Alternative Remedies No Longer Bar Writs: A Legal Shield for ‘Questions of Law’

Anup Koushik Karavadi¹ & Naman Sinha²

Inception and establishment of ‘Writ’ Jurisdiction:

Writ Jurisdiction in the Indian Constitution has been borrowed from the concept of prerogative writs under English Law and was vested in the Chartered High Courts prior to commencement of Constitution. The framers of the Constitution adopted the concept of writs and funnelled such powers to fruitfully enforce the fundamental rights.

While commending the powers vested with the Hon’ble High Court, a seven-judge bench of the Hon’ble Supreme Court in L. Chandra Kumar v. Union of India³ ruled that the right to review under Article 226⁴ forms part of the basic structure of the Constitution and cannot be altered by any Constitutional amendment. Therefore, the powers of Hon’ble High Courts to issue writs cannot be curtailed by a Constitutional amendment, parliamentary law, or state legislation. After having established that the powers vested through Article 226 cannot be altered in any manner, the Hon’ble Supreme Court in its own words observed that the power of Hon’ble High Courts to issue writs under Article 226 is plenary in nature; it is absolute, and any limitation on the exercise of such power must be traceable to the Constitution itself.⁵

Self-imposed restrictions to inspire judicial discipline:

Although, there are no restrictions on the powers of Hon’ble High Courts to exercise writ jurisdiction, except the ones traceable in the Constitution, the Courts have time and again highlighted that the power is discretionary in nature and that this extraordinary jurisdiction of the Hon’ble High Courts must be exercised only in rare cases to serve the interests of justice.⁶ While exercising this discretion, Courts have ingrained into its system various self-imposed restrictions through judicial precedents which collectively constitute ‘Rule Of Entertainability’.

‘Alternate Remedy’ – an effort to seal the genie in a bottle:

One of the off-shoots of the Rule of Entertainability is the requirement of a litigant to exhaust the alternate remedy before approaching the Hon’ble High Court. The bar of alternative remedies was first pleaded as a defence in Rashid Ahmed v. The Municipal Board, Kairana⁷, decided in 1950. Though the term ‘Alternative Remedy’ was not used in the said case; the respondent therein argued that an adequate remedy was available to the petitioner, but the Court did not deem it to be adequate and granted relief to the petitioner.

The Hon’ble Supreme Court, in 1954, cited and applied the bar of alternative remedy for one of the first times, holding that when adequate or suitable remedy exists elsewhere, it will be a sound exercise of discretion to refuse to interfere in a petition under Art. 226 unless there are good grounds. The theory of alternative remedy was developed by the Hon’ble High Court in their impugned judgment relying upon the ordinary rule of construction that where the legislature has passed a new statute giving a new remedy, then that remedy is the only one which could be pursued.⁸

The Court expanded this proposition in 1958 and clarified that the rule requiring the exhaustion of statutory remedies is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.⁹

Evolution of Exceptions to enforce fundamental rights:

A Constitution bench in 1961 built onto the jurisprudence and clarified that though the writ of prohibition or certiorari will not be issued against an executive authority, the Hon’ble High Courts have power to issue an order in a fit case prohibiting an executive authority from acting without jurisdiction. Where such action of executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the Hon’ble High Court will issue appropriate orders or directions to prevent such consequences.¹⁰

Even though these cases specifically mentioned that Courts could use discretion if there are good grounds in spite of the existence of alternative remedies, the Courts in some cases failed to do so causing a lot of hardship to the litigants. One such case came up before the Hon’ble Supreme Court in appeal, where the Hon’ble High Court had summarily dismissed the writ petition without paying heed to the contention of the petitioner and examining that the show cause notice served to them by the authority was wholly without jurisdiction. Taking a que from such summary rejection of a writ, identifying the context of mechanical curtailment of the fundamental rights and erosion of the very purpose of the Article 226, the Hon’ble Supreme Court ruled¹¹ the following to be the scenarios in which the alternate remedy cannot be considered as a bar:

1. The petition has been filed for enforcement of any Fundamental Right. 2. The petition involves a violation of the Principles of Natural Justice. 3. The order (impugned) from where the petition is originating is wholly without Jurisdiction. 4. The petition challenges the vires of an act.

‘Rule of law’ takes precedence over ‘Self-imposed Restrictions’:

Few more exceptions to the bar of alternative remedy were stipulated by the Hon’ble Supreme Court in the cases of State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd.¹² and Union of India vs. State of Haryana.¹³ In the former case, the Court held that if the dispute raises a pure question of law and there is no need to investigate the facts of the case, then the Hon’ble High Courts have the discretion to entertain the petition even though an alternative remedy was not availed.¹⁴ In the latter case, the Court ruled that if the controversy is purely legal then it should be adjudicated by the Hon’ble High Court as it would save the appellant from the troubles of moving through the mill of statutory appeals in the hierarchy.¹⁵ Till this set of cases, the Hon’ble Supreme Court continued to supplement and interpret the context of Rule of Entertainability. However, the when such Rule of Entertainability was being looked into and implemented singularly, the Hon’ble Supreme Court had taken an opportunity to draw a distinction between the Entertainability and Maintainability.¹⁶ While drawing such distinction, the Hon’ble Supreme Court mandated the Hon’ble High Courts to entertain a writ as long as the writ is entertainable and to not dodge the proceedings in the garb of Alternate Remedy.

It is pertinent to mention the circumstances in which the Hon’ble Supreme Court had mandated the issuance of writs despite the presence of alternate remedy. In the case cited supra, the Hon’ble Punjab & Haryana High Court in the impugned judgement mechanically dismissed the writ petition at the threshold citing the bar of maintainability. Consequent to such dismissal, the parties therein were forced to go through the statutory mill of hierarchy for a long, unwarranted period of 16 years before being finally resolved on the question of law by the Hon’ble Supreme Court.

Conclusion

In conclusion, the evolution of writ jurisdiction in India has been marked by a delicate balance between preserving the efficiency of Constitutional Courts and ensuring justice for litigants. The journey from the adoption of writs by our Constitution’s framers to the subsequent jurisprudential developments by the Hon’ble Supreme Court reflects the dynamic nature of this legal instrument. Over the past 74 years, the Hon’ble Supreme Court has introduced exceptions to the rule of alternative remedies, recognizing the important role of writ jurisdiction in safeguarding fundamental rights and addressing issues of jurisdictional error and natural justice.

Despite this progress, there have been instances where the rigid application of the rule of alternative remedies has resulted in unjust dismissals, leading to prolonged and unnecessary legal battles. These failures underscore the importance of the Courts’ discretionary power to entertain writ petitions, particularly in cases where the alternative remedy is inadequate, dispute relates to pure question of law, the order challenged was without authority, principles of natural justice were violated or where fundamental rights are at stake. The principle that “justice delayed is justice denied” serves as a reminder that the true purpose of writ jurisdiction is to provide timely and effective relief especially when it is possible only through the writ jurisdiction.

As we move forward, it is essential that the Hon’ble High Courts prescribe maintainability as a touchstone instead of adopting entertainability as a criterion while considering the writs. By doing so, the Courts can uphold the Constitution’s promise of liberty and protect the rights of individuals against the excesses of authority, thereby reinforcing the rule of law in our democracy.

References

1. Managing Partner at Karavadi & Associates and Standing Counsel before Hon’ble High Court of Andhra Pradesh for Tirumala Tirupati Devasthanam and Transmission Corporation of Andhra Pradesh Limited.
2. Associate at Karavadi & Associates.
3. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125.
4. India Const. art. 226.
5. M/S Godrej Sara Lee Ltd. v. The Excise And Taxation Officer-Cum-Assessing Authority & Ors., Civil Appeal No.5393 Of 2010.
6. Lalit Raj v. Union of India Ministry of Home Affairs & Ors., W.P.(CRL) 580/2022.
7. Rashid Ahmed v. The Municipal Board, Kairana, AIR 1950 SC 163.
8. K.S. Rashid And Son v. The Income-Tax Investigation, AIR 1954 SC 207.
9. The State Of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86.
10. Calcutta Discount co.Ltd. v. Income Tax Officer Companies Distt. I, AIR 1961 SC 372.
11. Whirlpool Corporation v. Registrar Of Trade Marks, Mumbai & Ors., AIR 1999 SC 22.
12. State Of U.P. & Others v. M/S. Indian Hume Pipe Co. Ltd., AIR 1977 SC 1132.
13. Union of India v. State of Haryana, AIR ONLINE 1998 SC 137.
14. Supra note 11, at 4.
15. Supra note 12, at 3.
16. Supra note 4, at 4.