Power of the High Court to Make Rules Section 523

Sections 523 and 529, BNSS 2023

Section 523(1). Every High Court may, with the previous approval of the State Government, make rules —

(a) as to the persons who may be permitted to act as petition-writers in the Criminal Courts subordinate to it;

(b) regulating the issue of licences to such persons, the conduct of business by them, and the scale of fees to be charged by them;

(c) providing a penalty for a contravention of any of the rules so made and determining the authority by which such contravention may be investigated and the penalties imposed;

(d) any other matter which is required to be, or may be, prescribed.

(2) All rules made under this section shall be published in the Official Gazette.

Section 529. Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates.

⚠ Three things to notice about section 523

The power is narrow. Clauses (a) to (c) concern petition-writers — who may act as one, their licences, conduct and fees, and the penalty for contravention. Clause (d) is a residual power over matters the Sanhita requires or permits to be prescribed.

It requires the previous approval of the State Government. The High Court cannot make rules under the section unilaterally, which marks it out from its constitutional powers, where no such approval arises.

And the rules must be published in the Official Gazette. Rules affecting persons who practise before the criminal courts are subordinate legislation, and take effect on publication.

What section 523 is not is a general power to regulate criminal procedure. The procedure is laid down by the Sanhita itself, and the High Court’s influence over how it is applied comes through superintendence, not rule-making.

📖 Waryam Singh v. Amarnath, AIR 1954 SC 215

Facts: An order of a subordinate court was challenged before the High Court under Article 227, and the question was whether the power of superintendence conferred by that Article is confined to administrative superintendence or extends to judicial superintendence over subordinate courts.

Held: The Supreme Court held that the power of superintendence conferred by Article 227 is, as the words themselves indicate, superintendence of all courts — and is not confined to administrative superintendence but includes judicial superintendence as well. The Court held that the power is exercisable so as to keep subordinate courts within the bounds of their authority and to see that they obey the law and perform the duties imposed on them; and that this jurisdiction is wider than the revisional jurisdiction conferred by statute. But the Court emphasised that the power is to be exercised sparingly: it is not an appellate jurisdiction, and the High Court does not use it to correct mere errors of fact or of law which do not amount to a subordinate court exceeding its authority or failing to exercise a jurisdiction vested in it. It is a power of supervision, to be used to keep the subordinate courts within their bounds, and not to substitute the High Court’s view for theirs.

Ratio: The power of superintendence under Article 227 includes judicial as well as administrative superintendence, and is wider than the statutory revisional jurisdiction. But it is exercised sparingly, to keep subordinate courts within the bounds of their authority, and is not an appellate power.

📖 State of West Bengal v. Nripendra Nath Bagchi, AIR 1966 SC 447

Facts: Disciplinary proceedings were taken against a member of the State judicial service by the executive Government, and the question was whether the control over the subordinate judiciary vested in the High Court by Article 235 extends to disciplinary control, or is confined to matters of a purely administrative character.

Held: The Supreme Court held that the word control in Article 235 is used in a comprehensive sense, and that the control vested in the High Court is exclusive in nature, comprehensive in extent and effective in operation. It includes not merely the posting, promotion and grant of leave which the Article expressly mentions, but the disciplinary jurisdiction over members of the subordinate judiciary — the conduct of an enquiry into their conduct, and the recommendation of the punishment to be imposed. The Court held that the executive retains only the formal power of dismissal, removal or reduction in rank, which it exercises on the High Court’s recommendation and subject to Article 311. It reasoned that the Article was enacted to secure the independence of the subordinate judiciary, which would be defeated if a judicial officer could be disciplined by the very executive whose actions he may have to adjudicate upon; and that the framers deliberately placed that control in the High Court.

Ratio: The control vested in the High Court by Article 235 is exclusive, comprehensive and effective, and includes disciplinary jurisdiction over the subordinate judiciary. The executive retains only the formal power of dismissal, exercised on the High Court’s recommendation.

⚠ How the four fit together

Section 523 is the least important of the four. It is a narrow rule-making power over a narrow subject, and it is the only one requiring the approval of the executive.

Section 529 and Article 227 are supervisory. They enable the High Court to see that the criminal courts below it work properly and promptly and stay within the bounds of their authority — but neither is an appellate power, and both are exercised sparingly.

Article 235 is the foundation. By vesting control over the subordinate judiciary in the High Court rather than the executive, it secures the independence which makes the other powers meaningful.

And the inherent power in section 528 stands apart from all four: it is a judicial power exercised in a particular case, not a supervisory or administrative power over the courts as a class.

The position stated shortly

1. Section 523: every High Court may, with the previous approval of the State Government, make rules as to petition-writers, their licences, conduct and fees, the penalty for contravention, and any other matter required or permitted to be prescribed.

2. All such rules shall be published in the Official Gazette.

3. The power is narrow. It is not a general power to regulate criminal procedure, which the Sanhita itself lays down.

4. Section 529 imposes a duty: every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates as to ensure the expeditious and proper disposal of cases. The provision is not new.

5. Article 227 confers superintendence over all courts and tribunals, which is not confined to administrative superintendence but includes judicial superintendence: Waryam Singh.

6. That power is wider than the statutory revisional jurisdiction, but is exercised sparingly, to keep subordinate courts within the bounds of their authority — it is not an appellate power.

7. Article 235 vests control over district courts and courts subordinate thereto in the High Court — posting, promotion and leave, and disciplinary jurisdiction.

8. That control is exclusive in nature, comprehensive in extent and effective in operation; the executive retains only the formal power of dismissal, exercised on the High Court’s recommendation and subject to Article 311: Nripendra Nath Bagchi.

9. The purpose is the independence of the subordinate judiciary, which would be defeated if a judicial officer could be disciplined by the very executive whose actions he may have to adjudicate upon.

10. The inherent power under section 528 stands apart: it is a judicial power exercised in a particular case, not a supervisory or administrative power over the courts as a class.