RESTRICTIONS AND LIMITATIONS
The jurisdiction is however subject to certain restrictions and limitations, and the question remains whether they can be removed or reduced.
The first limitation is territorial.
I have pointed out that die writ jurisdiction of the Supreme Court extends to the whole of India, but that of a High Court does not reach beyond the boundaries of the State of which it is the High Court. This limitation has serious practical consequences, for it means that a writ, order or direction addressed to the Central Government, or to a department or officer in Delhi of that Government, can be issued only by one High Court, namely the High Court which includes Delhi within its territorial jurisdiction; and that is the Punjab High Court. A person who lives outside the Punjab—possibly more than a thousand miles away— may well be deterred on the ground of expense from making an application under Art. 226 in that court.The other limitations, which relate to the writ of certiorari, arise out of the nature of the jurisdiction itself. Where relief is sought on the ground that the decision of an inferior tribunal is erroneous the error must be one of law, and it must appear on the record. Further, the court’s power of intervention is limited in such cases to quashing the impugned decision; it cannot substitute for that decision the order which it considers the tribunal ought to have made.
Can these limitations be removed or their effects mitigated? Not very much can be done except with regard to the first. Art. 226 could, it is suggested, be altered to enable a High Court to issue a writ, direction or order to any government or governmental official, or to any quasi-judicial tribunal, whether within or without the State. A court does not however issue a writ unless it has the means of enforcing compliance with its order. It would therefore be necessary also to extend to the whole of India the jurisdiction of a High Court to punish for contempt.
The other limitations are, broadly speaking, inherent in the nature of the writ jurisdiction, and without altering radically the character of that jurisdiction little can be done. It is impossible to see how the court could examine questions of fact, or how it could substitute its own decision for that of the tribunal, without becoming, in substance, a court of appeal. The requirement that the error of law on which the court is asked to pronounce must appear on the record is not one that is likely to be the cause of much difficulty in India, for the ‘record’ of the inferior tribunal is ordinarily a complete record containing everything relevant—and possibly a good deal which is irrelevant—to the matter in dispute. So also with the form of the order: it is, I believe, almost the invariable practice in India for a tribunal to state the reasons for its decisions. If difficulty in fact exists the solution would appear to be a simple one: a statutory provision that the tribunal must state in writing the reasons for its decisions.On die whole, therefore, it seems that not very much can be done to enhance the effectiveness of the writ jurisdiction. The question however does arise whether a new procedure which is without the existing disadvantage might not be substituted for disposing of the matters which are now the subject of proceedings for a writ of certiorari. A suggestion was made by Singleton L. J. in the Northumberland cas& that a party aggrieved by the decision of a tribunal on a question of law should have the right to appeal to the High Court, and that suggestion is one which, I suggest, deserves consideration. The number of persons and bodies in India vested with quasi-judicial powers is already large and is likely to grow larger. The matters with which such authorities have to deal affect governments, local authorities and citizens: and for the effective functioning of the administration at its various levels and the upholding of the rights of individuals it is often essential that the authoritative determination of questions of law should be obtained with the minimum of delay.
The courts must be the final arbiters on questions of law; in one way or another the decision of the courts has to be ascertained. A right of appeal, limited to a question of law, would seem to be the means of achieving directly what is now secured by a less convenient process. It would—or could —solve the territorial difficulty; technical disputes as to the meaning of‘on the face of the record’ or as to the necessity of a speaking order would lose their importance and, above all, the appellate court, when it disagrees with the order of the subordinate tribunal, could in appropriate cases itself make the order which ought to have been made in the first place.I ought perhaps to conclude by pointing out that the writ jurisdiction has not escaped criticism, and suggestions have been made that it should be curtailed or even abolished. The criticism does not come from the public but from governments and government officials. Departments do not always like their actions to be subjected to too close a scrutiny, and the knowledge that the orders they make can be brought before the courts has made them wary. This, quite understandably, is irksome in a country which until so recently has had a tradition of autocracy. The more serious complaint is that the writ jurisdiction provides too easy a means of challenging the validity of legislation of a progressive nature and is therefore a hindrance in the way of India becoming a welfare state. It is true that legislation is challenged by this means, and that this does at times cause what must be an irritating delay; but social reformers are apt to be impatient and ‘to ride rough shod over individuals’ rights as matters of little consequence’. The real obstacle however is not really the writ jurisdiction but the existence of fundamental rights. So long as they exist the validity of legislation will be open to challenge, and it is surely better that it be determined by the speedy means of the writ jurisdiction than by the lengthy process of a civil action. The writ jurisdiction has proved its worth; and I do not think that its future is in danger.