Writ Jurisdiction of High Courts

HC writ jurisdiction gives every High Court in India the power to issue writs, not only for the enforcement of Fundamental Rights but for any other purpose as well — a power that is, in this one respect, wider than the Supreme Court's own writ jurisdiction. Article 226 embodies this power, and its present form is the direct outcome of a deliberate correction the Constituent Assembly made to a serious gap in the pre-Constitution legal system.

The Provision — Article 226

Article 226 provides that, notwithstanding Article 32, every High Court has the power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority — including, in appropriate cases, the government — directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of the Fundamental Rights in Part III of the Constitution and for any other purpose. That last phrase — "for any other purpose" — is what makes Article 226 broader in scope than Article 32: a High Court can grant a writ remedy even where no Fundamental Right is at stake, so long as some other legal right has been infringed and a writ is an appropriate remedy.

The Five Writs

Each of the five writs available under Article 226 serves a distinct function. Habeas corpus requires that a person under detention be produced before the court, and can secure the release of someone detained unlawfully or without adequate grounds. Mandamus is issued when a public authority has failed to perform a legal duty it owes, directing that authority to act. Prohibition is issued by a higher court to stop a lower court or tribunal from continuing proceedings that go beyond its jurisdiction. Certiorari is used to quash an order that a lower court, tribunal or authority has passed in excess of its powers, or to transfer a matter to a higher forum. Quo warranto tests whether a person holding a public office is legally entitled to hold it, and can remove someone found not to be so entitled.

Why Article 226 Is Wider Than Article 32

Under Article 32, the Supreme Court's writ jurisdiction is confined to the enforcement of Fundamental Rights — indeed, the right to move the Supreme Court for this purpose is itself made a Fundamental Right, a feature Dr B.R. Ambedkar is remembered for describing as being at the very heart of the Constitution. Article 226 does not carry that same status; it is a constitutional power vested in the High Courts rather than itself a Fundamental Right of the citizen. But in terms of the scope of the remedy, Article 226 goes further than Article 32, because it lets a High Court issue a writ for the enforcement of an ordinary legal right and not merely a Fundamental Right — provided the case is one in which a writ, rather than an ordinary suit, is the appropriate form of relief.

From Three Presidency Towns to Every High Court

Before the Constitution, prerogative writs of this kind could be issued only by the High Courts of Calcutta, Bombay and Madras, which had inherited the jurisdiction of the King's Bench Division in England, and even then only within the original jurisdiction of their respective Presidency towns. No other High Court in the country possessed this power at all. K.M. Munshi argued in the Constituent Assembly that if writ jurisdiction for the enforcement of rights remained confined to the Supreme Court and these three courts, a citizen anywhere else in the country would, in practice, have to travel to Delhi to seek such a remedy. The proviso eventually adopted by the Assembly settled the point in clear terms: all the High Courts in India were to have the right to issue prerogative writs or substituted remedies throughout the area of their appellate jurisdiction; the old restriction on jurisdiction in revenue matters under Section 226 of the Government of India Act, 1935 was to no longer apply; and the High Courts were to have powers of superintendence over subordinate courts going beyond what the 1935 Act had allowed. This settlement is the direct constitutional ancestor of the present Article 226, and of the related Article 225 (original jurisdiction) and Article 227 (superintendence).

Writ Jurisdiction as a Check on Bars to Court Access

Writ jurisdiction also becomes relevant whenever a law tries to shut the courts out altogether. When Paragraph 7 of the Tenth Schedule sought to bar all courts, including the High Courts, from having any jurisdiction over the disqualification of a legislator for defection, the Supreme Court in Kihoto Hollohon v. Zachillhu (1993) held that clause invalid for want of the special ratification required under the proviso to Article 368(2) for amendments touching the powers of the judiciary. The practical effect was that a Speaker's or Chairman's order of disqualification under the Tenth Schedule remains open to challenge before the High Courts by way of a writ petition, typically for certiorari, rather than being placed permanently beyond judicial reach.

Review of a High Court's Own Judgment

A further feature of the High Courts' jurisdiction, exercised alongside their writ power, is the power to review their own judgments — a power that, in this respect, parallels the Supreme Court's own power of review over its judgments.

UPSC Relevance

Prelims

• Article 226 empowers every High Court to issue the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
• Article 226 covers enforcement of Fundamental Rights and "any other purpose," making it wider in scope than Article 32.
• Article 32 is itself a Fundamental Right; Article 226 is a constitutional power, not a Fundamental Right.

Mains

• Examine why the writ jurisdiction of the High Courts under Article 226 is considered wider than that of the Supreme Court under Article 32, despite the Supreme Court's jurisdiction extending over the whole of India.
• Discuss the historical process by which writ jurisdiction, once confined to three Presidency High Courts, was extended to every High Court in India.

FAQ

Which writs can a High Court issue under Article 226? Habeas corpus, mandamus, prohibition, quo warranto and certiorari.

Is Article 226 wider or narrower than Article 32? Wider in one respect: it covers enforcement of Fundamental Rights and any other legal right, whereas Article 32 is confined to Fundamental Rights.

Why could only some High Courts issue writs before the Constitution? Only the Calcutta, Bombay and Madras High Courts had inherited the King's Bench Division's writ-issuing jurisdiction, and only within their Presidency towns; other High Courts had no such power.

Is the power under Article 226 itself a Fundamental Right? No. Unlike Article 32, Article 226 is a constitutional power vested in the High Courts, not a Fundamental Right of the citizen.

Can a High Court's disqualification-related writ jurisdiction under the Tenth Schedule be barred by law? No — in Kihoto Hollohon v. Zachillhu (1993), the Supreme Court struck down the Tenth Schedule's bar on court jurisdiction for want of proper constitutional ratification.

Quick Revision

• Article 226 — every High Court may issue writs for enforcement of Part III rights and for any other purpose.
• Five writs: habeas corpus, mandamus, prohibition, quo warranto, certiorari.
• Article 226 is wider than Article 32 in scope, but Article 226 itself is not a Fundamental Right.
• Pre-Constitution: only Calcutta, Bombay, Madras HCs could issue writs, confined to their Presidency towns.
• CAD proviso: extended writ power to all HCs, removed the revenue-matter bar, and expanded superintendence powers.
• Kihoto Hollohon (1993) — Tenth Schedule's bar on court (including HC) jurisdiction over disqualification struck down.

Sources

• The Constitution of India, Articles 32 and 226 — https://legislative.gov.in/constitution-of-india
• Constituent Assembly Debates — https://www.constitutionofindia.net
• Kihoto Hollohon v. Zachillhu, 1992 Supp (2) SCC 651 — Supreme Court of India

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.