Jurisdiction under Article 226

As observed in Calcutta Gas Co. (Proprietary) Ltd. v. State of West Bengal, Article 226 of the Constitution confers a very wide power on the High Courts to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III, that is to say, the fundamental rights or for any other purpose. Therefore, persons other than those claiming fundamental rights can also approach the High Court seeking a relief thereunder.

Further, it is no longer necessary to “look back to the early history or the procedural technicalities of these rights in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in England”. T. C. Basappa v. T. Nagappa, . This position was reiterated in Dwarka Nath v. I. T. O. Special Circle, ‘D’ Ward, where it was observed that Article 226 “is couched in a comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found……

It can issue writs in the nature of prerogative writs as understood in England, but the scope of those writs also is widened by the use of the expression ‘nature’ which expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. The High Courts are enabled to mould the reliefs to meet the peculiar and complicated requirements of this country.” But, to say that Article 226 confers very wide powers on the High Courts to reach injustice wherever it is found is “not to say that the High Courts can function arbitrarily under this article. Some limitations are Implicit in the article and others may be evolved to direct the article through defined channels.”

The limitations on the power of the High Court to issue writs, orders or directions either for the enforcement of fundamental rights or for any other purpose are apparent from decisions like Veerapa v. Raman & Raman Ltd., , Sangram Singh v. Election Tribunal, Kotah, and Thansingh v. Supdt. of Taxes, . In Veerappa’s case it was held that however extensive the jurisdiction of the High Court under Article 226 may be, it is not so wide or large as to enable the High Court to convert itself into a Court of Appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made. In Sangram Singh’s case, it was held that though no limits can be placed upon the discretionary jurisdiction of the High Courts under Article 226, it must be exercised along recognised lines and not arbitrarily. In the exercise of their jurisdiction under Article 226 therefore, the High Courts could not act as Courts of Appeal or revision to correct mere errors of law, which do not occasion injustice in a broad and general sense. In Thansingh’s case, it was held that the very amplitude of the jurisdiction under Article 226 demands that it will ordinarily be exercised subject to certain self-imposed limitations. Under that article, the High Courts should not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right, to enforce which the writ is claimed. Therefore, under Article 226 the High Court does not act as a Court of Appeal.

Yet another limitation on the power of the High Court is that ordinarily, the High Court should not entertain a petition under Article 226 if the petitioner has an alternative remedy which, without being unduly onerous, is equally efficacious. That was the view taken in Union of India v. T.R. Varma, at p. 884 where reference is made to two previous decisions of the Supreme Court in Rashid Ahmed v. Municipal Board, Kairana, and K.S. Rashid and Sons v. Income-tax Investigation Commission, . In Rashid Ahmed’s case, it was held that the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs, while in K. S. Rashid and Sons’ case, it was held that if an alternative remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under Article 226, unless there are good grounds therefor.

It is however necessary to bear in mind, and that is important for our purposes, that the existence of an alternative remedy is no bar to issuing a writ, order or direction for the enforcement of fundamental rights. In Varma’s case, the petitioner was dismissed from service and he challenged the order of dismissal on the ground that it contravened Article 311(2) of the Constitution. Venkatarama Aiyar, J. who delivered the judgment of the Court observes that the point which arose for determination in the case was whether the dismissed servant was denied an opportunity to present his case, which in turn depended mainly on the question whether he was prevented from cross-examining the witnesses who gave evidence in support of the charge. It was said that it was not the practice of the Court to decide matters of that type in a writ petition and therefore the petition was liable to be dismissed on that ground. In K.S. Rashid and Sons case, were filed under Articles 226 and 227 of the Constitution for challenging certain Income-tax investigation proceedings held under Act No. 30 of 1947. It was held that the petitioners had already availed themselves of the remedy provided for under Section 8 (5) of that Act and the reference had already been made to the High Court in terms of that provision which was awaiting decision. Therefore, it was not proper to allow the petitioners to invoke the jurisdiction of the High Court under Article 226.

In Himatlal v. State of M. P. the petitioner alleged that his fundamental right under Article 19(1)(g) was infringed. The contention that an alternative remedy was available to the petitioner under the impugned Act and therefore he was disentitled to relief under Article 226 was rejected on the ground that such a contention stood negatived by the decision of the Supreme Court in State of Bombay v. United Motors (India) Ltd., where says Mahajan, C. J. it was held that the principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available does not apply where a party has come to the Court with an allegation that his fundamental right had been infringed and sought relief under Article 226.

It was necessary to refer to this aspect of our jurisdiction under Article 226, because the learned Advocate General contended that we should not interfere with the order of forfeiture in the exercise of our jurisdiction under Article 226. He says that the proper remedy for the petitioner to adopt was to approach the Supreme Court under Article 32 of the Constitution. We are unable to accept this argument. As observed by Chagla C. J. in United Motors (India) Ltd. v. State of Bombay. (1953) 55 Bom LR 246 at p. 253 the powers of the Supreme Court under Article 32 and of the High Court under Article 226 are concurrent and if the Supreme Court cannot refuse to interfere in favour of a person who complains of the contravention of fundamental rights, equally so the High Court cannot refuse to entertain the application of a person who comes before it under Article 226 on the ground that his fundamental rights should be protected.

It is, in our opinion, clear that the existence of an adequate alternative remedy is a thing to be taken into consideration if the petitioner comes before the Court under Article 226 for the enforcement of other legal rights and it would be a sound exercise of discretion in such a case to refuse to interfere under that article. The petitioner before us, however, complains of the violation of his fundamental rights and so it would be wrong to refuse relief to him on the ground that this is a fit case in which a petition under Article 32 should have been filed before the Supreme Court. According to the Advocate General, the order of forfeiture passed by the 2nd Respondent operates throughout the country and therefore the Supreme Court would be in the best position to decide upon the validity of the order. That, it is said would avoid a conflict of jurisdiction among the different High Courts. Now, in regard to several all-India legislations, the same question would arise but we are not aware that it was ever held that the High Court should refuse to exercise its jurisdiction under Article 226 even if the contravention of a fundamental right is established, because different High Courts might arrive at different conclusions and therfeore, the proper remedy would be to approach the Supreme Court under Article 32.

Source: AIR 1971 Bom 56, (1970) 72 BOMLR 871, 1971 CriLJ 324