(Neha Shetty, a Core member of PCLS and a fourth year student has prepared the note) From the enthusiastic response to the first virtual meeting, PCLS conducted its second online group discussion on 9th April 2020. In light of the Kerala High Court’s recent order in the Karnataka-Kerala border closure dispute on account of COVID-19, the members decided to discuss and debate the territorial extent of a High Court’s jurisdiction. The primary questions the members set out to address in the course of the discussion were: 1. Is the High Court of a State empowered to pass directions which have an application outside the State’s territory? 2.What is the binding effect of a High Court’s order holding a Central legislation as unconstitutional on the other High Courts of the country? The discussion began with the cursory reading of Article 226 of the Constitution. Article 226(2) empowers a High Court to issue directions, orders, writs to “any Government” in relation to the territory where the cause of action has arisen notwithstanding that the "seat of the government is outside such territory". At this juncture, the members discussed the Karnataka-Kerala border closure tussle, where the Kerala High Court had ordered the Central Government to remove blockades imposed by the Karnataka State Government at the Kerala-Karnataka border. The members discussed whether the Kerala High Court was empowered to do so. Few members opined that the instant case falls within the meaning of Article 226(2), as the cause of action has arisen in the State of Kerala, where the citizens’ fundamental right to movement has been restricted, hence it called for an intervention by the Kerala High Court. While others responded with the argument that the case falls outside the Kerala High Court’s jurisdiction and it is either the Karnataka High Court or the Supreme Court which can review the actions of the State Government of Karnataka. It was however concluded that cause of action under Article 226 is effects-based, and considers where the effect of a decision is felt i.e where the injury is occasioned. Therefore, it could be stated that the instant matter falls within the ambit of Kerala High Court’s jurisdiction. Another point of discussion was with respect to the jurisdiction of a High Court in dealing with cases challenging the vires of a Central legislation. Interestingly, earlier Article 226(A) added by way of the 42nd amendment barred the consideration of a challenge to a Central Act by invoking article 226. This provision was later repealed by the 43rd Amendment. Currently, the Supreme Court’s judgement of Kusum Ingots v. Union of India (2004 (6) SCC 254), sheds some light on this question. In Para 22 of the judgement, it is observed that a High Court’s decision regarding the constitutional vires of a central legislation will have effect throughout the country. Relying upon this observation, in numerous cases, High Courts in the country pay heed persuasively to the order of a single High Court of a State declaring the provisions of a central Act as unconstitutional. Upon discussion, a few members opined that empowering High Courts of the country to pass orders invalidating Central Acts could be problematic, in so far as it (i) allows for the application of a High Court’s order throughout the country (ii) it restricts other High Courts from differing with the view of a single High Court regarding the vires of the Central Legislation. Numerous suggestions arose to counter this problem. One member suggested that the Supreme Court alone must be allowed to decide on questions of the constitutionality of a Central legislation. However, others felt that this would lead to considerable hardship to litigants belonging to the remotest parts of the country who could not access the Supreme Court having its seat at the capital, New Delhi and would prefer approaching the High Courts of their home State. However, it was agreed that setting up regional benches of the Apex Court could go a long way in addressing this problem.
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