Guest Post: Extraterritorial application of HC judgment

It is my pleasure to post on behalf of Shivprasad Swaminathan [LLB (ILS , Pune) B.C.L (Oxford)]. He is a Doctoral Student studying jurisprudence at Balliol College , Oxford. He is working on The Normativity of the law and the nature of legal obligation. Previously he read in the chambers of N.H.Seervai in Bombay for 3 years.

Guest Post: The extent of a High Court’s Jurisdiction

When a high court declares a central law to be unconstitutional is the law invalid only in the state which it is a high court of or is it invalid in the rest of India? In practical terms, the question translates to whether the Delhi High Court’s judgment in Naz Foundation prevents a police official in any of the other states, from acting on Sec.377.

Article 226(1) provides that the writ of a High Court ordinarily runs only within the territorial limits of the state; Art 226(2) provides that the High Court has extra territorial reach over persons and authorities outside the state territory where the cause of action upon which the writ issues arises within its jurisdiction.

One line of thinking about the issue has it that when a High Court strikes down a central statute, it is unconstitutional for the whole of the legal system. One inclined to think in this fashion would be tempted to cite Art 226(2) in support of this proposition- as the Supreme Court did in Kusum Ingots – arguing that the unconstitutionality of the statute is a cause of action and by that token it is a cause of action arising in every state in India; thus each of the high courts are competent to declare the statute unconstitutional and that would be binding on all legal officials wherever they may be in India. The other line of thinking about the issue has it that the High Court can exercise jurisdiction only over authorities within its territories. This seems to be the view of the Supreme Court in Ambika Industries and Durgesh Sharma.

There is something odd about both lines of thinking . Surely, Art 226(2) permits the High Court to issue writs to persons and authorities outside its ordinary territorial state limits if the cause of action arises within its territory. After all when even a subordinate civil judge in Solapur has an analogous power under the Civil Procedure Court why deny it to a High Court? Therefore the second line of thinking which denies this extra territorial reach to a High Court in the face of the Art 226(2) is unacceptable. However , that need not lead us to accepting the first line of thinking- that just because a High Court can issue writs to authorities outside its jurisdiction its law is binding throughout India.

The error, in both lines of thinking is similar, namely, the assumption that the bindingness of an individual ruling of a high court is the same as the bindingness of the rule on which the ruling is based. However, as John Gardner points out in Types of Law there exists a world of difference between the ruling and the rule on which it is based. A rule is culled out of the ratio of the individual ruling.

The implications of the difference between a ruling and a rule would become clearer with this example from conflict of laws. If there is a contractual dispute between a plaintiff in England and a defendant in India and a part of the cause of action has arisen in England , an English court can pass a ruling against the Indian defendant, based on English Contract Law. By virtue of Indian rules of conflict of laws, the ruling of the English court is binding on the Indian party. But does that mean that the rule of English Contract law on which the ruling is based is applicable in India? None of us would have the least hesitation in denying that the rule of English law applies merely because the English court’s ruling is binding in India.

On a similar note ,none of us would have the least hesitation in agreeing that the Delhi High Court’s interpretation of a section of the Indian Contract Act would not have any force in Maharashtra. If the State of Maharashtra is a defendant in such a suit – and assuming a part of the cause of action arose in Delhi- we would maintain that of course the state of Maharashtra as a party is bound by the ruling and would have to satisfy the decree. However, we would not for a moment suggest that the Delhi High Court’s interpretation of the Contract Act on which the ruling was made becomes the law in the state of Maharashtra. We would not have the least hesitation in saying that a Civil Judge in Solapur is not bound by the Delhi High Court’s interpretation of the Indian Contract Act.

If we think in this fashion about a rule of contract law laid down by the Delhi High Court how does doubt creep in when we begin to talk about a declaration of unconstitutionality by the same court. Declaration of unconstitutionality is, for want of a better phrase, an exercise of negative law making power. In reality the striking down of a law amounts to the promulgation of a new rule calling upon the officials to not act upon the law which is being stuck down. The recipients of this rule are the legal officials. There is no reason why we should treat this any differently from how we would treat a rule laid down by Delhi High Court on contract law.

What we are then faced with is a classical conflict of laws situation, which is so common in other federal systems, but surprisingly finds little mention in Indian Constitutional jurisprudence. And at the heart of this problem lies the conflation of the ruling with a rule; a distinction which is fundamental in conflict of law situations.

In saying that a rule of law is binding- as Von Wright points out in Norm and Action – we mean that there exists a relationship of authority between the rule maker and the person to whom the rule is addressed. This authority is delineated by the Constitution by setting out territorial limits of each High Court’s jurisdiction in Art. 226(1). Thus the law laid down by the High Court is law only for its state. However because of Art 226(2) a High Court’s individual rulings can bind people beyond its territory just as the English Court’s ruling can bind a party in India. This also fits nicely with the legislative intent behind the constitutional amendment(1962) inserting Art 226(2). It was introduced to enable litigants in other states to seek relief against the central government , which was previously only subject to the jurisdiction of the Punjab High Court.

Hence the Delhi High Court’s declaration of unconstitutionality would be valid only for the territory of Delhi. Section 377 of the Indian Penal Code remains intact for the rest of India till the Supreme Court decides to strike it down.

Before signing off , I would like to quickly deal with one highly plausible solution to the problem previously suggested by Tarunabh , that reaches a result diametrically opposed to mine. The argument is that Art 13 renders this entire jurisdictional debate pointless because it provides that any law that infringes part III of the Constitution is unconstitutional and there is no territorial limitation to Art.13. Surely, this argument, if right, solves the puzzle in one stroke. Beneath the surface of this argument lies the assumption that a declaration of unconstitutionality ‘wipes out’ the law. But the law does not exist like other things in the physical world. The existence of a law is a relationship of authority between the law giver and the recipient. And a declaration of unconstitutionality is a fresh rule issued by a lawgiver not to act upon the law being struck down. Therefore the question returns to stare us in the face – over which persons does the lawgiver have authority to make such a rule? And that question cannot be answered by Art.13 . That question can only be answered by looking at the extent of the law givers jurisdiction. In case of the Supreme Court that is to be found in Art.141. In case of a High Court it is to be found in Art 226(1). Though I completely agree with Tarunabh’s point that a declaration of unconstitutionality is general in its nature, I disagree with the conclusions he draws from it because the question remains which officials are subject to the jurisdiction of the court issuing the rule declaring a law unconstitutional ? According to me Art 226(1) tell us that it is only officials in the state to which the High Court belongs that are subject to its jurisdiction.

Written by
Tarunabh Khaitan
Join the discussion

This site uses Akismet to reduce spam. Learn how your comment data is processed.

  • Hey Shiv! Btw your doctrine f "butterfly effect" still dogs me.

    Great analysis this.
    But I beg to differ. And I say this firstly, cuz of the Doctrine of Amity and Comity.

    The Doctrine finds its application in India and as such curtails other high courts from ruling otherwise.

    Secondly, I ask my self as to why 226 was itself created. If what you say is correct a HC would not have possessed the prowess to question or abrogate a central law in the first place, and SC might have had original jurisdiction over disputes arising out of such central laws.

    But at the same time, on a second thought i feel that the Delhi HC decision woiuld in effect be no better than a State Amendment and therefore be of weight within the NCT of Delhi.

    All in all gr8 thought this.

  • I do not agree with the view that the declaration of a High Court binds authorities outside the territorial jurisdiction of the High Court under all circumstances.

    In order to so bind, the cause of action must arise in the territory in which the High Court exercises jurisdiction. So, the power of the High Court to compel an authority outside its jurisdiction to do or to abstain from doing something is predicated upon the protection of a person within its territorial jurisdiction.

    Therefore, the Order of the Delhi High Court protects the residents of the Union Territory of Delhi and restraint is issued upon officers of the Union of India only to the extent necessary to protect the residents of Delhi.

    One should note that, under Article 214 of the Constitution, every State is bound to have a High Court. Accordingly, the High Court of each State functions in a plural setting.

    Even with respect to a central statute, the enforcement of the same is enjoined by the High Court only in relation to its territorial jurisdiction and not beyond it.