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Report No. 58

Chapter 5

Petitions for writs before High Courts

Interim Stay

Jurisdiction of High Courts to issue writs

5.1. A similar question relating to the jurisdiction of the High Courts to issue writs needs consideration. The Constitution has declared certain rights to be fundamental. For the purpose of the speedy enforcement of the rights-as we have already pointed out1,-the Constitution has conferred on the Supreme Court2 and the High Courts3 powers to issue "directions, orders and writs". Besides, the Constitution has also conferred on the High Courts power to issue such directions, orders and writs "for any other purpose4". It has been stated,6 that presumably the object of giving this power was to put the High Courts substantially in the same position as the Court of the Queen's Bench in England.

1. See chapter 4, supra.

2. Article 32.

3. Article 226.

4. Article 226.

5. Election Commissioner v. Saka Venkata Suba Rao, (1953) SCR 1144 (1150).

Article 226 of the Constitution reads as follows:-

"226. Power of High Courts to issue certain writs.-(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.

(1A) 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 if such Government or authority or the residence of such person is not within those territories.

(2) The power conferred on a High Court by clause (1) or clause (1A) shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32".

Structure and Jurisdiction of the Higher Judiciary Back

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