Article 226

Article 226(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."

Broken down

"Notwithstanding anything in article 32". The High Court's power is independent, not delegated, and article 226(4) says the same from the other side: the two jurisdictions coexist and neither cuts down the other.

"To any person or authority, including in appropriate cases, any Government". The respondent need not be the State, and that a private person can be one is what made the public duty line of cases possible, treated in [Private Bodies and Public Functions].

"And for any other purpose". These five words are the whole difference in subject matter: a writ may go for a legal wrong that has nothing to do with Part III.

"Throughout the territories in relation to which it exercises jurisdiction". The territorial limit, from which clause (2) is the escape: a High Court may act on a cause of action arising wholly or partly within its territories even where the respondent sits elsewhere.

Clause (3) is a discipline on the court, not the litigant. The Constitution rarely puts a deadline on a High Court, and the sanction here is automatic: the order dies by itself.

The article has been cut down once and restored

Article 226 was substituted by the Constitution (Forty-second Amendment) Act 1976 with effect from 1 February 1977, and that version narrowed the power: what the Constitution (Forty-fourth Amendment) Act 1978 replaced, with effect from 1 August 1979, was a passage ending with the requirement that "such illegality has resulted in substantial failure of justice". Article 226A, inserted by the Forty-second Amendment, barred the constitutional validity of Central laws from being considered under article 226; it was omitted by the Constitution (Forty-third Amendment) Act 1977 with effect from 13 April 1978.

Parliament tried to shrink article 226 exactly as it tried with article 32A, and both attempts were undone within three years.

Article 32 and article 226 compared

The last row is the one students miss: article 359 suspends the right to move any court to enforce the Part III rights named in the order, so what is suspended is the enforcement of those rights, not the article that supplies the forum.

The principles on which the jurisdiction is exercised

MU has set the principles for the exercise of writ jurisdiction as a short note.

1. The jurisdiction is discretionary. A petitioner who establishes an illegality is not automatically entitled to a writ.
2. An adequate alternative remedy is ordinarily a bar. Where the statute gives an appeal or revision, the petitioner is sent to it. This is a rule of practice, not of jurisdiction, and it is relaxed where the order is wholly without jurisdiction, where a fundamental right is enforced, where natural justice has been violated, or where the vires of the statute is in question.
3. Delay defeats the petition. There is no period of limitation for a writ petition, and for that reason the court refuses relief to one who has slept on his rights.
4. Disputed questions of fact are not decided on affidavits. Where the case turns on evidence that must be tested, the petitioner is left to a suit.
5. The petitioner must come with clean hands. Suppression of a material fact is by itself a ground to dismiss.
6. A writ does not issue in vain. Where no useful purpose would be served, the court declines.
7. The power cannot be excluded by statute. This one is not practice but constitutional law, on L. Chandra Kumar.

Propositions 1 to 6 are settled practice, and the decisions establishing them have not been read for this book, so no case is cited for them.

The power that cannot be taken away

Facts. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, (1997) 3 SCC 261, decided 18 March 1997 by seven judges. A batch of appeals and writ petitions was referred to a larger Bench because a Division Bench thought the five-judge decision in Sampath Kumar's case needed reconsideration; that report has not been read for this book, so the case is named without a citation. The issues were whether the power given by article 323A(2)(d) and article 323B(3)(d) to exclude the jurisdiction of all courts except the Supreme Court under article 136 was consistent with judicial review under articles 226, 227 and 32; whether tribunals may test the constitutional validity of a statutory provision; and whether tribunals as then functioning were effective substitutes for the High Courts.

Held. "The power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure", so "the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded". So too "the power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdictions".

Clause 2(d) of article 323A and clause 3(d) of article 323B, "to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional", as were section 28 of the Administrative Tribunals Act 1985 and every similar exclusion clause. Tribunals may test the vires of statutory provisions and rules, but their role is "only supplementary", they may not decide the vires of their own parent statute, and "all such decisions of the Tribunals will be subject to scrutiny before a Division Bench of the respective High Courts". They remain courts of first instance in their fields, so a litigant may not bypass them.

Why it matters. Articles 226 and 227 are not ordinary jurisdictional provisions Parliament may adjust; being part of the basic structure, an ouster clause fails however clearly it is drafted. The case also fixes the working shape of tribunal litigation: tribunal first, then a Division Bench of the High Court under articles 226 and 227, and the Supreme Court after that. The subject is taken further in [Tribunals].

Article 227: superintendence

Article 227(1) provides that "Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction." Clause (2) allows it to call for returns, to make general rules and prescribe forms regulating the practice and proceedings of such courts, and to prescribe the forms of their books, entries and accounts; clause (3) to settle tables of fees, subject to a proviso that such rules, forms and tables must not be inconsistent with any law in force and require the previous approval of the Governor. Clause (4) excludes superintendence over any court or tribunal constituted under any law relating to the Armed Forces, which connects to [Limits: Articles 33, 34 and 35].

A worked example

A State authority in Nagpur cancels Farhan's licence without a hearing. The statute gives an appeal to a Tribunal, whose parent Act says its decisions shall be final and shall not be questioned in any court. He moves the Bombay High Court under article 226.

Step one, is the article available at all? Yes. The cancellation is a legal wrong even if no fundamental right is engaged, and article 226 runs "for any other purpose".

Step two, the territory. The authority acted in Nagpur, so the cause of action arises within the territories of the Bombay High Court, and article 226(2) would carry the petition there in any event.

Step three, the finality clause. On L. Chandra Kumar it cannot exclude articles 226 and 227, that jurisdiction being part of the basic structure.

Step four, the alternative remedy. The statutory appeal is a real objection and the court will normally require him to take it first. His answer is that he was given no hearing at all, one of the recognised relaxations.

Step five, if he had gone to the Tribunal and lost. The remedy is a petition under articles 226 and 227 heard by a Division Bench, which is what L. Chandra Kumar directs, not a fresh writ petition treated as an appeal. He could go to the Supreme Court only if a fundamental right were engaged, article 32 being confined to Part III.

What it does NOT mean

It does not mean article 226 is an appeal. The court examines the legality of the decision, not its correctness on the merits; a wrong finding of fact within jurisdiction is not by itself a ground.

It does not mean the High Court can reach anywhere. The territorial limit is real, and clause (2) softens it only where the cause of action arises wholly or in part within the territories.

It does not mean the alternative remedy rule is jurisdictional. It is a self-imposed restraint, and a High Court that entertains a petition despite an available appeal has not acted without jurisdiction.

It does not mean articles 226 and 227 are one power. They are pleaded together out of habit, but the tests differ, and article 227(4) carves out a class of tribunals that article 226 does not.

Quick revision

• Article 226(1): every High Court, throughout its territories, to any person or authority including any Government, directions, orders or writs, for Part III rights "and for any other purpose". Wider than article 32 in subject matter, narrower in territory.
• Article 226(2): cause of action wholly or in part. Article 226(3): an interim order made without notice stands vacated if an application to vacate it is not disposed of within two weeks. Article 226(4): not in derogation of article 32(2).
• The Forty-second Amendment narrowed article 226 and inserted article 226A; the Forty-third and Forty-fourth Amendments undid both.
• The remedy is discretionary: alternative remedy, delay, disputed facts, suppression and futility are the standard grounds of refusal.
• L. Chandra Kumar: judicial review under articles 226 and 32, and superintendence under article 227, are basic structure; the exclusion clauses in articles 323A(2)(d) and 323B(3)(d) and section 28 of the Administrative Tribunals Act 1985 are unconstitutional; tribunals are supplementary and their decisions go to a Division Bench.
• Article 227: superintendence over all courts and tribunals, except those under any law relating to the Armed Forces.

Test yourself

1. In what respect is article 226 wider than article 32, and in what narrower? Quote the words that make each difference.

2. What does article 226(2) add, and what problem does it solve?

3. State six principles governing the exercise of writ jurisdiction, and say which of them is a rule of law rather than of practice.

4. What exactly did L. Chandra Kumar hold about tribunals, and what route must a tribunal litigant now take?

5. Distinguish article 226 from article 227 on four points.