One of the vexatious and recurring constitutional issues is that of the power of High Courts under Article 226 of the Constitution to entertain a writ petition (WP) when an alternative remedy is available for redressal of a grievance. While Article 226 itself has no inherent limitation in exercising its jurisdiction, but overtime a self-imposed restraint by the constitutional courts, obviously to prevent overburdening of the HCs, has led to rejection of WPs even in some deserving cases, on the sole ground that alternative remedies are available.

Article 226, as it was enacted originally, conferred power upon the HCs to entertain WPs for enforcing Fundamental Rights (FRs) and other rights while Article 32 could be invoked only for enforcement of FRs by the Supreme Court, the jurisdiction of HCs was enlarged to entertain WPs to redress wrongful actions of the executive, including protection of FRs. While the egregious 42nd Amendment, inter alia, restricted the power of HCs under Article 226 from entertaining WPs for which an alternate remedy was available under any statute or rules, the Parliament, however, had wisely restored Article 226 to its original position vide the 44th Amendment.

The SC had on numerous occasions expounded the law relating to the powers of HCs under Article 226. It is important to note the SC’s repeated emphasise that the redressal by HCs would be a quick and inexpensive remedy thereby preventing long delays and unnecessary harassment to the aggrieved petitioners. It is common knowledge that pursuit of justice through various levels of appellate fora is not only expensive but exceedingly time-consuming, often resulting in justice being delayed.

A study of the apex court judgements reveals an interesting evolution of law on this question. In one of the first cases after the commencement of the Constitution, the Supreme Court in Election Commission of India v Saka Venkata Subba Rao (AIR 1953 SC 210) observed that the Constitution makers having provided for FRs, considered it necessary to bestow writ jurisdiction upon all the High Courts as a means of providing quick and inexpensive remedy for the enforcement of such rights including the power to issue directions for any other purpose, placing them on par with the English courts in this regard.

In K.S. Rashid & Son &ors vs The Incometax Investigation Committee (AIR 1954 SC 163), it was held that the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party has an alternative remedy. However, the Constitution Bench in State of Uttar Pradesh vs. Mohammad Nooh (AIR 1958 SC 86) repelling the objections of the State of UP – that the High Court ought not have entertained the writ petition as the respondent therein had recourse to alternate remedies – observed that ordinarily, the High Court would decline to interfere but where the authority acts wholly without jurisdiction, or violates the rules of natural justice and where the error, irregularity or illegality touching jurisdiction or procedure is patent and which offends the High Court’s sense of fair play, it may issue the writ of certiorari to correct the error, even if an appeal remedy was available and recourse was not had to it or if recourse was had to it, was a nullity.

In A.V.Venkateshwaran, Collector of Customs vs Ramchand Sobhraj Wadhwa (AIR 1961 SC 1506 ), another Constitution bench held, while examining the question whether the High Court should have rejected the writ petition in limine because all the statutory remedies were not exhausted for redressal of the grievance, observed that while the HCs had discretion to entertain a writ petition, that discretion must necessarily be dependent on material facts which govern the proper exercise of the discretion vested in the Court, and as such, it would neither be possible nor desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.

In the landmark judgment on this issue, in Calcutta Discount Co Ltd vs ITO (41 ITR 191), the Constitution Bench of the Apex Court held that the High Courts have power to issue in a fit case an order prohibiting an authority from acting without jurisdiction where such action of the authority is likely to subject a person to lengthy proceedings and unnecessary harassment. It was held that the existence of an alternative remedy is not always a sufficient reason for refusing a party quick relief by a writ. It was further emphasised in no uncertain terms that when the Constitution confers on the High Courts the power to give relief, it becomes their duty to give such relief in fit cases and that the courts would be failing in their duty if relief is refused without adequate reasons.

In Hari Vishnu Kamath vs. Syed Ahmad Ishaque and Ors. ( AIR 1955 233) ,the Apex Court held that a writ of certiorari could be issued to correct an error of law which must be manifest on the face of the record and what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of in-definiteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.

In the case of Whirlpool Corporation v Registrar of Trade Marks (1998 8 SCC 1), the Apex Court, while once again reiterating that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and not limited by any other provision of the Constitution, laid down that an alternative remedy would not operate as a bar in at least four contingencies, namely, for the enforcement of the Fundamental Rights , where principles of natural justice are violated, where an authority acts without jurisdiction and where the vires of an Act are challenged. It was further observed that the decisions to which reference is made above would even after a considerable passage of time continue to hold the field especially in a case where an authority acts without jurisdiction .

The next important contention is the issue of maintainability versus entertainability of the WPs. The Apex Court in Godrej Sara Lee Ltd vs Excise and Taxation Officer (2023 SCC online 95) observed that availability of an alternative remedy does not operate as an absolute bar to the “maintainability” of a writ petition and that the rule, which requires a party to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. There is a clear distinction between “entertainability” and “maintainability”. The objection as to “maintainability” goes to the root of the matter and if such objection were found to be of substance, writ petition would not be maintainable. However, the question of “entertainability” being entirely discretionary, a writ petition despite being maintainable may not be entertained by for various reasons, but dismissal of a writ petition merely on the ground that the alternative remedy was not availed, without examining whether an exceptional case has been made out for such entertainment would not be just and proper. To sum up, while the High Courts have discretion to entertain a writ petition, the SC repeatedly emphasised that merely because an alternative remedy is available under the law, that by itself would not be a bar on adjudication and that no hard and fast rule could be laid down as regards entertaining the WPs as it depends on the facts and circumstances of each case.

(Writer is retired Principal Commissioner of Income Tax)