One of the most common query doing the rounds on blogs and otherwise after the Naaz Foundation verdict has been the applicability of the said decision outside Delhi.
The mainstream media especially the TOI through Manoj Mitta has made one and all aware of para 22 (SCC) of Kusum Ingots which reads thus:
22. The Court must have the requisite territorial jurisdiction. An order passed on a writ petition questioning the constitutionality of a parliamentary Act,whether interim or final keeping in view the provisions contained in clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.
Today, we’ve had a well reasoned article on this by my dear friend Shiv in the IE where he argues that the judgment will be confined in its operation to the territory of Delhi. There is a counter post on Law & Other things which seems to suggest that the problem lies with the absurdity of a High Court mandating the country’s Parliament with a writ and the solution lies in the declaratory jurisdiction of the High Court, akin to that exercised by the English courts under the Human Rights Act in declaring a legislation to be not in conformity with the European Convention of Human Rights (ECHR); thus leaving the formal act of repealing the legislation or part thereof in question, to the Parliament.
I dare to venture to add my 2 pence to these well articulated views albeit without any profound jurisprudential basis (which I am not qualified to profess) or principles of private international law, and I do so in support of Shiv’s views:
With the greatest respect to Sinha J., the contents of para 22 of Kusum Ingots in my humble view are mere casual observations, having no binding effect considering the issue was not germane to the dispute in question and from the text of the judgment was not argued by either parties. The issue in question was whether a particular High Court had the jurisdiction to entertain the writ petition in that case. The proposition in para 22 appears to be a corrollary drawn by the court from what is truly the ratio of the case i.e. the import of clause 2 of Art. 226.
The statement of law in the said para 22 does not seem to have a prelude as a basis in the text of the judgment. The only purported basis is clause 2 of Article 226. The legislative history of the said clause would suggest that it was drafted into the Constitution with a view to get over the anamolous interpretation prevailing at that point; namely that to seek a writ against a central authority seated in Delhi, one had to approach the Delhi High Court and none other. The said clause was brought in to expand the accrual of cause of action to include a partial cause; more particularly where the authority in question was seated outside the terrtorial limits of the High Court that could be approached.
I am unable to comprehend as to how a neccessary corrallary of this expanded accrual of cause of action would be the expansion of the territorial jurisdiction of a High Court for the purposes of the effect of its order.
There is no discussion or consideration in Kusum Ingots of the fact that apart from Art. 226(2), there is nothing in the constitution to suggest the expansion of the territorial jurisdiction of a High Court.
If one argues that the basis of para 22 of Kusum Ingots is the fact that compliance of the order can be ensured by a High Court through the presence of the Respondent within its territory then the said proposition would necessarily have to be qualified by the fact that such compliance would have to be only qua the territory over which the High Court has jurisdiction.
The proposition in para 22, though seemingly fair in the context of the Naaz Foundation verdict to the extent that it would help confer the benefit of the verdict upon evereyone across the country; does not take into consideration the scenario where there could be more than one and even conflicting fundamental rights and if as a result of a verdict of a High Court, one fundamental right is given precedence over the other, then why should any citizen not within the territory of such High Court, who claims the latter fundamental right, loose the same without an opportunity of agitiating the same.
The proposition renders the quasi federal structure of our constitution and of our judiciary a dead letter to the extent that it purports to give an order under Art. 226 the effect of one under Art. 32 till such time that a citizen moves the Supreme Court under Art. 32 to reverse the same.
Bottom Line: The proposition in para 22 of Kusum Ingots apart from not being law under Art. 141 of the Constitution by virtue of being a casual observation, nonetheless ought to be qualified with many an exception and most importantly with the fact that a verdict of one High Court does in any manner whatsoever take away or restrict the right of a citizen residing within the territory of another High Court to approach such a Court seeking a contrary verdict.
This proposition though sounds fine from the perspective of confering a benefit upon all citizens of the country equally, in a reverse scenario has the effect of punishing a citizen residing in another High Court’s territory for not been proactive and sitting pretty over the rights, which he legitimately thinks, stand accrued to him under the Constition or any law applicable to him.
At best, it could be suggested that the Government, when it finds that a benefit is accruing to citizens as a consequence of a HC ruling, as a matter of practice may honour the ruling across the country till such time that the matter is adjudicated by the SC.
Before parting, I must clarify that in the context of the Naaz Foundation case, I would not complain if Kusum Ingots is considered the gospel till such time that the Supreme Court pronounces on the matter.
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Its gr8 that so many minds are working, if i may say “overtime”, to simplify the vexed question that the illustrious full bench of Khare J, Kapadia J and Sinha J created for us in Kusum Ingots.
As i see it the observation of Sinha J that “An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Cl. (2) of Art. 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.” was an observation qualified by the previous statement “The Court must have the requisite territorial jurisdiction.”
What they meant to say was that any writ issued under 226 would be binding in so far as the person on whom it is sought to be enforced is amenable to the jurisdiction of such HC. It would be absurd to suggest that a HC could enforce a writ in a domain where there is an inherent lack of jurisdiction (which in our case is persons beyond the jurisdiction of the Del HC).
The decision in Naz Foundation has to be, in effect, perceived as a state amendment to CrPC making 377 non-cognizable.
http://lawandotherthings.blogspot.com/2009/07/justice-jsvermas-comment-on-naz.html
Comments of J.S. Verma J., makes a good reading this!
And this is the main reason I love lex.nationalinterest.in. Mavrelous post.
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Compared to your previous posts this post has more lengthy and complex sentences making it difficult to read.
Flesch Reading Ease score of this post is 39.8 as per MS Word 2000.