Article 226 of Indian Constitution: Power of High Courts to issue certain writs
Article 226 of Indian Constitution
Original Text:
(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.]
(2) 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 power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and 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 within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or 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.]
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.
Article 226 of Indian Constitution:
Article 226 of Indian Constitution grants, High court the authority to issue various writs such as habeas corpus, mandamus, certiorari, prohibition, and quo warranto. These writs are used to uphold the fundamental rights of citizens and serve other purposes.
The term ‘other purposes’ means the jurisdiction conferred on the high court is not limited to protecting fundamental rights but also any other legal rights.
Article 226(2): The high court has the power to issue writs or orders to any individual, authority, or government, not just within its territorial jurisdiction but also beyond it, provided the cause of action originates within its territorial jurisdiction.
In this context, the cause of action refers to the Right to sue (the Right to seek relief by means of legal proceedings).
Article 226(3): In any situation where the high court passes an interim order by way of injunction (a legal ruling by a judge that mandates an person or other entity to either stop or start some action), stay, or by other means against a party without
- Providing copies of the petition and documents associated with that plea and
- Giving the opportunity to be heard
Then, that party may apply to the court for the vacation of such order, and the court should dispose of such an application; the high court must decide on the application within two weeks of receiving it or the application copy being furnished. If the High Court is closed on the last day of this period, the decision must be before the end of the next open day. If the application isn’t disposed of within this timeframe, the interim order is automatically cancelled.
The authority to issue writs, as per Article 226, is not solely vested in the high court but is shared with the supreme court under Article 32. This implies that the affected party can choose to approach either the High Court or the Supreme Court directly. However, the scope of the High Court’s writ jurisdiction is broader than that of the Supreme Court. The reason being the Supreme Court can only issue writs for the protection of fundamental rights and not for any other purpose. In other words, it does not apply to cases where a violation of an ordinary legal right is claimed.
Concept of Writs
Borrowed from English law, they are known as ‘prerogative writs’.
Before 1950, only the Calcutta, Madras and Bombay High Courts had the power to issue the writs. Once the Constitution was framed, the Supreme Court under Article 32 and the high courts under Article 226 got the power to issue writs.
Further, The Supreme Court, in the Chandra Kumar Case of 1997, ruled that the writ jurisdiction of the Supreme Court, as well as the High Court, is a part of the basic structure of the Constitution. Hence, it cannot be taken away even by an amendment to the Constitution.
Five Writs
1. Habeas Corpus – ‘to have the body of’.
The order issued by a court to a person who has detained another person to produce the body of the latter before the court. After that, the court examines the cause and legality of the detention, which would set the detained person free if the detention is illegal.
According to Article 22, only 24-hour detention is allowed; after that, it becomes illegal unless authorised by the magistrate. Habeas Corpus can be applied in this case. Further, if an individual has held a person hostage, in this case, Habeas Corpus can be applied.
Thus, It can be issued against both public authorities and private individuals, but it cannot be issued where the –
- Detention is by law
- The proceeding is for contempt of a court or a legislature
- The arrest is by a competent court, and
- The court has no jurisdiction over detention.
This writ is the bulwark of individual liberty against arbitrary detention.
2. Mandamus – meaning ‘we command’.
Mandamus Command is issued by the court to a public official directing him to carry out the official duties that he has failed to fulfil, and that is violating somebody’s rights.
For the same purpose, it can be issued against a corporation, a public body, an inferior court, a tribunal or a government.
It cannot be issued against –
- a private individual or body;
- to enforce departmental instruction that does not have statutory force;
- when the duty is voluntary and not mandatory;
- to enforce a contractual obligation;
- against the President of India or the governors of the states
- against the Chief Justice of a High Court performing in a judicial capacity
3. Prohibition
It is issued by a higher court (SC or HC) to a lower court or tribunal to stop the latter from going beyond its jurisdiction or usurping a jurisdiction it does not possess. Thus, unlike the mandamus that directs activity, the prohibition directs inactivity.
It can be issued only against either judicial or quasi-judicial bodies.Â
4. Certiorari – ‘to be certified’ or ‘to be informed.’
A higher court may issue this writ to a lower court or tribunal in order to transfer or overturn the lower court’s decision in a matter. It is issued for excess jurisdiction, lack of jurisdiction, or error of law.
- Thus, prohibition is only preventive, while Certiorari is both preventive and curative.
- Initially, Certiorari could be issued only against judicial and quasi-judicial bodiesand not against administrative authorities. However, in 1991, the SC ruled that the Certiorari could be issued even against administrative authorities affecting the rights of individuals.
Similar to Prohibition, Certiorari too is not available against legislative bodies and private bodies/individuals.
5. Quo-Warranto – meaning ‘by what authority.’
It is issued to enquire into the legality of a person’s claim to a public office. Hence, it prevents the illegal usurpation of public office by a person.
This writ can be issued only in case of substantive public offices of a permanent nature established by statute or the Constitution. However, in cases of ministerial office or private office, it cannot be issued.
Any interested person can seek this writ, not necessarily the aggrieved person.
For further reference:
- Read the Constitution of India
- Read the fundamental Rights.
