Writ jurisdiction of High Courts

Also called: Article 226 · Topic: Fundamental Rights and Constitutional Remedies · NCERT: Class 9, Ch 6 "Democracy"; Class 11, Ch 2 "Rights in the Indian Constitution"; Class 11, Ch 6 "Judiciary"

Meaning

Writ jurisdiction of High Courts (Article 226) is the power of every High Court to issue directions, orders or writs to "any person or authority, including in appropriate cases, any Government" within its territory. It can do this to enforce fundamental rights "and for any other purpose" [3].

• It matters because it is the remedy most people can actually reach. A High Court is closer to them than the Supreme Court.
• It is also wider than Article 32, because it protects ordinary legal rights as well as fundamental rights.

Explanation

How it works

• A writ is a formal written order of a court. It tells an authority to do something, or to stop doing something.
• Under Art. 226(1), a High Court can issue "directions, orders or writs". It is not limited to the five named writs [3].
• The five writs named in both Art. 32(2) and Art. 226(1) come from English law [2][3]:
• Habeas corpus ("to have the body"): the court orders that a detained person be brought before it, and frees them if the detention is unlawful. It lies against public authorities and private persons.
• Mandamus ("we command"): the court orders a public official, public body, lower court or tribunal to perform a legal duty it has failed to do.
• Prohibition ("to forbid"): stops a lower court or tribunal from going beyond its jurisdiction (its legal powers) while a case is still pending.
• Certiorari ("to be certified"): transfers a case to the higher court, or quashes (cancels) an order already passed.
• Quo warranto ("by what authority"): asks a person to show by what legal right they hold a public office.

Why it is wider than Article 32

• Purpose: a High Court acts "for the enforcement of any of the rights conferred by Part III and for any other purpose" [3].
• "Any other purpose" covers ordinary legal rights, such as rights under a statute or a contract with the State.

• Art. 32 covers only fundamental rights.

• Against whom: writs can go to "any person or authority, including in appropriate cases, any Government" [3].

• Cause-of-action rule (15th Amendment, 1963):
• A High Court can issue writs where the cause of action (the events that led to the case) arises "wholly or in part" in its territory.
• This applies even if the government, authority or person is based outside that territory [3].

Special rules in the article

• Interim orders (Art. 226(3)): an interim order is a temporary order made while the case is still going on. The steps are: 1. The High Court passes an interim order without first hearing the other side. 2. The other side applies to have the order cancelled. 3. The court must decide that application within two weeks. 4. If it does not, the interim order stands vacated, meaning it is cancelled automatically [3].

• No clash with the Supreme Court (Art. 226(4)): the High Court's power "shall not be in derogation of" the Supreme Court's power under Art. 32(2). In other words, it does not reduce that power [3].

Limits

• Discretionary: a High Court may refuse a writ.
• Example: it may refuse when another adequate remedy exists.

• Example: it may refuse when the petitioner waited too long.

• Territorial: its reach is limited to the High Court's own territory, or to the place where the cause of action arose. Art. 32 covers the whole of India.

• Not a fundamental right: Art. 226 is a constitutional power, not a fundamental right. So Art. 359 does not suspend it in the way it suspends Art. 32.

• But a Presidential order under Art. 359 during a National Emergency still blocks enforcement of the named fundamental rights in every court, including High Courts.

• Mandamus does not lie against: the President or a Governor (they are personally protected by Art. 361), private persons, or a duty that is only a matter of choice.

• Prohibition lies only against judicial and quasi-judicial bodies, not against administrative or legislative bodies.

In the Constitution and practice

• Location: Article 226 sits in Part VI (the States), in the chapter on High Courts. It is not in Part III with the fundamental rights.
• Origin: it comes from Draft Article 202 of the 1948 Draft Constitution. The Constituent Assembly debated it on 7 June 1949 and 7 September 1949 [3].
• 15th Amendment (1963): added the cause-of-action rule, so a High Court can reach authorities based outside its territory [3].
• Basic structure: judicial review (the power of courts to strike down laws and actions that break the Constitution) under Arts. 32 and 226 is part of the basic structure. Basic structure means the core features of the Constitution that Parliament cannot destroy, even by amendment (L. Chandra Kumar v. Union of India, 1997).
• Tribunals may take over some work from the High Courts.

• But tribunal decisions can still be challenged before a High Court, and the writ power cannot be taken away.

• Compensation as a remedy: courts can order the State to pay money directly in a writ case under Art. 32 or 226, without a separate civil suit.

• Rudul Sah v. State of Bihar (1983): the case that started this approach. Rudul Sah stayed in jail for over 14 years after he was acquitted, and the State was ordered to pay compensation [4].
• Nilabati Behera v. State of Orissa (1993): compensation under Art. 32 or 226 is a public-law remedy, so sovereign immunity is no defence. Sovereign immunity is the old idea that the State cannot be sued for its sovereign acts.

• D.K. Basu v. State of West Bengal (1997): set out arrest safeguards and confirmed compensation for custodial violence.

• Public Interest Litigation (PIL): the old rule of locus standi (only the injured person can file a case) was relaxed. Any public-spirited person can now approach the court for the poor and voiceless, and even a letter can be treated as a writ petition.

• In practice: the Supreme Court often sends Art. 32 petitioners to the High Court under Art. 226, because that remedy is wider and closer to them.

Don't confuse with

• Article 32 (Supreme Court): Art. 32 is itself a fundamental right and covers fundamental rights only. Art. 226 is a discretionary constitutional power that also covers "any other purpose".
• Article 139: this lets Parliament widen the Supreme Court's writ power to other purposes. Art. 226 already has that wider scope directly from the Constitution.
• Article 32(3): Parliament may let other courts (for example, district courts) use Art. 32 writ powers. It has never done so. Art. 226 power belongs to High Courts directly from the Constitution.
• Statutory commissions (NHRC, National Commission for Women, etc.): these bodies can inquire into complaints and recommend action. They cannot issue writs; High Courts can.

Prelims Hooks

• Art. 226 vs Art. 32: Art. 226 is wider in purpose (fundamental rights "and for any other purpose"). Art. 32 is wider in territory (the whole of India).
• 15th Amendment (1963): a High Court can issue writs where the cause of action arises "wholly or in part" in its territory, even if the authority is based elsewhere [3].
• Art. 226(3): an interim order passed without hearing the other side stands vacated if the application to cancel it is not decided within two weeks [3].
• Trap: "A High Court cannot refuse a writ because the remedy is a fundamental right." This is wrong. Art. 226 is discretionary; only Art. 32 is a fundamental right.
• L. Chandra Kumar (1997): judicial review under Arts. 32 and 226 is basic structure, so tribunal decisions remain open to High Court challenge.
• Draft Article 202 → Art. 226 (debated 7 June 1949 and 7 September 1949). Draft Article 25 → Art. 32 (debated 9 December 1948).

Mains Points

• Supreme Court or High Court first?
• For sending cases to High Courts: Art. 226 is wider and closer to the citizen, and it reduces the Supreme Court's backlog.
• Against: turning Art. 32 petitioners away weakens a guaranteed fundamental right.

• Balanced view: use Art. 226 as the normal route, but hear Art. 32 cases directly where the harm is urgent (liberty, custodial violence) or affects the whole country.

• Writs as a check on tribunals and the executive: L. Chandra Kumar (1997) kept High Court review over tribunals.

• This keeps tribunals accountable and protects judicial review as part of the basic structure.

• The cost is a heavier High Court workload and longer delays.

• Compensatory jurisprudence under Arts. 32 and 226: Rudul Sah, Nilabati Behera and D.K. Basu made the State pay for violating rights, which deters abuse and gives quick relief.

• Gaps: compensation amounts are decided case by case, and India has no comprehensive law on custodial torture.
• Reforms: a statutory compensation scheme, a law against torture, and stronger NHRC powers alongside the courts.

Related concepts

• Right to constitutional remedies
• Writ
• Habeas corpus
• Mandamus
• Writ of prohibition
• Certiorari
• Quo warranto
• Compensatory jurisprudence

Read more

• Constitutional remedies: Articles 32 and 226, the writs and the courts as protectors