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Tuesday, October 4, 2011

Q.. What are the constitutional provisions with respect to the powers of the High Courts to enforce the rights of citizens?

Ans. Article 226 of the Constitution empowers the High Courts to issue writs in the nature of Habeas Corpus. Quo-Warranto, Mandamus, Prohibition and Certiorary and other such orders. These writs or orders may be issued by the High Courts for the following purposes—
(I) to enforce the Fundamental Rights provided in Part III of the Constitution; and
(2) for any other purpose.
With respect to the Fundamental Rights, these writs are issued by the High Court only after the satisfaction that any of the Fundamental Rights of a person has been violated. It should be noted that under the provisions of the Constitution, the Supreme Court does not have power to issue these writs for a purpose other than enforcing Fundamental Rights. However, it has been provided that the Parliament by law may make provisions to empower the Supreme Court to issue these writs for other purposes. But, in the case of High Courts, the Constitution itself provides that these writs may be issued for a purpose other than the enforcement of Fundamental Rights. The term ‘other purpose’ may be the enforcement of a legal duty or other legal rights of citizens (other than Fundamental Rights). But the High Courts do not enjoy such powers with respect to the following—
(I) to compensate for mental or emotional loss of persons;
(2) to enforce political rights;
(3) to enforce a private law because it does not have the status of a law proper;
(4) in the matters of public poll-
(5) to enforce the transactions of such grants which may be taken back my time by those who make such grants;
(6) for the enforcement of such administrative laws, rules and regulations as do not have any legal basis;
(7) to interfere in the discretionary powers of administration.
There are some examples given below where the High Courts have

issued these writs for various purposes—
(1) In the matter related to the powers of the Governor under Article 161 [Godse Vs. State of Maharastra (1961) and State of Bombay Vs. Nanavati (1960)].
(2) In matters related to the executive power of the Union with respect to the subjects included in the Union List [Mount Corporation Vs. Director, 1965]
(3) With respect to the powers of the Governor to issue an ordinance without the prior approval of the president under Article 213(1) [Shabbir Vs. State, 1965].
The High Court, however, may not allow an application under Article 22ff on the following conditions—
(1) If the application is submitted to the court before the due time of submitting such application [Trilok Vs. District Magistrate, 19761.
(2) If the applicant has misled the court by hiding or distorting the facts mentioned in the application [State of Haryana Vs. Karnal Distillary, 1977].
(3) If the order of the High Court would affect negatively the rights of other persons [Raman Lal Vs. Cont roller of Iron and Steel, 1964].
In-fact, the power of the High Court under Article 226 is a discretionary power. Though, there is no specific restriction on (his discretionary power of the High Court, this power is exercised by courts on the basis of some known reasonable principles. However, there a,re certain general restrictions on this discretionary power of High Courts. These restrictions are—
(I) The High Courts do not have power to correct the mistakes of law or facts. The courts have right to superintendence with respect to such matters [State of Andhra Pradesh Vs. Chitra. 1975 and Naina Vs. Natrajan, 1975].
(2) If an affected person can seek an alternative remedy in a particular matter from some other authority or a lower court, under a particular Act, such matter may not he entertained by the High Courts  [Union of India Vs. Prabhavalkar, 1973] and The State of Madhya Pradesh Vs. Bhaila(, 1964]
(3) The High Courts do not entertain such cases in which thorough examination of evidence is required in order to decide the case [Than Singh Vs. Superintendent of Taxes, 1964]. However, the cases of the above category are not completely outside the jurisdiction of High Courts (Veena Vs. Virendra, 1982 and Munna Vs. State of Uttar Pradesh, 1982].
(4) The High Courts generally do not entertain such appeals or cases in which authority or powers of some specialists is involved under the provisions of a law. However, such cases may be entertained if the decision to be challenged is (I) a decision based on malafide intentions or (ii) a decision which is made due to some external influence or (iii) a decision which goes against the provisions of the Constitution,
Territorial Jurisdiction of High Courts under Article 226—
(1) A High Court may exercise its powers to issue writs with respect’ to all parts of the State/States falling under its jurisdiction.
(2) A High Court can issue a writ only against those persons or authorities which reside in its territorial jurisdiction.
(3) If a case is partly related to the territorial jurisdiction of a High Court and partly related to the jurisdiction of another High Court, both the High Courts can entertain appeals in such cases.
Making Application under Article 226—Any person can make application to a High Court under this Article. The person who makes an application under this Article for the protection of a Fundamental Right, is required to prove that the said Fundamental Right is available to him. A foreign national cannot make application to the court with respect to the protection of those Fundamental Rights which are avail able to Indian citizens only. Again, the applicant should be a person who himself is negatively affected by the violation of a Fundamental Right. A person who is not directly affected by an action or order is not entitled to move application before the court.

Generally, a High Court considers a matter through an application, which has already come into force.

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