High Courts and the subordinate judiciary: India's real constitutional courts

Most Indians will never enter the Supreme Court, but millions pass through High Courts and district courts every year. The High Courts are the workhorses of constitutional justice, and below them sits the subordinate judiciary, where most litigation begins and, for most citizens, ends. This article explains how both tiers are composed, appointed and controlled, and why the High Courts' writ power is wider than the Supreme Court's.

One High Court per state, and how it is staffed

Article 214 provides a High Court for each state, but allows a common High Court for two or more states or for a state and a union territory. India has 25 High Courts, including the shared Punjab and Haryana High Court and the Gauhati High Court serving several north-eastern states.

Under Articles 216 and 217, each High Court has a Chief Justice and other judges appointed by the President on the collegium's recommendation, after consulting the Chief Justice of India, two senior Supreme Court judges, and the Chief Justice and two senior judges of the High Court concerned. Qualifications: Indian citizenship plus ten years of judicial office or advocacy at a High Court. Judges hold office until 62, take oath under Article 219, and can be removed only like a Supreme Court judge, for proved misbehaviour or incapacity. Article 222 allows transfers after consulting the Chief Justice of India, and a transferred judge receives a compensatory allowance fixed by Parliament; the Supreme Court has held that transfer decisions are open to judicial review, with the transfer collegium comprising the Chief Justice of India, the four senior-most Supreme Court judges and the Chief Justices of the sending and receiving High Courts.

The Constitution also provides stopgaps for understaffed benches. Article 224 allows additional judges for up to two years to clear arrears, and Article 224A lets the Chief Justice of a High Court recall a retired judge to sit as an ad hoc judge, with the President's prior consent and the judge's own agreement. The Supreme Court has permitted High Courts to appoint a small number of such ad hoc judges, capped at ten per cent of sanctioned strength, to fight mounting pendency. For all the removal debates in Parliament, no High Court judge has ever been removed through the impeachment process.

Why Article 226 is wider than Article 32

The most examined comparison in this chapter is between the Supreme Court's writ jurisdiction and the High Courts'. Under Article 32, the Supreme Court can issue writs only for the enforcement of fundamental rights. Under Article 226, a High Court can issue writs for the enforcement of fundamental rights and for any other purpose, which includes the enforcement of ordinary legal rights. The High Court's jurisdiction is therefore wider in scope.

It is also different in nature. The Supreme Court shall entertain an Article 32 petition as a matter of right, since Article 32 is itself a fundamental right. The High Court may entertain an Article 226 petition in its discretion, and it may refuse relief on grounds such as delay or the availability of an alternative remedy. Territorially, Article 226 reaches causes of action arising within the High Court's territory even if the authority sits outside it.

Article 227 adds a second supervisory power: every High Court has superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction, except tribunals under Armed Forces law. In L. Chandra Kumar v. Union of India (1997) the Supreme Court held that the powers of judicial review of the High Courts under Articles 226 and 227 form part of the basic structure of the Constitution and cannot be ousted even by constitutional amendment, which is why tribunal decisions remain subject to High Court writs.

The comparison compresses into five points worth memorising as a table.

The subordinate judiciary: districts and below

Articles 233 to 237 govern the subordinate judiciary, the district courts and the courts below them. Article 233 provides that appointments of district judges are made by the Governor in consultation with the High Court, from persons who have been advocates or pleaders for at least seven years and are recommended by the High Court. Article 234 covers recruitment to the judicial service below the district judge: the Governor makes the appointments in accordance with rules framed after consultation with the High Court and the State Public Service Commission.

Article 235 vests the control over district courts, including postings, promotions and grant of leave, in the High Court. This was a deliberate design choice: insulating the lower judiciary's service conditions from executive control preserves its independence. Article 236 defines the expressions district judge and judicial service, and Article 237 allows the Governor to extend these provisions to magistrates. Below the district court sit civil judges on the civil side and judicial magistrates on the criminal side.

Taking justice to the village: Gram Nyayalayas and Lok Adalats

Two institutions try to carry adjudication beyond the district headquarters. The Gram Nyayalayas Act of 2008 provides for mobile village courts, each presided over by a Nyayadhikari, to be established for every intermediate panchayat. Gram Nyayalayas try specified civil and criminal disputes, are not bound by the strict rules of procedure and evidence, and are guided instead by the principles of natural justice. The Act does not apply to Nagaland, Arunachal Pradesh, Sikkim or the Sixth Schedule tribal areas; the Nyayadhikari must be eligible for appointment as a Judicial Magistrate First Class and draws the same salary; and appeals lie to the Sessions Court in criminal cases and the District Court in civil cases within thirty days, to be decided within six months, with the appellate decision final. The ambition was justice at the doorstep; the reality has disappointed, with only a few hundred of the several thousand envisaged courts functional, starved of infrastructure and presiding officers.

Lok Adalats, organised under the Legal Services Authorities Act of 1987, take a different route: conciliation rather than adjudication. Presided over by serving or retired judges with advocates and social workers, they settle compoundable civil and criminal matters by compromise. Their awards are deemed decrees of a civil court, are final and non-appealable, and court fees are refunded on settlement. National Lok Adalats organised by NALSA dispose of lakhs of cases in a day, and Permanent Lok Adalats handle public utility disputes pre-litigation. The Family Courts Act of 1984 created specialised courts for matrimonial disputes, mandatory in every city with a population above one million; their judges are appointed by the state government with the High Court's concurrence, with preference given to women and to persons experienced in conciliation, and appeals lie to the High Court within thirty days.

The Law Commission's 114th report recommended Gram Nyayalayas to deliver humane and accessible justice to the most marginalised and to cut the pendency choking subordinate courts. They are not bound by the strict rules of evidence and are guided by the principles of natural justice. Appeals lie to the District Court in civil cases and the Sessions Court in criminal cases. Functioning has lagged because states gave the scheme low priority, regular taluka courts overlap their jurisdiction, and awareness among litigants, lawyers and police remains low.

The unfinished agenda: vacancies, pendency and the AIJS

The subordinate judiciary carries the heaviest load in the system and the thinnest resources. Roughly four to five crore cases are pending across Indian courts, the overwhelming majority in district courts, and judge vacancies run into the thousands against sanctioned strengths that are themselves inadequate. The judge-to-population ratio hovers around twenty per million, far below the Law Commission's recommended fifty per million.

The proposed structural fix is the All India Judicial Service. Article 312 permits Parliament to create it for posts not below district judge, and the successive Law Commission reports recommended merit-based national recruitment. It has never been created, opposed by states and High Courts on grounds of language and federalism.

Fast-track courts and Article 247

Article 247 empowers Parliament to establish additional courts for the better administration of Union laws. Fast-track courts were built on this logic: dedicated courts with simplified procedure, expected to clear pendency with high disposal rates and act as a deterrent through speedy justice. But the Supreme Court in the Brij Mohan Lal case placed the continuation of fast-track courts in the states' domain with state funds, and many states never built enough of them, leaving ad-hoc courts with regular-court delays. Fast-track special courts carve out a narrower mission: the swift trial of rape and POCSO Act offences against women and children.

Prelims hooks

• Article 214: High Court for each state; common High Courts allowed. India has 25 High Courts.
• Article 217: appointment by President on collegium recommendation; qualification of ten years at Bar or Bench; retirement at 62; removal like a Supreme Court judge.
• Article 222: transfer of High Court judges by the President after consulting the Chief Justice of India; compensatory allowance; transfer collegium is the Chief Justice of India plus four senior-most Supreme Court judges plus the Chief Justices of the two High Courts concerned.
• Article 220: a retired permanent High Court judge cannot plead before any court or authority in India except the Supreme Court and other High Courts.
• Article 226: writs for fundamental rights and any other purpose, wider than Article 32; discretionary, unlike Article 32 which is a right.
• Article 227: superintendence over all courts and tribunals in the territory except Armed Forces tribunals.
• Article 233: district judges appointed by the Governor in consultation with the High Court; seven years at the Bar required. Article 235: control of the district judiciary vests in the High Court.
• Gram Nyayalayas Act 2008: mobile village courts under a Nyayadhikari. Legal Services Authorities Act 1987: Lok Adalats, awards final and non-appealable. Family Courts Act 1984.
• All India Judicial Service: Article 312 enables it; successive Law Commission reports recommended it; never implemented.
• Article 224A: ad hoc judges from retired High Court judges, with the President's prior consent and the judge's agreement; capped at ten per cent of sanctioned strength.
• Court of record: every High Court is a court of record under Article 215; subordinate courts cannot punish for their own contempt, while the High Court can punish for contempt of subordinate courts. UPSC trap (CSE 2021): the High Court has no express constitutional power to review its own judgment, unlike the Supreme Court under Article 137.
• No High Court judge has ever been removed through the impeachment process. High Court judges' salaries are charged on the Consolidated Fund of the State, but their pensions are charged on the Consolidated Fund of India.

Mains angle

A GS-2 answer here should connect design to access. Open with the High Courts as the principal constitutional courts: wider writ jurisdiction than the Supreme Court, superintendence over the subordinate judiciary, and insulation of district judges' service conditions under Article 235. Then show the paradox: the tier closest to the citizen is the most under-resourced, with the bulk of India's pending cases.

The analytical core is the control question. The Constitution deliberately vested control of the subordinate judiciary in the High Courts to keep the executive at arm's length, yet vacancies, infrastructure gaps and the unimplemented Gram Nyayalayas show that formal independence has not produced functional capacity. Evaluate the All India Judicial Service as the proposed remedy, weighing merit-based national recruitment against federal and linguistic objections. Conclude that judicial reform in India is primarily a district-court reform.

Key Terms

• Article 226 vs Article 32: The High Court's writ power is wider in scope (any legal right, not only fundamental rights) but discretionary, while the Supreme Court's Article 32 power is a fundamental right itself.
• Brij Mohan Lal case: The Supreme Court decision holding that the continuation of fast-track courts lies in the states' domain, to be funded by the states.
• Article 247: Empowers Parliament to establish additional courts for the better administration of laws made by it or existing laws on Union List subjects.
• 114th Law Commission report: Recommended Gram Nyayalayas for accessible, humane justice to the marginalised and for reducing subordinate-court pendency.
• National Judicial Appointments Commission Act, 2014: The National Judicial Appointments Commission Act, 2014 was the parliamentary statute enacted alongside the 99th Constitutional Amendment to operationalise the NJAC. It laid down the commission's composition, the procedure for recommending judges and the consultative role of stakeholders. It was struck down together with the amendment in October 2015, when the Supreme Court held the NJAC unconstitutional. It matters for UPSC as the legislative half of the failed judicial-appointments reform. Its provisions on the selection panel for the two eminent persons.
• Legal Services Authorities Act 1987: The Legal Services Authorities Act 1987 is the law that created India's legal aid architecture under Article 39A, giving free legal services to the weaker sections. It established the National Legal Services Authority, State and District authorities, and Lok Adalats as forums for speedy settlement. Eligibility covers women, children, SCs, STs, industrial workmen and persons in custody, among others. It is the statutory backbone of access-to-justice questions in GS-2 and a favourite prelims fact on free legal aid. NALSA's legal aid clinics in jails connect undertrial prisoners with lawyers
• State Public Service Commission: A State Public Service Commission is the constitutional body under Articles 315 to 323 that recruits to a state's civil services and advises the government on appointments, promotions and disciplinary matters. Its chairman and members are appointed by the Governor, hold office for six years or until age 62, and can be removed only by the President after a Supreme Court reference. It safeguards merit in state administration. Example: the Bihar Public Service Commission conducting the combined competitive examination. the Bihar Public Service Commission conducting the combined competitive examination
• Gram Nyayalayas Act 2008: The Gram Nyayalayas Act, 2008 provides for mobile village courts, presided over by a Nyayadhikari, to bring speedy justice to the rural doorstep. Gram Nyayalayas try specified criminal cases and civil suits of limited value, and are expected to dispose of cases within six months of institution. For UPSC, they are the grassroots tier of the access-to-justice architecture. Madhya Pradesh and Rajasthan were early movers in notifying Gram Nyayalayas, though coverage remains far short of the Act's one-per-panchayat vision.
• Family Courts Act 1984: The Family Courts Act 1984 provides for dedicated family courts to settle disputes over marriage, divorce, maintenance and child custody quickly and informally. States must establish them in cities with over a million people, and the Act encourages conciliation before adjudication. It matters for UPSC under access to justice and women's rights. Example: family courts deciding divorce and child custody cases through counselling-led settlement. family courts deciding divorce and child custody cases through counselling-led settlement
• Union of India: The Union of India is the constitutional name of the Indian state, comprising the States and Union Territories in the First Schedule, as Article 1 declares that India, that is Bharat, shall be a Union of States. It is the legal personality that can sue and be sued under Article 300 and that can acquire territory. For UPSC, the term is the starting point of every GS-2 discussion of Indian federalism. Article 1 of the Constitution
• fundamental rights: Fundamental Rights are the justiciable individual rights guaranteed by Part III of the Indian Constitution (Articles 12 to 35). They comprise six categories today, namely the right to equality, the right to freedom, the right against exploitation, the right to freedom of religion, cultural and educational rights, and the right to constitutional remedies. They matter for UPSC because they are the constitutional core tested against legislative and executive action, and because right to property was removed from Part III by the 44th Amendment in 1978, becoming the legal right under Article 300A. The Supreme Court's Kesavananda Bharati judgment of 1973, which upheld Parliament's power to amend Fundamental Rights but limited it through the basic structure doctrine.
• fundamental right: Fundamental right is a basic liberty guaranteed to citizens and persons under Part III (Articles 12-35) of the Indian Constitution, enforceable directly in the Supreme Court under Article 32 and in High Courts under Article 226. The six groups cover equality, freedom, protection against exploitation, religious freedom, cultural and educational rights, and constitutional remedies. For UPSC (GS-2, polity), they are the most-tested constitutional topic. Kesavananda Bharati v. State of Kerala (1973), where the Court upheld the basic structure doctrine

Practice questions

Commercial Courts: fast lanes for business disputes

The Commercial Courts Act, 2015 created specialised courts for the quick resolution of commercial disputes, recognising that ordinary civil dockets move too slowly for business.

• Commercial Courts: set up by state governments at the district level for commercial disputes above Rs 3 lakh.
• Commercial Appellate Courts: established at the District Judge level to hear appeals from the lower commercial courts.
• High Court divisions: High Courts with original jurisdiction get a Commercial Division, with a Commercial Appellate Division hearing appeals from the commercial courts and divisions.