"Article 226 is the bedrock of constitutional accountability. It empowers High Courts not merely to correct errors of law, but to actively dismantle arbitrary state action, ensuring the executive remains tethered to the rule of law."
The Breadth of Article 226 vs. Article 32
The architectural design of the Indian Constitution vests the High Courts with extraordinary remedial powers under Article 226. Unlike Article 32, which the Supreme Court can only invoke for the violation of Fundamental Rights (Part III), Article 226 empowers High Courts to issue writs for the enforcement of Fundamental Rights and 'for any other purpose.'
This expansive phrasing—'for any other purpose'—grants High Courts wide discretionary jurisdiction to rectify manifest injustice, enforce statutory duties, and quash arbitrary administrative orders. As held by the Supreme Court in 'L. Chandra Kumar v. Union of India (1997) 3 SCC 261', the power of judicial review under Article 226 is an integral and essential feature of the Constitution, constituting its basic structure.
The Myth of the Alternative Remedy Bar
A frequent defense raised by the State in writ petitions is the existence of an 'efficacious alternative statutory remedy'. While it is a self-imposed rule of prudence that courts will not entertain a writ if a statutory appeal exists, it is an absolute fallacy that alternative remedies act as a complete jurisdictional bar.
In the seminal judgment of 'Whirlpool Corporation v. Registrar of Trade Marks (1998) 8 SCC 1', the Supreme Court carved out three definitive exceptions where a writ petition is maintainable despite alternative remedies: (1) where the writ seeks enforcement of Fundamental Rights, (2) where there is a violation of the principles of natural justice (audi alteram partem), and (3) where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. Recent High Court trends heavily lean on the 'natural justice' exception to intervene in arbitrary taxation and administrative suspensions.
Judicial Review of Tender and Contractual Matters
Historically, courts were reluctant to interfere in government contracts and tender processes. However, the paradigm has shifted. High Courts actively scrutinize tender allocations using the Wednesbury principles of unreasonableness and the doctrine of proportionality.
In 'Tata Cellular v. Union of India (1994) 6 SCC 651' and subsequently reinforced in recent judgments, the courts have clarified that while they do not sit as an appellate authority over tender evaluations, they will strike down decisions vitiated by arbitrariness, bias, or mala fides (violating Article 14). Practitioners challenging state contracts must strictly demonstrate procedural impropriety or irrationality rather than debating the merits of the commercial decision.
Public Interest Litigation (PIL) Scrutiny
While Article 226 is the engine for PILs, Constitutional Courts are currently imposing stringent filters. To deter 'publicity interest litigation' or politically motivated petitions, courts require strict proof of the petitioner's bona fides and exhaustive pre-litigation research. Yet, the courts remain remarkably proactive—often taking suo motu cognizance—on structural issues like environmental degradation, healthcare infrastructure, and custodial violence.
Key Takeaways
- Article 226 provides a much wider jurisdiction than Article 32, allowing High Courts to intervene for violations beyond fundamental rights.
- The existence of an alternative statutory remedy is a rule of discretion, not a jurisdictional bar, particularly if natural justice is violated.
- Courts actively review government tenders and contracts to ensure compliance with Article 14 (arbitrariness and bias).
- PILs face heightened scrutiny regarding the petitioner's locus standi, yet courts remain proactive on systemic civic issues.
Abhilash Sontake
Managing Partner · Strategic Litigation & Dispute Resolution