Territorial Jurisdiction: Article 226(2) and Where the Cause of Action Arises

In one line

Which High Court a writ petition goes to depends on where the cause of action arose, not on where the officer sits.

In the wording a student can write in an exam: Article 226(1) confines a High Court to the territories in relation to which it exercises jurisdiction, and Article 226(2) extends the power to any High Court within whose territories the cause of action, wholly or in part, arises, notwithstanding that the seat of the Government or authority or the residence of the person is outside those territories.

Why clause (2) exists

Before it, the position was that a writ could issue only to a person or authority within the territory of the High Court. The result was that a decision of a central authority sitting in Delhi, affecting a person in Nagpur, could be challenged only in Delhi. Clause (2), inserted in its present form by the Forty-second Amendment and retained after the Forty-fourth, cures that: it allows the High Court where the cause of action arose to act, whatever the location of the authority.

What "cause of action" means here

It is the bundle of facts which the petitioner must prove to succeed. In a writ petition it is usually made up of the events that led to the order: the application, the notice, the enquiry, the hearing, the communication of the order, and the effect of the order on the petitioner.

Three practical consequences follow.

Part of a cause of action is enough. The words are "wholly or in part".

Not every fact is part of the cause of action. A fact which is merely a piece of evidence, or which is incidental, does not create jurisdiction.

Mere residence of the petitioner is not enough. Nor is the mere fact that the petitioner received the order at his address, without more; otherwise every petitioner could choose his court by choosing where to open the envelope.

Forum conveniens

Even where a part of the cause of action arises within its territory, a High Court may decline to exercise the jurisdiction if another High Court is a more appropriate forum, because the writ jurisdiction is discretionary. That doctrine, borrowed from private international law, is the answer to forum shopping, and a court applies it by asking where the material events happened, where the records are and where the parties are.

A worked example

A public sector bank with its head office in Mumbai advertises posts nationally. A candidate in Nagpur applies, sits the written test in Nagpur, is interviewed in Nagpur by a committee constituted by the head office, and receives at his Nagpur address a letter from Mumbai rejecting him on the ground that he does not meet an eligibility condition.