Article 226 of the Indian Constitution: High Courts' Power to Issue Certain Writs

Article 226 of the Indian Constitution is a cornerstone of judicial review and the protection of citizens’ rights at the state level. It bestows upon High Courts the extraordinary power to issue various types of writs, directions, or orders. This power serves as a crucial mechanism not only for enforcing the fundamental rights guaranteed by the Constitution but also for upholding the rule of law and ensuring justice for citizens in a wide range of matters beyond fundamental rights.

This article significantly broadens the scope of judicial intervention by High Courts compared to the Supreme Court’s writ jurisdiction under Article 32, making High Courts the primary protectors of legality and rights within their respective territorial limits. It is a vital provision for grievance redressal against the actions or inactions of the state and other authorities.

Original Text

(1) Notwithstanding anything in Article 32, every High Court shall, throughout the territories in relation to which it exercises jurisdiction, have power 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 furnishing to such party copies of such petition and all documents in support of the plea for such interim order, any such party may make an application to the High Court for the vacation of such order and where such application is made the High Court shall, within a period of two weeks from the date on which it is received or from the date on which the Advocate who makes the application has been heard thereon, whichever is later, either vacate such order or pass an order confirming, varying or setting aside the same:

Provided that where such application is made and the party against whom the interim order has been made has furnished to the party in whose favour such order has been made, copies of such application and all documents in support thereof, the High Court shall, by order, give to the latter party an opportunity of being heard before it makes any order under this clause.

(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.

Detailed Explanation

Article 226 empowers every High Court in India to issue various types of writs, directions, and orders. This power is exercisable throughout the territories in relation to which the High Court exercises jurisdiction.

Clause (1): Scope and Purpose This clause is the core provision granting the writ jurisdiction.

Overriding Nature: It begins with “Notwithstanding anything in Article 32,” indicating that the High Courts’ power is independent of, and not limited by, the Supreme Court’s power under Article 32.
Recipients of Writs: Writs can be issued to “any person or authority, including in appropriate cases any Government.” This includes central government, state governments, local authorities, statutory corporations, universities, and even private bodies discharging public functions.
Types of Writs: It specifically mentions the five traditional prerogative writs:
- Habeas Corpus: “You may have the body.” Used to produce a person before the court who is under detention or imprisonment, to determine if the detention is lawful.
- Mandamus: “We command.” A command issued to a public official, corporation, inferior court, or government requiring them to do a specific public duty which they have refused or failed to do. It cannot be issued against the President or Governor or against a private individual or body unless they are acting under a public office.
- Prohibition: Issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or acting contrary to the rules of natural justice. It is a preventive writ.
- Certiorari: “To be certified.” Issued by a higher court to a lower court or tribunal to quash a decision made by them when they acted without jurisdiction, exceeded their jurisdiction, or made an error of law apparent on the face of the record, or violated principles of natural justice. It is a curative/corrective writ.
- Quo Warranto: “By what authority.” Issued to a person holding a public office to inquire into the legality of their claim to the office. It prevents a person from holding an office they are not legally entitled to.
Broad Power: The phrase “directions, orders or writs, including writs in the nature of” signifies that the High Courts are not limited to only these five writs but can issue other directions or orders necessary for justice.
Purpose: The power can be exercised for two main purposes:
- For the enforcement of any of the rights conferred by Part III: This refers to the enforcement of Fundamental Rights. Similar to Article 32 for the Supreme Court.
- And for any other purpose: This is the crucial difference from Article 32. High Courts can issue writs not just for Fundamental Rights but also for the enforcement of any other legal right, including statutory rights or common law rights, or to enforce any legal duty. This greatly expands the scope of judicial review by High Courts.

Clause (2): Territorial Jurisdiction (Cause of Action) Originally, the High Court’s writ jurisdiction was strictly confined to the physical location of the respondent or the cause of action arising entirely within its territory. The 15th Constitutional Amendment Act, 1963 added this clause.

It allows a High Court to exercise its power under Article 226 even if the government, authority, or person is located outside its territorial jurisdiction, provided that the “cause of action, wholly or in part, arises” within its territories.
This is significant as it allows litigants to approach the High Court within whose jurisdiction the grievance originated, making justice more accessible.

Clause (3): Handling of Interim Orders Inserted by the 42nd Amendment Act, 1976, and then significantly amended by the 44th Amendment Act, 1978, this clause addresses the process for dealing with interim orders passed ex parte (without hearing the other party).

It allows a party against whom an interim order has been passed in a petition under Article 226, without being furnished copies of the petition and supporting documents, to apply to the High Court for the vacation of such order.
Upon receiving such an application, the High Court is mandated to dispose of it within a specific timeframe (two weeks from receipt or from the date the applicant’s counsel is heard, whichever is later).
The proviso ensures that if the applicant seeking vacation of the interim order has furnished copies of their application and documents to the party in whose favour the interim order was made, the High Court must give the latter party an opportunity to be heard before deciding on the vacation application. This promotes fairness and natural justice.

Clause (4): Non-derogation of SC Power This clause clarifies that the power conferred on High Courts by Article 226 does not take away from or diminish the power conferred on the Supreme Court by Article 32. Both powers exist concurrently. However, the nature of the right to approach the court differs: Article 32 is a Fundamental Right itself (right to constitutional remedies), while Article 226 power is a constitutional power but not a fundamental right to move the High Court.

Comparison with Article 32:

Purpose: Article 32 is only for the enforcement of Fundamental Rights (Part III). Article 226 is for the enforcement of Fundamental Rights and for any other legal purpose.
Nature of Right: The right to move the Supreme Court under Article 32 for the enforcement of Fundamental Rights is a Fundamental Right itself. Moving the High Court under Article 226 is a constitutional right but not a Fundamental Right.
Discretion: The Supreme Court cannot ordinarily refuse to entertain a petition under Article 32 if a Fundamental Right is violated, as it is the guarantor of Fundamental Rights. High Courts have the discretion to refuse to exercise their writ jurisdiction under Article 226, as it is an extraordinary remedy.
Territorial Jurisdiction: SC’s jurisdiction extends across India. HC’s jurisdiction is limited to its territories, but clause (2) extends it based on the cause of action.
Types of Powers: Both can issue the specified writs. Article 226 explicitly mentions “directions, orders or writs,” possibly suggesting a slightly broader scope beyond the five traditional writs, although Article 32 implicitly covers directions and orders as well.

Detailed Notes

Article 226 is in Part VI of the Indian Constitution, dealing with the States.
It grants writ jurisdiction to all High Courts.
This power is independent of Article 32 of the Supreme Court.
High Courts can issue directions, orders, or writs, including Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto.
Writs can be issued to any person or authority, including the government.
The power is exercised within the High Court’s territorial jurisdiction.
The power is for two purposes:
- Enforcement of Fundamental Rights (Part III).
- Enforcement of any other legal right or legal duty (‘any other purpose’).
‘Any other purpose’ includes the enforcement of statutory rights, common law rights, or challenging illegal actions/inactions of authorities even if no fundamental right is violated.
Clause (2) extends territorial jurisdiction: a High Court can issue writs if the cause of action arises, wholly or in part, within its territory, regardless of where the authority/person is located. (Added by 15th Amendment, 1963).
Clause (3) provides a mechanism for vacating ex parte interim orders passed under Article 226. (Amended by 44th Amendment, 1978).
If an interim order is passed without providing copies of the petition/documents to the other party, that party can apply for vacation of the order.
The High Court must decide on the vacation application within two weeks (from receipt or hearing, whichever is later).
The proviso to Clause (3) ensures the party in whose favour the interim order was passed gets an opportunity to be heard before it is vacated, if they have been furnished with the vacation application.
Clause (4) clarifies that the High Court’s power under Article 226 does not diminish the Supreme Court’s power under Article 32.
The power under Article 226 is discretionary and extraordinary, unlike the right to move the SC under Article 32 for FR enforcement.
High Courts may refuse to exercise jurisdiction under Article 226 if an effective alternative remedy is available, except in cases of violation of Fundamental Rights, violation of principles of natural justice, or challenge to the jurisdiction of an authority.
Judicial review under Article 226 extends to administrative actions, legislative actions (challenging constitutional validity of laws), and judicial/quasi-judicial decisions of lower courts and tribunals.
The scope of Article 226 is broader than Article 32 in terms of the purposes for which writs can be issued.
The writ jurisdiction under Article 226 is part of the basic structure of the Constitution and cannot be taken away even by a constitutional amendment.

Additional Comments

Article 226 is frequently invoked for public interest litigation (PIL), although specific guidelines exist regarding its use for PIL.
The High Court’s power under this Article is subject to certain limitations, such as the principle of alternative remedy and self-imposed restrictions by the courts.
The power under Article 226 is equitable and discretionary; the court is not bound to interfere in every case even if a legal right is violated.
This Article makes High Courts significant protectors of civil liberties and guardians of constitutional and legal rights within their states.

Summary

Article 226 of the Indian Constitution grants extensive powers to the High Courts to issue writs, directions, and orders throughout their territorial jurisdiction. This power can be exercised for the enforcement of Fundamental Rights guaranteed by the Constitution as well as for the enforcement of any other legal right or purpose. Clause (2) allows High Courts to entertain petitions where the cause of action arises within their territory, irrespective of the respondent’s location. Clause (3) provides a procedure for the expeditious handling of applications to vacate interim orders. The High Court’s power under this article is independent of and concurrent with the Supreme Court’s power under Article 32, serving as a crucial tool for judicial review and protection of citizens’ rights and legal entitlements at the state level.