CONSTITUTIONAL LAW

WRIT JURISDICTION OF HIGH

COURTS UNDER ARTICLE 226

ADITYA SAGAR
NATIONAL LAW UNIVERSITY
LUCKNOW

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 Contents

DECLARATION ................................................................................................ Error! Bookmark not defined.

ACKNOWLEDGEMENT .................................................................................... Error! Bookmark not defined.
INTRODUCTION: ....................................................................................................................................3
CHAPTER 1: NATURE OF EXERCISE OF WRIT JURISDICTION UNDER ARTICLE 226: ...............................4
1. SCOPE OF POWER OF HIGH COURTS .............................................................................................4
2. BAR TO WRIT JURISDICTION: .........................................................................................................6
3. RULE OF EXHAUSTION OF STATUTORY REMEDY ...........................................................................7
4. JURISDICTION OF HIGH COURTS UNDER ARTICLE 226 ..................................................................8
CHAPTER II: WRIT JURISDICTION: PUBLIC INTEREST LITIGATION .........................................................8
1. WHO CAN FILE A WRIT PETITION?.................................................................................................8
2. ABUSE OF PUBLIC INTEREST LITIGATION MECHANISM .............................................................. 10
CONCLUSION:..................................................................................................................................... 12
BIBLIOGRAPHY: .................................................................................................................................. 13

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INTRODUCTION:

This piece of project work seeks to deal with the extraordinary writ jurisdiction of High Courts
under Article 226 of the Constitution. Article 226 of the Constitution of India refers to power of
High Court's to issue certain writs throughout the territory in relation to which it exercises
jurisdiction and is an instance of a provision in the Constitution which provides an effective
guarantee to every person as having a fundamental right of access to courts.

The researcher has dealt with the nature and exercise of writ jurisdiction of High courts in the
paper in a two-fold manner: Firstly, the paper will seek to analyze the evolution of the exercise
of this extraordinary power by High Courts in India. This has been done with a special emphasis
on the bar to writ jurisdiction or reliefs under Article 226 in the context of availibility of
alternative remedies. This has been explored within the purview of existence of an adequate
alternative remedy, whether statutory or otherwise. Secondly, the researcher seeks to study
nature of pursuit of such power by high courts in India shall be analyzed to check for instances
of abuse of this discretionary power by frequent invoking of this right by general public.
Additionally, the instruments, by which this abuse takes place,primarily the tool of Public
Interest Litigation has been analysed.

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CHAPTER 1: NATURE OF EXERCISE OF WRIT JURISDICTION
UNDER ARTICLE 226:

1. SCOPE OF POWER OF HIGH COURTS

In addition to the apex court’s powers under Article 32, the overarching distinction between
Articles 32 and 226 arises as the latter can be invoked not only for the enforcement of
fundamental rights. The direct implication of this is that a writ petition can be filed in a High
court whether or not a Fundamental Right is involved. This results in the scope of remedy being
narrower under Article 32 as it is restricted solely to fundamental rights. However, a High Court
can, in a fit case, even direct the executive to implement directive principles.1 As a court of
plenary jurisdiction,2 the high court has a power to do complete justice.

The words ‘for any other purpose’ at the end of Article 226 makes the writ jurisdiction of high
courts more extensive than that of the Supreme Court. The phrase ‘any other purpose’ is
restricted to a purpose for which any of the writs could, according to well-established principles,
issue.3 In short, it means ‘the enforcement of any ordinary legal right.4

The basic principle underlying article 226 is that by virtue of second part, the writ direction or
order in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari may
be issued only after a finding that the aggrieved party has a legal right which entitles him to any
of the aforesaid writs and that subsequently, such right has been infringed.5

In the larger scheme, where the Higher Judiciary is seen as the administrator of Justice, the
words ‘for any other purpose’ at the end of Article 226 makes the writ jurisdiction of high courts
more extensive than that of the Supreme Court.

1
State of Maharashtra v. Manubhai Vashi AIR 1996 SC 1
2
ARVIND DATAR, Commentary on the Constitution of India, Vol.1, 2nd edn., 2007, 758
3
Ibid 1195.
4
Ibid.
5
Calcutta Gas Co. V. State of W.B. AIR 1962 SC 1044; Cf. Samarth Transport Co. v. R.T.A. AIR 1961 SC 93.

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This postulates that the powers of the High Courts for the enforcement of non–fundamental or
ordinary legally enforceable rights6 are in the addition to the performance of any legal duty and
are most importantly, discretionary in nature and accordingly, no limits can be placed upon this
discretion. However, it has been widely recognised that this discretion must not be exercised
arbitrarily and should ideally be along recognised lines7 and subject to certain self-imposed
limitations.8

Additionally, the powers of the High Court under Article 226 are not confined to ‘prerogative
writs’ and accordingly, the courts can travel beyond the contents of the writs normally issued
and this considerably restricts the procedural technicalities imposed by following the model of
the English writs. The usage of “in the nature of” in the Constitution acts as an analogy to
English writs and implies that Indian courts can issue directions, orders and writs other than
prerogative writs. This aids the courts in molding the reliefs to meet the peculiar requirements of
India.9

However, generally, reliefs under Article 226 ought not to be refused on purely technical
grounds.10

This is further substantiated by the court’s ability to mould the reliefs11 accordingly to meet the
peculiar and complicated requirements of the Petitioner and changed circumstances but it must
be noted that this can only be done if the High Court does not contravene any provision
guaranteed by the Constitution or any law declared by Supreme Court in this respect.

6
Ibid, State of Orissa v. Madangopal (1952) SCR 28
7
Thansingh v. Supdt. of Taxes AIR 1964 SC 1419;
8
DURGA DAS BASU, Constitutional Law of India, 8th edn., 2008, 1193.
9
S.P SATHE, Judicial Activism: The Indian Experience, Washington University Journal of Law & Policy 6 Wash.
U. J.L, 68.
10
Ramabhadriah v. Secy., AIR 1981 SC 1653.
11
Ibid.

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 2. BAR TO WRIT JURISDICTION:

The remedies granted by courts by virtue of Article 226 are generally, discretionary in nature.
This raises the necessary implication that courts may refuse to grant these when these exists an
alternative remedy12 which is equally efficient13 and adequate. The adequacy is a question of fact
which is to be subjectively decided in each case and moreover, the burden of showing that the
alternative remedy is not equally efficacious is on the applicant.

However, it is to be noted that the existence of an alternative remedy does not act as an absolute
bar to the reliefs available under Article 226. This can be seen from the nature of jurisdiction
vested with the high courts, i.e., discretionary, and hence, there exist a multitude of
circumstances that have to necessarily be taken into consideration by courts in exercise of this
discretionary power. Most importantly, even in the availability of alternative remedies, the
jurisdiction of high courts under Article 226 cannot be curtailed in exceptional circumstances.
This is qualified by a provisio stating that the High Court does not exercise this power in a
perverse manner.14

Evidently, there exist certain grounds on the basis of which, even in the existence of an adequate
alternative remedy, whether statutory or otherwise, a party’s right to relief under Article 226 is
not barred. These range from the infringement of a fundamental right 15, violation of a
mandatory constitutional provision16, where the available alternative remedy is ineffective.17

12
Abraham v. I.T.O. AIR 1961 SC 609
13
Rashid Ahmed v. Municipal Board (1950) SCR 566
14
State of U.P. v. Indian Hume Pipe AIR 1977 SC 1132; Khurai Municipality v. Kamal kumar AIR 1965 SC 1421.
15
State of Bombay v. United Motors (1953) SCR 1069
16
Khurai Municipality v. Kamal kumar AIR 1965 SC 1421.
17
Ram and Shyam v. State of Haryana AIR 1985 SC 1147.

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 3. RULE OF EXHAUSTION OF STATUTORY REMEDY

When a statute creates rights or liabilities or provides for enforcement procedure and
additionally, prescribes remedies, recourse must be had to that specific statutory remedy before
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approaching the courts under Article 226. In this regard, in exercise of its discretion, high
courts may decline to interfere until all the statutory remedies are exhausted.19 This becomes
particularly significant when the question of jurisdiction is contingent on disputed facts20 or on
discovery of evidence21 or when the statutory remedy is in reference to a question of law.22

However, this does not work in isolation and instead of being a rule of law, it acts as a rule of
convenience and policy and hence, the court may, in exceptional cases. Issue a discretionary
writ, notwithstanding the fact that the available statutory remedies have not been exhausted.23
Hence, the rule does not automatically bar the jurisdiction of high courts under Article 226.24
However, it is to be noted that only in the event of exceptional circumstances25 would a petition
under Article 226, without exhausting the statutory remedy, be maintainable.26

18
Supra note 12.
19
Sarana v. Lucknow University AIR 1976 SC 2428; State of U.P v. Nooh AIR 1961 SC 609
20
S.T.O. v. Shiv Ratan AIR 1966 SC 142.
21
Express Newspapers v. Workers AIR 1963 SC 569.
22
Veluswami
23
Joharimal v. A.I.T.O. AIR 1970 SC 1980
24
Ventateswaran v. Ramchand AIR 1960 SC 1506; Union of India v. Verma (1958) SCR 499
25
Collector of Customs v. Bava AIR 1968 SC 13
26
Supra note 20.

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 4. JURISDICTION OF HIGH COURTS UNDER ARTICLE 226

The jurisdiction exercised by high courts under Article 226 cannot be categorised into appellate
or revisional in nature and at the same time, it cannot be generalized into ordinary civil
jurisdiction and it may be illustrated as an extraordinary original jurisdiction.27
The law relating to the territoriality of high court judgements can be traced squarely back to
Article 226 of the Constitution as the territorial application of the high court orders, being
coextensive with that of the court’s ordinary jurisdiction28 can also be extended beyond the
court’s territory, in specific cases. This may be occur when the cause-of-action, either in full or
partly, falls within the territorial limits of the court but the seat of government or the residence of
such person to whom orders are issued is outside the court’s territory.29

CHAPTER II: WRIT JURISDICTION: PUBLIC INTEREST LITIGATION

1. WHO CAN FILE A WRIT PETITION?

A petitioner should be endowed with ‘legal standing/right’ to file a writ petition.30 In the case of
S.P. Gupta v. President of India,31only an aggrieved person who has a sufficient interest in the
subject matter of the case can approach the high court to enforce his/her legal right under article
226. This sufficiency of interest is left to the subjective decision making powers of the writ
courts. However, in the writs of quo warranto and habeas corpus, this tenet is not strictly
enforced.

Lately, however, the courts have displayed a great deal of flexibility in the domain of ‘legal
standing’ as in the age of widening socio-economic horizons, ‘public interest’ litigation wherein

27
DURGA DAS BASU, Constitutional Law of India, 8th edn., 2008, 1194.
28
http://heinonline.org/HOL/Page?handle=hein.journals/nujslr2&div=37&g_sent=1&collection=journals, last
accessed on 25th April 2016.
29
Article 226(2), Constitution of India, 1950
30
State of MP v. Sanjay Kumar Pathak (2008) 1 SCC 456
31
AIR 1982 SC 149

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an issue of public interest may be championed through a writ petition by a person who may not
be directly affected by the particular issue.32

However, a writ petition must only be treated as Public Interest Litigation when it pertains to a
question affecting the public at large and only the aggrieved party can file this. In addition to
this, there should be a particular prayer soliciting the state authorities to take sufficient note of
the assertion.33

Much like the apex court, the High Courts have gradually worked expanded their concept of
locus standi. Justice Ekbote, in both the cases of T Narayana Reddy v. Govt. Of A.P.34 and
Warangal CC v. Director of Marketing35, argued for a wider expanse of the Public Interest
Litigation in High Courts under Article 226.

However, in its truest sense, the first chapter of the golden period of Public Interest Litigation
began when the high courts in India started exercising their jurisdiction under article 226 and the
rule of locus standi was diluted and the conventional scope of ‘aggrieved person’ was widened
to facilitate larger access to justice and greater benefits to all from the judicial system. 36

Much like everything, the road to development of PIL is characterized by inevitable drawbacks
and one of the major drawbacks of this form of relief lies in the wide scope of possible remedies
and this renders the exact nature of the relief possible imprecise. High Courts in exercise of their
jurisdiction, under Article 226, have ordered traders’ huts to not be removed without a fair
hearing,37have caused interference with planning decisions that can only be justified on the
grounds of it being arbitrary.38

32
Jitendra Nath v. State of West Bengal Board of Examination AIR 1983 Cal. 275.
33
MP Jain, Indian Constitutional Law, 5th edn., 2008, 426.
34
ILR 1972 AP 955
35
AIR 1975 AP 245
36
Supra note 33.
37
Nehru Marg Cabin Association v. Modasa Nagar Palika 1998 VIII (1) Guj. LH 289.
38
Supra note 28.

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Instances of a rather paternalistic attitude prevalent in the country towards the whole PIL
movement range from cases in Himachal Pradesh mandating the state government to comply
with its own rules relating to sitting outlets serving alcoholic drinks where weak willed are not
tempted or the sensitive are not offended.39

Cases arguing for putting a stop on the importation of foreign films or the screening of television
programmes undermining Indian culture, broadcasting of vulgar songs, sale of foreign elements
of pornography40 showcase the perceived mandate and scope of the PIL remedy available under
article 226 to the citizens if India. Unfortunately, in some cases, the High Courts have also given
in to these tendencies.41

Further, it is to be noted that article 226 is traditionally not utilized for financial compensation.
Accordingly, Supreme Court has cautiously moved ahead on this point and on multiple
occasions, reiterated that the possibility of awarding compensation in the case of breach of
fundamental rights arises if the “infringement is patent and the resultant violation is of gross
magnitude so as to shock the conscience of the court.42 The Gang Rape case, compensation was
awarded to the affected women and similarly, the Madras High Court, in the case of R. Gandhi
v. UoI,43 ordered compensation to the tune of 3 million to sikh victims in the aftermath of Mrs.
Gandhi’s assassination. This results in conflicting jurisprudence and adds to the inevitable
confusion of parties.

2. ABUSE OF PUBLIC INTEREST LITIGATION MECHANISM

There are a multitude of factors that have contributed to the rise in Public Interest Litigation in
India. Amongst others, one of them is the umpteen number of forward social legislations are to
be found in India and this makes it substantially easier for courts to bring the executive up to
task when the rights of the citizens are violated when the latter defaults in its duties.44 The
broadened ambit of locus standi has resulted in cases where judges themselves have initiated suo

39
Himachal Pradesh Nashabandi Parishad v. State of Himachal Pradesh Decided on September 30,1983
40
Supra note 36.
41
P. Jagajeevan Ram v. GoI AIR 1989 Mad. 149.
42
Supra note 40.
43
AIR 1989 Mad. 2095
44
MP Jain, Indian Constitutional Law, 5th edn., 2008, 424.

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moto actions on the basis of personal letters and articles in the newspapers.

However, overuse and abuse of anything makes it ineffective and redundant. The same holds
true of PIL in India and as a result, it requires a complete overhaul and restructuring. 45 Since PIL
acts as an extraordinary remedy that all the citizens of the country can avail of at a cheaper cost,
caution must be exercised in not using it by litigants as an alternative for the ordinary relief
granting powers of the courts or more gravely, as a means to file vexatious complaints or harass
the other side.46

Of late, PIL has become a tool of causing harassment since it enables the filing of vexatious writ
petitions without any payment of substantial court fees as is mandated in civil litigation between
private parties. The lowering of the minimum threshold of the locus standi requirement has
inadvertently legitimized the act of privately driven interests to pose under the garb of public
interests.47 This has culminated in the rampant abuse of the writ jurisdiction under Article 226
and hence, PIL is viewed with an increased degree of suspicion.

However, there, inevitably will be situations, where the PIL in question affects the right of
persons not directly before the court, and hence, courts must carefully consider the impact of its
relief on the interests of parties that have not approached it directly and the greatest caution must
be exercised in adopting a procedure prescribing a adequate notice to parties likely to be affected
by the said decision.

In a bid to curb the rampant abuse of PIL and to facilitate the management and disposal of
PIL(s), the apex court in a bench compromising of Justices Dalveer Bhandari and Mukundakam
Sharma took it upon itself to frame certain guidelines.48 The factors requiring careful
consideration range from the courts ensuring that is a bona fide petitioner that is approaching it.
Also, special efforts must be made to disallow this extraordinary power from being misused by
political pressure groups wishing to further their ulterior motives by filing frivolous PIL(s).49

45
Ibid, 425.
46
ARVIND DATAR, Commentary on the Constitution of India, Vol.1, 2nd edn., 2007, 762
47
MR. RAKESH KUMAR, Public Interest Litigation, Global journal for research analysis, vol 3, issue, 2014, 95.
48
Uttranchal v. Balwant Singh Chaufal CA No. 1132-1134 2002.
49
DURGA DAS BASU, Constitutional Law of India, 8th edn., 2008, 1205.

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CONCLUSION:

Through this paper, the researcher has made an effort to analyze article 226 of the Constitution.
A unique form of extraordinary writ jurisdiction is vested with the High Courts by virtue of this
provision as it empowers high courts to issue writs even in instances where the fundamental
rights of the aggrieved parties are not affected. Hence, a writ petition can be filed in a High court
whether or not a Fundamental Right is involved.

With regard to the interpretation of the extent and scope of the writ jurisdiction of high courts, it
has been demonstrated that the article 226 confers discretionary power on the courts and hence,
the remedies granted by courts by virtue of Article 226 are generally, discretionary in nature.
Hence, courts may refuse to grant these when these exists an alternative remedy which is equally
efficient and adequate. Further, in exercise of its discretion, high courts may also decline to
interfere until all the statutory remedies are exhausted.

The researcher also looked at who can file a writ petition and the concept of legal standing in the
context of the advent of Public Interest Litigation under article 226 of the Constitution, which
has emerged as the most frequently invoked provision in the world.

In this context, at present, the courts treat letters as writ petitions and consequently, take action
upon it. But, regard must be had to certain exceptions that ideally mandate the restriction ofthis
steadily growing practice to contingencies where only an individual truly interested in public
welfare or a social action group approaches the court to seek a relief under article 226.

In light of all the arguments placed forth, the researcher concludes with making a final argument
in favour of the robustness and flexibility of article 226 with the caveat that writ jurisdcition,
especially public interest litigation, should be invoked in moderation by the public, lest it loses
all its effectiveness.

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BIBLIOGRAPHY:

Case Law

1. State of Maharashtra v. Manubhai Vashi AIR 1996 SC

2. Calcutta Gas Co. V. State of W.B. AIR 1962 SC 1044
3. Cf. Samarth Transport Co. v. R.T.A. AIR 1961 SC 93.
4. Uttranchal v. Balwant Singh Chaufal CA No. 1132-1134 2002.
5. Nehru Marg Cabin Association v. Modasa Nagar Palika 1998 VIII (1) Guj. LH 289.
6. SP Gupta .v Union of India AIR 1982 SC 149
7. Sarana v. Lucknow University AIR 1976 SC 2428; State of U.P v. Nooh AIR 1961 SC 609
8. S.T.O. v. Shiv Ratan AIR 1966 SC 142.
9. Express Newspapers v. Workers AIR 1963 SC 569.
10. N. T. Veluswami Thevar vs G. Raja Nainar And Others
11. Joharimal v. A.I.T.O. AIR 1970 SC 1980
12. Ventateswaran v. Ramchand AIR 1960 SC 1506; Union of India v. Verma (1958) SCR 499
13. Collector of Customs v. Bava AIR 1968 SC 13

Articles

1. S.P SATHE, Judicial Activism: The Indian Experience, Washington University Journal of Law &
Policy 6 Wash. U. J.L
2. MR. RAKESH KUMAR, Public Interest Litigation, Global journal for research analysis, vol 3,
issue, 2014

Laws
1. The Constitution of India.

Books and Articles

1. Arvind Datar, Commentary on the Constitution of India, Vol.1, 2nd edn., 2007
2. Durga Das Basu, Constitutional Law of India, 8th edn., 2008
3. MP Jain, Indian Constitutional Law, 5th edn., 2008

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