India: "High Courts vs Union Of India": Uniformity In Law Prevails Over Territorial Fetters?*

  1. INTRODUCTION

It is settled law that the decision of one High Court is not a binding precedent on other High Courts, though due deference ought to be given to such judgments as they have persuasive value.2

In this article, the author aims to analyse the aspect as to whether a decision of a High Court on the constitutionality of a Central Legislation is binding on other High Courts. The ancillary question that arises is whether the decision of a High Court on the constitutionality of a Central Legislation is applicable only to the relevant state or throughout the country. The analysis will be based on the judgment of the Supreme Court of India in Kusum Ingots & Alloys Ltd. v. Union of India3 ("Kusum Ingots"), the applicable constitutional provisions and other legal pronouncements. The author shall begin with an in-depth analysis of the decision in Kusum Ingots.

For ease of reference, the relevant constitutional provisions dealt with are Article 226(1) and Article 226(2) of the Constitution of India, 1950 ("Constitution"). Article 226(1) confers power on the High Courts to issue writs for enforcing fundamental rights, or for any other purposes. Such power can be exercised by the High Court 'throughout the territories in relation to which it exercises jurisdiction'. Article 226(1) further provides that the writs can be issued to 'any person or authority, including in appropriate cases, any Government, within those territories'. Article 226(2) states that the power conferred by Article 226(1) may be exercised by any High Court under whose territorial jurisdiction the whole or part of cause of action arises.

  1. THE KUSUM INGOTS EFFECT

Background

The decision of the Supreme Court in Kusum Ingots pertained to a challenge to the constitutionality of SARFAESI Act, 2002, and the issue in contention was whether the 'cause of action' arose so as to confer jurisdiction on the Delhi High Court as per Article 226(2). While answering the said question in the negative, the ratio decidendi of Kusum Ingots was that (i) the situs of the office of a legislative / rule-making / executive authority alone would not confer jurisdiction on the court in whose territory such authority is located, (ii) when an order is passed by a court / tribunal / executive authority, the High Courts of both places, i.e. where the original authority is located and where the appellate authority is located, would have writ jurisdiction and (iii) even if a small part of cause of action arises within the territorial jurisdiction of a High Court, the High Court cannot be compelled to render a decision on the merits of the matter since the High Court has the power to refuse exercise of its discretionary jurisdiction by invoking the doctrine of forum conveniens.

Observations regarding extra territorial applicability of High Court orders

The portion of the judgment relevant for this article is Para 22 where the Supreme Court observed that:

'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.'

As the ratio decidendi of Kusum Ingots culled out hereinabove show, Para 22 was clearly obiter dictum ("Obiter Dictum" / "Para 22"). On further scrutiny, it would be fair to even suggest that the Obiter Dictum does not appear to be in consonance with the rest of the judgment or with the literal interpretation of the constitutional provision cited.

Perhaps, the Supreme Court was highlighting the implications of orders passed by High Courts on Central Legislations and was thus, emphasising the importance of cause of action arising within the territory of a High Court for conferring jurisdiction on it.

Whether the Obiter Dictum is good in law?

The Obiter Dictum in Kusum Ingots mentioned above, is problematic since it does not conform with the constitutional mandate of Article 226 of the Constitution. Article 226(1) specifies that the power conferred is to be exercised within the territorial jurisdictional limits of a High Court. Article 226(2) merely provides that (i) such power can be exercised by any High Court, provided that whole or part of cause of action arises within its territorial limits and (ii) such power is not to be confined only because of the reason that such Government / authority / person is not located within the territorial limits of the particular High Court.

Based on the aforesaid, there is no indication that the territorial jurisdictional limitation expressly placed by Article 226(1) is wholly exempted by Article 226(2) with respect to Central Legislations. The only exemption provided in Article 226(2) is that the power conferred can be exercised notwithstanding that the relevant Government / authority / person is located outside the territorial limits of the High Court. However, this is no way extends to an interpretation that any such order passed in exercise of the power conferred by Article 226(1) will apply to the whole of the country when the question at hand involves constitutional challenge to Central Legislations.

Furthermore, the Obiter Dictum is problematic since it essentially takes away the power of the High Court where the Central Act or Provision has been subsequently challenged, to adjudicate on the constitutionality of the same (if it has already been adjudicated by another High Court previously). This problem is aggravated if an act or provision has been upheld as constitutional by one High Court and other High Courts are thus precluded from interfering and rendering an opposite finding to protect the rights of the people. It is pertinent to note that an order of the nature described in Para 22, is not qualified to be an order striking down or staying a Central Legislation as unconstitutional, and it could also be an order upholding its constitutional validity.

A further outcome of such a scenario is that it results in stifling of different interpretations and contrary opinions from arising, which also means an alternate view is not available to the Supreme Court if and when the constitutional challenge reaches there.

Whether the Obiter Dictum is binding on High Courts?

As provided in Article 141 of the Constitution and as reiterated by the Supreme Court in the case of Bengal Immunity Co. v. State of Bihar4, all courts within the territory of India including the High Courts are bound by the judgments of Supreme Court. The only court that is not so bound is the Supreme Court itself.

Even an obiter dictum of the Supreme Court may bind the High Courts in the absence of any other direct pronouncement on that question by the Supreme Court.5 The obiter dicta of the Supreme Court are entitled to considerable weight6 and 'normally even an "Obiter Dictum" is expected to be obeyed and followed'7.

However, although obiter dictum of Supreme Court should be accepted as binding by High Courts, it does not mean that every statement contained in a judgment of the Supreme Court would be attracted by Article 141. The same was held by Kerala High Court in the case of State of Kerala v. Parameswaram Pillai8 and relied upon by Supreme Court in Municipal Committee, Amritsar v. Hazara Singh9. It was further held that 'Statements on matters other than law have no binding force.'

Since Para 22 of Kusum Ingots falls squarely in the ambit of obiter dictum on a legal issue, it would have to be adhered to by High Courts. The only exception that can be carved out is if there is any other direct pronouncement of the Supreme Court on the issue at hand, so as to nullify the binding effect of the obiter dictum. In this regard, the judgments of Ambica Industries v. Commissioner of Central Excise10 ("Ambica Industries") and Durgesh Sharma v. Jayshree11 ("Durgesh Sharma") are relevant.

In Ambica Industries, it was held that a High Court exercises its power to issue writ of certiorari and its power of superintendence only over subordinate courts located within the territorial jurisdiction of that High Court or if any cause of action has arisen within such territorial jurisdiction.

In Durgesh Sharma, it was observed regarding the territorial jurisdictional limitation of High Court that 'writs issued by a High Court cannot run beyond the territory subject to its jurisdiction and the person or authority to whom the High Court is empowered to issue such writs must be within those territories.'

Thus, both Ambica Industries and Durgesh Sharma are judgments subsequent to Kusum Ingots, which contain observations and findings regarding the limitation placed by Article 226 on the extra territorial jurisdiction of High Courts.

However, this would not qualify as a direct pronouncement on the question involved. This is because, neither of the two aforesaid judgments pertained to the question of a constitutional challenge to a Central Legislation, which is the specific issue covered by Para 22 of Kusum Ingots. Para 22 does not advance a general proposition conferring extra territorial applicability to High Courts orders, but only in the context of orders passed when constitutional validity of Central Legislations are assailed. Furthermore, it also has to be kept in mind that since Kusum Ingots was a three-judge bench decision and both Ambica Industries and Durgesh Sharma were decisions rendered by two judge benches of the Supreme Court, the question would also have arisen as to whether the subsequent judgments could in any case have overruled the effect of Para 22 of Kusum Ingots.

  1. HIGH COURT JUDGMENTS APPLYING THE KUSUM INGOTS PRINCIPLE

After Kusum Ingots, certain judgments of High Courts have interpreted and applied the Obiter Dictum in the following manner:

  1. The Kerala High Court ("Kerala HC") read down Section 10A(1) of Indian Divorce Act, 1869 in Saumya Ann Thomas v. Union of India12 ("Saumya Ann"). The said provision prescribed a minimum of 'two years' of separate residence by the spouses for granting divorce by mutual consent. The Kerala HC read down this 'two year' period to mean 'one year' so that the provision is not violative of Article 14 and 21 of Constitution (since identical provisions in Hindu Marriage Act, 1955 and Parsi Marriage and Divorce Act, 1936 prescribed only a one year period).

The Karnataka High Court ("Karnataka HC") was adjudicating a Public Interest Litigation filed seeking the two year period in Section 10A(1) of Indian Divorce Act, 1869 to be read down to one year, in the case of Shiv Kumar v. Union of India13 ("Shiv Kumar"). The Karnataka HC relied on Kusum Ingots to hold that the applicability of the Saumya Ann judgment would extend throughout India. It was thus concluded that the provision under challenge had already been struck down with respect to State of Karnataka also, and no further orders were required in this regard.

  1. The Andhra Pradesh High Court ("AP HC") struck down as unconstitutional Section 17A of the Industrial Disputes Act, 1947, in the case of Telugunadu Workcharged Employees State Federation v. Government of India14 ("Telugunadu Workcharged"). It was held that the impugned provision by which the executive could reject or modify an Award passed by a Labour Court or National Tribunal, violated the democratic pattern envisaged in the constitutional scheme.

Constitutionality of Section 17A of the Industrial Disputes Act, 1947 was also challenged before a Single Judge of the Madras High Court ("Madras HC") in the case of Textile Technical Tradesmen Association v. Union of India15. The fact that AP HC had struck down the impugned provision in Telugunadu Workcharged case was pointed out to the Court. It was however contended by the Puducherry Government that the judgment of the AP HC is not binding and would not have extra territorial application. The Single Bench, on analysing the legal precedents involved held Section 17A as unconstitutional on merits. Curiously enough, the Court then went on to hold that on application of the law laid down by Kusum Ingots, the impugned provision was no more in force since it was struck down by AP HC in Telugunadu Workcharged case, a judgment which has effect throughout the territory of India.

When the Single Bench decision was appealed by Union of India, the Division Bench of Madras HC in Union of India v. Textile Technical Tradesmen Association16 dismissed the appeal. It was again contended, this time by Union of India, that Telugunadu Workcharged judgment has no applicability in the Union Territory of Puducherry. However, the Division Bench reiterated the view propounded by the Single Bench and reference was also made to the Shiv Kumar case of Karnataka HC to hold that the pronouncement on the constitutionality of a provision of a Central Act by a High Court would be applicable throughout India.

  1. The Delhi High Court had struck down Section 2(p) of Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, and consequently Rule 3(3)(1)(b) of Pre-natal Diagnostic Techniques Rules in the case of Indian Radiological and Imaging Association v. Union of India17. The judgment was challenged in the Supreme Court by way of Special Leave Petition, but no stay of the judgment was granted.

Thereafter the question of constitutional validity of Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules 2014, came up before the Madras High Court. In these proceedings, Dr. T. Rajakumari v. Government of Tamil Nadu18, the Court observed that the Delhi High Court had already struck down the provisions and no stay was granted against the judgment by the Supreme Court (as mentioned in the foregoing para). It was therefore held that 'it is trite to say that once a High Court has struck down the provisions of a Central Act, it cannot be said that it would be selectively applied in other States.' It was further held that the provisions held unconstitutional were not applicable in the country unless Supreme Court stayed or overruled the Delhi High Court judgment.

  1. The Calcutta High Court ("Calcutta HC") was dealing with a challenge to a notification issued by the Ministry of Environment, Forest and Climate Change, Government of India, in the case of Partha Protim Datta v. Union of India19. Relying on Kusum Ingots, it was held that since the notification has already been deferred due to orders passed by the Karnataka HC and the Gujarat High Court, no further interim order was required in the writ petition.
  1. The Calcutta HC in Durgapur Steel Town Cable TV Operators' Association v. the Union of India20, referring to Kusum Ingots held that 'It is trite that if the vires of a Central Act or any provision of a Central Act is challenged and such challenge succeeds, the Act in question or any provision thereof which was questioned and interdicted may not have applicability in the rest of the country.' However, the Calcutta HC also struck a note of caution against other High Courts blindly applying the Para 22 observation of Kusum Ingots. It was observed in this case that a status quo order granted by Sikkim High Court taking into account the special circumstances portrayed in the writ petition ought not to have been relied upon by other High Courts to hold that status quo against the Central Government notification was automatically granted for the rest of the country. The Calcutta HC accordingly dismissed the writ petition and refused the grant of status quo prayed for.
  1. FURTHER ENDORSEMENT OF THE OBITER DICTUM IN KUSUM INGOTS BY THE SUPREME COURT

On the analysis made hereinabove of various High Court judgments, it is evident that the Para 22 observation in Kusum Ingots has been consistently followed, and the principle laid down has been applied. It would be fruitful to ascertain whether the Supreme Court has also granted recognition to the principle advanced in Para 22, and for this purpose, the following proceeding has to be examined.

On 23 May 2017, the Central Government notified the Prevention of Cruelty to Animals (Regulations of live Stock Markets) Rules 2017, in exercise of power conferred under the Prevention of Cruelty to Animals Act, 1960. Rule 22(b)(iii) and Rule 22(e), which pertained to restrictions on slaughter of cattle in animal markets, were challenged by way of writ petitions before the Madurai Bench of Madras HC. It was contended in the writ petitions that the provisions were ultra vires the Act itself and violative of fundamental rights. On 30 May 2017, an order was passed in these writ proceedings21 staying the impugned provisions for four weeks.

There were separate writ proceedings22 initiated in the Supreme Court against the said Rules. It culminated in an Order passed on 11 July 2017 by which the petitions were disposed off on the ground that the Government of India is giving fresh consideration to the impugned rules. (The subsequent application for modification of this order and modification made on 11 August 2017 does not concern the instant discussion.) It is curious to notice that in the Order of 11 July 2017, it is observed by the Supreme Court that: 

'Both the above Rules, we are informed, were challenged before the Madurai Bench of the Madras High Court, which has stayed the operation of the said Rules. Mr.P.S.Narasimha, learned Additional Solicitor General, informs this Court, that the Union of India is not seeking modification of the aforestated interim order. We accordingly record the statement of the learned Additional Solicitor General. We understand the position to be that the interim order shall apply across the whole country.'

The aforesaid observation made in the order shows that even the Supreme Court is of the understanding that as observed in Para 22 of Kusum Ingots, interim or final orders in writ petitions challenging constitutional validity of Central Legislations (or delegated legislation as the case may be), applies throughout the country. Thus, one has to wonder whether the Obiter Dictum of Kusum Ingots has obtained the stamp of approval from the Supreme Court also.

  1. CONCLUSION

Thus, the present position of law, as expressly upheld by various high court judgments relying on Kusum Ingots, and as impliedly accepted by the Supreme Court, is that interim or final orders passed by a High Court on the constitutional validity of a Central Legislation is applicable throughout the country and hence binds other High Courts from taking a contrary view on the issue. Though this principle may not have the constitutional sanction of Article 226 as stated by the author hereinabove, the same is the law of the land for all practical purposes. Barring a Supreme Court judgment on the issue overturning this principle, it is difficult to see any change in the current position.

Even though it has been pointed out by scholars that the Para 22 observation of Kusum Ingots is bad in law and so is the application of the same by various High Courts, the fact remains that even a wrong decision by a court having jurisdiction is binding in nature and can be superseded only by availing the remedies provided in law23.

The author is of the opinion that regardless of whether the principle in question was intended, or is a correct interpretation of law, the principle that has ultimately emerged is a 'blessing in disguise'. This is because, the whole purpose of a central enactment is that it uniformly applies to the entire country, and this principle of uniformity has been safeguarded by Kusum Ingots.

As an illustration, the Delhi High Court decision in Naz Foundation v. Government of NCT of Delhi24 ("Naz Foundation") which held Section 377 of the Indian Penal Code, 1860 to be unconstitutional, and thereby resulted in legalising 'unnatural offences', would otherwise have been applicable only to Delhi. This would have led to an absurd scenario where for eg. gay sex would have been legally allowed to be permitted only in the nation's capital whereas in other states, people would still be subjected to criminal liability for such and other 'unnatural offences'. This would have inevitably resulted in discrimination between the people of other states vs people of Delhi, with respect to the freedoms conferred on the citizens by the State. In such a scenario, this unequal position would have held the field till Naz foundation was ultimately reversed in 2014 by Suresh Kumar Koushal v. Naz Foundation25.

Thus, a situation whereby a Central Legislation applies to certain states in the country and does not apply to certain other states, thereby resulting in inevitable discrimination to people of one state over the other has been avoided by Kusum Ingots. In that respect, though Kusum Ingots might be bad in law, it is definitely good in equity.

The views expressed are those of the author alone.

Footnotes

* S. Mohammed Raiz, Associate – Khaitan & Co. New Delhi.

2 Neon Labaratories Limited v Medical Technologies Limited, (2016) 2 SCC 672; Commissioner of Income Tax v.  Thane Electricity Supply Limited, 1993 SCC OnLine Bom 591

3 Kusum Ingots & Alloys Ltd. v. Union of India, (2004) 6 SCC 254

4 Bengal Immunity Co. v. State of Bihar, A.I.R. 1955 S.C. 661

5 Oriental Insurance Co. Ltd. v. Meena Variyal, (2007) 5 SCC 428

6 CIT Hyderabad, Deccan v. Vazir Sultan and sons, AIR 1959 SC 814

7 Sarwan Singh Lamba v. Union of India, (1995) 4 SCC 546

8 State of Kerala v. Parameswaram Pillai, 1974 SCC OnLine Ker 87

9 Municipal Committee, Amritsar v. Hazara Singh, AIR 1975 SC 1087

0 Ambica Industries v. Commissioner of Central Excise, (2007) 6 SCC 769

1 Durgesh Sharma v. Jayshree, (2008) 9 SCC 648

2 Saumya Ann Thomas v. Union of India, 2010 (1) KLJ 449

3 Shiv Kumar v. Union of India, AIR 2014 Kant 73

4 Telugunadu Workcharged Employees State Federation v. Government of India, 1997 (3) ALT 492

5 Textile Technical Tradesmen Association v. Union of India, (2011) I LLJ 297 Mad

6 Union of India v. Textile Technical Tradesmen Association, (2014) 4 LLJ 683

7 Indian Radiological and Imaging Association v. Union of India, AIR 2016 Del 78

8 Dr. T. Rajakumari v. Government of Tamil Nadu, AIR 2016 Mad 177

9 Partha Protim Datta v. Union of India, 2016 SCC OnLine Cal 8511

20 Durgapur Steel Town Cable TV Operators' Association v. the Union of India, 2016 SCC OnLine Cal 3025

2 S. Selvagomathy v. The Union of India, 2017 SCC OnLine Mad 2350

22 All India Jamiatul Quresh Action Committee v. Union of India, Writ Petition (C) No. 422 of 2017

23 Satyendra Kumar v. Raj Nath Dubey, (2016) 14 SCC 49

24 Naz foundation v. Government of NCT of Delhi, 2009 SCC OnLine Del 1762

25 Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1

The content of this document do not necessarily reflect the views/position of Khaitan & Co but remain solely those of the author(s). For any further queries or follow up please contact Khaitan & Co at legalalerts@khaitanco.com

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