High Court and the Judiciary

In the previous chapter, "Lieutenant Governor and the Cabinet," we explored how the executive branch of the government operates—how laws are made, how policies are drafted, and who holds the real administrative power. But a government cannot function on executive power alone. When a citizen feels a new policy violates their rights, or when two businesses have a contract dispute, or when a crime is committed, the executive cannot step in to judge the matter. That is the job of the Judiciary.

When the former State of Jammu and Kashmir was reorganised into two distinct Union Territories in 2019, it created a massive logistical question: what happens to the state's highest court? Do you physically split the building? Do you divide the judges? Do you force all the lawyers to re-register their licenses?

The drafters of the Jammu and Kashmir Reorganisation Act, 2019, chose the path of maximum stability and minimum disruption. Instead of tearing the judicial system apart, they kept it unified. In this chapter, we are going to walk through exactly how the Act managed this transition. We will look at the creation of a common High Court, the seamless transition for practicing lawyers, and the appointment of the highest law officer for the new UT of J&K—the Advocate General.

Grab a cup of chai, and let us break down Part VIII and Part IX of the Act, section by section, so you understand not just what the law says, but exactly why it was written this way.

The Constitutional Logic of a Shared Court

Before we look at the specific sections of the 2019 Act, we need to build some intuition. If you have never studied constitutional law before, you might assume that every single State and Union Territory in India must have its own exclusive High Court.

That is actually not the case.

Building a new High Court from scratch is an incredibly complex and expensive process. You need massive infrastructure, a vast library, secure record rooms, housing for judges, and a large registry staff. Furthermore, dividing pending cases between two newly separated regions can delay justice for years. Because of this, the Indian Constitution explicitly allows for shared courts. Article 231 of the Constitution gives Parliament the power to establish a "common High Court for two or more States or for two or more States and a Union territory."

This is a very standard practice across India. For example:

• The Punjab and Haryana High Court sits in Chandigarh and serves the State of Punjab, the State of Haryana, and the UT of Chandigarh.
• The Bombay High Court serves Maharashtra, but also extends its jurisdiction to the State of Goa and the UT of Dadra and Nagar Haveli and Daman and Diu.
• The Kerala High Court serves both Kerala and the UT of Lakshadweep.

So, when Parliament decided to keep a single High Court for both the UT of Jammu and Kashmir and the UT of Ladakh, they were not inventing a strange new concept. They were using a tried-and-tested constitutional mechanism to ensure that the delivery of justice didn't miss a single beat during the reorganisation.

Section 75: The Common High Court

Part VIII of the Jammu and Kashmir Reorganisation Act, 2019, is entirely dedicated to the High Court. It begins with Section 75, which is the anchor of the entire judicial transition.

Section 75 mandates that on and from the appointed day (October 31, 2019), the existing High Court of Jammu and Kashmir shall become the common High Court for both the Union Territory of Jammu and Kashmir and the Union Territory of Ladakh.

What Happened to the Judges?

Imagine you are a High Court judge who was appointed to the State of Jammu and Kashmir in 2015. When the state is reorganised in 2019, do you lose your job? Do you have to take a new oath? Do your pension rules change?

Section 75(1)(b) provides absolute clarity and protection. It states that the Judges of the High Court holding office immediately before the reorganisation will simply continue to hold their offices in the common High Court.

This is a crucial point for the independence of the judiciary. A core principle of Indian democracy is that the executive and legislative branches cannot use administrative reorganisations as an excuse to fire judges or reduce their salaries. The Act ensures that every single judge retained their exact seniority, their salary, their allowances, and their pension rights. To the judges sitting on the bench, the transition was legally seamless.

Section 76: The Bar Council and the Advocates

A court is not just made up of judges; it is driven by the lawyers who argue the cases. In India, the legal profession is strictly regulated by a law called the Advocates Act, 1961. Under this law, every state has a "Bar Council"—a statutory body that enrolls law graduates, gives them their license to practice, and takes disciplinary action if a lawyer violates professional ethics.

Before the reorganisation, there was a single Bar Council for the entire state. When the state was split into two UTs, what was supposed to happen to the thousands of practicing advocates?

Section 76 of the Reorganisation Act steps in to solve this by directly amending the Advocates Act, 1961.

1. 1Renaming the Council: Section 76 creates a joint regulatory body. It officially renames the existing state council to the Bar Council of Jammu and Kashmir; and Ladakh.
2. 2Protecting Existing Lawyers: Section 76(2) guarantees that any person who was already an advocate on the roll of the existing Bar Council immediately before the reorganisation automatically continues to be a member of the new joint Bar Council.

Think of it like a software update on your phone. Your apps and data don't get deleted; the system just updates its name and operating parameters in the background. Lawyers did not have to stand in line, fill out new forms, pay new fees, or prove their qualifications all over again.

Furthermore, Section 76 ensures that these advocates retain their exact same "right of audience" in the common High Court and in all subordinate district courts across both UTs.

Sections 77 and 78: Practice, Procedure, and Savings

The next two sections in Part VIII are brief but highly significant for the day-to-day running of the courts.

Section 77: Practice and Procedure

Every High Court has its own specific rulebook. This rulebook dictates everything from the exact format in which a petition must be typed, to the color of the files used, to the dress code of the lawyers, to the way the court registry lists cases for hearing.

Section 77 states that the law in force immediately before the reorganisation regarding practice and procedure in the High Court will continue to apply to the common High Court. This meant that the court registry clerks, the lawyers, and the judges did not have to learn a new set of administrative rules on October 31, 2019. The daily machinery of filing and hearing cases continued exactly as it had the day before.

Section 78: Savings

In legislative drafting, a "savings clause" is a protective shield. When you pass a massive new law that changes the structure of a region, there is always a risk that you might accidentally overwrite or cancel out existing constitutional rights.

Section 78 acts as this shield. It explicitly states that nothing in this part of the Act shall affect the application of the provisions of the Constitution of India regarding High Courts. It ensures that the common High Court retains all its immense constitutional powers—most notably, the power to issue writs (like Habeas Corpus or Mandamus) under Article 226 of the Constitution to protect the fundamental rights of the citizens in both UTs.

Part IX: The Advocate General (Section 79)

Now we move to Part IX of the Act, which contains only one section: Section 79. This section shifts our focus from the judges to the government's own legal representation.

The government is the biggest single litigant in the country. The UT Administration is constantly involved in court cases. Citizens sue the government over land disputes, employees sue over promotion rules, and businesses challenge tax assessments. The Lieutenant Governor and the Chief Minister are administrators and politicians; they are not necessarily legal experts. When the government is dragged to court, who defends it? Who advises the Cabinet on whether a proposed new law is legally sound?

This is where the Advocate General comes in.

Appointment and Qualifications

According to Section 79(1), the Advocate General for the Union Territory of Jammu and Kashmir is appointed by the Lieutenant Governor.

But the LG cannot just appoint anyone to this prestigious post. The Act sets a very high bar: the person appointed must be qualified to be appointed a Judge of the High Court. What does that mean in practice? Under Article 217 of the Indian Constitution, to be qualified as a High Court judge, a person must be a citizen of India and must have either held a judicial office in India for at least 10 years, or have been an advocate of a High Court for at least 10 years. Therefore, the Advocate General is always a highly experienced, senior legal mind.

Duties and Rights

Section 79(2) outlines the core duties of the Advocate General:

1. 1To give advice to the UT Government upon legal matters referred to them.
2. 2To perform other duties of a legal character assigned by the Government.
3. 3To discharge any functions conferred on them by the Constitution or any other law.

To do this job effectively, Section 79(3) grants the Advocate General the right of audience in all courts in the Union Territory of Jammu and Kashmir. This means that whether a government case is being heard in a small magistrate's court in a remote district or before the Chief Justice in the High Court, the Advocate General has the absolute right to walk in, stand at the podium, and speak on behalf of the government.

Tenure: The "Pleasure" Doctrine

How long does the Advocate General hold their job? Do they get a fixed five-year term?

No. Section 79(4) states that the Advocate General shall hold office during the pleasure of the Lieutenant Governor, and shall receive such remuneration as the LG may determine. In constitutional law, the "doctrine of pleasure" means that there is no fixed tenure or retirement age for this post. The Advocate General serves as long as they have the confidence of the government. If a new political party wins the assembly elections and forms a new government, the existing Advocate General usually resigns, and the LG appoints a new one based on the advice of the new Cabinet. The LG can remove the Advocate General at any time without having to prove misbehavior or incapacity.

The Crucial Distinction: What About Ladakh?

If you read Section 79 carefully, you will notice a very specific phrasing: it creates an Advocate General for the Union territory of Jammu and Kashmir.

It says absolutely nothing about an Advocate General for Ladakh. Why?

This is a deliberate and logical omission based on the different administrative structures of the two UTs. As you learned in previous chapters, the UT of J&K has a Legislative Assembly and a Council of Ministers (a Cabinet). It makes its own local laws and policies, and therefore needs its own dedicated, statutory Advocate General to advise that Cabinet and defend those local laws.

The UT of Ladakh, however, was created without a Legislative Assembly. It is administered directly by the President of India through the Lieutenant Governor of Ladakh. Because Ladakh does not have its own separate elected legislature passing local state-level laws, it relies on the legal machinery of the Central Government. Legal matters for the UT of Ladakh are typically handled by the central government's law officers (such as the Assistant Solicitor General of India) rather than a separate statutory Advocate General created under this Act.

Understanding this distinction shows that you truly grasp how the 2019 Act treats the two UTs differently based on their legislative status.

Subordinate Courts: The Foundation of the System

While the High Court is the apex judicial body, the vast majority of citizens interact with the legal system at the district level. The Reorganisation Act ensures that the entire hierarchy of subordinate courts—District Courts, Sessions Courts, and Magistrate Courts—remains intact.

The common High Court of Jammu & Kashmir and Ladakh exercises complete supervisory jurisdiction over all these subordinate courts in both UTs. The High Court decides the postings and transfers of district judges, monitors their performance, and hears appeals against their judgments, regardless of whether that district judge is sitting in Anantnag, Udhampur, Leh, or Kargil.

Worked Example: The Journey of a Legal Dispute

To make all these sections concrete, let us trace the path of a hypothetical legal dispute to see how the unified judicial system operates across the two distinct Union Territories.

This flow demonstrates the genius of Section 75. Even though the citizen lives in a completely different Union Territory (Ladakh) from where the court's main benches sit (Srinagar and Jammu), the judicial hierarchy remains unbroken. The citizen does not have to travel to Delhi to find a High Court; the common High Court serves them exactly as it did before the reorganisation.

Quick Revision

If you are reviewing this chapter the night before your exam, here are the high-yield points you must recall instantly:

• Section 75: Establishes that the existing High Court becomes the common High Court for both the UT of J&K and the UT of Ladakh.
• Name Change: Officially renamed to the "High Court of Jammu & Kashmir and Ladakh" in 2021.
• Judges' Status: Existing judges continue in their posts with their salaries, allowances, and pensions fully protected.
• Section 76: Amends the Advocates Act, 1961, to create the joint "Bar Council of Jammu and Kashmir; and Ladakh." Existing lawyers continue to practice seamlessly.
• Section 77 & 78: The rules of practice and procedure remain unchanged, and the constitutional powers of the High Court are fully saved and protected.
• Section 79: Deals with the Advocate General, but only for the UT of J&K.
• AG Appointment: The Advocate General is appointed by the Lieutenant Governor of J&K.
• AG Qualification: Must be qualified to be appointed as a Judge of the High Court.
• AG Tenure: Holds office during the pleasure of the Lieutenant Governor (no fixed term).
• Ladakh Exception: The Act does not create a statutory Advocate General for the UT of Ladakh, as it is a UT without a legislature.