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WRIT JURISDICTION OF THE HIGH COURTS IN INDIA


A CRITICAL ANALYSIS

Submitted By
DEBAYAN BANERJEE

Faculty-in-charge
DR DN CHOUDHURY
HIMANGSHU RANJAN NATH

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY ASSAM


10 August, 2015
TABLE OF CONTENTS

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1. INTRODUCTION
1.1. Abstract
1.2. Literature Review
1.3. Scope and Objective
1.4. Research Methodology
2. WRIT JURISDICTION OF HIGH COURTS IN INDIA
1.1. Article 226
1.2. Self-Imposed Limitations
1.3. Availability of Alternative Remedy
1.4. Types of Writs
3. CONCLUSION

INDEX OF AUTHORITIES
Case Laws

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1. Secretary, ONGC Ltd. v. VU Warrier, AIR 2005 SC 3039.
2. Dwarka Prasad Agarwal v. BD Agarwal, AIR 2003 SC 2686.
3. Mohd. Hansif v. State of Assam, (1969) 2 SCC 782.
4. Shri Anadi Mukta Sadguru Trust v. V.R. Rudani, AIR 1989 SC 1607.
5. Basappa T.C. v. Nagappa, Air 1954 SC 440.
6. Irani v. State of Madras, AIR 1961 SC 1731.
7. Addl. Secretary v. Alka Subhash Gadia, 1992 Supp (1) SCC 496.
8. Asif Hameed v. State of Jammu & Kashmir, AIR 1989 SC 1899.
9. Dwarka Nath v. ITO, AIR 1966 SC 81.
10. Calcutta Gas Co. v. State of West Bengal, AIR 1962 SC 1044.
11. State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12.
12. DLF Housing Construction v. Delhi Municipality, AIR 1976 SC 386.
13. Union of India v. Bata India Ltd., AIR 1994 SC 921.
14. M/s Padmavathi Constructions v. The AP Industrial Infrastructure Cor. Ltd., AIR 1997 AP 1.
15. Brij Bihari Pandey v. State of Bihar, AIR 1997 Pat 74.
16. Goa v. Leukoplast (India) Ltd., AIR 1997 SC 1875.
17. Mahesh Chandra v. Zila Panchayat Mainpuri, AIR 1997 All 248.
18. Grid Corp. of Orissa Ltd. v. Timudu Oram, AIR 2005 SC 3971.
19. Union of India v. TR Varma, AIR 1957 SC 882.
20. Titaghur Paper Mills Co. Ltd. v. State of Orissa, AIR 1983 SC 603.
21. Assistant Collector of Central Excise West Bengal v. Dunlop India Ltd., AIR 1985 SC 330.
22. APDDC Staff & Workers Union v. Govt. of AP, AIR 2000 AP 70.
23. State of West Bengal v. North Adjai Coal Co., (1971) 1 SCC 309.
24. State of Uttar Pradesh v. Mohd. Nooh, AIR 1958 SC 86.
25. Himmat Lal v. State of Madhya Pradesh, AIR 1954 SC 403.
26. Kashi Nath v. Collector Central Excise, AIR 1972 All 16.
27. Bawa Gopal Das Bedi & Sons v. Union of India, AIR 1982 Pat 152.
28. Tata Electric Loco Co. v. Commissioner Commercial Taxes, AIR 1967 SC 1401.
29. Babu Ram Prakash Chandra Maheswari v. Antarim Zila Parishad, AIR 1969 SC 566.
30. V. Vellaswamy v. Inspector General of Police Tamil Nadu, AIR 1982 SC 82.
31. Prasar Bharati Broadcasting Corp. of India v. Debyajoti Bose, AIR 2000 Cal 43.
32. Calcutta Gas v. State of West Bengal, AIR 1962 SC 1044.
33. Maganbhai v. Union of India, AIR 1969 SC 783.
34. Bennett Coleman Co. v. Union of India, AIR 1973 SC 106.

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35. Mohd. Ibrahim Khan v. State of Madhya Pradesh, AIR 1980 SC 517.
36. Charanjit Lal v. Union of India, AIR 1951 SC 41.
37. Kanu Sanyal v. District Magistrate Darjeeling, AIR 1974 SC 510.
Statutes
The Constitution of India, 1950.
Books
AP DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA , (Vol 2 2nd Ed 2007)
DD BASU, SHORTER CONSTITUTION OF INDIA (14th Ed 2009)
MP JAIN, INDIAN CONSTITUTIONAL LAW (Vol 1 6th Ed 2010)
FRANCIS PALGRAVE, PARLIAMENTARY WRITS AND WRITS OF MILITARY SUMMONS (Vol 1 & 2 1827,
1834)

CHAPTER 1
INTRODUCTION
1.1 Abstract

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A writ, direction or order may be issued by the High Court under Article 226 to a person or
authority amenable to the Courts jurisdiction either by residence or location within the State, even
if the petitioner and other parties are from other States. This power, is subject to certain selfimposed limitations and are specific in nature. This paper delves into Article 226 of the Constitution
of India, 1950, and tries to clear concepts of law.
1.2 Literature Review
AP DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA , (Vol 2 2nd Ed. 2007)
Datar provides an extremely in-depth analysis of Article 226 of the Constitution of India,
1950. Several sections have been dedicated for the same subject and are enumerated carefully and
aptly, with a simple language. The book has been of utmost importance towards the competition of
this paper.
DD BASU, SHORTER CONSTITUTION OF INDIA (14th Ed. 2009)
Basus write-ups have always been a wonder and this book is none less. The book was used
as a reference to cross-check questionable and dubious statements.
MP JAIN, INDIAN CONSTITUTIONAL LAW (Vol 1 6th Ed. 2010)
Jain provides an similarly in-depth analysis of Article 226 of the Constitution of India, 1950.
Several sections have been dedicated for the same subject and are enumerated very simply. The
book has been used as a reference to Datars work.

1.3 Scope and Objective


The paper deals with the understanding of Article 226 of the Constitution of India, 1950. It
enumerates the interpretation of the article. The paper also tries to discuss the various implications
of

the

article

in

India.

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The paper does not deal with the historical development of the Constitution of India, 1950.
It neither deals with any specific case laws. The paper is purely for educational purposes, delving
into legal jurisprudence and constitutional law. It does not go too deeply into the working of the
high courts in India, but brushes the subject enough to understand the concept and thereafter,
understand the basis of its writ jurisdictional framework. Being objective, personal experiences are
not

laid

down

onto

the

paper.

The objectives of this paper are a.

To analyse Article 226 of the Constitution of India, 1950 with various case laws.

c.

To discuss certain discrepancies and self-imposed limitations.

d.

To understand the specific types of writs available under Article 226.

1.4 Research Methodology


The methodology utilised in the paper is Doctrinal and Analytical in nature. Primary data is
not collected and leaves scope for further research into the subject. Secondary data in the form of
statutes, case laws, books, articles and the web sources have been relied upon. This paper can be
used as a reference for further research and is binding and complete in this regard.

CHAPTER 2
WRIT JURISDICTION OF HIGH COURTS IN INDIA
2.1 Article 226

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1

High Courts of all states in India are empowered to issue writs. This is a very significant
aspect of the Indian Constitution. Power under Article 226 can be exercised by the High Courts to
reach injustice wherever it is found.2 Under the said Article, the High Court exercises original
jurisdiction;3 This jurisdiction is different from its appellate and revisional jurisdictions and
additionally different from its civil and criminal jurisdictions. Furthermore, writ jurisdiction of High
Courts is a public law remedy.
The writs have been among the great safeguards provided by the British Judicial System for
upholding the rights and liberties of the people. 4 In English common law, a writ is a formal written
order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is
generally a court. Warrants, prerogative writs and subpoenas are common types of writs but
innumerable forms exist, as listed in PALGRAVE's Parliamentary Writs.5 As our Constitution makers
have merely borrowed the concept of prerogative writs from English law, the essential principles
relating to such writs are applicable in India.6
2.2 Self-Imposed Limitations
The powers under Article 226 is wide and untrammelled by any external restrictions and as such,
the courts have evolved certain self-imposed limits while exercising these powers. 7 While some
limitations are implicit in the article itself, others may be evolved to direct the article through
1 Art. 226 Constitution of India 1950.

2 Secretary, ONGC Ltd. v. VU Warrier, AIR 2005 SC 3039.

3 Dwarka Prasad Agarwal v. BD Agarwal, AIR 2003 SC 2686.

4 MP JAIN, INDIAN CONSTITUTIONAL LAW, 562 (Vol 1 6th Ed).

5 FRANCIS PALGRAVE, PARLIAMENTARY WRITS AND WRITS OF MILITARY SUMMONS (Vol 1 & 2, 1827 and 1834).

6 Mohd. Hansif v. State of Assam, (1969) 2 SCC 782;Shri Anadi Mukta Sadguru Trust v. V.R. Rudani, AIR 1989 SC
1607;
Basappa T.C. v. Nagappa, Air 1954 SC 440;
Irani v. State of Madras, AIR 1961 SC 1731.

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defined channels. The existence of a right is the foundation of the exercise of jurisdiction of the
Court under this Article.9
The self imposed limitations of Article 226 are broadly enshrined as under:10
1. In the exercise of their discretionary jurisdiction, the High Court does not, as a Court of appeal
or of revision, correct mere errors of law or of facts.
2. The resort to the said jurisdiction is not permitted if an alternative remedy for relief which may
be obtained by suit or other mode is prescribed by statute. Where it is open to the aggrieved
person to move another tribunal or even itself in another jurisdiction for obtaining redress in the
manner provided in the statute, the Court does not, by exercising the writ jurisdiction permit the
machinery created by the statute to be bypassed.
3. It does not generally enter upon the determination of questions which demand an elaborate
examination of evidence to establish the right to enforce which the writ is claimed.
4. It does not interfere on the merits with the determination of the issues made by the authority
invested with statutory power, particularly when they relate to matters calling for judicial
intervention, such as, where the determination is malafide or is prompted by extraneous
considerations or is made in contravention of the principles of natural justice or any
constitutional provision.
5. The Court may also intervene where:
a. the authority acting under the concerned law does not have the requisite authority or the
order which is purported to have been passed under the law is not warranted or is in
breach of the provisions of the concerned law or the person against whom the action is
taken is not the person against whom the order is directed;

7 Addl. Secretary v. Alka Subhash Gadia, 1992 Supp (1) SCC 496;Asif Hameed v. State of Jammu & Kashmir, AIR
1989 SC 1899.

8 Dwarka Nath v. ITO, AIR 1966 SC 81.

9 Calcutta Gas Co. v. State of West Bengal, AIR 1962 SC 1044;State of Orissa v. Madan Gopal Rungta, AIR 1952 SC
12.

10 AP DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA , 1195-1196 (Vol 2 2nd Ed 2007).

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b. where the authority has exceeded its powers or jurisdiction or has failed or refused to
exercise jurisdiction vested in it;
c. where the authority has not applied its mind at all or has exercised its power dishonestly
or for an improper purpose;
6. Where the Court cannot grant a final relief, the Court does not entertain a petition only for
giving interim relief. If the Court is of the opinion that there is no other convenient or
efficacious remedy open to the petitioner, it will proceed to investigate the case on its merits
and if the Court finds that there is an infringement of the petitioners legal rights, it will grant
final relief but will not dispose off the petition only by granting interim relief.
7. Where the satisfaction of the authority is subjective, the Court intervenes when the authority has
acted under the dictates of another body or when the conclusion is arrived at by the application
of a wrong test or misconstruction of a statute or it is not based on material which is of
rationally probative value and relevant to the subject matter in respect of which the authority is
to satisfy itself. If again the satisfaction is arrived at by taking into consideration material which
the authority properly could not, or by omitting to consider matter which it ought to have, the
Court interferes with the resultant order.
8. In proper cases the Court also intervenes when some legal or fundamental right of the
individual is seriously threatened, though not actually invaded.
High Courts ordinarily do not decide questions of fact and is left upon the statutory mechanism to
adjudicate such matters.11 It is adjudicated in the rarest of rare cases.
2.3 Availability of Alternative Remedy
Additionally, Courts ordinarily do not issue a writ when an alternative and efficacious remedy is
available.12 Article 226 is not meant to short-circuit or circumvent statutory procedures. 13 However,
this rule is not inflexible, since this discretion is rule of policy, convenience and practice rather than
11 DLF Housing Construction v. Delhi Municipality, AIR 1976 SC 386;Union of India v. Bata India Ltd., AIR 1994 SC
921;
M/s Padmavathi Constructions v. The AP Industrial Infrastructure Cor. Ltd., AIR 1997 AP 1;
Brij Bihari Pandey v. State of Bihar, AIR 1997 Pat 74;
Goa v. Leukoplast (India) Ltd., AIR 1997 SC 1875;
Mahesh Chandra v. Zila Panchayat Mainpuri, AIR 1997 All 248;
Grid Corp. of Orissa Ltd. v. Timudu Oram, AIR 2005 SC 3971.

12 Union of India v. TR Varma, AIR 1957 SC 882.

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that of law. The existence of an adequate alternative legal remedy is not a bar to the invocation of
the High Courts jurisdiction under Article 226 when relief is sought in case of an infringement of a
fundamental right15 or a tribunal acting ultra-vires to its jurisdiction 16 or when the principles of
natural justice have not been followed17.
Furthermore, a petitioner should have locus standi to file a writ petition.18 Ordinarily a person can
approach the High Court under Article 226 to enforce his legal right, or when he has sufficient
interest in the subject-matter.19 Until and unless the petitioner shows that his legal rights are
adversely affected, or that breach is likely to be committed, he is not entitled to file the petition. 20
This rule is, however, not strictly applied to some specific writs.
13 Titaghur Paper Mills Co. Ltd. v. State of Orissa, AIR 1983 SC 603;Assistant Collector of Central Excise West
Bengal v. Dunlop India Ltd., AIR 1985 SC 330;
APDDC Staff & Workers Union v. Govt. of AP, AIR 2000 AP 70;
State of West Bengal v. North Adjai Coal Co., (1971) 1 SCC 309.

14 State of Uttar Pradesh v. Mohd. Nooh, AIR 1958 SC 86.

15 Himmat Lal v. State of Madhya Pradesh, AIR 1954 SC 403.

16 Kashi Nath v. Collector Central Excise, AIR 1972 All 16;Bawa Gopal Das Bedi & Sons v. Union of India, AIR 1982
Pat 152.

17 Tata Electric Loco Co. v. Commissioner Commercial Taxes, AIR 1967 SC 1401;Babu Ram Prakash Chandra
Maheswari v. Antarim Zila Parishad, AIR 1969 SC 566;
V. Vellaswamy v. Inspector General of Police Tamil Nadu, AIR 1982 SC 82.

18 Prasar Bharati Broadcasting Corp. of India v. Debyajoti Bose, AIR 2000 Cal 43.

19 Calcutta Gas v. State of West Bengal, AIR 1962 SC 1044;Maganbhai v. Union of India, AIR 1969 SC 783;
Bennett Coleman Co. v. Union of India, AIR 1973 SC 106;
Mohd. Ibrahim Khan v. State of Madhya Pradesh, AIR 1980 SC 517.

20 Charanjit Lal v. Union of India, AIR 1951 SC 41.

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2.4 Types of Writs
Under Article 226, High Courts in India are empowered to issue 6 specific types of writs, viz. the
writ of Certiorari, Prohibition, Mandamus, Habeas Corpus and Quo Warranto.
By Habeas Corpus writ the High Court can cause any person who has been detained or
imprisoned (this means violation of his fundamental right to liberty) to be physically brought before
the court. The court then examines the reason of his detention and if there is no legal justification of
his detention, he can be set free. Ordinarily, physical presence is necessary, but in the Kanu Sanyal21
case the Supreme Court laid down that the physical presence is not a part of the writ.
When the person is detained and not produced before the magistrate within 24 hours, a writ of
Habeus Corpus can be issued. Furthermore, the writ can be issued when the person is arrested
without any violation of a law. Additionally, when a person is arrested under a law which is
unconstitutional and when detention is done to harm the person or is malafide, the writ can be
issued.
A general rule of filing the petition is that a person whose right has been infringed must file
a petition. But Habeas Corpus is an exception to that. This is because a person detained or
imprisoned may be severely handicapped. So anybody on behalf of the detainee can file a petition.
The writ is applicable to preventive detention and can be issued against authorities of states or
individuals or organisations.
Mandamus means we order. The High Court orders to a person, corporation, lower court,
public authority or state authority to do something. Its a command or directive to perform
something or some act relating to the performance of the ministerial acts or public duty. The
Mandamus is also called a wakening call. It awakes the sleeping authority to perform their duty. It
demands an activity and sets the authority in action.
A person can file a writ petition against anybody who seeks a legal duty from that person.
Legal duty means some duty which is by a law viz. the Constitution, acts, subordinates, legislations
etc. The petition requires that the person moved to the authority and the authority refused to do this
21 Kanu Sanyal v. District Magistrate Darjeeling, AIR 1974 SC 510.

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duty. This is demand and refusal. The core philosophy is that a person or authority, despite
fulfilment of such conditions which demand an action, refuses to act, following which the High
Court can ask the person or authority to perform that duty.
The writ can be alternative, peremptory or continuing. The alternative Mandamus demands a
defendant to appear before court, perform an act or show cause for not having done so. The
peremptory Mandamus is used when a defendant fails to comply with an alternative Mandamus and
which is an absolute command for performance. The continuing Mandamus requests an officer or
authority to perform its activities expeditiously for an indefinite period of time in order to prevent a
miscarriage of justice.
A writ of Prohibition is issued primarily to prevent an inferior court from exceeding its
jurisdiction, or acting contrary to the rule of natural justice, for example, to restrain a Judge from
hearing a case in which he is personally interested. The term inferior courts comprehends special
tribunals, commissions, magistrates and officers who exercise judicial powers, affecting the
property or rights of the citizen and act in a summary way or in a new course different from the
common law. It is well established that the writ lies only against a body exercising public functions
of a judicial or quasi-judicial character and cannot in the nature of things be utilised to restrain
legislative powers.
These writs are issued as alternative or peremptory. An alternative Prohibition directs the
recipient to immediately act, or desist, and show cause why the directive should not be made
permanent. A peremptory Prohibition directs the recipient to immediately act, or desist, and return
the writ, with certification of its compliance, within a certain time. The writ can be issued only
when the proceedings are pending in a court. If the proceeding has matured into some decision, this
writ will not lie.
Certiorari is a writ of a higher court to a lower court to send all the documents in a case to it
so the higher court can review the lower courts decision. Appellate review of a case that is granted
by the issuance of certiorari is sometimes called an appeal, although such review is at the discretion
of the appellate court. A party, the petitioner, files a petition for certiorari with the appellate court
after a judgment has been rendered against him in the inferior court.

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However, unlike a writ of Prohibition, superior courts issue writs of certiorari to review
decisions which inferior courts have already made. The writ of prohibition is the counterpart of the
writ to certiorari which too is issued against the action of an inferior court. The difference between
the two was explained by Justice Venkatarama Ayyar of the Supreme Court in the following terms:
When an inferior court takes up for hearing a matter over which it has no jurisdiction, the
person against whom the proceedings are taken can move the superior court for a writ of
Prohibition and on that an order will issue forbidding the inferior court from continuing the
proceedings. On the other hand, if the court hears the cause or matter and gives a decision, the party
aggrieved would have to move the superior court for a writ of certiorari and on that an order will be
made quashing the decision on the ground of want of jurisdiction.
The meaning of the term Quo Warranto is by what authority. The writ of Quo Warranto
may be issued against a person holding a public office or governmental privilege. The issue of
summon is followed by legal proceedings, during which an individuals right to hold an office or
governmental privilege is challenged.
The writ requires the concerned person to explain to the Court by what authority he holds
the office. If a person has usurped a public office, the Court may direct him not to carry out any
activities in the office or may announce the office to be vacant. The writ is issued by the High Court
after reviewing the circumstances of the case. There are a few conditions which must be fulfilled for
the grant of the writ of Quo Warranto:
1. The concerned office must be a government unit or public office which performs public duties.
2. The public office must have a real existence. It should be permanent and cannot be terminated.
3. A person against whom the writ is issued must have the real possession of the public office.
4. The writ shall be issued only when the public office is held by a particular person in an illegal
manner.

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CHAPTER 3
CONCLUSION
The prerogative powers of writ jurisdiction conferred by the constitution for judicial review
of administrative action is undoubtedly discretionary and yet unbounded in its limits. The discretion
however should be exercised on sound legal principles. In this respect it is important to emphasise
that the absence of arbitrary power is the first essential of the rule of law upon which the whole
constitution system is based. In a system governed by rule of law when discretion is conferred upon
the executive authorities it must be based on clearly defined limits. Thus the rule of law from this
point of view means that the discretion or the decision must be based on some principles and rules.
In general the decision should be predictable and citizens should know where he is. If a decision is
taken not on the basis of any principle or rules then such decision is arbitrary and is taken not in
accordance with the rule of law.
The Constitution is the law of the laws and nobody is supreme. Even the judges of Supreme
Court are not above law and they are bound by the decisions which are the law of the land declared
by them under the writ petitions. Thus, the constitutional remedies provided under the constitution
operate as a check and keeps the administration of government within the bounds of law.
Moreover, it is a fact that, in a poor country like India, most people find it extremely
difficult to approach even the local courts for the enforcement of their various rights such as

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property rights, or to seek remedies for offences against their body and property. How can then we
expect such poor people to approach a distantly located High Court for enforcement of their
fundamental rights? Though Article 226 guarantees the right to approach the High Court for issuing
a writ, how many people can afford that in India? No doubt then that enforcement of fundamental
rights remains an empty provision for most of the people, it being a luxury only for the better
sections of the society or for urban people who reside closer to a High Court.
In addition, lack of good infrastructure, poor but costly transportation, costly lodging /
boarding facilities at the seats of the superior courts, costly legal services, inordinate delays in
proceedings, high illiteracy, etc. act as further disincentives for people from distant places to visit a
High Court under Article 226.
Some of the advantages for the argument of empowering District Courts to issue writs are as
under:
1. The cost of hiring an advocate in the District Courts will be much less than that in the High
Courts.
2. The transport and other expenses will also be less in the District Courts.
3. The District Courts are much more accessible than the limited number of the High Courts.
4. The burden on the High Courts will be reduced greatly, thereby enabling them to handle the
more important matters.
5. The important cases relating to the fundamental rights will still go to the High Courts in the
form of reference/appeal, especially at the policy level.
6. Better implementation and enforcement of the fundamental rights in as much as poorer people
and distantly located people will also be in a position to approach the District Courts for that
purpose.
7. The real advantages of the judicial activism will be available even to the poorer and distantly
located sections of the society as well.
8. This will ensure justice at the doorsteps of the people, thereby enhancing respect for law and
justice.
9. Better realisation of the objective of guaranteeing the fundamental rights in the Constitution.
10. It will help in making the administration more responsive to the people and thereby in reducing
corruption in the country.

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