Alternate Remedy Under Article 226 Is a Rule of Prudence, Not an Absolute Bar

Summary: The article discusses the doctrine of alternate remedy under Article 226 of the Constitution, stating that while High Courts ordinarily refrain from exercising writ jurisdiction where an efficacious statutory remedy exists, this restraint is a rule of judicial prudence and not an absolute bar. It states that writ jurisdiction may be exercised where proceedings are wholly without jurisdiction, jurisdictional facts are absent, principles of natural justice are violated, fundamental rights are infringed, the impugned action is manifestly arbitrary, or the vires of a statute are challenged. Referring to Supreme Court decisions, the article notes that constitutional jurisdiction under Article 226 is not automatically excluded by the existence of an alternate remedy and that judicial intervention may be warranted even at the stage of a show cause notice in exceptional circumstances, including lack of jurisdiction, non-application of mind, abuse of process, or violation of natural justice. The article further explains the concept of jurisdictional facts as foundational facts necessary for lawful assumption of jurisdiction and argues that compelling litigants to exhaust statutory remedies despite foundational illegality may undermine the purpose of constitutional review.

Constitutional Purpose of Article 226

Article 226 of the Constitution of India is one of the most significant constitutional safeguards against arbitrary exercise of State power. The extraordinary jurisdiction of the High Courts exists not merely to correct errors, but to ensure that every public authority acts within the limits of the law. While it is well settled that High Courts ordinarily refrain from exercising their writ jurisdiction where an efficacious alternate statutory remedy is available, this self-imposed restraint was never intended to become an inflexible rule that defeats constitutional justice.

Growing Trend of Dismissing Writ Petitions on Alternate Remedy

In recent years, however, an increasing number of writ petitions—particularly in tax and regulatory matters—are dismissed at the threshold solely on the ground of availability of an alternate remedy. In ordinary cases involving disputed questions of fact or merits, such an approach is understandable. High Courts are not expected to function as routine appellate forums. The difficulty arises when the challenge is not to the correctness of the decision, but to the very legality of the proceedings themselves.

When Writ Jurisdiction Becomes Necessary

A litigant ordinarily approaches the High Court only after departmental representations have failed or where the statutory remedy is ill-suited to address the foundational illegality. If the impugned notice or order is ex facie without jurisdiction, founded on non-existent jurisdictional facts, passed in gross violation of the principles of natural justice, or is manifestly arbitrary, compelling the citizen to first undergo a prolonged appellate process merely to establish that the authority never possessed jurisdiction in the first place undermines the very purpose of constitutional review.

Alternate Remedy Is a Rule of Prudence, Not an Absolute Bar

The Supreme Court has repeatedly clarified that the doctrine of alternate remedy is a rule of judicial prudence and convenience, not a rule of jurisdiction or an absolute bar on the exercise of powers under Article 226.

Supreme Court in Radha Krishan Industries

In Radha Krishan Industries v. State of Himachal Pradesh (Civil Appeal No. 1155 of 2021), Radha Krishan Industries v. State of Himachal Pradesh the Supreme Court authoritatively summarized the exceptions to the rule of alternate remedy. The Court held that notwithstanding the availability of a statutory remedy, the High Court may exercise its writ jurisdiction where:

• the proceedings are wholly without jurisdiction;
• there is a violation of the principles of natural justice;
• fundamental rights are infringed;
• the impugned action is manifestly arbitrary; or
• the vires of a statute are under challenge.

The judgment reaffirmed that the rule of alternate remedy is one of discretion and cannot be mechanically applied so as to deny constitutional remedies in deserving cases.

Supreme Court in Godrej Sara Lee Ltd.

The position has been reiterated in Godrej Sara Lee Ltd. v. Excise and Taxation Officer (Civil Appeal No.5393 of 2010), Godrej Sara Lee Ltd. v. Excise and Taxation Officer wherein the Supreme Court observed that the existence of an alternate remedy does not automatically oust the jurisdiction of the High Court under Article 226. The Court emphasised that where the controversy raises a pure question of law, involves jurisdictional issues, or falls within the recognised exceptions to the doctrine of alternate remedy, the High Court is fully competent to exercise its constitutional jurisdiction. Article 226 is a constitutional power that cannot be curtailed merely because another statutory forum exists.

Supreme Court in J. Sri Nisha

Most recently, in J. Sri Nisha v. The Special Director (Arising out of SLP (Civil) No (s). 23415 of 2025 – decided on 1 April 2026), J. Sri Nisha v. The Special Director the Supreme Court once again underscored the breadth of the High Court’s writ jurisdiction. The Court recognised that even at the stage of a show cause notice, judicial intervention is permissible in exceptional circumstances. Where the notice is prima facie bad in law, issued without jurisdiction, demonstrates non-application of mind, reflects a pre-determined or premeditated approach, amounts to an abuse of the process of law, or is issued in violation of the principles of natural justice, the High Court need not compel the affected party to await a final order before granting relief. The judgment is a timely reminder that constitutional courts are not powerless merely because proceedings are at a preliminary stage.

Importance of Jurisdictional Facts

Central to this jurisprudence is the concept of jurisdictional facts. A jurisdictional fact is the foundational fact whose existence is a condition precedent for the lawful assumption of jurisdiction by a statutory authority. Unless such foundational facts exist, the authority cannot validly initiate or continue proceedings. As Senior Advocate Arvind P. Datar has often explained, when jurisdictional facts are absent, the defect strikes at the root of the proceedings, and the High Court is fully justified in exercising its writ jurisdiction without insisting upon exhaustion of alternate remedies.

Balancing Alternate Remedies and Constitutional Review

The debate, therefore, is not whether alternate remedies deserve respect—they undoubtedly do. Statutory appellate mechanisms are indispensable to the administration of justice and should ordinarily be allowed to function. The real question is whether a citizen should be compelled to undergo years of appellate litigation merely to establish that the authority lacked jurisdiction from the very inception or that the proceedings are patently illegal.

Preserving the Constitutional Guarantee of Judicial Review

The doctrine of alternate remedy was evolved to promote judicial discipline and institutional efficiency, not to shield arbitrary or unlawful exercise of power from constitutional scrutiny. Article 226 remains a constitutional guarantee against illegality, excess of jurisdiction, and procedural unfairness. When a notice or order is ex facie without jurisdiction, founded on non-existent jurisdictional facts, arbitrary, or passed in violation of natural justice, constitutional courts should not hesitate to exercise the powers entrusted to them.

Conclusion

The constitutional promise of judicial review must remain meaningful. If Article 226 is reduced to a remedy available only after exhausting every statutory forum—even where the very assumption of jurisdiction is under challenge—it risks becoming illusory rather than effective. Constitutional remedies were designed to provide timely protection against unlawful State action, and that objective must continue to guide the exercise of writ jurisdiction.

Frequently Asked Questions (FAQs)

1. What is the doctrine of alternate remedy under Article 226?

The doctrine of alternate remedy is a rule of judicial prudence under which High Courts ordinarily decline to exercise writ jurisdiction when an efficacious statutory remedy is available. It is not an absolute bar to the exercise of powers under Article 226.

2. Can a High Court entertain a writ petition despite an alternate statutory remedy?

Yes. The Supreme Court has consistently held that High Courts may exercise writ jurisdiction in exceptional cases, particularly where the proceedings are without jurisdiction, violate principles of natural justice, infringe fundamental rights, are manifestly arbitrary, or challenge the vires of a statute.

3. What are the recognised exceptions to the rule of alternate remedy?

According to Radha Krishan Industries v. State of Himachal Pradesh, the principal exceptions include:

• Proceedings wholly without jurisdiction;
• Violation of principles of natural justice;
• Infringement of fundamental rights;
• Manifest arbitrariness; and
• Challenge to the constitutional validity (vires) of a statute.

4. Can a writ petition be filed against a show cause notice?

Yes. As recognised in J. Sri Nisha v. The Special Director, judicial intervention at the show cause notice stage is permissible where the notice is prima facie without jurisdiction, suffers from non-application of mind, reflects a predetermined approach, amounts to abuse of process, or violates principles of natural justice.

5. What are jurisdictional facts?

Jurisdictional facts are foundational facts that must exist before a statutory authority can lawfully assume jurisdiction. If such facts are absent, the proceedings may be challenged directly under Article 226.

6. Does the existence of an appellate remedy automatically bar writ jurisdiction?

No. The existence of an alternate remedy does not oust the constitutional jurisdiction of the High Court. It is only a factor guiding judicial discretion.

7. What did the Supreme Court hold in Godrej Sara Lee Ltd. v. Excise and Taxation Officer?

The Supreme Court held that where a dispute raises a pure question of law, jurisdictional issues, or falls within recognised exceptions to the alternate remedy rule, the High Court may exercise its jurisdiction under Article 226 despite the availability of a statutory remedy.

8. Why is Article 226 considered an important constitutional safeguard?

Article 226 empowers High Courts to ensure that public authorities act within the bounds of law and provides timely judicial protection against illegal, arbitrary, or procedurally unfair State action.

9. Should every tax or regulatory dispute be brought directly before the High Court?

No. Ordinarily, statutory appellate remedies should be exhausted. Direct recourse to Article 226 is generally justified only in exceptional cases involving jurisdictional defects, natural justice violations, manifest arbitrariness, or other recognised exceptions.

10. Why is the doctrine of alternate remedy described as a rule of prudence and not a rule of abdication?

Because it is intended to promote judicial discipline and efficiency without preventing High Courts from exercising their constitutional duty to intervene where State action is patently illegal, without jurisdiction, or otherwise falls within recognised exceptions.

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Advocate Chirag Soni, Rajasthan High Court | Email : [email protected]

Chirag is an Advocate practising before the Rajasthan High Court, primarily in taxation, GST, customs and constitutional law.