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Report No. 14

Volume 2

30. Writs

1. Jurisdiction under Article 226.-

The jurisdiction conferred by the Constitution on all the High Courts by Article 226 is a notable advance upon the position that existed in regard to the issue of prerogative writs before the advent of the Constitution. Almost in identical words, the Constitution conferred similar jurisdiction on the Supreme Court restricting it to cases of the infringement of Fundamental Rights.

2. Pre-Constitutional position.-

Prior to the commencement of the Constitution, the jurisdiction to issue prerogative writs existed only in the three High Courts of Calcutta, Madras and Bombay in the exercise of their original jurisdiction. These High Courts were held to have derived this jurisdiction by reason of their having inherited it from the Charter establishing the Supreme Courts in the three Presidency Towns. Not only was the power exercised by the three High Courts confined to the local limits of their original jurisdiction but it was restricted to the authority to issue writs vested in the Courts of the King's Bench Division of the High Court in England at the time of the establishment of the Supreme Courts in these towns.

3. Present position.-

Under the Constitution, every High Court has now been vested with this jurisdiction. The jurisdiction extends throughout the territories in relation to which the High Court exercises jurisdiction so that its ambit has been greatly enlarged and includes the territory over which the High Court exercises not only original but also appellate jurisdiction. The nature of the jurisdiction itself has been amplified by the use of the expression "directions, orders or writs" including the specified writs mentioned in the article. Further, these directions, orders or writs can be issued not only for the enforcement of Fundamental Rights but also "for any other purpose".

4. The need for it.-

The conferment of such a wide jurisdiction concurrently, in the case of Fundamental Rights, on the High Courts and the Supreme Court was, perhaps, inevitable. The constitution-makers, having included a bill of rights in the Constitution, had necessarily to provide for remedies for their enforcement. They also envisaged a Welfare State with its necessary mass of parliamentary and subordinate legislation which would involve constant interference with the normal life of the citizen.

Such intense legislative activity and the enforcement of the regulations made under statutes by administrative agencies made it essential to formulate procedures which would enable the citizen to approach the courts to obtain speedy and effective redress against an unconstitutional enactment or unwarranted executive action. Articles 32 and 226 would, therefore, seem to be an indispensable part of the structure erected by our Constitution.

5. Need to strengthen the High Courts.-

It is not surprising that full advantage of the expeditious and effective remedy provided by Article 226 of the Constitution has been taken. It is effective not only in that it confers wide powers on the courts to issue directions, orders or writs; it is effective also because of its small cost. Generally, the court-fee on applications under Article 226 has been rightly fixed at a very low figure. The charging of higher court-fees on applications for vindication, among others, of Fundamental Rights would in most cases amount to a denial of these rights.

The remedy has been expeditious because the High Courts have justifiably given the disposal of writ petitions precedence over other work by reason of the urgency of the questions involved. No doubt, in some High Courts, applications under Article 226 have impeded the other work of the Courts. That, however, can be no ground for the abolition or curtailment of the scope of this provision. The constitution-makers intended the High Courts to shoulder this additional burden and if the grant of this jurisdiction requires additional strength in the High Courts, provision for such strength should not be grudged.

6. Beneficial effects (No case for curtailment of jurisdiction).-

The beneficial effects of this new jurisdiction cannot be over-estimated. Its existence has made the citizen conscious that the State exists primarily for his good and that, under its laws, he has rights of which he can obtain quick enforcement by the highest court in the State at a very reasonable cost. The knowledge that a citizen can bring a matter in a summary manner before the courts in a few days' time after the promulgation of the law or order has made our Government departments wary in their actions. The very large number of statutes and orders which have been struck down by the High Courts in the exercise of their jurisdiction under Article 226 is a powerful testimony to the effective nature and the essential utility of the remedy. Our endeavour, therefore, must be to preserve this wide and effective jurisdiction and help to make the remedy function with expedition so that it may truly serve its purpose.



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