Author: Nathan Gomes
Student, Gujarat Law Society, Ahmedabad
As we all know about the writ jurisdiction of the High Court Under Article 226 of the constitution of India. Article 226 of the constitution empowers the High Court to issue writs for the enforcement of the Fundamental rights or for any other purpose. Here the term any other purpose shall not mean for any purpose the High Court pleases but for the enforcements of any other ‘legal rights’. Therefore Article 226 empowers the High Courts to issue writs not only for the enforcement of the fundamental rights but also for any other legal right. The only reason why it is said that the power of the High Court under Article 226 of the constitution is wider than the power of the Supreme Court under article 32 of the constitution is because article 32 empowers the supreme court to issue writs only for the enforcement of the fundamental rights unlike that of the High Court under Article 226 of the Constitution. Article 226 empowers the High Court to issue writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto, Certiorari. Not only this, it can also issue suitable directions or orders to any authority or person within its jurisdiction.
It is pertinent to note that the powers of the High court is not limited to the prerogative writs called the English Writs nor is it bound by the technicalities of the same, these powers under Article 226 have been widened by the Supreme Court through its various decisions in the recent times. But how are the powers granted under Article 226 wider than those granted under Article 32? The present proposition shall try and explain the same.
Before we answer the aforementioned question, it becomes very important to understand one of the major differences between the powers under Article 32 and Article 226, the remedy provided under article 226 of the constitution is a discretionary remedy of the court and thereby cannot be claimed as a matter of right. The High Court has the powers to refuse the same on recognized and established principles and not arbitrarily. One such example is the availability of an alternative remedy, the High Court in this case has the power to refuse exercise its writ jurisdiction, however this power is absolutely discretionary and is by no means a rule of law. The existence of alternative remedy is not an absolute bar and thus the high court may grant the remedy under the said article even if there is an alternative remedy.
A few examples where the high court may exercise these powers even if there is an alternative remedy available are 1. Violation of Fundamental Rights 2. Violation of the Principle of Natural Justice 3. Arbitrary Action which is in violation of the settled law etc. Therefore the High Court is empowered to issue necessary directions to the executive as well as the legislature under article 226 of the constitution as held by the Supreme Court in the case of Keshav Singh, wherein it held that the writ in appropriate cases may also be issued against the Legislature, but these writs cannot be issued directing the State to make legislation which shall in-turn implement its decision While when we talk about the powers under article 32, the right to move the Supreme Court in cases of violation of the fundamental rights itself is a fundamental right and therefore in most situations the Supreme Court cannot refuse to grant such remedy.
It is pertinent to note that any Law declared by the court under this article shall be binding over the inferior courts and tribunals within its jurisdiction. The power of the High Court is wide and thereby is also subject to certain limitations. Article 226(2) however makes it clear that the powers under this article may be used by the High Courts within whose territory the cause of action has arisen wholly or partly notwithstanding that the person or authority is not residing/seated within its jurisdiction. It has been observed by the Supreme Court in the case of L. Chandra Kumar v. Union of India, that the power of judicial review over the legislative action is vested in the High Court under Article 226 of the Constitution which is also an integral feature of the constitution and thereby its jurisdiction cannot be excluded as it forms the part of the basic structure. Apart from this, the power that is vested with the High Court to exercise its Superintendence under Article 227 over the decisions of the subordinate courts and tribunals also form a part of the basic structure of the constitution.
The powers granted to the High Court are constitutional powers and thereby cannot be taken away by the legislature. The same was observed by the Supreme Court in the case of Karta Singh v. State of Punjab, wherein it held that the jurisdiction of the High Court under Article 226 cannot be taken away by any legislation, however it further held that the said powers shall be exercised with a duty of care and caution. Here a question may
arise as to how do we decide in what cases, should these powers be used? A simple answer to this is that it depends from case to case and that there can be no straight jacketed formula however the judicial discipline requires the High Court to refrain from using its jurisdiction for deciding the disputes between the private parties relating to political rights unless there is a violation of duty imposed on the authority. Usual practice of the courts under Article 226 has been broadened by the Supreme Courts in some of its recent decisions, wherein it held that the High Courts have the power to grant bail by invoking Article 226 in suitable cases quoting that “Liberty is not a Gift for few”. However would this grant of power lead to something called “forum shopping”! as is done in the case of Section 438 and Section 482, where on one hand the accused files an anticipatory bail under 438 Crpc before the Sessions Court and also subsequently files an application under section 482 of Crpc. Similarly a person may file for regular bail under section 439 before the sessions court and on the other hand may subsequently file a writ under Article 226. The aforementioned has also been a concern raised by the Supreme Court in recent times.
That being said, it does not been every petition filed under Article 226 of the constitution is maintainable. Those petitions which are malicious and ill motivated shall be dismissed at any stage by the court. They may also be dismissed when they become infructuous for e.g. when a Habeas Corpus petition is filed and then during the pendency of the petition the person detained is released, then in such cases the petition may be dismissed.
NOTE: The Principle of Res Judicata is even applicable in the petition filed under Article 226 of the Constitution, but how?, if a petition has been dismissed on merits, then such a decision will operate as Res Judicata and shall also bar a fresh petition, however if the petition has not been dismissed on merits or by a non-speaking order, then in such case it shall not operate as Res Judicata. One important thing to be noted is that, in the cases of habeas corpus petition the rule of Res Judicata will not be applicable.
Therefore, ordinarily a person whose fundamental rights or legal rights have been violated may approach the High Court under Article 226 except in case of issuance of the writ of Quo-Warranto and Habeas Corpus. Therefore the rights which are to be enforced in ordinary situations require being the right of the person himself except in the issuance of these two aforementioned writs. These rights cannot be taken away just because there is an alternative remedy available.
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