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Article 226 Constitution of India – Power of High Courts to issue writs.

advtanmoy 31/12/2020

Notwithstanding anything in article 32 , every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari , or any of them,for the enforcement of any of the rights conferred by Part III and for any other purpose.

INDEX-CONSTITUTION OF INDIA 

Article 226 – Power of High Courts to issue certain writs

(1) Notwithstanding anything in article 32 , every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari , or any of them,for the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.

COMMENT

Indian History-It is to be noted first of all, that prior to the commencement of the Constitution, the powers of issuing prerogative writs could be exercised in India only by the High Courts of Calcutta, Madras and Bombay and that also within very rigid and defined limits. The writs could be issued only to the extent that the power in that respect was not taken away by the Codes of Civil and Criminal Procedure (vide in this connection – ‘Annie Beasant vs. Advocate-General of Madras’, AIR 1919 PC 31 (D) and they could be directed only to persons and authorities within the original civil jurisdiction of these High Courts. The Constitution introduced a fundamental change of law in this respect. As has been explained by this Court in the case referred to above, while Art. 225 of the Constitution preserves to the existing High Courts the powers and jurisdictions which they had previously, Art 226 confers, on all the High Courts, new and very wide powers in the matter of issuing writs which they never processed before. “The makers of the Constitution” thus observed Patanjali Sastri C. J. in delivering the judgment of the court.,

“having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs, which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred, in the State’s sphere, new and wide powers on the High Courts of issuing directions, orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc. ‘for any other purpose’ being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King’s Bench in England.”

There are only two limitations placed upon the exercise of these powers by a High Court under Art. 226 of the Constitution; one is that the power is to be exercised “throughout the territories in relation to which it exercises jurisdiction”, that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction. The other limitation is that the person or authority to whom the High Court is empowered to issue writs “must be within those territories” and this implies that they must be amenable to its jurisdiction either by residence or location within those territories. It is with reference to these two conditions thus mentioned that the jurisdiction of the High Courts to issue writs under Art. 226 of the Constitution is to be determined.

The language used in articles 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari’ as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges.[AIR 1954 SC 440 : (1955) 1 SCR 250]

Power-The powers of a High Court under Art. 226, it will be noticed that article 225 continues to the existing High Courts the same jurisdiction and powers as they possessed immediately before the commencement of the constitution. Though there had been some conflict of judicial opinion on the point, it was authoritatively decided by the Privy Council in Ryots of Garabandho vs. Zamindar of Parlakimedi, AIR 1943 PC 164 (B), that the High Court of Madras – the High Courts of Bombay and Calcutta were in the same position had no power to issue what were known as high prerogative writs beyond the local limits of its original civil jurisdiction, and the power to issue such writs within those limits was derived by the Court as successor of the Supreme Court which had been exercising jurisdiction over the Presidency Town of Madras and was replaced by the High Court established in pursuance of the Charter Act of 1861. The other High Courts in India had no power to issue such writs at all.

In that situation, the makers of the Constitution, having decided to provide for certain basic safeguards for the people in the new set up, which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs, which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred in the States’ sphere, new and wide powers on the High Courts of issuing directions orders, or writs primarily for the enforcement of fundamental rights, the power to issue such directions, etc., “for any other purpose being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of Kings Bench in England. But wide as were the powers thus conferred, a two-fold limitation was placed upon their exercise. In the first place, the power is to be exercised “throughout the territories in relation to which it exercises jurisdiction,” that is to say, the writs issued by the Court cannot run beyond the territories subject to its jurisdiction Secondly, the person or authority to whom the High Court is empowered to issue such writs must be “within those territories,” which clearly implies that they must be amenable to its jurisdiction either by residence or location within those territories.

Such limitation is indeed a logical consequence of the origin and development of the power to issue prerogative writs as a special remedy in England. Such power formed no part of the original or the appellate jurisdiction of the Court of King’s Bench. As pointed out by Prof. Holdsworth (History of English Law, Vol. I, p. 212 et seq) these writs had their origin in the exercise of the King’s prerogative power of superintendence over the due observance of the law by his officials and tribunals, and were issued by the Court of King’s Bench – habeas corpus, that the King may know whether his subjects were lawfully imprisoned or not; certiorari that he may know whether any proceedings commenced against them are conformable to the law; mandamus, to ensure that his officials did such acts as they were bound to do under the law, and prohibition, to oblige the inferior tribunals in his realm to function within the limits of their respective jurisdiction. See also the introductory remarks in the judgment in AIR 1943 PC 164 (B). These writs were thus specifically directed to the persons or authorities against whom redress was sought and were made returnable in the Court issuing them and, in case of disobedience, were enforceable by attachment for contempt. These characteristics of the special fatal of remedy rendered it necessary for its effective use that the persons or authorities to whom the Court was asked to issue these writs should be within the limits of its territorial jurisdiction. We are unable to agree with the learned judge below that if a tribunal or authority permanently located and normally carrying on its activities elsewhere exercises jurisdiction within those territorial limits so as to affect the rights of parties therein, such tribunal or authority must be regarded as ‘functioning’ within the ‘territorial limits of the High Court and being therefore amenable to its jurisdiction under Art. 226.[AIR 1953 SC 210 : (1953) SCR 1144]

Jurisdiction under Article 226 –The language of the article shows that the issuing of writs or directions by the court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give similar directions for any other purpose. The concluding words of Art. 226 have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the exercise of jurisdiction of the Court under the article.[AIR 1952 SC 12 : (1952) SCR 28]

Interim Relief-An interim relief can be granted only in aid of and as ancillary to the main relief which may be available to the party on final determination of his rights in a suit or proceeding. If the Court was of opinion that there was no other convenient or adequate remedy open to the petitioners, it might have proceeded to investigate the case on its merits and come to a decision as to whether the petitioners succeeded in establishing that there was an infringement of any of their legal rights which entitled them to a writ of mandamus or any other directions of a like nature; and pending such determination it might have made a suitable interim order for maintaining the status quo ante. But when the Court declined to decide on the rights of the parties and expressly held that they should be investigated more properly in a civil suit, it could not, for the purpose of facilitating the institution such suit, issue directions in the nature of temporary injunctions, under Art. 226 of the Constitution.[AIR 1952 SC 12 : (1952) SCR 28]

Format: Writing prayers for a writ for Mandamus Bullet

Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. [AIR 1954 SC 207]

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