The Writs and Article 226: High Court Jurisdiction

HC writ jurisdiction flows from Article 226 of the Constitution, which empowers every High Court to issue directions, orders, or writs — including habeas corpus, mandamus, prohibition, quo warranto, and certiorari — to any person or authority, including government, for the enforcement of Fundamental Rights and for any other purpose.

What Article 226 Provides

Article 226 states that, notwithstanding Article 32, every High Court has the power, throughout the territory over which it exercises jurisdiction, to issue directions, orders, or writs — including the five prerogative writs — to any person or authority, including the government, for the enforcement of the Fundamental Rights guaranteed in Part III and for any other purpose. This "any other purpose" clause is significant: unlike the Supreme Court's writ jurisdiction under Article 32, which is confined strictly to the enforcement of Fundamental Rights, a High Court's writ jurisdiction under Article 226 extends to any legal right or illegality, making it wider in subject matter even though narrower in territorial reach.

The Five Writs and Their Scope

• Habeas corpus ("to have the body of") — an order directing a person who has detained another to produce that person before the court, used to secure release from unlawful detention.
• Mandamus ("we command") — commands a public authority to perform a public legal duty it has failed to perform.
• Prohibition — forbids an inferior court or tribunal from exceeding its jurisdiction.
• Certiorari — quashes an order already passed by an authority that acted in excess of, or without, jurisdiction.
• Quo warranto ("by what authority") — tests the legal validity of a person's claim to hold a public office.

Article 226 versus Article 32

Both the Supreme Court (Article 32) and the High Courts (Article 226) can issue these writs, and Parliament may also empower any other court to do so, though no such law has been made so far. Three differences mark the two jurisdictions apart. First, the purpose: the Supreme Court's writ jurisdiction under Article 32 is available only for enforcing Fundamental Rights, while a High Court's jurisdiction under Article 226 extends to Fundamental Rights and any other legal right. Second, the nature of the remedy: moving the Supreme Court under Article 32 is itself a Fundamental Right, so the Court cannot ordinarily refuse to exercise this jurisdiction, whereas a High Court's writ jurisdiction under Article 226 is discretionary and it may decline to intervene. Third, territorial reach: the Supreme Court's writs run throughout India, while a High Court's writs operate within the territorial limits of its own jurisdiction. Where relief is available before a High Court under Article 226, the Supreme Court has generally held that the aggrieved party should approach the High Court first, even though the availability of an alternate remedy does not, in principle, bar recourse to Article 32.

Historical Background: Extending Writ Power to All High Courts

Before Independence, only the High Courts of Calcutta, Bombay, and Madras — which had inherited the jurisdiction of the King's Bench Division in England — possessed the power to issue prerogative writs, and even they could exercise it only within the original jurisdiction of those three Presidency towns. During the Constituent Assembly debates, members including K.M. Munshi and Alladi Krishnaswami Ayyar argued that if writ power remained confined to the Supreme Court and a handful of High Courts, citizens across the country would effectively have to travel to Delhi, or to one of the three Presidency towns, to vindicate their constitutional rights. Munshi pointed out that the older High Courts' writ powers did not even extend beyond the original jurisdiction of Calcutta, Bombay, and Madras themselves. The amendment that became Article 226 was designed to give every High Court in India the same writ-issuing power within its own jurisdiction, so constitutional remedies would be accessible without forcing litigants to travel to a few metropolitan courts.

Judicial Interpretation

The Supreme Court has held that a High Court has the power to review its own judgment, similar to the Supreme Court's own review power. In Kihoto Hollohon v. Zachillhu (1993), the Supreme Court declared paragraph 7 of the Tenth Schedule — which sought to bar the jurisdiction of courts, including the writ jurisdiction of the High Courts under Article 226 and the Supreme Court's appellate jurisdiction under Article 136, over decisions on disqualification of legislators — unconstitutional, because it had not been ratified by the states as required under the proviso to Article 368(2) for amendments affecting the powers of the High Courts and the Supreme Court.

UPSC Relevance

Prelims

• Article 226 empowers every High Court to issue the five writs — habeas corpus, mandamus, prohibition, certiorari, quo warranto — for enforcing Fundamental Rights and for any other purpose.
• Before 1950, only Calcutta, Bombay, and Madras High Courts could issue prerogative writs, and only within their original (Presidency-town) jurisdiction.
• In Kihoto Hollohon v. Zachillhu (1993), paragraph 7 of the Tenth Schedule barring court jurisdiction was struck down for want of the ratification required under Article 368(2).

Mains

• Compare the writ jurisdiction of the Supreme Court under Article 32 with that of the High Courts under Article 226.
• Discuss the Constituent Assembly's rationale for extending writ-issuing power to every High Court rather than confining it to select courts.

FAQ

Q1. What writs can a High Court issue under Article 226? Habeas corpus, mandamus, prohibition, certiorari, and quo warranto — the same five prerogative writs the Supreme Court can issue under Article 32.

Q2. How is Article 226 wider than Article 32? Article 226 lets a High Court issue writs for enforcing Fundamental Rights and for "any other purpose," i.e., for any legal right, whereas Article 32 is confined strictly to Fundamental Rights.

Q3. Is a High Court bound to exercise its writ jurisdiction under Article 226? No. Unlike the Supreme Court's Article 32 jurisdiction, which is itself a Fundamental Right, a High Court's Article 226 jurisdiction is discretionary.

Q4. Which High Courts could issue writs before the Constitution came into force? Only Calcutta, Bombay, and Madras, and only within the original jurisdiction of those Presidency towns.

Q5. What did the Kihoto Hollohon case decide about Article 226? It struck down paragraph 7 of the Tenth Schedule, which had tried to bar High Courts' writ jurisdiction under Article 226 (and the Supreme Court's under Article 136) over anti-defection disqualification decisions, since it lacked the required state ratification.

Quick Revision

• Article 226: every High Court may issue the five writs for Fundamental Rights and any other purpose.
• Article 32 (Supreme Court) is FR-only and itself a Fundamental Right; Article 226 (High Court) is wider in scope but discretionary.
• Pre-1950: only Calcutta, Bombay, Madras High Courts had writ power, limited to Presidency towns.
• Kihoto Hollohon v. Zachillhu (1993): Tenth Schedule para 7 struck down for lacking Article 368(2) ratification.

Sources

• The Constitution of India, Article 226 — legislative.gov.in
• Kihoto Hollohon v. Zachillhu, Supreme Court of India, 1993 — official judgment records

Further Reference

For deeper reading on this topic and the wider polity syllabus, these standard works are recommended:

• M. Laxmikanth, Indian Polity (McGraw Hill) — the standard UPSC handbook.
• D.D. Basu, Introduction to the Constitution of India (LexisNexis) — authoritative constitutional-law treatment.
• The Constitution of India — Bare Act — the official text.

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