Write a short note on Power of the High Courts to issue writs, directions, and orders. [RJS 2014]

Question: Write a short note on the Power of the High Courts to issue writs, directions, and orders. [RJS 2014]

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Answer

Article 226 of the Constitution enumerates provisions dealing with the power of High Courts to issue writs, directions, and orders. The High Court can issue certain writs in the nature of habeas corpus, mandamus, prohibition, and certiorari and quo warranto for protecting the fundamental rights or any other constitutional rights.

Clause. (1) of Article 226 is a non-obstante clause that reveals that the power of the High Court to issue writs orders and directions inappropriate cases are independent of such powers of the Supreme Court under Article 32 of the constitution. Article 226 has a much wider scope than Article 32 in general. The scope of these powers is not only restricted to the fundamental rights only but it extends to “any other purpose” also.

Clause. (2) of Article 226 puts a territorial restriction on its jurisdiction under this provision. The High Courts are restricted to exercise these powers within their territorial jurisdiction. Therefore, the powers of the High Courts are limited as far as the area of jurisdiction is concerned.

The High court can issue a writ,

1. to a person or authority having its location or residence within the court’s territorial jurisdiction or
2. if the cause of action either wholly or partly arises within the high court’s territorial jurisdiction.

It is the duty of the High Court before which the writ petition is filed to ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends on the facts of each case. When an order is challenged, cause of action arises

1. at the place where the order was made, as well as;
2. at the place where its consequences fall on the person concerned.

The High Court can issue a writ even when the person resides, or the authority is located, outside its territorial jurisdiction if the cause of action wholly or partially arises within the Court’s territorial jurisdiction. When a part of the cause of action arises within one or the other High Court, it will be for the petitioner to choose his forum.

Clause. (3) of Article 226 provides a safeguard against the adverse impact of ex-parte interim orders passed by the High Court under Article 226. The provision is primarily based on the principles of natural justice i.e. no one should be proceeded against unheard.

Clause (4) of Article 226 clarifies that the powers to be exercised by the High Courts under this Article would not be in derogation of such powers of the Supreme Court under Article 32. Hence, notwithstanding the parallel nature of the two provisions, the Supreme Court enjoys a superior status in this regard.

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