Article 226

Background and evolution

Before independence, only the High Courts of the three Presidency towns—Calcutta, Bombay and Madras—had limited writ powers inherited from English common law. The Constitution gave every High Court a broad writ jurisdiction under Article 226, extending to the whole territory over which it exercises jurisdiction and to any person or authority within it, including governments.

The power was attacked during the Emergency. The 42nd Amendment (1976) restricted it, among other things by limiting writs to cases of "substantial injury" and adding Article 226A to bar challenges to central laws. The 43rd and 44th Amendments (1977–78) restored most of the original scope. In L. Chandra Kumar (1997), the Supreme Court held that the power of High Courts under Articles 226 and 227 is part of the basic structure and cannot be taken away, even by creating tribunals.

Key features and provisions

• Scope: writs for enforcing Fundamental Rights and "for any other purpose", meaning ordinary legal rights as well.
• Territorial reach: a High Court may issue writs to any person or government within its territory, and also where the cause of action arises wholly or partly within its territory (clause (2), added in 1963).
• Five writs: habeas corpus (produce a detained person), mandamus (command a public authority to perform a duty), prohibition (stop a lower court from exceeding jurisdiction), certiorari (quash an order of a lower court or tribunal), and quo warranto (question a person's right to hold public office).
• Interim orders: safeguards under clause (3) require that affected parties be heard quickly if interim relief is granted without notice.
• Discretion: the court may refuse relief if an alternative remedy exists, if there is delay, or if the petitioner is not acting in good faith.
• Private bodies: writs can issue to private bodies performing public functions, for example in Andi Mukta Sadguru Trust (1989).