a al 80 (MOOT COURT, PRE-TRIAL PREPARATION AND PARTICIPATION IN TRIAL PROCEDINGS HIGH COURTS IN STATES Constitution (Article 216) —According to Article 216 every High Court shall consist of a Chief Justice and such other Judges as the President may, from time to time, deem it necessary to appoint. In S.C. Advocates-on-Record Association v. Union of India,’ the Supreme Court has held that fixation of - Judge-strength in a High Court is justiciable. Speedy trial is a requirement of e Article 21 and therefore if it is shown that the existing strength is inadequate to provide speedy justice to the people, in spite of the optimum efficiency of the existing strength, a direction can be issued to assess the felt need and fix the strength of Judges commensurate with the need to fulfil the State obligation for providing speedy justice and thereby to secure that the operation of the legal system promotes justice—A solemn resolve declared also in the preamble of the Constitution. In making the review of the Judge-strength in a High Court, the President must attach great weight to the opinion of the Chief Justice of that High Court and the Chief Justice of India and if the Chief Justice of India so recommends, the exercise must be performed with the due dispatch. The judges-strength is, thus, justiciable but the area of justiciability does not extend further, to enable the court to make the review and fix the actual Judge-strength itsclf, instead of requiring the performance of that exercise in accordance with the recommendation of the Chief Justice of India. The Supreme Court has not approved the decision in S.P. Gupta v. Union of India,? that fixation of the Judge-strength in a High Court is not justiciable to any extent. Appointment [Article 217 (1)].—According to Article 217 (1) every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State concerned and in the case of appointment of a Judge, other than the Chief Justice, the Chief Justice of the High Court. In the case of S.C. Advocates-on-Record Association v. Union of India,’ the Supreme Court has made it clear that in the appointment of the Judges of the High Court and of the Supreme Court the opinion of the Chief Justice of India is entitled to have the right of primacy. On this issue the decision in the case of S.P. Gupta v. Union of India, has been overruled. (See also Appointment under Union Judiciary). Qualifications [(Article 217 (2)].—A person is qualified for appointment as a Judge of the High Court if he is a citizen of India and— (a) has, for at least ten years, held a judicial office in the territory of India; or (b) has, for at least ten years, been an advocate of a High Court or two or more such Courts in succession. For the purpyse of this clause— (a) in computing the period during which a person has held AIR 1994 SC 281 AIR 1982 SC 149. AIR 1994 SC 281. AIR 1982 SC 149. Pepea {yuDICIAL SYSTEM IN INDIA ; judicial office in the territory of India, there shall be included any period, Mer he has held any judicial office during which the person has been fn advocate of a High Court or has held the office of a member of a tribunal or any post under the Union or a State requiring special knowledge of law; (b) in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a ribunal or any post under the Union or a State requiring special knowledge of law after he became an advocate; (c) in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before 15th August, 1947 within India as defined by Government of India Act, 1935 or has been an advocate of any High Court in any such area. ‘Tenure, Resignation and Removal of a Judge (Article 217 and Article 218,)— A Judge of a High Court shall hold office until he attains the age of sixty two years. If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final. A Judge may resign his office at any time by writing under his hand addressed to the President. "Writing under his hand" should not be taken to mean that the letter or resignation must be in the handwriting of the Judge. If the letter of resignation is signcd by the Judge or typed letter or resignation is signed by the Judge, it will be sufficient for the purpose.’ Il is to be noted that acceptances of the resignation by the President is not necessary for this purpose.’ If the resignation has been express to be with immediate cffect, it will terminate his office immediately and thereafter he cannot revoke or withdraw his resignation but if the resignation is expressed to be operative from a future date, it does not terminate his office before the arrival of such date and, therefore, it may be withdrawn at any time before the arrival of that date.’ The office of a Judge falls vacant when he is appointed as a Judge of the Supreme Court of India or he is transferred to any other High Court. ‘A Judge of a High Court may be removed from his office by the President in the manner provided in Article 124(4) for the removal of a Judge of the Supreme Court. Article 218 makes it clear that the provisions of cla (4) and (5) of Article 124 shall apply in relation to the High Court as they apply in relation to the Supreme Court with the substitution of reference to the High Court for references to the Supreme Court. A Judge of a High Court cannot be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total 1. Vice-Chairman v. Channabasappa, AIR 1985 Kant. 253. 2. Union of India v. Gopal, AIR 1978 SC 694. 3. bid.92 MOOT COURT, PRETRIAL PREPARATION AND PARTICIPATION IN TRIAL PROCEDINGS membership of that House and by a majority of not less than two-thirds of the members of the House present and voting, has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity In C. Ravichandran Tyer v. AM. Bhattacharjee," the Supreme Court has held that only the Chief Justice of India can be the prime mover for taking action against an erring High Court Judge or Chief justice whose bad conduct falls short of the punishment by inpeachment. Where a Judge cannot be removed by impeachment process for his bad behaviour which does not amount to misbehaviour as used in Article 124(4), he may be disciplined by self-regulation through in House procedure, ie. by the Judiciary itself. in such condition the Chief Justice of India should be approached with the relevant materials against the erring Judge and be requested to deal with the matter appropriately. A Judge cannot be pressurized to resign. Pressurizing a Judge to resign from the office may amount to contempt of court Oath or affirmation (Article 219).—Article 219 provides that every person appointed to be a Judge of a High Court shall, before he enters upon his office, make and subscribe before the Governor of the State or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the ‘Third Schedule. Restriction on practice after being a permanent Judge (Article 220)—No person who, after the commencement of this Constitution, has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts, In this Article, the expression "High Court" does not include a High Court for a State specified in Part B of the Firs! Schedule as it existed before the commencement of the Constitution (Seventh Amendment) Act, 1956. Salaries etc. of Judges (Article 221).—There shall be paid to the Judges of each High Court such salaries as may be determined by Parliament by law and until provision in that behalf is so made, such salaries as are specified in the Second Schedule. Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, so much allowances and rights as are specified in the Second Schedule : Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment Appointment of acting Chief Justice (Article 223)—When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is, by reason of absence or otherwise, unable to perform duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose. Appointment of additional and acting Judges (Article 224)—(1) If by reason of any temporary increase in the business of a High Court or by reason 1. (1995) 5 SCC 457. or ao aJUDICIAL SYSTEM IN INDIA a of arrears of work therein, it appears to the President Judges of the Court should be for the time being eee na aa othe appoint duly qualified persons to be Additional Judges of the Comt he ony jod not exceeding two years as he m pe fo auch period g two y s ay specify. (2) When any Judge of a High Court other than the ae reason of absence or for any other reason unable to perform icy ara? office or is appointed to act temporarily as Chiof Justice, the Presideat may appoint a duly qualified person to act as a Judge of that Court until the permanent Judge has resumed his duties. (3) No person appointed as an additional or acting Ju: i Court shall hold office after attaining the age of “Sixty-two a a High Appointment of retired Judges at sittings of High Courts (Article 224-A),—Notwithstanding anything in this Chapter, the Chief Justice of a High Court for any State may at any time, with the previous consent of the President, request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State and every such person so requested shall, while so sitting and acting be entilled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court : Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do. ‘Transfer of Judges (Article 222)—Article 222 makes provisions in respect of the transfer of a Judge from one High Court to another. According to this Article the President may, after consultation with the Chief Justice of India, transfer a Judge from one High Court to any other High Court. When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment), Act, 1963 as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowances as may be determined by Parliament by law and until so determined such compensatory allowance as the President may by order fix. In the case of transfer of a High Court Judge or Chief Justice of the High Court the opinion of the Chief Justice of India is determinative. The opinion of the Chief Justice of India is not his personal opinion but the opinion taken by the collegium consisting of the Chief Justice of India and four senior-most puisne Judges of the Supreme Court. In the case of transfer of a Judge of the High Court other than Chief Justice, in formation of the opinion the views of the Chief Justice of the High Court from where the Judge is to be transferred the views of the Chief Justice of the High Court in which the transfer is to be effected, any Judge of the Supreme Court whose opinion may be significant in that case and views of atleast one other senior Chief Justice of the High Court or any other person whose views are considered relevant should be taken into consideration. What applies to the transfer of a puisne Judge of the High Court 1. Subs. by the Constitution (Fifteenth Amendment) Act, 1963, S. 6, for “sixty years."4 MOOT COURT, PRE-TRIAL PREPARATION AND PARTICIPATION IN TRIAL PROCEDINGS applies to the transfer of a Chief Justice of High Court as Chief Justice of another High Court except that in this case only the views of one or more knowledgeable Supreme Court Judge used to be taken into consideration.* JURISDICTION AND POWERS OF THE HIGH COURT The jurisdiction and powers of the High Court may be discussed under the following headings— (1) Court of Record—Power to punish for Contempt of Court (Article 215).—According to Article 215 every High Court shall be a Court of Record and shall have all the powers to punish for contempt of itself. The nature of the power of the High Court under this Article is similar to that of the Supreme Court under Article 129. The Court of Record is a Court which records are admitted in evidence and cannot be questioned when they are produced before the Court. Once the High Court is declared as a Court of Record, it follows therefrom that it has power to punish for its contempt. However, Article 129, with the object to remove any doubt, declares expressly that every High Court shall have power to punish for its contempt. The High Court, thus, has all the powers available to a Court of Record including the power to punish for contempt of itself. This power enables the Court to prevent and punish the act which undermines the confidence of the people, in the competency of integrity of the Judges and, thus, this power is necessary to maintain the dignity of the Court The power of the High Court to punish for contempt of itself is an extraordinary, power and, therefore, it should be exercised cautiously, wisely and with circumspection. In Dr. LP. Misra v. State of U.P.? the Supreme Court has held that the jurisdiction of the High Court under Article 215 must be exercised in accordance with the procedure prescribed by the law. In Daroga Singh v. B.K. Pandey,’ the Supreme Court has held that the jurisdiction of the High Court to take cognizance of the contempt of court is not barred in respect of offence punishable under section 228 of the Indian Penal Code. In Arun Paswan v. State of Bihar,‘ the Supreme Court has held that the offences under sections 175, 178, 179, 180 or 228 of the Indian Penal Code would constitute contempt only when they are committed in the view or presence of the Court. The offence under sections 175 178, 179, 180 or 228 per se do not amount to contempt of court. They are contempt only when they are committed in the view or presence of the Court, otherwise they remain offences under the Indian Penal Code simpliciter. (11) Power of Superintendence (Article 227).—Article 227 confers upon the High Court the power of superintendence over the courts subordinate to it. It provides that every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it 1. See S.C. Advocates-on-Hecord Association v. Union of India, AJR. 1994 S.C. 268; In re, Presidential Reference, ALR. 1999 S.C. 1. 2, AIR 1998 SC 3337. 3. ALR. 2004 S.C. 2579. 4, ALR. 2004 S.C. 721} JUDICIAL SYSTEM IN INDIA 95 exercises jurisdiction. It may call for returns from such court general rules and prescribe forms for regulating the practice and proceedings of such courts and prescribe forms in which books, entries and accounts shell be kept by the officers of any such court. The High Court may settle tables of fees to be allowed to the Sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein. However, any rules made, forms proscribed or tables so settled cannot be inconsistent with the provisions of any law for the time being in force and require the previous approval of the Governor. It is to be noted that this Article does not confer on a High Court power of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. ‘The power of superintendence conferred on the High Court by this Article is not confined to the administrative superintendence but it includes judicial superintendence over all the Courts within its jurisdiction.’ Usually this power is not exercised by the High Court for correcting error of facts? However, in the exercise of this power the High Court can go into the evidence, if justice so requires.’ Thus, it can interfere with a finding of facts by the inferior Tribunal if it is perverse or not based on any material whatever" or has resulted in manifest injustice.* In the exercise of this power the High Court usually interferes when the inferior court acts in excess of jurisdiction vested in them’ or fails to exercise the jurisdiction vested in them’ or acts in violation of the principles of natural justice® or if there is error of law apparent on the face of the record’ or if the results in manifest injustice.”” This power is an extraordinary power of the High Court and therefore, it should be exercised sparingly.” Usually this power is not exercised if some alternative remedy is available, however, the existence of alternative remedy does not preclude the High Court from exercising its power under this Article in exceptional cases.” This power of the High Court is its discretionary power." It can be exercised by the High Court even suo motu in the interest of justice," This power has been conferred on the High Court so as to enable it to keep the courts and tribunals within the bound of th jurisdiction."* 1, Waryam Singh v. Amar, AIR 1954 SC 215. Ibid. is, make and issue eir authority and 2. 3. Official Receiver v. Devendra, (1965) SC (C.A) 216/64 4. Chandravarkar v. Ashalata, AIR 1987 SC. 117 5. Trimbak v. Ramchandra, AIR 1977 SC 1222. 6. Gujarat Steel v. Mazdoor Sabha, AIR 1980 SC 1896. 7. Santosh v. Mool Singh, AIR 1958 SC 321, 8. Ibid 9. . Satyanarayan v. Mallikarjuna, AIR 1960 SC 137; Trimbak v. Ramchandra, AIR 1977 SC 1222, 10. Trimbak v. Ramchandra, AIR 1977 SC 1222. Manick v. Sarafarajali, AIR 1976 SC 2446. 12. Ibid. 13. Nilkanth v. State of Bihar, AIR 1962 SC 1132 Pramod Saraswat v. Ashok Kumar, AIR 1981 All. 441. Banerjee v. P.R. Mukherjeo, (1953) SCR 302.96 MOOT COURT, PRE-TRIAL PREPARATION AND PARTICIPATION IN TRIAL PROCEDINGS s not only power but also it is its duty to sée that the ‘The High Court ha that they do it in a legal inferior courts do what their duty requires and manner.' In Rena Drego v. Laleh exercise of the supervisory cannot disturb the findings of facts the fresh materials. Under Article 227 the High Court is require itself to the scrutiny of records and proceedings of the lower tribunal. The Supreme Court has made it clear that the power under Article 227 is one of the judicial superintendence which cannot be used to upset conclusions of facts however erroneous those may be, unless such conclusions are so perverse or so unreasonable that no court could ever have reached then. The power of the superintendence should be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.’ (11) Power to withdraw certain cases from subordinate courts {Article 228).—Article 228 empowers the High Court to withdraw from a court subordinate to it a case which involves a substantial question of law as to the interpretation of the Constitution. According to Article 228, if the High Court is satisfied thal a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of the Constitution, the determination of which is necessary for the disposal of the case, it shall withdraw the case and may either dispose of the case itself or determine the said question of law and return the case to the court from which the case has been ‘so withdrawn together with a copy of its judgment on such question and the said court shall, on receipt thereof, proceed to dispose of the case in conformity with such judgment. The object is to make the High Court the sole interpreter of the Constitution in a State and to deny to the subordinate courts a right to interpret the Constitution for the sake of attaining some degree of uniformity as regards constitutional decisions.* The High Court can exercise this power if the following conditions exist—(a) A case is actually pending in a court subordinate to the High Court. (b) ‘The case involves a substantial question of law as to the interpretation of the Constitution. ‘The question of law must be as to the interpretation of the Constitution and it must be substantial. A question of law which has been settled by the decision of the Supreme Court cannot be called substantial,’ and (c) The High Court is satisfied that the determination of the question is necessary for the disposal of the case. ~ Article 228 does not mention ‘tribunals’ and, therefore, the High Court cannot exercise this power over the ‘Tribunals’. (IV) General jurisdiction (Article 225)—According to Article 225 subject to the provision of this Constitution and to the provision of any law d Soni? the Supreme Court has held that in the jurisdiction under Article 227 the High Court recorded by the lower court relying upon id to confine Banerjee v. PR. Mukherjee, (1953) SCR 302, AIR 1998 SC 1990. Rena Drogo v. Lalchand Soni, A..R. 1998 S.C. 1990 at p. 1991 D.D. Basu, Constitution of India, p. 685 (10th Edn.) State of | & K v. Ganga, AIR 1960 SC 356,“JupiciaL SYSTEM IN INDIA a of the appropriate Legislature made by virtue of powers conferred on the Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Court including any power to make rules or in Division Courts, shall be the same as immediately before the commencement of this Constitution : Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction. Article 225 defines the jurisdiction of the existing High Court.’ Its effect is that such High Court shall have all their existing jurisdiction so far as they are not inconsistent with the provisions of the Constitution and they shall have such further jurisdiction as may be conferred by the Constitution or by Parliament.” ‘The pre-Constitutional jurisdiction ef the High Court has been saved by this Article. The effect of this Article is that a decision of the Privy Council is binding upon the High Courts until it is reversed by the Supreme Court or by a law of the appropriate Legislature? In Jamshed N. Guzdar v. State of Maharashtra,‘ the Court has held that investing or divesting the High Court of its general jurisdiction is within legislative competence of both, the State Government and Central Government. The Court has made it clear that after the 42nd Amendment of 1976 the Parliament and State Legislature both have power to confer general jurisdiction on all the Courts including the High Court but excluding the Supreme Court under Entry 11-A of the Concurrent List in VIIth Schedule. Entry 77 in List I deals with the constitution, organisation, jurisdiction and powers of the Supreme Court. Entry 78 relates to only constitution and organisation of the High Courts but not with jurisdiction and powers of the High Courts unlike in Entry 77 dealing with the jurisdiction and powers of the Supreme Court in addition to constitution and organisation. From this it becomes clear that the Parliament is the sole repository of the powers as far as the constitution, organisation, jurisdiction and powers of the Supreme Court is concerned. Conscious omission of the word "jurisdiction" and powers in Entry 78, looking to the said words included in Entry 77, it is clear that the jurisdiction and power of the High ‘Courts are dealt with as a separate topic under the caption "administration of justice" under Entry 11-A of the Concurrent List. The exclusion of :jurisdiction and powers from Entry 78 appears to be meaningful. Under Entry 11-A State Legislature has no power to constitute and organise the Supreme Court and High Courts. The State Legislature being the appropriate body to legislate in respect of administration of justice and to invest all Courts within the State including the High Court with general jurisdiction and powers in all matters; civil and criminal. It must Budge Budge Municipality v. Mongru Mia, AIR 1953 Cal. 433. Ibid. Sitaram v. State of AP., AIR 1959 SC 359. |. ALR, 2005 S.C. 862.98 MOOT COURT, PRETRIAL PREPARATION AND PARTICIPATION IN TRIAL PROCEDINGS follow that it can invest the High Court with such general jurisdiction and powers including the territorial and pecuniary jurisdiction and also to take away such jurisdittion and powers from the High Court except those which are specifically conferred under the Constitution on the High Courts. Under Entry 11-A of List 3 the expression ‘Administration of justice’ has wide aptitude covering conferment of general jurisdiction in all courts except the Supreme Court. ‘After 42nd Amendment of 1976 the Parliament alone has competence to legislate with respect to Entry 78 of List | to constitute and organise the High Court. Both the Parliament and State Legislative can invest such a High Court with general jurisdiction by enacting an appropriate legislation referable to administration of justice under Entry 11-A of List III. Parliament may under Entry 95 of List 1 invest the High Court with jurisdiction and powers with respect to any of the matters enumerated in List I. State Legislature may invest the High Court with the jurisdiction and powers with respect to any of the matters enumerated in List Il. Both Parliament and State Legislature may by, appropriate Legislation referable to Entry 46 of List III invest the High Court with jurisdiction and powers with respect to any of the matters enumerated in List II. (V) Appeal in civil cases under Parts VII and VIII of the Civil Procedure Code—The High Court has been given power to hear appeals in civil cases under the provisions of Parts VII and VIII of the Civil Procedure Code. (Vl) Appeals in Criminals cases under the Criminal Procedure Code.—The High Court has been given power to hear appeals in criminal cases under the provision of Parts XXIX and XXX of the Cr. P.C. Writ Jurisdiction of the High Court (Article 226) See Chapter VII. Subordinate Courts Appointment of District Judge According to Article 233(1) appointment, posting and promotion of the District Judge in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.’ The consultation with the High Court is mandatory and therefore the appointment, posting or promotion of the District Judge without such consultation would be invalid.? Consultaticn must be effective and complete and it should not be an empty formality.’ To be an effective consultation there must be interchangé of views between the High Court and the Governor.’ The Governor should obtain the view of the High Court even if he does not accept Prem Nath v. State of Rajasthan, AIR 1976 SC 1599 ; M.M. Gupta v. State of Jammu and Kashmir, AIR 1982 SC 1579. 2. State of Kerala v. A. Lakshmikutty, (1986) 4 SCC 632; A. Pandurang Rao v. State of AP. AIR 1975 SC 1922, 3. Chandramouleshwar v. Patna High Court, AIR 1970 SC 1616. 4, State of Kerala v. A. Lakshmikutly, (1986) 4 SCC 632.DRAFTING OF WAIT PETITION os come to the Court directly for the enforcement of their Fundamental Rights. They should first seek remedy in the High Court and thereafter on being dissatisfied with the judgment of the High Court, they should approach to the Supreme Court by way of appeal. This direction of the Supreme Court may be justified on the ground that allowing every case to the Supreme Court would increase the burden on the Supreme Court which is already overburdened and the problem of laws’ delay is very serious. On account of this direction the time of the Supreme Court will be saved and the time so saved may be utilised in disposing of the cases already pending before the Court. The High Court also consists of the competent Judges and Advocates and their services must be utilised so as to reduce the burden on the Supreme Court. The Supreme Court and the High Court both have power to grant relief in case of the violation of the Fundamental Rights. If High Court refuses to provide relief in case of the violation of the Fundamental Rights, the aggrieved person may go to the Supreme Court. Rule of existence of alternative remedy is regarded as the rule of Public Policy and discretion rather than of Law. B. Writ jurisdiction of the High Courts (Article 226). Article 226 empowers the High Court to issue writs for the enforcement of the Fundamental Rights as well as for any other purposes. Article 226 Provides that nowithstanding anything in Article 32, every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases any Government within those territories, directions, orders or writs including writs, in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorary or any of them for the enforcement of the Fundamental Rights guaranteed by Part III of the Constitution and for any other purpose. The power to issue directions, orders or writs to any Government, authority or person under this Article 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 act of such Government or authority or the residence of such person is not within those territories. Where any party, against whom an interim order (whether by way of injunction or stay or in any other manner) is made or in any proceedings relating to a petition under this Article without furnishing to + such party copies of such petition and all documents in support of the plea for such interim order and giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the Counsel of such party; the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished (whichever is later) or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open and if the application is not so disposed of, the interim order shall, on the expiry of that-period or, as the case may be, the expiry of the said next day, stand vacated. 2 ; 1. Venkateshwaran v. Wadhavan, AIR 1961 SC 1506.yARATION AND PARTICIPATION IN TRIAL pp PRETRIAL PREPI ROLE mooT couRT. 5 lon 4 * «¢ makes it clear that the power confer ferred ause (4) of ee yl not be in derogation of the power co, Cnt by Article 226 S820 1) or Article 32. High Court By rot by Clause (2) © foe ae et mpowers the High Court i Ho protbions Orders oy rhis Article empow™ * us, mandamus, ition, quo-wa, ‘This ‘of habeas corp! f the High Court is not conf; aie its in the nature Eee powell ni certiorary - any of a yeh directions or ener to any person g, the writs‘ only. It SariedictoD! Besides, the power of the High Court is vot authority within a seats called prerogative writs and the High Courts fon Timited to the English wt nicalities of the English wrts.* They ay, not bound by the Da power in accordance with the Provisions of thig required to exercise cai thus, is required to exercise this Power in such Constitution. i ie ‘the provisions of this Constitution and the lays ‘manner as not to travene b half? declared by Supreme half. Court in this / ae his Article empowers the High Court to issue directions, orders or writs This Artis for the enforcement of any 0 f the Fundamental Rights guaranteed by Part jt; of the Constitution, and for t he enforcement of any, other purpose. Under ‘Article 32 the Supreme Court can issue such orders, directions or writs for the icle i ndamental Rights guaranteed by Part Ill of the enforcement oh 8 cmpowers the High Court to issue the orders icianon wits for the enforcement of the Fundamental Rights and also fo ‘se, However, the words "for any other purpose" should not be at the High Court can issue writs for any purpose it pleases taken to mean that the High Court can issue writs for the enforcement of any of the Fundamental Rights guaranteed by Part Ill of the Constitution and also for the enforcoment of any other legal right or legal duty." For the issue of the writs under this Article if the aggrieved party has a Fundamental Right and it has been infringed or has a legal right which entitles him to any of the writs and such right has been infringed.° ‘The powers are wide and not confined only to the issuance of writs only. ‘The Court can issue any order or direction which is appropriate for enforcement of the Fundamental Rights.” In the case of infringemfent of the Fundamental Right, the right to move the Supreme Cour! is itself a Fundamental Right and thus, in such condition, ordinarily the Supreme Court cannot refuse to grant this remedy.’ The remedy provided for in Article 226 is a discretionary remedy’ and cannot be claimed as a matter of right and the High Court can refuse to issue the writs. However, the High Court is required to exercise its discretion on recognised and any other purpo taken to mean thi these words should be State of W.B. v. Committee for Protection of Democratic Rights, W.B., AIR 2010 SC 1476; Deepak Bajoj v. State of Maharashtra, AIR 2009 SC628. Bosappa v. Nogappa, AIR 1954 SC 44. Desai v. Roshan, AIR 1976 SC 578.. See T-K. Tope, Constitution Law of India, p. 501, alsa Gas Co. v. State of W. B., AIR 1962 SC 1044... | tate of W.B. v. Committee. for Protection of Democrati a mn jocratic Rights, W.B.; A.LR. 2010 es Ses Bajaj v. State of Maharashtra, ALR. 2009 SC. 628. cee _ ay laper v. State of Madras, AIR 1950 SC 124. injab Electricity Board v. Ashok Kumar Sehgal, AIR 1990 P & H 117. 1jprarTiN OF WRIT PETITION established principles and not arbitrarily, efficient and adequate alternative remed: Gxercise its wril jurisdiction. However, th a rule of discretion and not a rule of law and, thus, existence of alternative remedy is not an absolute bar’ and in appropriate cases the High Court ma grant the remedy under Article 226, even if the petitioner has al exhiausied the alternative remedy, e.g., complete want of jurisdiction’ « infringement of Fundamental Right’ ; violation of the principle of natural justice y action under invalid law or arbitrarily without sanction of law.° The High Court can ee ee to the executive and legislature to perform their obligatory In Keshav Singh ’s* case the Supreme Court has held that the writ under this Article may be issued, in appropriate cases, even against the Legislature However, the High Court cannot direct the State Goverament to introduces 4 particular legislation to implement its decision” In U.P. Sales Tax Service Association v. Taxation Bar Association, Agra” the Supreme Court has held that the High Court has no power to issue a writ’ or order prohibiting a statutory authority from discharging its statutory functions’ or transferring those functions to another jurisdiction or court. The writ petition filed by the advocates seeking issuance of a writ or direction prohibiting a statutory authority, viz., the Appellate Authority under Section 9 of the U.P. Sales Tax Act, 1948 from discharging the quasi-judicial functions, directions to the State Government to withdraw all powers from it and transferring the pending cases before the officer to any other authority, would not be maintainable. If a law is declared by the High Court under this Article, it would be binding on the inferior Courts and Tribunals within the territories subjects to its jurisdiction.” In the case of L. Chandra Kumar v. Union of India,” the Supreme Court has held that the jurisdiction of the High Court under Articles 226 and 227 cannot be excluded. The power of the judicial review over the legislative action vested in the High Court under Article 32 is an’ integral aud essential feature of the Constitution constituting part of its basic structure. Ordinarily, therefore, the power of the High Court and of the Supreme Court to test the constitutional validity of \egislation can never be ousted or excluded. The 367 In the case of existence of equally 'y. the High Court may refuse: to existence of alternative remedy is 1. KS. Rashid v. LT. Investigation Commission, AIR 1954 SC 207 ; Rashid Ahmed v. Municipal Board, (1950) SCR 566 ; Bala Singh v. Govt. of AP., AIR 1990 AP 135. 2. UP. State v. Mohd. Nooh, AIR 1958 SC 86 ; Tata Engineering and’ Locomotive Co. v. Assistant Commissioner, Commercial Taxes, AIR 1967 SC 1401, 3. AV. Venkataeswaran v. Wadhawani, AIR 1961 SC 1506. 4. Himmatlal v. State of M.P., AIR 1954 SC 403. 3. State of U.P. v. Mohd. Nook, AIR 195@ SC 86. 6. Tata Engingeering and Locomotive Co. v. Assistant Commissioner, Commercial Taxes, AIR 1967 SC 1401 7. All India Judges’ Association v. Union of India, (1993) 4 SCC 288. 8, AIR 1965 SC 745. 9. State of HLP. v. Parent of a Student, AIR 1985 SC 910. 10, AIR 1996 SC 98. 11, EL Commercial Co. v. Collector of Customs, AIR 1962 SC 1895 12, AIR 1997 SC 1125.eel 358 MOOT COURT, PRE-TRIAL PREPARATION AND PARTICIPATION IN TRIAL PROCEDINGS power vested in the High Courts to exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdiction is also part of the basic structure of the Constitution. This is because a situation where the High Courts are divested of another judicial functions apart from that of constitutional interpretation, is equally to be avoided. The Supreme Court' has made it clear that all decisions of Tribunals, whether created pursuant to Article 323-A, or 323-B of the Constitution will be subject to the High Court's writ jurisdiction under Article 226 or 227 before a Divisional Bench of the High Court within whose territorial jurisdiction particular Tribunal falls. In Chetak Construction Ltd. v. Om Prakash,’ the Supreme Court has held that the High Court Judge cannot direct that appeal pending before him be decided finally by the Supreme Court. Such order would be subversive of judicial discipline. The Supreme Court has made it clear that it is improper for a Judge of the High Court to direct that an appeal/pending before him be decided by the Supreme Court itself finally and the Supreme Court should not temand the appeal to him or to any other Judge of any High Court. A Judge of the High Court has no power to make an order of remand to the Supreme Court? The power of the High Court under Article 226 is very wide. However, it is subject to the limitation that it is to be exercised within the territories subject to its jurisdiction and the person or authority to whom the writs may be issued must be within such territories. However, Article 226(2) makes it clear that the power to issue direction, orders or writs to any Government, authority or person under this Article may also be exercised by the 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. Article 226(4) makes it clear that this power cannot be exercised by the High Court in derogation of the power of the Supreme Court under Article 32(2). The High Court, in the exercise of this power, cannot enter into a political issue and thus, ordinarily the political questions are not justiciable' but it can examine the question if the Constitution or Statute is required to be interpreted in order to answer it, because a question ceases to be a political question when the Constitution or Statute is required to be interpreted in order to answer it® In Mohan Pandey v. Usha Rani,’ the Court has held that the jurisdiction of the High Court under Article 226 cannot be exercised for deciding the disputes between private parties relating to the property right. In such 1. L Chandra Kumar v. Union of india, AIR 1997 SC 1128. 2, AIR 1998 SC 1855. a 3. Chetak Construction Ltd. v. Om Prakash, AIR 1998 SC 1855 at pp. 1860, 1861. 4. Dinesh Chandra v. Chaudhary Charan Singh, AIR 1981 Delhi 114 ; See also Virendra Kumar v. Shiv Raj Patil, (1993) 4 SCC. 97. Ibid., see also Rajgopal v. Karunanidhi, AIR 1971 SC 1551. (1992) 4 SCC 61. eeig oF WRIT PETITION 358 pRAFTIN ' n_a regular suit under the general law would be thé appropriate ent This jurisdiction cannot be exercised for deciding the disputes remeey: rivate parties relating to property rights, unless there is violation of betwerritory duties Imposed on the statutory authority. th Mandd Jagdiiath RS" Athen she Supreme Court has held that article 329(b) of the Constitution thor 6. specific prohibition against unde ipallenge to an election either to the any cl House of Parliament or to the Houses Legislature of the State except by an election petition presented to such oithorty and in such manner as may be provided for in law made by the at ropriate legislature. The Parliament has, by enacting the Representation of ihe’ People Act, 1951, provided for such a forum for questioning such election. Heike under Article 329(b) no forum other than such forum constituted under the aforesaid Act, can entertain a complaint against any election, Where the returning officer while scrutinizing the nomination paper of the petitioner finds that Form B which is required to be filled by the candidate for claiming party-symbol is incompletely filled and vital clauses in Form B are left blank and therefore rejected Form B of the petitioner and refuses te allot him party-symbol, the order cannot be interfered by the High Court in the exercise of writ ‘jurisdiction’, In Rupa Hurra v. Ashok Hurra,? the Court has held that a High Court cannot issue a writ to another High Court nor can one Bench of a High Court issue a writ to a different Bench of the same High G jurisdiction of a High Court can be invoked to seek issuan certiorari to the Supreme Court. inferior Courts under the Constitutional scheme, In Tirupati Balaji Developers (P.) Ltd. v. State of Bihar; Court has held that the writ jurisdiction of the High Court is of the Supreme Court. The High Court can issue wnt for the Purpose of the enforcement of the Fundamental Rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of the Supreme Court to issue prerogative wrils remains confined to the enforc Right and to deal with such matter such as Presid disputes which the Constitution does not determined by the High Courts. The High superintendent under Article 227 over all subord; the Supreme Court has not been superintendence. If the Supreme Court thought of as brothers in the administra larger jurisdiction, but the Supreme Co! There are a few provisions which give a the hierarchy to the Supreme Court appellate jurisdiction is concerned, Supreme Court is the highest and the 2 ALR. 2003 S.C. 1771 3. ALR. 2004 S.C. 2351. ° the Supreme wider than that ential election or inter-state envisage being heard and Court exercises power of inate Courts and Tribunals, conferred with any power of and High Court both were to be tion of justice, the High Court has urt still remains the elder brother. in edge and assign a superior place in over the High Courts. So far as the in all civil and criminal matters, the ultimate Court of appeal. It is the finalee ee 360 MOOT COURT, PRE-TRIAL PREPARATION AND PARTICIPATION IN TRIAL PROCEDINGS: interpreter of the law. Under Article 139-A, the Supreme Court may transfer any case pending before one High Court to another High Court or may withdraw the case to itself, Under Article 141 the law declared by the Supreme Court shall be binding on all Courts including the High Courts within the territory of India. Under Article 144 all authorities, il and judicial, in the territory of India and that will include High Court as well, shall act in aid of the Supreme Court, In a unified hierarchical judicial system which India has accepted under its Constitution vertically the Supreme Court has been placed over the High Courts. The very fact that the Constitution confers an appellate power on the Supreme Court over the High Courts certain consequences naturally flow and follow. Appeal implics in its natural and ordinary meaning the removal of cause from any inferior Court or Tribunal to a superior one for the purpose of testing the soundness of decision and proceedings of the inferior Court or Tribunal. The superior forum shall have jurisdiction to reverse, confirm, annul or modify the decree or order of the forum appealed against and in the event of remand, the lower forum shall have to rehear the matter and comply with such directions as may accompany the order of remand. In spite of the Supreme Court and High Courts being both Constitutionally independent of each other and both being the Courts of Record, to the extent of exercise of appellate jurisdiction certainly the Supreme Court exercises a superior jurisdiction and hence it is a superior Court than the High Courts which exercise in that context an inferior or subordinate jurisdiction. In Kartar Singh v. State of Punjab.’ the Court has held that the jurisdiction of the High Court under Article 226 cannot be taken away by legislation. It is constituent power and legislature has no power to divest the Court of the constituent power engrafted under Article 226. The Court has further held that the High Court should exercise this power most sparingly and duly in rare and appropriate cases in extreme circumstances. What those rare cases are and what would be the circumstances that would justify the entertainment of application under Article 226 cannot be put in straitjacket. However the judicial discipline requires that the High Court should refrain from exercising their jurisdiction in entertaining bail application in respect of an accused inducted under Special Act like TADA. ‘The petitioner should file the petition within reasonable time. The Court may refuse to grant relief under this Article where there is no reasonable explanation for the delay in presenting the petition.’ However, this is not a rule of law but a rule of practice based on the Court's discretion and this discretion is to be exercised in the light of the circumstances of each case.’ The delay, thus, is not absolute bar.‘ It is to be noted that the Limitation Act does not apply to a petition under this Article and, therefore, there is no fixed period after the lapse of which the petition under this Article will not be 1, (1993) 3 SCC 569. 2. Trilokchand v. Munshi, AIR 1970 SC 898 ; Babu v. Union of India, AIR 1979 SC 1713. 3. Ramachandra v. State of Maharashtra, AIR 1974 SC 259. 4. See State of U.P. v. Bahadur Singh, (1985) 2 SCC 45: of Bihar, AIR 1965 SC 661 Bengal Immunity v. Stateparting OF WRIT PETITION Petition filed under this Artic! malicious or ill-motivated. If the misrepresentation as to the material the Court may dismiss the petition If the petition under this Artic may be dismissed on that ground, is filed and the detenu has be proceedings the petition may he di infructuous.* © may ismi: le is found to be infruct For example en released ismissed on t 0 ;_Uctuous or fruitless it if a petition for haben during the pendency of the he ground of its having bes damental Right, remedy would not be a bar.” In the case of infringement of the right other than the Fundamental Right, the Court may refuse to issue the writ if the 1. Ram Chandm v. State of Maharashtra, AIR 1974 $C 259, 2, Arun Kumar Chattejree v. $.B. Railway, AIR 1983 SC 653, 3. S.P. Sadasivaswamy v. State of T.N., AIR 1974 SC 2271 4. See Abdoll Gaffor v. State of M.P., AIR 1968 MP 29 : Narain Das v. State of Punjab, 5 AIR 1953 Punj 193 ; State of Haryana v. Kamal Distillery, AIR 1977 SC 781 . Mohit v. D.M., AIR 1974 SC 2237. 5 6. Daryao v. State of U.P, AIR 1961 SC 1457. 7. Union of India v. Nanak, AIR 1968 SC 1370. 8. AIR 1961 SC 1457. 9. See Workmen v. Board of Trustees, AIR 1978 SC 1283, 10. Lallubhai fogibhai v. Union of India, AIR 1981 SC 728. ‘1. Romesh Thaper v. State of Madras, AIR 1950 SC 24. a362 MOOT COURT, PRE-TRIAL PREPARATION AND PARTICIPATION IN TRIAL PROCEDINGS effective and adequate alternative remedy exists,’ However, the existence of alternative remedy is a rule of discretion and not rule of law and, thus, the existence of alternative remedy is not an absolute bar.” In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai? the Supreme Court has made it clear that the jurisdiction of the High Court under Article 226 is not affected because of the availability of the alternative statutory remedy specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. However, if statutory remedy is available and the petitioner does not avail it and bypassing it files petition under Article 226 before the High Court, it is not justified and such petition should not be entertained by the High Court. The order passed by the High Court was set aside by the Supreme Court." If a petition is dismissed on the ground of availability of alternative remedy, the Court should refrain from expressing any opinion on the merit of the case.* In T.K. Rangarajan v. Government of Tamil Nadu," the Supreme Court has held that it is established principle that where there is an alternative, effective, efficacious remedy available under the law, the High Court would not exercise its extraordinary jurisdiction under Article 226 and the litigants must first approach the Tribunals which act like Courts of first instance in respect of the areas of law for which they have been constituted and therefore it will not be open to the litigants to directly approach to High Court even where the question of vires of the statutory legislation is challenged. However, the High Court is empowered to exercise its extraordinary jurisdiction to meet unprecedented extraordinary situation having no parallel. In the instant case the State Government had dismissed two lac employees for going on strike. This, as the Court has observed, is very exceptional and therefore there was ne justifiable reason for the High Court not to entertain the petitions on the ground of alternative remedy provided under the statute. Ordinarily the person whose Fundamental Right or legal right has been infringed or threatened to be infringed is entitled to apply for relief under Article 226,’ however, in the case of habeas corpus* and quo-warranto® a person other than the said person may also apply. Thus, the right which can be enforced is ordinarily required to be the right of the petitioner himself” 1. $.T.0. v. Shivaratan, AIR 1966 SC 142 ; S.7. Muthuswami v. K. Natrajan, AIR 1988 SC 617. 2. UP. State v. Mohd. Nooh, AIR 1958 3C 86. 3. AIR 1999 SC 22. 4. Modern Industries v. Steel Authority of India id., AIR 2010 SC 1625. 5. Tin Plate Co. of India v. State of Bihar, AIR 1999 SC 74. 6. ALR. 2003 S.C. 3032. 7. See Kochuni v. State of Madras, AIR 1959 SC 725 ; Himmat Lal v. State of M.P., AIR 1954 SC 403. 8. Chiranjit Lal v. Union of India, (1950) SCR 869. 9. State of Orissa v. Ram Chandra, AIR 1964 SC 686. 10. State of Orissa v. Ram Chandra, AIR 1964 SC 686.ering OF WRIT PETITION of acopt in the case of quo, warranto' and habeo nthe exceP 1 certiorary a stranger may : case of promo, oo RE RERIATSL the write Aeon 9 file application under artis avolves grave miscarriage of justice and has adverse ait ess 8 the orders? It is to be noted that the Public Interest rages om the Public intetion to the general rule, ‘tigation is also an oxen Bharat Ratna Indira Gandhi College of Engi ovoroshira, the Supreme Court has held that the ea see ee Court suo motu even without a petition on which they have bees neyeieh fot justified or sustainable. By the said order the Bombay High Gon aes that if the colleges fail to fill in the post of Principal by 31-8-2000 pniversty will issue orders in the first week of June, 2000 somite admissions in the colleges concerned. In the opinion of the Supreme Cons oe such directions could have been given validly by the High Court. If there ig no permanent Principal, obviously the Acting Principal shall officine, «= Principal but that does not mean that in the absence of the permanent Principal, admissions in the colleges cannot be made. The court observed that in this case none of the colleges were made parties before the High Court and therefore the aforesaid direction is violative of the principles of natural justice Accordingly, the Court allowed the appeal and set aside the order of the High Court. In Kokkanda B. Poondacha v. K.D. Ganpati,’ the Supreme Court has held that writ jurisdiction under Article 226 or supervisory jurisdiction under Article 227 of the High Court cannot interfere with the interlocutory orders passed by the subordinate courts without considering the question whether said order vitiated due to want of jurisdiction or Trial Court has exceeded its jurisdiction or order passed by it has resulted in failure of justice. In this case the interlocutory order passed by the Trial Court was set aside ignoring the principles and parameters laid down by the Supreme Court for exercise of power under Article 226/227 qua an interlocutory order passed by the Subordinate Court and set aside the order of the Trial Court without assigning any tangible reason and therefore the order of the High Court was set aside and the order passed by the Trial Court was restored. In a case,° the Supreme Court has held that the statute can be declared to be invalid if it is found violative of the Constitutional provisions but this should be done in exceptional circumstances, if it violates the Constitutional provisions flagrantly and clearly, i.e., violation is so evident that it leaves no doubt. A piece of delegated legislation is also statutory in character and the only limitation on it that it should not violate the provisions of the parent statute or of the Constitution. The Court can declare it as unconstitutional only if it 363 'S corpus? I . State of Orissa v. Ram Chandra, AIR 1964 SC 686. . Chiranjit Lal v. Union of India, 1950 SCR 869. . Kalyan Singh v. State of U.P., AIR 1962 SC 1183. . AIR 2011 SC 1912. . AIR 2011 SC 1353. Government of AP. v. P. Laxmi Devi, A1.R. 2008 S.C. 1640.364 See MONT COURT, PRE-TRIAL PREPARATION AND PARTICIPATION IN TRIAL PROCEDINGS violates the parent statute or the Constitution." ‘There is presumption in favour of the Constitutionality of statute as well as delegated legislation.’ It has been made clear that a policy decision is also subject to the judicial review on the following grounds :— (i) if it is unconstitutional; (ii) if it is de hors the provisions of the Act and the Regulations; (iii) if the dolegatce has acted beyond its power of delegation; (iv) if the executive policy is contrary to the statutory or larger policy. In a case,’ the Supreme Court has held that the public policy can be the subject-matter of judicial scrutiny only when it is arbitrary, unreasonable and against the statutory provisions. In Narmada Bachao Andoian v. State of M.P.* the Court has held that the Government can change policy on the basis of ground realities. The public policy can be challenged only when it violates constitutional provisions or statutory provisions. The Court has opined that strict rules of pleadings may not apply to the public interest litigation but there must be sufficient material on the basis of which the Court is to proceed. The Court has made it clear that in case of PIL the petitioner is required to lay a factual foundation for his averments on basis of which such a person claims the reliefs. The informations furnished by him should not be indefinite and vague. To meet the requirements of the principles of natural justice there must be proper pleadings. In respect of the Government's contract it has been held that if the decision relating to award of contracts is bona fide and in public interest, the Court will not exercise the power of judicial review and interfere even if it is accepted for the sake of argument that there is a procedural lacuna” It is exercised in the larger public interest as if it is brought to the notice of the Court that in the matter of award of contract, the power has been exercised for any collateral purpose. The power of judicial review can be exercised for preventing arbitrariness and favouritism.* ‘Article 72 deals with the power of the President to grant pardon, etc. and 161 deals with the powers of the Governor to grart pardon, etc. The Court nas observed that the power exercised by the President or Governor under Article 72/161 can be the subject matter of limited judicial review. It can be challenged on the following grounds— (a) that the order has been passed without application of mid; (b) that the order is mala fide; Hinsa Virodhak Sangh v. Mirjapur Moti Kureshi Jamat, ALR. 2008 S.C. 1892. Ibid. 3. The Joint Action Committce of Airlines Pilots Associations of India v. Tho Director General of Civil Aviation, AIR 2011 SC 2220. 4, AIR 2011 SC 1989. ‘Siemons Public Communication Pvt. Lid. v. Union of India, AIR 2009 SC 1204. 6. Siemons Public Communication Pvt. Lid. v. Union of India, AIR 2003 SC 1204. .a | RAFTING OF WRIT PETITION (c) that the order has been passed on extraneous or wholly irrelevant considerations; (d)_ that relevant materials have been kept out of consideration; (e) that the order suffers from arbitrariness." 365 c. Difference between Article 32 and Article 226. Article 32 guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the Fundamental Right. In the | éase of infringement of the Fundamental Right, the Fight to move the Supreme Court is itself a Fundamental Right. It is the duty of the Supreme Court to enforce the Fundamental Right guaranteed-by the Constitution.? The ambit of the power and jurisdiction of the Supreme Court under Article 32 is confined to the enforcement of the Fundamental Right. The differences between Article 32 and Article 226 may be summed up as follows -— (1) The right to move the Supreme Court under Article 32 by appropriate proceedings for the enforcement of Fundamental Rights is itself a Fundamental Right and the Supreme Court cannot refuse to entertain application seeking protection against infringement of any of the Fundamental Right guaranteed by Part III of the Constitution.” The right to move the High Court under Article 226 is not itself a Fundamental Right. The remedy provided for in Article 226 is a discretionary remedy and cannot be claimed as a matter of right. (2) ‘The remedy provided under Article 32 is available only for the enforcement of the Fundamental Right guaranteed by Part III of the Constitution while Article 226 empowers the High Court to issue directions, orders or writs for the enforcement of the Fundamental Rights and also for the enforcement of any other purpose. | (3) The territorial jurisdiction of the High Court is not as wide as that of the Supreme Court. The jurisdiction of the Supreme Court 1 extends to the whole territory of India, but the High Court does not enjoy such jurisdiction. The High Court can entertain a petition under this Article only if the person or authority against whom the writ is sought is resident or located within the territorial jurisdiction of the High Court or if the cause of action arises (wholly or in part) within the territorial jurisdiction of the High Court. (4) Ifa petition filed under Article 32 is dismissed by the Supreme Court on the merit, a subsequent petition under Article 226 would be barred." If the petition under Article 226 is disposed of by the High Court on merit, the decision would operate as res judicata and therefore the petition on the same grounds to the Supreme Court would be barred.® a Article 226(4) makes it clear that the power conferred on the High Court 1. Staie of Haryana v. Jagdish, AIR 2010 SC 1690. 2. Daryao v. State of U.P,, AIR 1961 SC 1457. 3. Romesh Thappar v. State of Madras, AIR 1950 SC 124 ; Daryao v. State of UP, AIR 1961 SC 1457. 4. See Workmen v. Board of Trustoes, AIR 1978 SC 1283. 5. Daryao v. State of U.P., AIR 1961 SC 1457.