Is the High Court’s power to issue writs wider than that of the Supreme Court of India? Examine. (10 marks)

Is the High Court’s power to issue writs wider than that of the Supreme Court of India? Examine. (10 marks)

Approach:

  • Introduce with the power of courts to issue writs under Article 32 and 226
  • Compare the writ jurisdictions of SC and HCs – wider jurisdiction of HC in some aspects and SC writ jurisdiction wider in other aspects
  • Conclude appropriately
Model Answer :

A writ is a directive issued by the Supreme Court (SC) and High Courts (HC) to carry out their directives for the enforcement of the fundamental right (FRs) or legal right of the affected person. The SC can issue writs under Article 32 of the Constitution, while the HC can issue writs under Article 226 of the Constitution. There are five types of writs, which can be issued by the SC/HC viz. Habeas corpus, Mandamus, Certiorari etc.

Comparing the power of SC and HCs to issue writs:

  1. The HC enjoys wider jurisdiction in respect of the issuance of writs, as can be seen from the following:
  • HC has wider subject matter jurisdiction: The HC can issue writs to enforce any other legal rights besides issuing the same for fundamental rights, whereas the SC can enforce only fundamental rights by issuance of writs.
  • HC has more discretion: As Article 32 is itself a FR and provides a guaranteed remedy for the enforcement of the FRs, therefore, the SC is bound to entertain petitions seeking protection against infraction of FR. But the HC may reject the writ petition on ground of res judicata, latches, availability of other rights etc.
  1. SC writ jurisdiction is wider as compared to HC in following sense:
  • Territorial limit: In matter of area wise jurisdiction, the SC has wide power whereas the HC’s jurisdiction is limited to a particular state.
  • HC order can’t be in derogation of SC: Further, Article 226(4) provides that the powers conferred on a HC shall not be in derogation of the powers conferred on the SC by Article 32(2). Thus, SC jurisdiction is wider than that of HC.

However, for enforcement of the FRs, a parallel writ jurisdiction has been conferred on the HC and on the SC. Thus, it cannot be explicitly said that either HCs or SC enjoy a wider jurisdiction. The writ jurisdiction of both the courts is interdependent and directed towards achieving same objective.

Subjects : Polity

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