The Founding Fathers, by incorporating Articles 226 and 32, reintroduced the dual system of administration of justice which was abolished in England in 1875, having proved to be counterproductive


Common people, often reassured by news reports where the High Courts under Article 226 and even the Supreme Court under Article 32 come to the rescue of common people who are denied justice by the government and its instrumentalities, are granted instant and hustle free justice institute writ petitions when they face similar injustice. Except for a few High Courts like that of Kerala where relief under the writ jurisdiction is granted without being confronted by questions as to the maintainability of the petition for the petitioner not having exhausted the “alternative remedies”, realise that reality is different from perception. In high Courts like the Bombay HC, Delhi HC, even Madras, Punjab & Haryana HC and Gujarat HC, of which I am fairly familiar, majority of the writ petitions are dismissed in limine on the ground of non-exhaustion of alternative remedy.
I have often found lawyers, instead of advising their client to institute a civil suit, for the Civil Court is the court of plenary jurisdiction, competent, empowered and duty bound to adjudicate any dispute under the sun of a civil nature, unless barred, or where forums like the DRT, NCLT, Provident fund tribunal, etc. are created in substitution of the Civil Court, challenge the order of the HC in the Supreme Court under Article 136. Such SLPs are dismissed by one-line orders. This exercise would cost the litigant enormously, and many would give up their pursuit for justice. The few who still place hope in the judiciary would then institute a suit or approach the forum created in substitution of the Civil Court. Their plea for interim injunction or other protective orders are rejected one the premise that their plea before the High Court and SC was lost. The fact that the High Court or SC did not adjudicate the case and, therefore, there is no bar of res judicata or estoppel is lost sight of, in some cases particularly because the judgment of the High Court dismissing the plea for want of maintainability is a voluminous one, giving the impression that the Court has decided the case on its merits. A very meritorious case is thus lost solely because the litigant had an ‘alternative remedy’ which he had not exhausted before he approached the High Court!
Most of the lawyers would advise the litigant to invoke Article 226 because it is a common practice to file writ petitions involving the determination of disputed questions of fact. Invariably, in all cases, a suit will lie and where a suit will not lie, an action will lie before the tribunal/forum created in substitution of the Civil Court. A situation where instead of a writ, no suit will lie or an action will not lie in a tribunal/forum created in substitution of the Civil court does not exist. Yet, sometimes even litigants insist that a writ be filed instead of instituting a suit or appropriate proceedings in the tribunal or forum created in substitution of the Civil Court. They do so because they are told that the sky is the limit of the jurisdiction of the High Court under Article 226 and that the long arm of justice will reach out to remove injustice wherever it is. But the reality is different. Most often, the judges on their own dismiss petitions in liminie, namely, without issuing notice to the opposite party, on the ground of non-exhaustion of ‘alternative remedy’. In other cases it is dismissed when the
opposite party enters appearance and raises the plea of non-exhaustion of the alternate remedy. Sometimes an additional plea that no writ will lie because the Respondent is not a state or its instrumentality is raised. In short, justice is denied because the litigant had approached the wrong forum, taking us back to the pre-1875 where a common law court would decline injunction, specific performance, etc. because such remedy could be sought in the Chancery court and where a Court of Equity would deny damages, because such remedies would lie only in the common law courts.

As I said before, it is difficult to imagine of cases where there does not exist an alternate forum, often termed as remedy, though incorrectly. And therefore, whether to admit a writ petition or grant relief, inspite of the existence of an “alternative remedy” falls under the province of the discretion of the judge. I am afraid to say, except in cases where the litigants are represented by lawyers who enjoy great ‘face value’, writ petitions are dismissed, I would say mercilessly, on the ground that the party has an “equally efficacious alternative remedy”, and sometimes that the Respondent is not a state or instrumentality of the state and therefore, no writ will lie.

The net outcome is that, except in a few cases where the writ petitions are entertained and relief is granted, in majority of cases, at least in the major high courts, which face a great influx of petitions, the litigant who had approached the court placing unstinted faith in it, is denied justice.

This denial of justice to individual litigants remains to be their personal grief, because unlike governmental decisions which affect the public at large, where any injustice would lead to protest, the injustice at the hands of the judiciary remains to be the sorrow of individual litigants. Article 226 has unwittingly become an instrument of denial of justice. I do not know how many lawyers and judges would have noticed this unfortunate truth, the fallout of the concept that the jurisdiction under Article 226 is discretionary and that the existence of an efficacious alternative remedy would justify denying the jurisdiction.

The terms ‘forum’ and ‘remedies’ are well defined in law. Forum means the court or tribunal where a party aggrieved could seek justice and enforce the remedies the law will provide him where his rights are infringed. The word ‘remedy’ in jurisprudence would mean common law, equitable and declaratory remedies. I have gone through a large number of the judgements from the 1950s till date, which in categorical terms declare that the jurisdiction under Article 226 is equitable and discretionary, and that the existence of an efficacious alternative remedy would be a ground for declining the jurisdiction. Invariably, all, even the most eminent of judges, have used the terminology “alternative remedy”, while what they have meant is an alternative forum, a civil court or a tribunal, where the writ petitioner could have instituted a suit or initiated an action. The question then is, how the eminent judges could all use a wrong terminology, ie. alternative forum, instead of alternative remedy. To understand why the eminent judges so erred and the calamitous consequence of this error, one needs to trace the English legal history.

The Chancery jurisdiction, nay the Chancery Court came into existence as a parallel system of administration of justice, particularly since the 16th century, because the common law courts were too bound by precedents and procedures, leading to people complaining to the King, the fountain of justice. Initially the king personally heard their grievances and interfered with the decrees of the common law courts. The king himself deciding was disapproved. Chief Justice Coke, quoting Bracton, asserted that the King is under no man, but under God and the law. In the turf war between the common law courts and the chancery courts, the later gained predominance. It was said that the Chancellor shall not know the common law, and was not bound by its procedures. The Chancellor was often a bishop who decided based on the concepts of justice, equity and good conscience. The Chancellor gave reliefs like injunction, specific performance, set off, counter claim, etc. It’s procedures were simple, no specific relief was even required to be sought. The Chancellor could mould the reliefs. The two streams of justice administration ran parallel without its waters ever getting mixed. Parliamentarians/reformers like Bentham believed that two systems of courts is counter productive and would lead to injustice and delay. As a result of their efforts, the Common Law Procedure Act of 1854 and the Chancery Amendment Act of 1958 were enacted and as a result thereof, the court of equity could grant the remedies which common law courts alone could have granted and vice versa.

The Judicature Acts of 1873-5 brought an end to the dual system. Thereafter, there remained only one stream of administration of justice which could grant all remedies, common law, equitable and declaratory. Even before the two systems were fused into one in England, by virtue of the Code of Civil Procedure of 1859, one single system of administration of justice came to be introduced for the dominion of India. However, there was an aberration.

The Supreme Courts of Calcutta, Madras and Bombay were established in the years 1774, 1800 and 1823, respectively. The Supreme Courts were vested of jurisdiction akin to the King’s bench in England, namely, empowered to issue various writs like certiorari, quo warranto, etc. In England, the High Courts, namely, the Chancery courts, Kings bench, etc. vested of civil jurisdiction, capable of granting common law, equitable and declaratory remedies was established only in 1875 by the Judicature Acts of 1873 and 1875. However, in India, with the enactment of the Code of Civil Procedure of 1859, the Civil Courts came to be vested of the jurisdiction to grant common law, equitable and declaratory remedies, all. In 1861, the High Courts Act was enacted, and with it, the three Supreme Courts ceased to be in existence. The High Court Act did not confer any writ jurisdiction on the High Courts so established. By virute of Section 491 of the CrPC of 1898, the High Courts could issue a writ of habeas corpus, I must clarify.

The High Courts of Bombay, Calcutta and Madras continued to exercise the writ jurisdiction within the presidency towns of Bombay, Calcutta and Madras because by virtue of the charter by which they were established, they were exercising writ jurisdiction within the presidency towns, being vested of the very same jurisdiction of the Kings bench (where the King was symbolically present).

In short, prior to independence, while the High Courts of Bombay, Calcutta and Madras exercised the writ jurisdiction, other High Courts did not, except the writ of habeas corpus for which they were specifically empowered. There was really no need for the High Courts expressly being vested of the writ jurisdiction, because under the CPC, as civil courts of original jurisdiction, the High Courts had all the power to grant all remedies, common law, equitable and declaratory which certainly would include the power to issue writs. However, the High Courts established under the High Courts Act of 1861 did not exercise any writ jurisdiction, going by the nomenclature. But in reality the High Courts and the Civil Courts subordinate to it, within the framework of the CPC, indeed did grant all remedies.

But the writ jurisdiction exercised by the three said High Courts was extremely popular, inspite of the limitation that the Madras HC cannot issue a writ to Madurai or Bombay HC beyond Bombay Islands. When the constitution was framed, it was therefore felt desirable to confer the writ jurisdiction on all High Courts and the Supreme Court, and like the Kings bench having jurisdiction all over England, to the Supreme Court. Article 32 and 226 was thus incorporated. However, nobody ever realized that to enact Articles 226 and 32 would mean to reintroduce the dual stream of justice which was abolished by the Judicature Act of 1875 in England, it having been found to be counter-productive. Nobody then, ever thought that it would lead to forum shopping, in as much as that it is open to a litigant, to decide for himself, whether to institute a suit, often in a subordinate Civil Court, or to institute a writ in the High Court, or that a wealthy litigant would engage a lawyer who manifestly commands greater ‘face value’. The founding father’s cannot be blamed for that, for it is humanly impossible to foresee everything about the future.

Before the Judicature Act of 1875, the words remedy and forum had no distinct meaning. Because the remedy, for instance, of injunction or certiorari or mandamus, cannot be granted by the common law courts. The litigant would plead before the Chancellor that he has no efficacious alternative remedy, for say, injunction or specific performance, because he cannot plead so in the common law court. That is why he was required to plead, where he seeks a writ before the Chancery court, that he has no alternative remedy.

The situation today, with the enactment of the Code of Civil Procedure of 1859 and its substitution by the Code of 1903, the Civil Court has all the powers to grant the common law, equitable and declaratory remedies, including to declare an Act of Parliament as unconstitutional, unless barred. There was no need for Article 226 or even Article 32. The fact that the incorporation of Articles 226 and 32 would amount to the reintroduction of two streams of justice, here a Civil Court of plenary jurisdiction, empowered to adjudicate any questions of fact and law, which also provides for adequate mechanism for correction of error was completely lost sight of.

Our justice delivery system is at dire straits. Article 226, so far as the common litigant is concerned, often means denial of justice at the very threshold itself. It is only apposite to quote the latim maxim, optimam esse legem, quae minimum reiinquit arbitrio judicis; id quod certitude ejus praestat, namely that the best legal system is the one which gives least discretion to the judge and the best judge is the one who exercises his discretion the least. Article 226 which leaves everything to the discretion of the judge, whether even to entertain a plea, has become a synonym for denial of justice.