Write short note on Power of the High Courts to issue writs, directions and orders.

The power of the High Courts to issue writs, directions, and orders is conferred by Article 226 of the Constitution, a provision considerably wider in scope than the corresponding power of the Supreme Court under Article 32, since it extends not only to the enforcement of fundamental rights but also to the enforcement of any other legal right, making the High Courts the principal guardians of legality and constitutionalism at the level of the States.

Article 226

Article 226(1) provides that notwithstanding anything in Article 32, every High Court shall have power, 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 III, and for any other purpose. This concluding phrase, "for any other purpose," is the feature that distinguishes the High Court's writ jurisdiction most sharply from that of the Supreme Court, since it allows a High Court to intervene wherever any legal right, not merely a fundamental right, has been infringed by the action or inaction of a public authority.

Article 226(1A), inserted by the Constitution (Fifteenth Amendment) Act, 1963, and renumbered as clause (2), further provides that the power to issue such directions, orders, or writs to any Government, authority, or person may also be exercised by a High Court within whose territorial jurisdiction the cause of action, wholly or in part, arises, notwithstanding that the seat of such Government or authority, or the residence of such person, lies outside those territories. Article 226(3) deals with the procedure applicable where an interim order is passed without giving the affected party an opportunity of being heard, requiring the High Court to dispose of the application for vacating such an interim order expeditiously, and Article 226(4) clarifies that the power conferred on the High Court under this Article does not derogate from the power conferred on the Supreme Court under Article 32(2).

The Five Recognised Writs

Article 226 does not create these writs; it empowers the High Court to issue directions, orders, or writs "in the nature of" five specific prerogative writs that the provision expressly names, each drawn from English common law and adapted to Indian constitutional needs.

• Habeas corpus, meaning "you may have the body," commands a person who has detained another to produce the detained person before the court and justify the legality of the detention, and is the principal remedy against illegal or arbitrary confinement, whether by the State or by a private individual.

• Mandamus, meaning "we command," is issued to a public authority commanding it to perform a public duty that it has failed or refused to perform, provided the duty is one imposed by law and not merely discretionary in character.

• Prohibition is issued to an inferior court or tribunal to prevent it from continuing proceedings in excess of its jurisdiction or in violation of the rules of natural justice, and operates at a stage before the tribunal has rendered its decision.

• Certiorari is issued to quash a decision already rendered by an inferior court, tribunal, or authority exercising judicial, quasi-judicial, or, increasingly, administrative functions, on grounds of want of jurisdiction, an error of law apparent on the face of the record, or breach of natural justice.

• Quo warranto, meaning "by what authority," is issued to question the legal right of a person to hold a public office, requiring that person to show under what authority he continues to hold that office, and lies where the appointment is contrary to statutory provisions.

Illustrative Case Law

The width and evolving character of the High Court's writ jurisdiction under Article 226 has been shaped by several landmark decisions of the Supreme Court.

In L. Chandra Kumar v. Union of India, a seven-judge Bench held that the power of judicial review vested in the High Courts under Article 226 and in the Supreme Court under Article 32 constitutes part of the basic structure of the Constitution and cannot be ousted or excluded even by a constitutional amendment, since this power is essential to maintaining the rule of law and to keeping other constitutional functionaries within the limits of their assigned powers. This decision reinforced that tribunals created by statute, even where intended to substitute the High Courts' jurisdiction, remain subject to the supervisory jurisdiction of the High Court under Article 226, and any provision seeking to entirely exclude such jurisdiction would be unconstitutional.

In Whirlpool Corporation v. Registrar of Trade Marks, the Supreme Court explained that although Article 226 confers a wide discretionary power on the High Court, and although the existence of an alternative statutory remedy is a factor the High Court should ordinarily take into account before entertaining a writ petition, this alternative remedy rule is a rule of judicial self-restraint, not a rule of jurisdictional exclusion, and the High Court retains full power to entertain a writ petition despite the existence of an alternative remedy in exceptional circumstances, such as where the impugned order has been passed in violation of the principles of natural justice, where the order or the very proceedings are wholly without jurisdiction, or where the vires of a statute itself are under challenge.

The scope of "any other purpose" in Article 226 was addressed early in Basappa's line of reasoning and later applied consistently to demonstrate that this jurisdiction extends beyond fundamental rights to encompass any legal right created under ordinary statute, contract enforceable in public law terms, or violation of principles governing State action, thereby making Article 226 the broadest single remedy available under the Constitution for controlling arbitrary or illegal exercise of public power.

The territorial reach of Article 226(2) was clarified in cases dealing with the "cause of action" test, establishing that a High Court may exercise jurisdiction over authorities or persons situated outside its territorial limits so long as a part of the cause of action, meaning the bundle of facts that gives rise to the right to sue, arises within its territory, thereby preventing litigants from being denied a remedy merely because the respondent authority's office happens to be located in a different State.

Illustration

Suppose a State Government cancels the licence of a trader without giving the trader any notice or opportunity to explain his position, in clear violation of the audi alteram partem principle, and further, no alternative statutory appeal is provided against this cancellation. The trader may approach the High Court under Article 226 seeking a writ of certiorari to quash the cancellation order and, if necessary, a writ of mandamus directing the authority to restore the licence pending a fresh, lawful decision made after hearing him. Even if an alternative remedy did technically exist, following the reasoning in Whirlpool Corporation v. Registrar of Trade Marks, the High Court would still be justified in entertaining the writ petition directly, given the clear breach of natural justice involved. If the same trader's licensing authority were headquartered in a neighbouring State but the cancellation order was communicated to and had its operative effect upon the trader within the territory of his own State's High Court, that High Court would still possess jurisdiction under Article 226(2), since part of the cause of action arose within its territory.

Article 226, therefore, stands as one of the most far-reaching provisions of the Constitution, entrusting the High Courts with a broad and flexible power to correct illegality, arbitrariness, and injustice arising from the exercise of public authority, whether by the State, statutory bodies, or increasingly, private bodies discharging public functions, a power the Supreme Court has repeatedly affirmed as forming an inseparable part of the Constitution's basic structure, as declared in L. Chandra Kumar v. Union of India, and one that the High Courts must exercise with judicial discipline, guided by principles such as the rule of alternative remedy explained in Whirlpool Corporation v. Registrar of Trade Marks, while never losing sight of their fundamental role as the primary custodians of legality within their respective territories.