Art. 226 runs as follows:
(1) 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.
ADVERTISEMENTS:
(1-A) 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 powers not withstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(2) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner. Is made, or in any proceedings in relation to, a petition under clause (1) without-
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(a) Furnishing to such party copies of-
(i) Such petition, and
ADVERTISEMENTS:
(ii) All documents in support of the pleas for such interim order; and
(b) Giving such party an opportunity of being heard.
A makes an application to the High Court for the vacation of such order, and
B 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 dispose of the application:
ADVERTISEMENTS:
1. Within a period of 2 weeks from the date on which it is received, or from the date on which the copy of application is furnished whichever is later, or
2. 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.
(3) The power conferred on a High Court by the Article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.
Indeed Article 226 confers on High Courts very wide powers (wider than those of the Supreme Court) in matters of issuing writs or directions or orders in the nature of writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
These can be issued by the High Courts not only for the enforcement of Fundamental Rights but also for any other purpose.
This Article is couched in comprehensive phraseology and it ex- facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing,
(i) The nature of the power;
(ii) The purpose for which it can be exercised, and
(iii) The person or authority against whom it can be exercised.
The High Court can issue writs in the nature of prerogative writs as understood in England. But the scope of those writs also widened by the use of the expression ‘nature’ for this expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them.
Apart from this, the High Courts can also issue directions, orders, or writs other than the prerogative writs. The Article enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country.
Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English courts to issue prerogative writ is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure.
Such a construction defeats the purpose of the Article itself. To say this is not to say that the High Courts can function arbitrarily under this Article. Some limitations are implicit in the Article and others may be evolved to direct the Article through defined channels.
The scope or Article 226 is firstly that it confers on the High Court’s power to issue writs and directions, and secondly, it defines the limits of that power. This latter it does by enacting that it can be exercised over any person or authority within the territories in relation to which it exercises its jurisdiction.
The emphasis is on the words “within the territory” and their significance is that the jurisdiction to issue writs is co-extensive with the territorial jurisdiction of the court. The reference is not to the nature and composition of the court or tribunal but to the area within which the power can be exercised.
The High Courts have power under Article 226 to issue writs of certiorari for quashing the decisions of the Election Tribunals notwithstanding that they become fuscous officio after pronouncing the decisions, (Ibid).
The powers of the High Courts are subject to the following three restrictions:—
(i) The writs issued by the High Courts can run beyond the territories subject to their jurisdiction;
(ii) The person or authority to whom the writ is issued must be amenable to its jurisdiction either by reason of residence or location within these territories; and
(iii) The powers so conferred on the High Courts should not be in delegation of the powers conferred on the Supreme Court.
The remedy provided for in Art. 226 is a discretionary remedy and the High Court has always the direction to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere.
The High Court’s exercise direct control upon administration through the prerogative writs. They through the orders of such nature can require the administration to act according to law. The ends of justice are served by the use of this method of control.
Thus in an administrative authority is under a mandatory duty to perform a certain function but refuses to discharge it on being asked to do so then, in the absence of any other equally effective and convenient remedy, the person or persons interested in such performance or affected or likely to be affected by such non-performance may apply to the High Court for a writ of Mandamus to compel the performance of the duty.
The major limitation to the use of this writ, however, is that the writ does not lie against the Crown, or against any agent of the Crown acting as such.
The writ of Certiorari can be issued whenever anybody of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority.
The writ can be issued against statutory tribunals and subordinate judicial authorities. If a denial of justice or a radical defect of justice is pleaded and established by the party affected, the order under certiorari would quash the proceedings. The writ is thus a remedial writ used to undo what has been done.
The writ of prohibition, as the name indicates is preventive. It prevents a particular authority from doing something which if done, may be difficult to revoke.
If there is no other equally effective and convenient remedy open and if it is established that a particular authority (inferior court) is exceeding its jurisdiction by entertaining matters which would result in its final decision? Prohibition would thus lie to restrain such authority from exceeding its jurisdiction.
The writ can be issued against statutory bodies exercising legal jurisdiction, e. g., Commissioners of Taxes, Comptroller-General of Patents, The Board of Education, Ministers, etc.
