1977 (3) TMI 175 - HC - Indian Laws

Summary

Issues Involved:
1. Scope and amplitude of Article 226 as substituted by the 42nd Amendment.
2. Impact of Section 58 of the 42nd Amendment Act on pending writ petitions, writ appeals, and interlocutory petitions.
3. Jurisdiction of High Courts under Article 226 in light of Articles 131-A, 226-A, 323-A, 323-B, and 139-A.
4. Interpretation of "injury of a substantial nature" and "substantial failure of justice" under Article 226.
5. Bar to entertain writ petitions under Clause (3) of Article 226.
6. Restrictions on interim orders under Clauses (4) to (6) of Article 226.
7. Applicability of Section 58 to writ appeals and pending petitions.

Detailed Analysis:

1. Scope and Amplitude of Article 226:
The judgment addresses the full scope of Article 226 as substituted by the 42nd Amendment. The new Article 226 starts with a non-obstante clause, stating, "Notwithstanding anything in Article 32 but subject to the provisions of Article 131-A and Article 226-A," every High Court shall have power to exercise the jurisdiction thereunder. This means that High Courts can enforce rights conferred by Part III of the Constitution, notwithstanding Article 32, but subject to Articles 131-A and 226-A. The new Article 226 also omits the words "and for any other purpose," narrowing its scope compared to the old Article 226.

2. Impact of Section 58 on Pending Petitions:
Section 58 of the 42nd Amendment Act, a transitory provision, governs petitions made under Article 226 before the appointed day (1st February 1977) and pending before any High Court. Sub-section (1) states that such petitions and interim orders shall be dealt with in accordance with the new Article 226. Sub-section (2) specifies that pending petitions that would not have been admitted under the new Article 226 shall abate, and any interim orders made therein shall stand vacated. The proviso to Sub-section (2) allows petitioners to seek relief under any other law, excluding the period during which the proceedings were pending in the High Court from the limitation period.

3. Jurisdiction of High Courts:
Article 131-A confers exclusive jurisdiction on the Supreme Court regarding the constitutional validity of Central laws, excluding the jurisdiction of any other Court. Article 226-A prohibits High Courts from considering the constitutional validity of any Central law under Article 226. Articles 323-A and 323-B provide for the constitution of Administrative Tribunals and enable the exclusion of High Court jurisdiction in certain matters if laws are made to that effect. Article 139-A allows the Supreme Court to transfer cases involving substantial questions of law pending before it and one or more High Courts.

4. Interpretation of "Injury of a Substantial Nature" and "Substantial Failure of Justice":
Sub-clause (b) of Clause (1) of Article 226 allows writs for the redress of any injury of a substantial nature due to the contravention of any provision of the Constitution, enactment, ordinance, order, rule, regulation, bye-law, or other instrument made thereunder. Sub-clause (c) permits writs for the redress of any injury due to any illegality in proceedings by or before any authority under any provision referred to in sub-clause (b) that results in substantial failure of justice. The Court emphasized that "injury of a substantial nature" and "substantial failure of justice" must be assessed from the perspective of the aggrieved person and depend on the facts of each case.

5. Bar to Entertain Writ Petitions:
Clause (3) of Article 226 bars petitions for the redress of injuries referred to in sub-clauses (b) and (c) if any other remedy for such redress is provided by or under any other law for the time being in force. This bar does not apply to petitions for the enforcement of fundamental rights. The "other remedy" must be capable of affording similar redress as contemplated by sub-clauses (b) and (c) and must not be illusory.

6. Restrictions on Interim Orders:
Clauses (4) to (6) of Article 226 introduce new restrictions on interim orders. Clause (4) mandates that no interim order shall be made unless copies of the petition and supporting documents are furnished to the party against whom the petition is filed, and an opportunity is given to such party to be heard. Clause (5) allows the Court to dispense with these requirements in exceptional cases, provided reasons are recorded in writing, and the interim order ceases to have effect after fourteen days unless extended. Clause (6) prohibits interim orders that delay inquiries or investigations into matters of public importance, offenses punishable with imprisonment, or actions for public utility projects.

7. Applicability of Section 58 to Writ Appeals and Pending Petitions:
The judgment clarifies that Section 58 does not apply to writ appeals pending on the appointed day or those filed against orders disposing of writ petitions before the appointed day. Writ appeals are treated as a separate category from writ petitions and interlocutory petitions. The omission of any reference to writ appeals in Section 58 is deliberate, and the Parliament did not intend to affect writ appeals or appeals pending before the Supreme Court. Therefore, writ appeals and petitions for leave to appeal to the Supreme Court will be decided based on the old Article 226.

Conclusion:
The judgment provides a comprehensive analysis of the new Article 226 and Section 58 of the 42nd Amendment Act, outlining the scope of High Court jurisdiction, the interpretation of key terms, the bar on entertaining writ petitions, and restrictions on interim orders. It also clarifies the applicability of Section 58 to pending writ petitions and writ appeals, ensuring that the new provisions do not retroactively affect vested rights or pending appeals.