WHETHER HIGH COURTS HAVE POWER TO ISSUE WRIT AGAINST CENTRAL GOVERNMENT

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.

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. Also there is constant debate and discussion held on whether High Court has authority to issue writ against central government or organization which falls under the ambit of central govt.

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.”

Decision passed by High Court on constitutionality of central legislations and its applicability to other states

The present position of law, as expressly upheld by various high court judgments relying on Kusum Ingots,[1] and as impliedly accepted by the Supreme Court, is that interim or final orders passed by a High Court on the constitutional validity of a Central Legislation is applicable throughout the country and hence binds other High Courts from taking a contrary view on the issue. Though this principle may not have the constitutional sanction of Article 226 as stated by the author hereinabove, the same is the law of the land for all practical purposes. Barring a Supreme Court judgment on the issue overturning this principle, it is difficult to see any change in the current position.  In Durgesh Sharma[2], it was observed regarding the territorial jurisdictional limitation of High Court that ‘writs issued by a High Court cannot run beyond the territory subject to its jurisdiction and the person or authority to whom the High Court is empowered to issue such writs must be within those territories.’

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.


[1] Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254

[2] Durgesh Sharma v. Jayshree, (2008) 9 SCC 648

“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.

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