Updated: Jul 12, 2020
This article is authored by Jagrat Shah, a current third year student at Gujarat National Law University, Gandhinagar.
The power to issue writs was considered initially considered as a power which was possessed by the superior courts of the land. It was initially brought into the Indian legal framework by the Regulating Act, 1773. In pursuance of the Regulating Act, 1773 a Royal Charter was issued by King George III for establishing a Supreme Court at Calcutta. This Court, for the first time, had the power to issue prerogative writs as its jurisdiction was equated with the jurisdiction of King’s Bench in England and thus began the era of writ jurisdiction in India.
Subsequently, the High Court’s Act, 1861 established the High Courts for the Presidency towns of Calcutta, Madras and Bombay after which other high courts were established at various other places.
Writ jurisdiction exercised by the High Court prior to the coming in force of the Constitution was very different. In fact, Article 226 of the Indian Constitution was much wider than the writ jurisdiction which was exercised by the High Courts prior to the coming in force of the Indian Constitution. Article 226 of the Constitution empowers the High Courts to issue not only writs but directions, orders and even a combination of the three, wherever it feels appropriate. High Courts are courts of record in accordance with Article 215 of the Indian Constitution. A High Court being a court of record enjoys unlimited and inherent power for territories under its jurisdiction. The High Courts being a court of record, is a repository of jurisdiction under the constitution except for what is specifically excluded from their purview. The Hon'ble Supreme Court of India in M.V. Elisabeth v. Harwan Investment and Trading (P) Ltd., held that the High Courts have inherent and unlimited jurisdiction including the jurisdiction to determine its own powers as it is a court of record and there is no bar on its jurisdiction, it has original as well as appellate jurisdiction.
An interesting question arises from this, i.e. this power of the High Court being a sacrosanct power being granted under the constitution, can it be restricted by a Statute. If reference is made to Article 226 of the Indian Constitution for the same, it does not mention any specific time frame. Apparently, the Constitution makers, in their wisdom, believed that it is in the best interest that such unlimited power is bestowed on the High Courts.
Power of the High Court
The Hon'ble Supreme Court of India in CCE v Hongo India Private Limited & Anr., after referring to the decision in M. V. Elisabeth (supra) held that though the High Courts exercise unlimited powers with regards to admiralty jurisdiction but when it comes to specific statues wherein the competent legislature has specified timelines with respect to the legislative policy the same can’t be subsided. Further, it was observed that the High Court does not have power to condone delay in such matters where the Act is a complete Code in itself.
The result of the decision was that the delay under the Act for filing an appeal can’t be condoned using the general powers conferred upon the courts in tune with Section 5 of the Limitation Act.
Another decision of the Constitutional Bench of The Hon'ble Supreme Court of India in Thansingh Nathmal & Ors. v. Superintendent of Taxes, Dhubri & Ors., held that though the powers of the High Court under Article 226 of the Constitution are very wide, the Court must exercise self-imposed restraint and not entertain a writ petition, if an alternative effective remedy is available to the aggrieved person. Therefore the Court through its this decision made it clear that though no check is imposed under Article 226 of the Constitution, the High Courts must impose self-restraint on their power to ensure judicial discipline.
Another notable decision given by a 9 Judge Bench of The Hon'ble Supreme Court of India is Mafatlal Industries Ltd. & Ors. v. Union of India & Ors, where it was authoritatively laid that an Act can’t bar or curtail a remedy under Article 226 or Article 32 of the Constitution but it added a caveat to the same by stating that a court while exercising this jurisdiction must give due attention to the legislative intent manifested in the provisions of the Act and at the same time, the jurisdiction exercised by the Court must be in consonance with the legislative intent.
The Hon'ble Supreme Court of India while dealing with a matter under Electricity Act, 2003 in Oil and Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Limited & Ors.,itself exercised judicial restraint when the condonable period mentioned under the Act was only 60 days but the appeal was filled after 71 days. The Court refused to exercise its plenary jurisdiction under Article 142 of the Constitution and held that it was against the legislative intent.
In a recent decision in the matter, Assistant Commissioner (CT) LTU v. Glaxo Smith Kline Consumer Health Care Ltd, the Hon'ble Supreme Court of India was hearing an appeal in relation to the Customs Act, and three decisions of High Courts were under challenge, those being, Andhra Pradesh High Court in Electronics Corporation of India Ltd. v. Union of India & Ors. which had adopted the view taken by the Full Bench of the Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. v. Union of India & Ors. and also of the Karnataka High Court in Phoenix Plasts Company v. Commissioner of Central Excise (Appeal-I), Bangalore. The High Courts were of the view that a central enactment can’t encroach upon the jurisdiction of the Hon’ble High Court. The Supreme Court considered this view being erroneous in law. The Court was of the opinion that the concerned Act is not taking away any power of the High Court. If the petitioner comes to the High Court in the prescribed time to file appeal to file a writ then the High Court can exercise its jurisdiction. The Court held that if the time limit under the Act is not followed then it would be a flagrant disregard for the rules of procedure and such exercise should not be appreciated.
In quite an earlier decision, the Hon'ble Supreme Court of India in Shri Vallabh Glass works v. Union of India held that delay in filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable. However, this rule cannot be a rigid formula and needs to be judged based on facts of each case
The decisions of the Hon'ble Supreme Court of India related to the limitation of a time period on the writ jurisdiction of the High Courts are varied. On one hand, it is opined that the power of the High Court is quite wide and is a repository of judicial powers under Article 226 of the Constitution, whereas, on the other hand, a few other decisions discuss the doctrine of judicial discipline and how the Court should impose self-restraint on its powers. This is also true as if it is not followed then there will always be a scope of an individual filing a writ based upon a favourable decision in some other decision after a long delay. This practice of getting benefit of the decision in other party’s decision was recently criticized by the Hon’ble Gujarat High Court in the matter Reliance Industries v. Union of India . It is opined that the earlier view taken by The Hon'ble Supreme Court of India in case of Shri Vallabh Glass works (supra) seems to be more justified and valid as per the law. While, the view taken by the Supreme Court in its recent decision in Glaxo Smith Kline( supra) is more rigid and the Supreme Court must give a nit leeway to the litigants approaching the High Courts, though judicial discipline and the legislative intent and policy must be given due consideration.