The normal rule is that an order or a judgment of the High Court will operate only within its territorial jurisdiction. Article 226(1) of the Constitution says that a High Court shall have powers “throughout the territories in relation to which it exercise jurisdiction”. This has been reiterated by the Supreme Court in several decisions (for ex, Ambica Industries v. Commissioner of Central Excise (2007), Durgesh Sharma v. Jayshree (2008)).
However, when it comes to a High Court’s judgment against a Central law or a rule, the situation might be different.
In 2004, the Supreme Court in Kusum Ingots and Alloys Ltd. v. Union of India held that an order passed on a writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, will affect the territory of India subject to the applicability of the Act. A Division Bench of Chief Justice S.B. Sinha and Justice S.H. Kapadia held :
“An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final, keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act”.
This was an obiter observation in the Kusum Ingots case as the main issue before the Court was whether the petition in question regarding the maintainability of the petition for alleged lack of cause of action within the territorial jurisdiction.
In this context, it is relevant to note that Article 226A inserted in the Constitution by the 42nd amendment provided that a High Court cannot consider the constitutional validity of a Central legislation. However, Article 226A was repealed shortly thereafter by the Forty-Third Amendment a year later.
That the High Courts can consider constitutional challenges against Central legislations has been clarified by the Supreme Court in many instances.
Kusum Ingots principle followed by High Courts
The obiter observations in Kusum Ingot were followed by High Courts in certain instances.
The Madras High Court in Textile Technical Tradesmen Association v. Union of India (2011), held that a judgment of the Andhra Pradesh High Court which declared Section 17-A of the Industrial Disputes Act as unconstitutional, will have effect throughout the territory of India. The Madras High Court expressly referred to the observations in Kusum Ingot case.
Favoring the applicability of a decision of one High Court against a Central law throughout the country, in Dr. T. Rajakumari v. Government of Tamil Nadu (2016), the Madras Court observed as follows,
“It is trite to say that once a High Court has struck down the provisions of the Central Act, it cannot be said that it would be selectively applied in other States. Thus, there is no question of applicability of provisions struck down by the High Court as of now until and unless the Hon’ble Supreme Court upsets the Judgment or stays the operation of the Judgment”. The Madras High Court made these observations while holding that the Delhi High Court’s judgment striking down Section 2(p) of the PNDT Act was applicable throughout the country.
The Calcutta High Court, in a case challenging a notification issued by the Ministry of Environment, Forest, and Climate Change, observed that no orders were required from it as the High Courts of Gujarat and Karnataka have already stayed it.
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