Legal Rights of Non-Citizens & Writ Jurisdiction of High Court Under Article 226

A very significant aspect of the Indian Constitution is the Jurisdiction it confers on the High Court to issue writs. The Writs have been among the great safeguards provided by the British Judicial System for upholding the rights and liberties of the people. This power can be used by the High Court not only for enforcement of fundamental right but also lie for enforcement of Legal Rights.

Scope of Article 226

In Sarvepalli Ramaiah (D) Thr. Lrs. & Ors. V/s District Chittoor Dist. & Ors.[1]  It was observed by the Hon’ble Supreme Court that “Administrative decisions are subject to judicial review under Article 226 of the Constitution, only on grounds of perversity, patent illegality, irrationality, want of power to take the decision and procedural irregularity. Except on these grounds administrative decisions are not interfered with, in exercise of the extra ordinary power of judicial review”

It was further expounded that

“A decision may sometimes be set aside and quashed under Article 226 on the ground of illegality. This is when there is an apparent error of law on the face of the decision, which goes to the root of the decision and/or in other words an apparent error, but for which the decision would have been otherwise. Judicial review under Article 226 is directed, not against the decision, but the decision making process. Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision making process. In this case there is no such patent illegality or apparent error. In exercise of power under Article 226, the Court does not sit in appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact.”

Under Article 226, a High Court is empowered to issue directions, orders or writs, including writs in nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of a Fundamental Right and for any other purpose. The High Court while exercising its power of judicial review does not act as an appellant body. It is concerned with illegality, irrationality and procedural impropriety of an order passed by the state or a statutory authority[2].

A person can approach the High Court under Article 226 to enforce his legal right, or when he has sufficient interest in the subject matter. Until the petitioner shows that his legal rights are adversely affected, or that breach is likely to be committed, he is not entitled to file the petition, this principle has been stated by the Hon’ble Supreme Court in S.P. Gupta V President of India[3], the hon’ble court observed “The traditional rule in regard to locus standi is that judicial redress is available only to a person who has suffered a legal injury by reason of violation of his legal right or legal protected interest by the impugned action of the State or a public authority or any other person or who is likely to suffer a legal injury by reason of threatened violation of his legal right or legally protected interest by any such action. The basis of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation, actual or threatened, of the legal right or legally protected interest of the person seeking such redress.”

In Common Cause V. Union of India[4] it was observed by the Hon’ble Supreme court that “Under Article 226 of the Constitution, the High Court has been given the power and jurisdiction to issue appropriate writs in the nature of mandamus, certiorari, prohibition, quo warranto and habeas corpus for the enforcement of fundamental rights or for any other purposes. Thus, the High Court has jurisdiction not only to grant relief for the enforcement of fundamental rights but also for “any other purpose” which would include the enforcement of public duties by public bodies. So also, the Supreme Court under Article 32 has the jurisdiction to issue prerogative writs for the enforcement of fundamental rights guaranteed to a citizen under the Constitution.”

Foreign Companies and Article 226

In Hongkong & Shanghai Banking Corporation Ltd. V/s Union of India[5], the Hon’ble High Court of Calcutta while examining the maintainability of writ filed under Article 226 by a foreign company observed that, “On the point that a foreigner or a foreign company is not entitled to maintain a writ petition, there is no specific bar in the Constitution that prevents a corporation incorporated outside the country to maintain a petition under Article 226 of the Constitution of India. Article 226 does not lay down any eligibility criteria based on citizenship of the seeker of the constitutional remedy. The basic requirement for invoking the jurisdiction of the Writ Court is that the legal right of the complainant should be breached by any person or authority, who fits the description of “State” under Article 12 of the Constitution of India. In exceptional cases, a “person” or “authority” who is not “State” within the meaning of Article 12 of the Constitution can also be subjected to jurisdiction of the Writ Court. A person, who is not a citizen, however would not be entitled to enforce rights which are preserved for a citizen of this country only.”

In Erbis Engineering Company Ltd. V/s State of West Bengal[6], the Hon’ble High Court of Calcutta held that, “The word “person” includes “any company”. It is pertinent to note while Articles 15, 16 and 19 confer fundamental rights on the “citizens”, Article 14 confers fundamental rights on “any person.” This distinction between a ‘“citizen” and a “person” was engrafted in our Constitution by its framers with a specific intent – to grant certain fundamental rights to its “citizens” and to grant certain rights or legal rights to a “person”. There is no ambiguity in the language of the Articles and the intent is expressed with sufficient linguistic precision. Thus, then definition of “person” is wide enough to encompass a foreign company which has been permitted to establish business in the country by the authorities.” It was further expounded by the High Court that “High Court under Article 226 has been conferred power not only to issue writs for enforcement of fundamental rights but also for any other purpose”, meaning thereby for enforcement of any legal right. Now it is a settled proposition of law that the words “for any other purpose” in Article 226, which are absent in Article 32, make the jurisdiction of the High Court wide and more extensive than that of the Supreme Court. Therefore, High Court can exercise its power to issue writs under Article 226 for two-fold purposes-for enforcement of (i) fundamental rights and ii) for enforcement of legal rights. Hence, if it is established by a party aggrieved that he has a legal right and such right has been infringed, an order or writ may be issued under Article 226.”

Conclusion

Article 226 of the Constitution allows the High Court to not only enforce Fundamental Rights but the use of words ‘other purposes’ also allows the High Court to enforce Legal Rights as well. It is pertinent to note that the word ‘persons’ also include a company due to its Juristic Personality[7], hence a company can also invoke jurisdiction of High Courts under Article 226 for enforcement of its fundamental or legal rights, however certain fundamental rights such as the rights enshrined under Articles 15,16 and 19 are only available to ‘citizens’, hence these fundamental rights are not available to a foreign company.

A foreign company can only invoke the writ jurisdiction of High Court under Article 226 for enforcement of its Legal Rights as well as for Fundamental Rights which are available to non-citizens as well such as in Article 14,20, 21 etc.

Footnotes :

[1] CIVIL APPEAL NO. 7461 OF 2009
[2] Dwarka Prasad Agarwal V. B.D. Agarwal, (2003) 6 SCC 230
[3] AIR 1982 SC 149
[4] (1999) 6 SCC 667
[5] WP No.388 of 2003
[6] 2011 SCC OnLine Cal 835
[7] Delhi Cloth & General Mills Co. Ltd V. Union of India; (1983) 4 SCC 166