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

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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

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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

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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

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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.

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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

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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

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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:

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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

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 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

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 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

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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

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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

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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

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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.

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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

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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.

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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.

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  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.

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 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.

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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.

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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.

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 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.

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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

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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.

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  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.

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