
punish for contempt of itself.
Once appointed, any judge of the High Court, including even
an Additional, Acting or ad hoc Judge (Articles 224-224A) has a single
vote in the matter of deciding a case which has been heard by a Bench
of which he is a member and the Chief Justice, if he is on the Bench,
has no primacy on this point. The case will be decided according to
the majority of the equal votes of all Judges comprising the Bench. It
is not unusual for a chief Justice to be outvoted by two or more
junior Judges of the court. Administratively, however, the chief
Justice has some special functions and powers which the puisne judges
do not have.
The Supreme Court of India is the final appellate court in India and
as such, decisions of High Court or any judge thereof may be reversed
by the Supreme Court in exercise of its appellate jurisdiction under
Article 132,133,134,135 and 136. However, for the purposes of appeal,
there is no provision in the Constitution which makes a High Court
administratively subordinate to the Supreme Court in the same manner
as members of the state judiciary below the High Court are
'subordinate' to the High Court.
Read More
High Court within the meaning of Article 215 which defines a 'High
Court.' Parliament has the power to establish a common High Court for
two or more states, in exercise of which power the High Court of Assam
had been made a common High Court for Assam, Nagaland, Tripura,
Manipur, etc. The jurisdiction of a High Court is co-terminus with the
territory of a state.
All the High Courts originally form integral parts of a single system
although their territorial jurisdictions are defined. No High Court
can claim superiority over the other. All the High Courts have the
same status under the constitution. Judges of the different High
Courts also belong to the same family even though there may be slight
variations in the authorities who are to be consulted at the time of
their appointment. However, they do not constitute anything like a
single all-India cadre. Each judge is appointed to a particular High
Court though he may be transferred to another High Court only by
virtue of the express provision in Article 222 of the constitution of
India.
Each High Court is a court of record which means that it has the power
to determine questions about its own jurisdiction and the power to
punish for contempt of itself.
Once appointed, any judge of the High Court, including even
an Additional, Acting or ad hoc Judge (Articles 224-224A) has a single
vote in the matter of deciding a case which has been heard by a Bench
of which he is a member and the Chief Justice, if he is on the Bench,
has no primacy on this point. The case will be decided according to
the majority of the equal votes of all Judges comprising the Bench. It
is not unusual for a chief Justice to be outvoted by two or more
junior Judges of the court. Administratively, however, the chief
Justice has some special functions and powers which the puisne judges
do not have.
The Supreme Court of India is the final appellate court in India and
as such, decisions of High Court or any judge thereof may be reversed
by the Supreme Court in exercise of its appellate jurisdiction under
Article 132,133,134,135 and 136. However, for the purposes of appeal,
there is no provision in the Constitution which makes a High Court
administratively subordinate to the Supreme Court in the same manner
as members of the state judiciary below the High Court are
'subordinate' to the High Court.
Each of the states in the first schedule of the constitution has a
High Court within the meaning of Article 215 which defines a 'High
Court.' Parliament has the power to establish a common High Court for
two or more states, in exercise of which power the High Court of Assam
had been made a common High Court for Assam, Nagaland, Tripura,
Manipur, etc. The jurisdiction of a High Court is co-terminus with the
territory of a state.
All the High Courts originally form integral parts of a single system
although their territorial jurisdictions are defined. No High Court
can claim superiority over the other. All the High Courts have the
same status under the constitution. Judges of the different High
Courts also belong to the same family even though there may be slight
variations in the authorities who are to be consulted at the time of
their appointment. However, they do not constitute anything like a
single all-India cadre. Each judge is appointed to a particular High
Court though he may be transferred to another High Court only by
virtue of the express provision in Article 222 of the constitution of
India.
Each High Court is a court of record which means that it has the power
to determine questions about its own jurisdiction and the power to
punish for contempt of itself.
Once appointed, any judge of the High Court, including even
an Additional, Acting or ad hoc Judge (Articles 224-224A) has a single
vote in the matter of deciding a case which has been heard by a Bench
of which he is a member and the Chief Justice, if he is on the Bench,
has no primacy on this point. The case will be decided according to
the majority of the equal votes of all Judges comprising the Bench. It
is not unusual for a chief Justice to be outvoted by two or more
junior Judges of the court. Administratively, however, the chief
Justice has some special functions and powers which the puisne judges
do not have.
The Supreme Court of India is the final appellate court in India and
as such, decisions of High Court or any judge thereof may be reversed
by the Supreme Court in exercise of its appellate jurisdiction under
Article 132,133,134,135 and 136. However, for the purposes of appeal,
there is no provision in the Constitution which makes a High Court
administratively subordinate to the Supreme Court in the same manner
as members of the state judiciary below the High Court are
'subordinate' to the High Court.
Costs
In civil cases, while passing any order and decree, the court has the discretion to grant costs. Section 35 of the Code of Civil Procedure provides that subject to such conditions and limitations as may be prescribed and to the provisions of law in force at the time, the costs of and incidence to all suits shall be at the discretion of the court and the court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid and to give all necessary directions for the purposes mentioned.
The expression 'costs of this suit' means all costs incurred in the suit. Therefore, if one of the defendants is ordered to pay the plaintiff's costs of the suit and no qualifying words are added, the costs includes those which the plaintiff has incurred by impleading another defendant against whom suit has been dismissed with costs. Thus the word 'costs' included costs incidental to the suit.
The court may direct parties to bear their costs where the law is settled for the first time, where litigation has arisen because of ambiguity in the statute, where the court itself has been in error, where the appellant does not press part of his claim, where the case involves important questions of law for decisions, where the case is a test case and the unsuccessful respondent has had to bear the brunt of the fight, when the question is related to interpretations of recent Statutes or where the court clarifies a confused judicial situation.
The principle is that costs follow the event, that is, the successful party is entitled to have the costs of the litigation. However, it is subject to various limitations and restraints which the court itself imposes upon itself while granting costs to the winning party. Though the winning party gets costs as awarded by the court, these do not fully make up for the expenses incurred by the successful party, as such expenses are usually in excess of the costs awarded. Costs are taxed according to the rules framed by the High Court. The costs of each proceeding/suit may be quantified by the court in the proceedings; otherwise costs granted are taxed and quantified by the taxing master according to the rules framed by the High Court. This is known as Taxation of cost. Every court has an officer who is empowered to tax costs if they are not already quantified by the court while passing the order.
The expression 'costs of this suit' means all costs incurred in the suit. Therefore, if one of the defendants is ordered to pay the plaintiff's costs of the suit and no qualifying words are added, the costs includes those which the plaintiff has incurred by impleading another defendant against whom suit has been dismissed with costs. Thus the word 'costs' included costs incidental to the suit.
The court may direct parties to bear their costs where the law is settled for the first time, where litigation has arisen because of ambiguity in the statute, where the court itself has been in error, where the appellant does not press part of his claim, where the case involves important questions of law for decisions, where the case is a test case and the unsuccessful respondent has had to bear the brunt of the fight, when the question is related to interpretations of recent Statutes or where the court clarifies a confused judicial situation.
The principle is that costs follow the event, that is, the successful party is entitled to have the costs of the litigation. However, it is subject to various limitations and restraints which the court itself imposes upon itself while granting costs to the winning party. Though the winning party gets costs as awarded by the court, these do not fully make up for the expenses incurred by the successful party, as such expenses are usually in excess of the costs awarded. Costs are taxed according to the rules framed by the High Court. The costs of each proceeding/suit may be quantified by the court in the proceedings; otherwise costs granted are taxed and quantified by the taxing master according to the rules framed by the High Court. This is known as Taxation of cost. Every court has an officer who is empowered to tax costs if they are not already quantified by the court while passing the order.
Friday, November 1, 2013
Suits against Foreign States and Governments (Exemption on the basis of Sovereign Immunity)
Civil Courts in India have jurisdiction on those persons who are resident of India and where the subject matter of the suit lies in the court. However there is a class of persons such as foreign rulers, ambassador and other officers against whom suits do not lie, except with the consent of the Central Government, and certified in writing by the secretary of the Government, or if such party voluntarily submits to the jurisdiction of the court.
Section 86 provides that no foreign state may be sued in any court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a secretary of that government.
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