Where does the writ of a High Court run? Questions on Jurisdiction

Article 214 of the Constitution provides that there shall be “a High Court for each state”. While this does mean that each state will have some High Court for its adjudication, it does not mean each High Court has one state.

Three High Courts serve more than one state, which the smart readers of this site will no doubt be able to quickly identify. Two High Courts though, serve no state at all. If you can’t name them, the answer is revealed before the end of this article, so read on.

The question of whether a High Court can pass orders which would have effect beyond its territorial jurisdiction is an issue that has something of a history, and a recent judgment casts, albeit in passing, a fresh shadow on the position of law.

The first round of questions that arose in this regard after the Constitution came into force, were with regard to the power of the High Court to issue writs to government bodies which were seated outside their jurisdiction.

In the early years of the Republic, the Supreme Court in Election Commission v. Saka Venkata Subba Rao answered as to whether the Madras High Court had jurisdiction to issue writs to the Election Commission, or would that be the sole preserve of the Punjab High Court, in whose jurisdiction the headquarters of the Election Commission, situated in Delhi, fell.

The Court held that the language of Article 226, as it then stood, ought to be interpreted as meaning that the authority to whom the writ is issued must be situated within the territorial jurisdiction of the High Court. That is, only the High Court of Punjab could exercise writ jurisdiction in respect of bodies like the Election Commission, seated in Delhi.

Similarly, in Khajoor Singh, though the Court recognized the inconvenience caused to people residing far away from New Delhi if writs against the Union Executive authorities could not be filed in their respective High Courts, the language of Article 226 was held to leave room for no other interpretation.

The Fifteenth Amendment to the Constitution in 1963 rectified this problem by inserting sub-clause (1A) in Article 226 which provided,

“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.”

Among the many changes that the Forty-Second Amendment to the Constitution wrought, was a reframing of Article 226 which retained the words of sub-clause (1A) and renumbered it as sub-clause (2) of Article 226.

However, the insertion of Article 226A, which provided that a High Court cannot consider the constitutional validity of a Central legislation, was a major restriction on the on the power of the High Courts. Article 226A was repealed shortly thereafter by the Forty-Third Amendment a year later.

Thereafter, the standard has long been that a writ is not maintainable in the High Court of Delhi solely on the ground that the seat of the Union government is in Delhi.

A judgment of the Supreme Court holding that the issuance of an order from a particular place conferred jurisdiction upon the High Court of that place was overruled by a bench of three judges of the Supreme Court in Kusum Ingots.

On the other hand, it has been time and again reiterated that the cause of action would determine whether a High Court has jurisdiction to entertain a particular writ petition.

The consequence of various High Courts deciding challenges to the constitutional validity of central legislations and deciding writ petitions against organs of the Union government would mean that the decisions of High Courts would necessarily have ramifications all over the country and would not be limited to the territory of the states over which they have jurisdiction, (or in the case of the High Court of Delhi and High Court of Jammu and Kashmir, the Union Territories over which they exercise jurisdiction) as confirmed in Kusum Ingots.

An observation in Union of India v. R. Thiyagarajan pronounced on April 3, 2020, appears to be capable of stirring the waters in this regard a little.

In this case, a constable in the Central Industrial Security Force (CISF) who had been sent to the National Disaster Relief Force (NDRF), sought special allowances for the deputation and was afforded the relief he sought by a Single Judge of the Madras High Court. Upon the Union’s appeal, a Division Bench of the Madras High Court extended the same relief to all personnel of the NDRF across the country.

The Union government appealed further to the Supreme Court, which partly allowed the appeal and held that the Madras High Court has usurped the jurisdiction of the other High Courts. Without commenting upon the other issues that arose, we may refer to the paragraph we are interested in:

“The High Court exercise its jurisdiction only over State(s) of which it is the High Court. has no jurisdiction for the rest of the country. Matters like the present may be pending in various parts of the country…The High Court of Madras could not have passed such order. It has virtually usurped the jurisdiction of other High Courts in the country…

…The High Court may be justified in passing such an order when it only affects the employees of the State falling within its jurisdiction but, in our opinion, it could not have passed such an order in the case of employees where pan India repercussions would be involved.”

When a High Court exercises its writ jurisdiction in respect of a central legislation or an executive order it necessarily has an impact across the country. In such a scenario, an order ensuring countrywide implementation of the position of law exposited by the High Court is only in furtherance of uniformity in the application of the law across the country.

No doubt differences may arise between High Courts. It is for the Supreme Court to resolve those differences in such scenarios. An observation that a High Court cannot pass an order which has pan-India repercussions might not sit well with the jurisdiction of the High Courts as discussed earlier.

The author is an Advocate practising at the Supreme Court of India and various tribunals in New Delhi. He tweets at @vikramhegde