Maintainability of Writ Petitions – Article 226

I. INTRODUCTION

Before coming to maintainability, we must first understand what a ‘Writ’ petition is and under what circumstances can a writ be filed.

A writ, as defined by the Black Laws Dictionary simply means “a court’s written order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act.”[1] So, to say, a writ is a direction issued by a higher court, usually to a lower court (or any person or government authority), instructing them to act or abstain from acting in a certain manner. It is a legal mandate commanding you to carry out a particular action. Writ petitions are a type of public law litigation used to uphold constitutional rights, basic human rights, and other government obligations.[2]

India’s writ jurisdiction originates from two different Constitutional clauses. The Supreme Court’s writ jurisdiction is governed by Article 32 of the Constitution, and the High Courts’ writ jurisdiction is governed by Article 226. Writ jurisdiction of the Supreme Court can only be invoked if there is an infringement of a fundamental right. In contrast, the High Courts’ writ jurisdiction is more expansive. According to Article 226, High Courts can issue writs for “any other” purpose, in addition to protecting fundamental rights. Therefore, it is not necessary that the breach is of a fundamental or constitutional right to invoke a writ petition under Article 226. For issuance of a writ, any harm caused by the State or a State institution in violation of ordinary law would be sufficient.[3] In this article, we will be discussing the writ jurisdiction of various High Courts under Article 226.

II. FACTORS DETERMINING WRIT JURISDICTION

Before admitting a writ petition, the High Court concerned would first verify if the petition would be maintainable before it, meaning, whether the High Court has requisite jurisdiction to hear the matter.

To determine maintainability, certain factors need to be accounted for which are discussed hereinunder.

Territorial Jurisdiction

First and foremost, the High Court must determine if it has valid territorial jurisdiction to hear the matter. All High Courts in India are granted judicial review authority under Article 226. It gives them the power to issue writs to any person or authority, (including any government authority), for the purpose of enforcing any constitutional or legal rights. However, as per Article 226(1), a High Court can only hear matters emancipating from the “territories in relation to which it exercises jurisdiction.”[4] To understand how courts have interpreted territorial jurisdiction, it is pertinent to analyze the evolution of Article 226 with respect to its legislative history.

A constitutional Bench in Lt. Col. Khajoor Singh v. Union of India & Another (1961)[5] had held that the High Court within whose limits the order (impugned) is passed will have jurisdiction to entertain a writ petition. It was immaterial where the cause of action had arisen. While interpreting Article 226 (as it existed then), the Supreme Court had determined that the High Court’s authority to issue writs was subject to two conditions:

1. The authority must be used “throughout the territories in respect to which it exercises jurisdiction.” This means writs issued by the Court are only valid within the areas under its jurisdiction.
2. The requirement that the person or authority be “inside those territories“—clearly indicating that they must be subject to its jurisdiction either by domicile or location within those territories—for the High Court to be authorized to issue such Writs.

As a result of this judgment, Article 226 (2) of the Constitution was amended by the Parliament.  Clause (1-A) of Article 226 was inserted by the 15th Amendment to the Indian Constitution. Thereafter, post the 42nd amendment, it was renamed “Clause (2)” of Article 226. Based on this amendment, if even “cause of action” (wholly or partly) has accrued within its jurisdiction, a writ will be maintainable before the High Court. After the amendment, the ratio laid down by the constitutional bench in Lt. Col. Khajoor Singh ceased to remain valid. However, certain observations made by the court (not forming the operative part of the judgement) still remained good law.

Cause of Action

The question now to determine is what constitutes “cause of action” for a writ to be maintainable. As defined by the Supreme Court in Om Parkash Srivastava v/s Union of India & Anr[6], every fact that the claimant would have to establish to support his claim towards the court’s decision can amount to cause of action. Every truth that must be proven, as opposed to every piece of evidence that must be used to support every fact, is a cause of action. Meaning, simply based on the facts claimed, and without going into the merits of such facts, if the claimant can establish that a particular fact relates to the jurisdiction of that High Court, a right to sue arises. Further, in Oil & Natural Gas Commission v/s Utpal Kumar Basu & Ors[7], it was held that the issue of territorial jurisdiction must be resolved based on facts presented before the court, veracity being immaterial.

A recent judgement delivered by the Delhi High Court in the case Jayaswals Neco Limited v/s Union of India[8] clears the air regarding the territorial jurisdiction of High Courts. After analyzing the landmark judgements of the Supreme Court over this issue, the Court came up with four hypothetical situations for determining territorial jurisdiction which is discussed hereinunder.

1. The person/authority/government to whom the writ is to be issued is in State ‘A’. Cause of action, in whole or part, arises in State ‘A’. In such a case, State ‘A’ alone would have jurisdiction under Article 226 (1) & (2) both.
2. The person/authority/government to whom the writ is to be issued is in State ‘A’. Cause of action, in whole or part, arises in State ‘B’. In such a case, both State ‘A’ and State ‘B’ would have jurisdiction under Article 226 (1) & (2) respectively.
3. The person/authority/government to whom the writ is to be issued is in State ‘B’. Cause of action, in whole or part, arises in State ‘A’. In such a case, both State ‘B’ and State ‘A’ would have jurisdiction under Article 226 (1) & (2) respectively.
4. This situation is the inverse of the first situation. The person/authority/government to whom the writ is to be issued is in State ‘B’. Cause of action, in whole or part, arises in State ‘B’. In such a case, State ‘B’ alone would have jurisdiction under Article 226 (1) & (2) both.

Alternate and Efficacious Remedy

A writ is essentially an extraordinary jurisdiction of the High Court and must be exercised only in rare cases to serve the interests of justice.[9] This means that the authority to issue the writ is not unconditional but is subservient to other factors. In an event where there is an availability of an alternate and efficacious remedy, the common rule is that the remedy must be availed before approaching the High Court under Article 226.

Although, the availability of an alternate remedy by itself does not divest the High Court of its powers under Article 226; in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. This was held in the Whirlpool Corporation v Registrar of Trademarks[10] This establishes the position of the Judiciary that a mere existence of an alternate remedy would not bar the High Court of its writ jurisdiction. However, litigators are advised to avail the remedy before approaching the High Court. The Supreme Court has, through a series of judgements, famously observed that an alternative remedy would not operate as a bar in filing a writ in the following cases:

1. The petition has been filed for enforcement of any Fundamental Right
2. The petition involves a violation of the Principles of Natural Justice
3. Order (impugned) from where the petition is originating is wholly without Jurisdiction
4. The petition challenges the vires of a legislation[11]
5. Where there is a pure question of law devoid of undisputed facts. [(2023) SCC OnLine SC 95]

Questions of fact

Any question of fact need not be entertained by the High Court under extraordinary writ jurisdiction. The High Court can dismiss a writ when facts are contested and disagreed by parties. However, such a perspective would not be easily overturned if the High Court is really of the opinion that the substance of the disagreement justifies the use of its writ jurisdiction.[12] 

What creates a bar?

What are the situations in which a High Court is barred to exercise its writ jurisdiction? Can jurisdiction be barred explicitly by means of state legislation or a Parliamentary act? In this part of the article, we delve into answering both questions.

While considering the second question, the Supreme Court has time and again established that no Act of the Parliament, state legislature, or even a change to the Constitution can preclude the High Court’s ability to consider a writ petition under Article 226. A seven Judge bench had ruled that such right to review under Article 226 forms part of the basic structure of the Constitution and cannot be altered by any constitutional amendment. Following this, when a High Court remedy cannot be prevented by a constitutional amendment, neither parliamentary law nor state legislation can do the same.[13]

Coming to the first question, it has been established that High Courts shall not exercise its discretionary authority under Articles 226 whenever the litigant has access to an alternative remedy. The alternative remedy may be availed in the correct forum (as regards the hierarchy of courts), the forum as specified in the relevant legislation, or through additional channels.

Statutory Bar

When a remedy or method for enforcing a right or liability is prescribed by a statute, reference must be made to that specific statutory remedy before using the extraordinary remedy under Article 226.[14] The superior court may consider whether the aggrieved party has another adequate remedy before issuing a writ to the inferior court. Typically, the superior court will wait to intervene until the aggrieved party has exhausted all his or her available statutory remedies. However, this rule requiring the exhaustion of other remedies is a rule of “policy, convenience, and discretion,”, and not a rule of law. There are many occasions where a writ has been issued despite the aggrieved party having other suitable legal options.[15]

Contractual Bar

If a dispute arising out of a contract contains an arbitration clause, or other methods of Alternate Dispute Resolution, such clause can act as a bar for High Courts to entertain writ petitions. However, this is subject to discourse.[16]

It is crucial to describe the different categories of State-related contracts that exist in India before delving further into the concerns relating to the conflict between arbitral jurisdiction and writ jurisdiction. There can be three different types of State related contracts being:

• Constitutional contracts: Article 299 of the Constitution regulates constitutional contracts (also known as government contracts), which are formed in the exercise of the executive power of the Union of India or the pertinent State governments.[17]  Writ petitions are admissible in connection to disputes arising out of such contracts since the Constitution serves as the legal and substantive basis for such contracts.

• Statutory Contracts: Contracts made under the power given to a particular governmental authority by legislation are known as statutory contracts. Furthermore, such agreements contain the terms and circumstances outlined in the applicable statute.[18] Herein, a State entity’s violation of the agreement’s terms would constitute a violation of the obligations imposed by the statute. Since the statute is a public law document, a writ petition would be maintainable as a public law remedy in the event of a statutory obligation breach.[19]

• Commercial Contracts: Lastly, there exist contracts that are solely for business purposes between the State/State entities and private parties, where the provisions of the agreement control the parties’ rights and obligations. Here, maintainability largely depends on the facts of each case and the Court’s interpretation of the type of contract the State has entered. In other words, there is no rigid formula to evaluate whether the contract or the dispute originating from it naturally contains a public law aspect.[20]

It is trite to observe that maintainability is not hampered in case the contract is of the first kind, i.e., a Constitutional contract. However, there is no definite answer to maintainability under statutory and commercial contracts. This requires a discussion on the same.

The Supreme Court reiterated in its two-judge bench decision in Harbanslal Sahnia v. Indian Oil Corpn. Ltd[21] that the rule of exclusion of writ jurisdiction, given the existence of an alternative remedy, is one of discretion rather than compulsion. The court may intervene if it determines that the case falls under one of the circumstances outlined in the Whirlpool Corporation case (mentioned above).

A three-judge bench of the Apex body upheld the Orissa High Court’s decision to dismiss a writ petition in Titagarh Paper Mills Ltd. v. Orissa SEB[22] on the grounds that the issues at hand were conflicts that were ‘arbitrable’ under the contract. The High Court had heard a lawsuit challenging the imposition of a coal fee on the affected Electricity Board subscribers. On grounds that the parties had access to arbitration remedy, the High Court dismissed the petition. The Supreme Court determined that the arbitration agreement would apply to the claims relating to the imposition of a coal surcharge, upholding the High Court’s decision to send the parties to arbitration. Several Supreme Court decisions followed, including State of U.P. v. Bridge & Roof Co. (India) Ltd.[23], Kerala SEB v. Kurien E. Kalathil[24], and State of Gujarat v. Meghji Pethraj Shah Charitable Trust[25], wherein the strategy in Titagarh Paper Mills case was upheld. In these rulings, the Supreme Court expressed its opinion that factual issues, disputes originating from contractual provisions, or disputes relating to contract termination cannot be accepted in a writ petition and that the appropriate forum for adjudication may be a civil court or arbitration.

Further, in the case Ramakrishnan Mission and anr. v Kago Kunya and ors.[26], the Supreme Court considered all earlier judgements on this issue. As per the Court, the “twin test” for maintainability needs to be satisfied. The first test concerns a person or entity performing a public function or responsibility, and the second test concerns a claim that the behavior at issue violates public law. Therefore, unless a matter of public law is at stake, a writ petition cannot be maintained against the authority, or the person addressed under Article 226 for performing a public function or obligation. Furthermore, in K.K. Saksena v International Commission on Irrigation and Drainage and ors.[27], it was held that private law remedies would not be enforceable through extraordinary jurisdiction under Article 226. Private law is a part of the legal system under common law that involves relationships between individuals such as the law of contracts or torts. The contractual and commercial obligations are enforceable only by the ordinary civil court.

However, holding quite the inverse in the case of United India Insurance Company Ltd. v. Manubhai Dharmasinhbhai Gajera[28], the Supreme Court after analyzing the conservative and liberal approaches taken previously by it, observed that in cases involving non-statutory contracts, the previous conservative perspective of non-intervention has given way to a rather liberal approach of limited intrusion. In practice, the constitutional law restraints on the state’s actions when acting in the administrative domain extend to the contractual realm as well. [29]

Now, this has left the litigators in a situation of conflict by creating a paradox.[30] It is noted that the Supreme Court has held that Constitutional Courts should not hear purely contractual cases, particularly when arbitration is an available forum.[31]  However, it is also noted that when an action of a State is violative of Article 14 of the Constitution of India as being wholly unfair and unreasonable, the writ Court would not hesitate to grant relief in favour of the claimant. As there are judgements equally substantiating both sides of the discourse, an authoritative ruling on this matter by a larger Supreme Court bench would give plaintiffs and practicing attorneys the much-needed clarity they require.

Principles of Natural Justice

In case there is violation of the principles of natural justice, a writ has been held to be maintainable. To begin with, let us look at the English case of 1928 King v. Postmaster-General; Ex parte Carmichael[32] whereby, despite the aggrieved party having a right to appeal, a writ was issued. It was established that in cases where natural justice has been denied before a court of summary jurisdiction, the higher court will promptly grant a writ. The observations by Harries, C.J in Assistant Collector Of Customs v Soorajmull Nagarmull and Anr.[33] have a similar impact. The C.J observed that the court can and must intervene when a court or tribunal that is asked to conduct judicial or quasi-judicial powers disregards all natural justice principles and renders a decision that is against all generally accepted standards of fairness.

Further, in the case of State of U.P. Vs. Mohammad Nooh[34] (1958), the matter was brought before the Supreme Court in opposition to the High Court’s decision to throw out departmental actions against a policeman in a writ petition. A police constable was fired when departmental proceedings were completed. The investigation’s lead officer, Deputy Superintendent of Police, recorded his own statement in the proceeding, which was the case’s most significant aspect. The Deputy Superintendent of Police who oversaw the proceedings appeared as a witness in the inquiry, which presents a case of severe bias and violation of the principles of natural justice, according to the High Court’s ruling. The Supreme Court upheld the High Court’s ruling. 

In a recent judgement rendered by Delhi HC in Novelty Merchants Private Limited v National Faceless Assessment Centre Delhi & Ors.[35], the impugned assessment order, according to the petitioner’s attorney, was granted without issuing the required draught assessment order and show-cause notice required by Section 144B(1)(xvi)(b) of the Income Tax Act. He claims that the Respondent’s actions violate Section 144B and the principles of natural justice. Delhi High Court granted the petition and ruled that the contested Assessment Order is invalid. The matter was remanded to the Assessing Officer to issue a show cause notice and compose an Assessment Order before passing a reasoned order in accordance with the law. The “Faceless Assessment Scheme” and the mandated procedure outlined in Section 144B of the Act have not been adhered to and there is a breach of natural justice principles. The court added that the existence of an appellate remedy does not exclude the maintainability of a writ petition when there is a violation of the norms of natural justice.

III. CONCLUSION

In summation, it can be observed that the ability to issue writs under Article 226 of the Constitution may be used for any reason, and not just the enforcement of fundamental rights. The High Court is free to admit or reject a writ petition at its sole discretion. Before admitting a writ, it must be established that the High Court concerned has the requisite territorial jurisdiction to hear the matter. One of the limitations to this discretion of High Courts is the availability of alternative remedies for resolution. However, even if there exists an alternate remedy, the High Court can admit a writ under certain circumstances involving a violation of fundamental and legal rights, violation of principles of natural justice, and when the validity of a legislation is challenged. The Judiciary has sided on different lines when considering the maintainability of writ petitions in presence of an alternate remedy. This has gone through long years of discourse. Presently, the position established is that each case in this regard is distinct and maintainability will depend on the facts of the matter along with the judicious application of mind and discretion by High Courts. A well-founded and commanding judgement by the Apex body will come as a relief in regard to this ambiguity in the law.