SC: HC in a writ can interdict a legal fiction before it comes into operation

The Hon’ble Supreme Court, on 19th March 2020, in the matter of Benedict Denis Kinny v. Tulip Brian Miranda & Ors. pronounced that the High Court in exercise of jurisdiction under Article 226 of the Constitution can pass an order interdicting a legal fiction, provided the legal fiction has not come into operation.

Question before the Hon’ble Supreme Court:

Whether the High Court in exercise of its Constitutional jurisdiction conferred under Article 226 of Constitution of India can pass an order interdicting a legal fiction engrafted in a State enactment.  

Key observations

The power of judicial review vested in the High Courts under Article 226 and the Supreme Court Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and is basic structure of our Constitution. (Para 20)

The jurisdiction under Article 226 is original, extraordinary and discretionary. The look out of the High Court is to see whether injustice has resulted on account of any decision of a constitutional authority, a statutory authority, a tribunal or an authority within meaning of Article 12 of the Constitution. (Para 20)

The judicial review is designed to prevent cases of abuse of power or neglect of a duty by the public authority. The jurisdiction under Article 226 is used for enforcement of various rights of the public or to compel public/statutory authorities to discharge the public functions entrusted on them. The Courts are guardians of the rights and liberties of the citizen and they shall fail in their responsibility if they abdicate their solemn duty towards the citizens. (Para 20)

The scope of Article 226 is very wide and can be used to remedy injustice wherever it is found. (Para 20)

The power under Article 226 of the Constitution overrides any contrary provision in a Statute and the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a Statute. (Para 26)

The interim order can always be passed by a High Court in exercise of writ jurisdiction to maintain the status quo so that at the time of final decision of the writ petition, the relief may not become infructuous.(Para 37)

Such interim direction can be passed by the High Court under Article 226, which could have helped or aided the Court in granting main relief sought in the writ petition.(Para 47)

The power of judicial review vested in the High Courts under Article 226 and this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and is basic structure of our Constitution. The jurisdiction under Article 226 is original, extraordinary and discretionary. The look out of the High Court is to see whether injustice has resulted on account of any decision of a constitutional authority, a tribunal, a statutory authority or an authority within meaning of Article 12 of the Constitution. (Para 51(i))

The Courts are guardians of the rights and liberties of the citizen and they shall fail in their responsibility if they abdicate their solemn duty towards the citizens. The scope of Article 226 is very wide and can be used to remedy injustice wherever it is found. (Para 51(ii))

The power under Article 226 of the Constitution overrides any contrary provision in a Statute and the power of the High Court under Article 226 cannot be taken away or abridged by any contrary provision in a Statute. (Para 51(iii))

When a citizen has right to judicial review against any decision of statutory authority, the High Court in exercise of judicial review had every jurisdiction to maintain the status quo so as to by lapse of time, the petition may not be infructuous. The interim order can always be passed by a High Court in exercise of writ jurisdiction to maintain the status quo in aid of the relief claimed so that at the time of final decision of the writ petition, the relief may not become infructuous. (Para 51(iv))

The High Court in exercise of jurisdiction under Article 226 of the Constitution can pass an order interdicting the legal fiction, provided the legal fiction had not come into operation. (Para 52(ii))

Copy of judgement: Judgement_19-Mar-2020

-Adv. Tushar Kaushik

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