(c) ENFORCEMENT OF ART. 311 (2) OF THE CONSTITUTION

I have sought to give you some idea of the varied uses which are made of the writ jurisdiction, but the picture will not be complete if I omit a brief reference to yet one more. Every civil servant in India holds his post at the pleasure of the President or of the State governor as the case may be.

Now the number of civil servants in India is large, and as the administration expands and the number of concerns run by the state increases, so does the number of civil servants. In addition to the many grades of persons employed in Government offices, the railways are owned by die State and all railway employees hold civil posts under the Central Government; while the employees of the numerous State owned road transport services hold similar posts under the State Governments. The constitutional protection afforded by Art. 311 (2) against arbitrary dismissal or removal or reduction in rank extends therefore to a large number of persons. Many, of course, are in receipt only of a small salary. If a civil servant considers that his services have been terminated, or that he has been reduced in rank, contrary to the provisions of Art. 311 he has a remedy by way of suit for a declaration that the order against which he complains is invalid; but for reasons to which I shall refer shortly this remedy is both expensive and slow, and it is not therefore surprising that recourse should be had to the writ jurisdiction. A large number of petitions are filed alleging a ¹ See, for example, the U.P. Municipalities Act, 1916, ss. 30 and 40.

contravention of Article 311 (2) and, provided the facts are not in dispute, the courts, on the whole, are not likely to refuse to consider the petitioner’s complaints on the ground that an alternative remedy exists.

POPULARITY OF THE JURISDICTION

In the circumstances it is not surprising that the writ jurisdiction in India immediately found favour. The extent however to which re­course is had to it is, at first sight, astonishing. I have already referred to the number of applications made in one State alone. The number of such applications for the whole of India is not easily obtainable but there can be no doubt that it is very large.¹ For this there are three reasons.

In the first place the writ jurisdiction affords an expeditious remedy. The general rule is well established that a court will not issue a writ, (or an order or direction) if there exists some other remedy which is equally convenient, beneficial and effectual; which means, in England, that an order will ordinarily not issue if there is a remedy by way of a civil action or appeal. In India, and certainly in the State from which I come, local conditions have to be taken into account; and it is unfortunately the case that in many instances the alternative remedy by way of suit is neither equally convenient nor equally effective. This is so because of the volume of ordinary litigation and the multiplicity of appeals. Most civil courts have more business to deal with than they can manage. If the amount at stake is not large—as in the majority of cases—the suit is tried by a munsif or subordinate judge from whose decision an appeal lies to a district judge. From the latter’s decision an appeal lies, on a question of law, to a Judge of the High Court from whose judgment, by leave, an appeal lies to a Bench.

* The Indian Law Commission stated, on the basis of figures not entirely complete, the number in 1956 to be over 14,000.

a low-paid railway employee from his job, or refusing a tradesman a licence to purchase a controlled commodity or debarring a student from sitting for an examination. A petition under Art 226—if the court will entertain it—is heard far more expeditiously; the delay is a matter of weeks or months rather than of years.

The second reason why recourse to the writ jurisdiction is favoured is its comparative cheapness. It is not, I think, very generally realized that in India a court fee is charged on a statement of claim or plaint, usually on an ad valorem basis. The amount of the court fee varies from State to State; in all of them it is substantial. In some cases a fixed fee is payable. But whether the fee is fixed or is on an ad valorem basis it has to be paid by a plaintiff on the institution of his suit and, be it noted, by the appellant on the filing of an appeal. The amount of the court fees, added to the ordinary costs of litigation, may itself deter a possible suitor from instituting legal proceedings in the ordinary civil courts. The court fee payable on an application for relief under Art. 226 is fixed: it varies considerably from State to State, but generally speaking it is not high.

There is also, I think, a third reason. It is the desire of the ordinary citizen who goes to law to have his case decided by the High Court, and if he can approach that court directly without going through the costly and tedious process of reaching it by way of the lower courts he will take that course.

Experience over the last ten years has shown that the writ jurisdic­tion is of great value. It provides a speedy means of safeguarding fundamental rights and a relatively inexpensive and effective means of enforcing the constitutional guarantees embodied in Art. 311. It ensures that the courts can exercise an effective supervision over quasi­judicial tribunals and so maintain the rule of law. All in all the development of the writ jurisdiction constitutes, I submit, one of the most important advances in the administration of justice in India since the attainment of independence.