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ELECTION LAW PROJECT ON - JURISDICTION OF HIGH COURT UNDER

226 OF THE INDIAN CONSTITUTION.

SUBMITTED BY- PADMA LHADOL

B.A.LLB(9TH SEM)
ROLL.no.- 45/18{SEC-A}

SUBMITTED TO- Ms. NEHMAT

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ACKNOWLEDGEMENT

I would like to convey my heartfelt gratitude to Ms. NEHMAT for giving me opportunity to
do this project work “JURISDICTION OF HIGH COURT UNDER ART. 226 OF INDIAN
CONSTITUTION”.
I would also like to thank my friends who helped and supported me in completion of this
project. The completion of the project would not have been possible without their help and
insights.

Padma Lhadol
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TABLE OF CONTENTS
1.- INTRODUCTION
2.- ARTICLE 226 OF INDIAN CONSTITUTION
3.- ARTICLE 243-O OF CONSTITUTION OF INDIA
4. ART. 226 Vis-à-vis 243-O IN RESPECT TO JUDICIAL REVIEW
5.- CRITICAL ANALYSIS
6.- CONCLUSION
7.- REFERENCES
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INTRODUCTION

The judiciary in India is vital to democracy because it not only prevents government officials
from misusing their powers but also safeguards the rights of citizens and guards the Indian
Constitution. As a result, India’s Constitution envisions a powerful, independent, and well-
organised judiciary.

Articles 32 and Article 226 provide the Supreme Court and the High Courts the authority to
bring a lawsuit against a government entity if any citizen’s rights and freedoms are violated.
The High Court has broad powers to issue orders and writs to any person or authority under
Article 226 of the Indian Constitution. Before a writ or an order may be issued, the party who
is petitioning the court must prove that he has a right that is being violated or endangered
illegally. If the cause of action partly arises within its jurisdiction, the High Court can issue
writs and directives to any Government, authority, or person even if they are located beyond
its jurisdiction.
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ARTICLE 226 OF THE INDIAN CONSTITUTION

Enshrined under Part V of the Constitution of India, Article 226 provides the High Courts
with the power to issue writs, including writs in the form of habeas corpus, mandamus,
prohibition, quo warranto, certiorari, or any of them, to any person or authority, including the
government. Article 226 of the Indian Constitution gives High Courts the power and ability
to enforce any of the basic fundamental rights guaranteed by Part III of the Constitution of
India, 1949, or for any other reason.
In Bandhua Mukti Morcha v. the Union of India (1984), it was held that Article 226 has a
much broader scope than Article 32, as it gives the High Courts the power to issue orders,
directions, and writs not only for the enforcement of fundamental rights but also for the
enforcement of legal rights that are granted to the disadvantaged by statute and are just as
important as the fundamental rights.
In Veerappa Pillai v. Raman and Raman Limited (1952), it was held that the writs referred
to in Article 226 were clearly intended to enable the High Court to issue them in cases where
subordinate bodies or officers act without jurisdiction, or in excess of jurisdiction, or in
violation of natural justice principles, or refuse to exercise a jurisdiction vested in them, or
there is an obvious error on the face of the record, and such act, omission, error, or excess has
resulted in injustice. Regardless of how broad the jurisdiction is, it does not appear to be
sufficiently broad or large to allow the High Court to turn it into a Court of Appeal and
evaluate for itself the accuracy of the contested decisions and determine what is the right
position to be taken or the order to be issued.
In Common Cause v. the Union of India (2018), the Hon’ble Supreme Court stated that the
High Court has been given the power and jurisdiction to issue appropriate writs in the nature
of mandamus, certiorari, prohibition, quo warranto, and habeas corpus for the enforcement of
fundamental rights or for any other purpose under Article 226 of the Constitution. As a result,
the High Court can issue relief not only for the enforcement of fundamental rights but also for
“any other reason,” which might include the enforcement of public responsibilities by public
authorities.

FACTORS DETERMINING WRIT JURISDICTION

Before admitting a writ petition for trial, the High Court concerned would first verify if the
petition would be maintainable before it, meaning, whether the High Court has requisite
jurisdiction to hear the matter.
To determine maintainability, certain factors need to be accounted for which are discussed
hereinunder.
Territorial Jurisdiction
First and foremost, the High Court must determine if it has valid territorial jurisdiction to hear
the matter. All High Courts in India are granted judicial review authority under Article 226. It
gives them the power to issue writs to any person or authority, (including any government
authority), for the purpose of enforcing any constitutional or legal rights. However, as per
Article 226(1), a High Court can only hear matters emancipating from the “territories in
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relation to which it exercises jurisdiction.” To understand how courts have interpreted

territorial jurisdiction, it is pertinent to analyze the evolution of Article 226 with respect to its
legislative history.
A constitutional Bench in Lt. Col. Khajoor Singh v. Union of India & Another (1961) had
held that the High Court within whose limits the order (impugned) is passed will have
jurisdiction to entertain a writ petition. It was immaterial where the cause of action had
arisen. While interpreting Article 226 (as it existed then), the Supreme Court had determined
that the High Court’s authority to issue writs was subject to two conditions:
The authority must be used “throughout the territories in respect to which it exercises
jurisdiction.” This means writs issued by the Court are only valid within the areas under its
jurisdiction.
The requirement that the person or authority be “inside those territories“ - clearly indicating
that they must be subject to its jurisdiction either by domicile or location within those
territories for the High Court to be authorized to issue such Writs.
Cause of Action
The question now to determine is what constitutes “cause of action” for a writ to be
maintainable. As defined by the Supreme Court in Om Parkash Srivastava v. Union of
India & Anr, every fact that the claimant would have to establish to support his claim
towards the court’s decision can amount to cause of action. Every truth that must be proven,
as opposed to every piece of evidence that must be used to support every fact, is a cause of
action. Meaning, simply based on the facts claimed, and without going into the merits of such
facts, if the claimant can establish that a particular fact relates to the jurisdiction of that High
Court, a right to sue arises.
Alternate and Efficacious Remedy
A writ is essentially an extraordinary jurisdiction of the High Court and must be exercised
only in rare cases to serve the interests of justice.This means that the authority to issue the
writ is not unconditional but is subservient to other factors. In an event where there is an
availability of an alternate and efficacious remedy, the common rule is that the remedy must
be availed before approaching the High Court under Article 226.
Although, the availability of an alternate remedy by itself does not divest the High Court of
its powers under Article 226; in an appropriate case though ordinarily, a writ petition should
not be entertained when an efficacious alternate remedy is provided by law. This was held in
the Whirlpool Corporation v Registrar of Trademarks[10] This establishes the position of
the Judiciary that a mere existence of an alternate remedy would not bar the High Court of its
writ jurisdiction.
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Any question of fact need not be entertained by the High Court under extraordinary writ
jurisdiction. The High Court can dismiss a writ when facts are contested and disagreed by
parties. However, such a perspective would not be easily overturned if the High Court is
really of the opinion that the substance of the disagreement justifies the use of its writ
jurisdiction

ARTICLE 243-O OF INDIAN CONSTUTUTION

Article 243 O creates bar on the court to call in question the election of Panchayat except an
election Petition. This provision creates bar on the power of judicial review, which is the
basic structure of the Constitution of India. At the same time it gives unchecked powers to
Election Commission/Authorities, which is Alien to Indian Constitution.
Article 243 – O provides Bar to interference by courts in electoral matters.
243 – O Bar to interference by courts in electoral matters – Notwithstanding anything in
this Constitution, -
(a) The validity of any law relating to the delimitation of constituencies or allotment of
seats to such constituencies made or purporting to be made under article 243 K, shall not
be called in question in any court;
(b) No election to any Panchayat shall be called in question except by an election petition
presented to such authority and in such manner as is provided for by or under any law
made by the legislature of a state.
It has been held in the case of Prhalad Singh v. State of MP (AIR 2015) that once an
election process gas been set in emotion , the high court would not be justified in interfering
with the election process giving direction to the ekection officer to stall the proceeding or to
conduct the election process a fresh, in particular hwen the election has already been held in
which the voters were alledgely prevented to exercise their francjise, as that disputes were
covered by an election dispute and remedy was thus availaibke at law for rederessal.
Art.243-O is pari materia to art.329-b so far as the bar to interference by the courts in
electorial matters is concerned. The law is well settled by the honourable supreme court that
an election to either house of parliament or a state legislature , can be challenged only by way
of election petition and that a writ petition under art.226 is not maintainable.
Referring to the law so laid down, the Rajasthan High cort in Gopal Singh v. Election
Tribunal- cum- Additional civil Judge (AIR 2009) held that the validity of panchayat
election could be called in question only by way of election petition brfore election tribunal
under the provisions of the Rajasthan Panchayat Raj Act, 1994 and not by a writ petititon.
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Article 226 Vis-a- Vis Article 243-O in Respect of the limitation in exercise
of Judicial Review by the Courts in Election Matters

Article 243-O of the Constitution of India mandates that all election disputes must be
determined only by way of an election petition. This by itself may not per se bar judicial
review which is the basic structure of the Constitution, but ordinarily such jurisdiction would
not be exercised. There may be some cases where a writ petition would be entertained but in
this case we are not concerned with the said question.
Kauser v. State Election Commission, AIR 2021,The petitioner by way of this instant petition
has challenged the election of Respondent 5 as Member, Block Development Committee,
Misserwala, District Sirmour in the elections to Panchayati Raj Institutions of the State
concluded in January 2021. The writ petition has been filed seeking that the respondent
election commission may be directed to start the fresh election and declare the election under
challenge as null and void.
The issue before the High Court is the maintainability of writ petitions under Article 226 of
the Constitution of India vis-à-vis Article 243-O of the Constitution of India in respect of
limitation in exercise of judicial review by the Court in election matters.
Section 162 of the H.P. Panchayati Raj Act provides that no election under the Act shall be
called in question except by an election petition presented in accordance with the provisions
of the chapter and Section 175 of the Act enumerates the grounds for declaring election to be
void.
The Court stated “We are also conscious of the limitations set forth on such exercise of
judicial review in view of bar of jurisdiction imposed by Article 243-O of the Constitution
of India”
The Court thus held that “the instant writ petition is not maintainable at all and the same is
accordingly dismissed with liberty reserved to the petitioner to avail appropriate alternate
remedy in accordance with law.”
In the case of Laxmibai v. Collector, Nanded, (2020) 12 SCC 186 wherein it was observed
the maintainability of writ petitions under Article 226 of the Constitution of India vis-a-vis
Article 243-O of the Constitution of India in respect of limitation in exercise of judicial
review by the Court in election matters, it was held that all election disputes must be
determined only by way of an election petition.
This by itself may not per-se bar judicial review, which is the basic structure of the
Constitution but ordinarily, such jurisdiction would not be exercised. The relevant paragraphs
of the judgment are extracted hereinafter:
“It is true that the High Court exercises a plenary jurisdiction under Article 226 of the
Constitution of India. Such jurisdiction being discretionary in nature may not be exercised
inter alia keeping in view of the fact that an efficacious alternative remedy is available
therefore”
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CRITICAL ANALYSIS

• Article 243-O brings away the Power of Constitutional Court i.e. Power of judicial
review of High Court provided under Article 226 of the Constitution of India. Power to
amend the basic structure lies with the sovereign i.e. the People of India, not with the
Parliament, a creature of the Constitution. Article 243-O thus not valid as it hits the
basic structure of the Constitution of India.
• Article 243-O of the Constitution of India mandates that all election disputes must be
determined only by way of an election petition. This by itself may not per se bar
judicial review which is the basic structure of the Constitution, but ordinarily such
jurisdiction would not be exercised. There may be some cases where a writ petition
would be entertained but in this case we are not concerned with the said question.
• Article 243 O was added by 73rd amendment and hence subject to judicial review and
can be examined for its validity on the principle of basic structure. The Article fails to
qualify the test of basic structure of the Constitution and deserves to be treated
accordingly.
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CONCLUSION

The High Court though exercises extraordinary jurisdiction under Article 226 of the
Constitution of India but such jurisdiction is discretionary in nature and may not be
exercised in view of the fact that an efficacious alternative remedy is available and
more so exercise restraint in terms of Article 243-O of the Constitution of India. Once
alternate machinery is provided by the statute, the recourse to writ jurisdiction is not
an appropriate remedy. It is a prudent discretion to be exercised by the High Court not
to interfere in the election matters, especially after declaration of the results of the
elections but relegate the parties to the remedy contemplated by the statute. In view of
the above, the writ petition should not have been entertained by the High Court.
However, the order of the High Court that the appellant has not furnished the election
expenses incurred on the date of election does not warrant any interference.
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REFERENCES
• https://redlaw.in/maintainability-of-writ-petition-article-226
• https://www.scconline.com/blog/post/2021/02/13/hp-hc-whether-a-dispute-relating-
to-an-election-of-a-local-body-maintainable-before-high-court-under-art-226-of-
constitution-of-india-hc-explains-in-light-of-settled-position-of-law/
• https://testbook.com/question-answer/articles-243-243o-of-the-constitution-of-india-
d...
• https://www.legalbites.in/jurisdiction-of-high-courts-in-india
• https://www.academia.edu/20099082/Art_243_O_of_the_Constitution_of_India_and_
the_Basic_Structure_of_The_Constitution_A_Critical_Analysis