Does an order of the High Court that maintains a central law or rule apply throughout the country?
Will an order made by a High Court suspending the application of a central law or rule apply throughout the country? Or is the execution of such an order limited to the territorial jurisdiction of this High Court? Many readers have raised this doubt following the suspension of the application of the Code of Ethics for Digital Media by the High Court in Bombay. .
Will an order made by a High Court suspending the application of a central law or rule apply throughout the country? Or is the execution of such an order limited to the sole territorial jurisdiction of this High Court?
Many readers have raised this doubt following the Bombay High Court’s suspension of the application of the Digital Media Code of Ethics under the 2021 IT Rules. This article is an attempt to address the issue.
The normal rule is that an order or judgment of the High Court will operate only within its territorial jurisdiction. Article 226, paragraph 1, of the Constitution provides that a High Court has powers “over all the territories over which it exercises jurisdiction”. This has been reiterated by the Supreme Court in several decisions (e.g. Ambica Industries v. Central Excise Commissioner (2007), Durgesh Sharma v. Jayshree (2008)).
However, when it comes to a judgment of a High Court against a central law or rule, the situation may be different.
“An order issued on written request challenging the constitutionality of a parliamentary law, whether provisional or final, taking into account the provisions contained in clause (2) of article 226 of the Constitution of India, shall have effect throughout the territory of India, subject of course to the applicability of the Law ”.
This was an incidental sighting in the Case of Kusum ingots as the main issue before the Court was whether the petition in question concerned the sustainability of the petition for alleged lack of cause of action in territorial jurisdiction.
In this context, it is relevant to note that Article 226A inserted into the Constitution by the 42nd Amendment provided that a High Court cannot examine the constitutional validity of central legislation. However, Section 226A was repealed shortly after by the Forty-Third Amendment a year later.
The fact that the High Courts can examine constitutional challenges against central legislations has been clarified by the Supreme Court in many cases (see this ordinance and this ordinance)
Principle of Kusum ingots followed by the Hautes Cours
The incidental observations in Kusum Ingot were followed by the Hautes Cours in certain cases.
The High Court of Madras at Textile Technical Tradesmen Association v. Union of India (2011), ruled that a judgment of the High Court of Andhra Pradesh which declared Article 17-A of the Labor Disputes Act unconstitutional, will have effect throughout the territory of India. The Madras High Court expressly referred to the observations of Kusum Lingot case.
Likewise, in Shiv Kumar v. Indian Union (2014), the High Court of Karnataka ruled that a judgment of the High Court of Kerala which reduced Section 10A (1) of the Indian Divorce Law will apply throughout India.
“Bearing in mind the pronouncement of the Bench Division of the High Court of Kerala and reading the same in the context of Kusum Ingots and Alloys Ltd, the position of the law with respect to subsection (1) of section 10A of the law has now been clarified, in particular with regard to the state of Karnataka ”, the High Court observed.
Promote the applicability of a decision of a High Court against a central law throughout the country, by Dr T. Rajakumari v. Government of Tamil Nadu (2016), the Madras court observed the following,
“It is trite to say that once a High Court overturns the provisions of the Central Law, it cannot be said to be applied selectively in other states. Thus, there is no question of the applicability of the provisions struck down by the High Court. Court now until and unless the Honorable Supreme Court reverses the judgment or suspends the execution of the judgment “. The Madras High Court made tthese observations while holding that the judgment of the High Court of Delhi annulling article 2 (p) of the PNDT law was applicable throughout the country.
The Calcutta High Court, in a case challenging a notification issued by the Ministry of Environment, Forests and Climate Change, observed that no order was required from it because the High Courts of Gujarat and Karnataka have already suspended it. Although the High Courts did not specify any reason to suspend the notification, the High Court of Calcutta observed that in view of the observations made in Kusum Ingot, these stay orders will have effect across the country.
In one case, the High Court of Kerala felt that the The Gujarat High Court ruling that struck down Part IXB introduced into the Constitution by the 102nd Amendment will apply to the entire country.
“The Supreme Court ruled that the order was issued by way of a petition challenging the constitutionality of parliamentary law [whether the order be interim or final], shall have effect throughout the territory of India, subject to the applicability of law. This being the position, the statement made by the High Court of Gujarat that the 97th Amendment to the Constitution inserting Part IX B – as ultra vires the Constitution, in turn nullifying the same, applies throughout India [which of course, will be subject to the verdict to be passed by the Apex Court in the matter pending consideration, involving the challenge against the said verdict]”, the High Court of Kerala observed.
High Court stay on cattle rules nationwide: Supreme Court said in 2017
In All India Jamiatul Quresh Action Committee v. Union of India (2017), the validity of Rules for the prevention of cruelty to animals (regulation of stocks of live animals, markets), 2017, and the Prevention of Cruelty to Animals (Common Animal Care and Maintenance) Regulations, 2017 was involved. The Madras High Court had already suspended the application of the Rules in another case.
While a series of lawsuits challenging the rules were taken to the Supreme Court, the latter observed that it viewed the position as a stay order from the High Court that applied across the country.
“The above two rules, we are informed, were challenged before the Madurai bench of the Madras High Court, which suspended the application of said rules. Mr PSNarasimha, learned the additional attorney general, informed this court , that the Union of India does not seek modification of the aforementioned Interim Order, and we therefore register the statement of the Additional Scholar Solicitor General. We understand the position is that the Interim Order will apply across the country “, the court observed.