The Constitution of India is framed after much deliberations by the stalwarts and the constitution makers like Dr. B.R. Ambedkar and 4 others. It was framed with preamble Sovereign Socialist Democratic Republic and was later amended by secular. It has 4 pillars and the courts constituted under chapter-V of the constitution are one of the pillars.
The Chapter-V consists of the formation of High Courts in the states and the appointment of judges and the powers of the High Courts etc. Chapter-VI consists of Sub-ordinate courts, which includes District Courts, Magistrate Courts etc.,
Supreme Court being the highest court is constituted under chapter-IV and article-32, which deals with right to constitutional remedies empowers a person or state, the remedies were enforcement of rights conferred by the constitution. Article 136 provides for a special leave to appeal before the Hon’ble Supreme Court.
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 II 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 partition under clause (1), without –
a) furnishing to such party copies of such petition and as 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 disposed 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, 21.
According to this Article the High Court is conferred with the writ jurisdiction and it consists of writ of mandamus, writ of certiorari, writ of prohibition, writ of qua-warran to, writ of Habeas Corpus
Normally the High Courts would not allow any person to file a writ unless the person files the writ in the following conditions:
i. an order is passed without jurisdiction and authority of law violating article 265 of the Constitution of India and other articles as also the provisions of the enactments.
ii. a show cause notice issued violating the provision of the Act in gross violation of jurisdiction and in violation of powers vested in the officer.
iii. in violation of the principles of natural justice.
iv. and in total violation of provisions of a statute.
v. in excess of and abusive of the powers granted by the statute in a officer.
vi. the pecuniary powers that are vested in the High Courts.
vii. the challenge to an order or summons or show cause notice or proceedings, which is found as an unconstitutional.
A High Court is competent enough to deal with its powers under article 226 if any of the above mentioned reasons then writ can be issued by the High Court and one need not hesitate or think over to grant a writ.
Article 226 in fact superior than article 32 as article 226 can be issued for any reasons within the purview of the constitution including article 14, 19 & article 36. In recent past several judgments pronounced by the Apex Court have come to light, which says that the writ under Article 226 is not a remedy when the alternative remedy is provided under a statute. This particular observation buy the Hon’ble Apex Court is against to the constitutional bench judgments of the Apex Court, which are reiterated in a Larger Bench Judgments as also in subsequent judgments of the Hon’ble Apex Court.
The constitution is framed in 1950 and all the enactments wither by the states or the union are created under article 246 r/w Schedule-I & VII of the Constitution.
Article 226 as discussed above is wide enough to subsume all enactments and laws and as such article 226 is supreme. To elaborate the constitution being the mother of all laws and being the controller or the rightful owner of all enactments is thus the supreme of all the enactments.
The General Rules is that where there is an alternative remedy the writ court should not entertain any writ petition, but the exceptional rule is when there is want of jurisdiction disclosed on the face of the subject matter or of the parties then the Hon’ble Courts can issue or entertain a writ petition.
Here the question comes what is jurisdiction or authority of law, in criminal matter, when the offence takes place or a complaint is likely to be filed before a particular Police Station, where the Police Station does not have the absolute jurisdiction or authority of law to entertain such things then it would be out of jurisdiction. Similarly, in all other matters, whenever an officer is vested with the power to take up an issue in a particular area and travels its’ capacity to take up any issue which is far beyond the area of jurisdiction prescribed then in such matters it will be without jurisdiction and authority.
When an order is passed without application of mind, arbitrarily, illegally, voidly etc., then such orders are prohibited under article 14 of the Constitution, any order that infringes the fundamental rights of the citizen is challengeable under writ rules and before a writ court. There are several judgments to right from 1952.
In Verappa Pillai vs. Raman & Raman Ltd. reported in AIR 1952 SC 192, the Hon’ble Court held that when particular statute provides a self-contained machinery here determination of questions arising under the Act, the remedies that are provided under the Act should be followed except in cases of Acts, which are only without jurisdiction or in excess of jurisdiction vested in them or there is an error on the face of the record and such Act, omission, error or excess has resulted in manifest injustice.
Alternative remedy no doubt is a remedy created by the statutes, but such remedy must be effective. An appeal in all cases cannot be said to provide to all situations, where power to grant lease was exercised formerly by authority set up under the rule, but effectively and for all purposes should be considered, an appeal to the State Government would be ineffective and writ petition is such cases is maintainable, this was reiterated in Ram & Shyam Company Vs. State of Haryana reported in (1985) 3 SCC 267.
An alternative remedy is also treated as not an absolute bar and such cases have been dealt by the Hon’ble Apex Courts in a number of cases and to say some are as under.
AIR 1966 SC142, AIR 1987 SC 2186, AIR 1967 SC 549, which is the land mark judgment in which the Apex Court has said that the Hon‘ble High Courts have jurisdiction to decide, whether a statute under which a tax is sought to be levied is within the legislative competence of the legislature enacting it for whether the statute defies the constitutional restrictions or fundamental rights are being violated or whether the tax authority has assumed the power which he does not possess or has committed a serious error of procedure or where the authority has threatened to recover the tax on an erroneous interpretation then the Hon’ble Courts have jurisdiction to entertain a writ petition.
When an action is taken under an invalid law or arbitrarily without sanction of law or overacting than what law has provided then in such cases the Hon’ble High Court can interfere to avoid hardship. High Court in appropriate cases may also determine the eligibility to tax of transactions the nature of which is admitted, but does not normally proceed to assert the nature of the transaction, which is tax.
This contention was also upheld by the Apex Court in the case of Tata Engineering & Locomotive company vs. Assistant Commissioner reported in 1967(2) SCR 751. So also in AIR 1969 (SC) 556 in the case of Baburam Vs. Zillaparished & AIR 1970 SC 645 in the case of Champalal vs. Commissioner of Income Tax, West Bengal (2001) 10 SCC 740.
High Courts are empowered to exercise their extraordinary power under article 226 to meet unprecedented extraordinary situation of exceptional nature and in such a case High Court cannot relegate the petitioner on the ground of alternative remedy. This has been said in TK Rangarayan vs. govt. of Tamilnadu IN (2003) 6 SCC 581.
Similarly, when a blatant error has been found which is visible on record and to the naked eye then such errors can be cured by the High Court under article 226.
The classic cases are Ujjain Bhai vs. State of UP, reported in AIR (1962) SC 1621 and Rasheed Ahmed vs. Municipal Board, reported in AIR (1950) SC 163.
Whenever there is onerous condition for appeal the High Court can entertain the remedy and this was clearly stated in Customs Collector vs. Shantilal & Company reported in AIR (1966) SC 197.
It is discretionary rule to entertain a writ petition under article 226 and when the High Court chooses to exercise such discretion then the Hon’ble Supreme Court normally does not interfere. See state of UP vs. Indian Human Pipe Company reported in AIR (1977) SC 1132.
The recent judgment reported in AIR (2021) 6 SCC 771 in Radhakishan Industries vs. state of Himachal Pradesh in which the Hon’ble Apex Court referring to the judgment of the Apex Court was in Whirlpool Corporation vs. Registrar of Trademarkes, Mumbai reported in (1198) 88 SCC 1 and Harbhanslal Hahnia vs. Indian Oil Corporation Limited reported in (2003) 22 SCC 107 observed that the power under article 226 of the constitution to issue writs can be exercised not only for enforcement of fundamental right, but for any other purposes as well and was also said that the High Court has discretion not to entertain writ petition and one of the restriction placed on the power of High Court is where an effective alternative remedy is available then the Hon’ble High Court should not entertain the writ petition except where the fundamental rights are been violated, there has been a violation of principles of natural justice, the order is passed without jurisdiction and authority and the virus of the legislation is under challenge and an alternative remedy does not divest the High Court of its’ powers under article 226.
The Hon’ble High Court has also dealt in its’ judgments the Glaxo Smith Klin case reported in (2019) reported in AIR 2020 SC 289 in which it was categorically held that when an alternative remedy is provided by statute normally High Courts should not entertain the writ petition and this was clarified in detail.
However, as said earlier, constitution is the framer or the mother of all laws and under constitution alone all the laws are formed and any writ petition proceedings under article 226 cannot be taken away by any statute and the above judgments are classical examples.
If any suggestions are to be made to the above article, I welcome such suggestions, so that I can improvise my thoughts and skills.
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