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Tuesday, May 24, 2022

Why Supreme Court’s order in Alapan Bandyopadhyay case is worrying

🔴 Shreenath A. Khemka writes: In setting aside the Kolkata High Court’s ruling by citing lack of jurisdiction, the apex court has narrowed scope of writ remedies

Written by Shreenath A. Khemka |
Updated: January 28, 2022 9:24:21 am
Alapan Bandyopadhyay. (Express Photo/File)

Henry Ford had once famously quipped that a customer could have a car of any colour they wanted, as long as the colour was black. It seems for former West Bengal Chief Secretary Alapan Bandyopadhyay this statement rings true today.

Earlier this month, the Supreme Court set aside the Calcutta High Court ruling which had quashed the Central Administrative Tribunal’s (CAT) decision in the former bureaucrat’s case. The tribunal had transferred Bandyopadhyay’s application from its Kolkata Bench to its Delhi Bench. Bandyopadhyay was charge-sheeted by the Centre for not attending a meeting chaired by the Prime Minister in May last year. He had approached CAT’s Kolkata Bench against the chargesheet and the case was admitted for hearing. The Centre then petitioned the CAT’s chairperson at New Delhi to transfer the matter out of Kolkata, which was swiftly allowed. Aggrieved by this order, Bandyopadhyay filed a writ petition in the Kolkata High Court. A division bench of the court ruled in the former chief secretary’s favour. However, the Supreme Court has now allowed the Centre’s appeal and ruled that the Calcutta High Court lacked the jurisdiction to entertain Bandyopadhyay’s writ petition.

The apex court drew on its 1997 judgment in L Chandra Kumar by selectively referencing a quotation in the verdict: “All decisions of these tribunals will, however, be subject to scrutiny before a Division Bench of the high court within whose jurisdiction the concerned tribunal falls”. Since it was the CAT chairperson’s order that was under challenge, and because the chairperson was assigned to the tribunal’s Principal Bench at Delhi, the Supreme Court concluded that the matter was under the jurisdiction of the Delhi High Court, and not the Calcutta High Court.

Article 226 of the Constitution confers upon high courts the power to issue writs against an authority. In 1950, Article 226 limited the jurisdiction of a high court to issue writs only unto authorities resident within its territory. It was soon realised that territorially restricting the writ jurisdiction forced all cases against the central government before the Punjab and Haryana High Court — it was only in 1966 that the Delhi High Court was established.

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Thereafter in 1963, Clause 1-A was inserted under Article 226 to allow for extraterritorial jurisdiction so that a high court could issue writs to authorities resident outside its territory if the cause of action arose within its territory. Later, in 1977, Clause 1-A was renumbered as Clause 2. Thus the “jurisdiction” of a High Court fell cumulatively under Articles 226 (1) and 226 (2).

The CAT was set up under Article 323A of the Constitution by the Administrative Tribunals Act 1985 to adjudicate disputes between the central government and its employees. Section 28 excluded the jurisdiction of all courts, except the Supreme Court. It was here that L Chandra Kumar ruled that the writ jurisdiction of the high courts under Article 226 pertained to the basic structure of the Constitution and could not be short-circuited by way of a statute or constitutional amendment. Given that the high courts’ cumulative jurisdiction under Article 226 had been preserved, it was constitutionally impermissible to restrict the jurisdiction to only Article 226 (1), and jettison Article 226 (2). This was precisely the undoing in Bandyopadhyay, wherein the Supreme Court misread “jurisdiction” in L Chandra Kumar as “territory”.

The Supreme Court held that because the CAT chairperson was resident in New Delhi, he was not amenable to the Calcutta High Court’s jurisdiction. While such a conclusion sufficed the inquiry under Article 226 (1), the same was an incomplete exercise. The Supreme Court did not realise that “jurisdiction” could not be equated to “territory” in light of Article 226 (2), which specifically provisioned for extra-territorial jurisdiction. The court was wrong in making no inquiry to locate the jurisdiction under Article 226 (2). In fact, not a single line in any case from L Chandra Kumar to Rojer Mathew (2019) has adverted to washing away the extra-territorial jurisdiction under Article 226 (2), whilst selectively preserving the jurisdiction under Article 226 (1).

The judgment in Bandyopadhyay is also problematic because it created disparate writ remedies against tribunals under Articles 323A and 323B, and other tribunals and authorities. It must be kept in mind that not all tribunals, including consumer tribunals and company tribunals, have been provisioned for under Articles 323A and 323B. While for other tribunals and authorities, a litigant could locate writ remedies both under Articles 226 (1) and 226, for tribunals under Articles 323A and 323B, a litigant would be foreclosed from locating a writ remedy under Article 226 (2) consequent to Bandyopadhyay. Such compartmentalisation of a high court’s writ jurisdiction contravenes the constitutional design.

Writ remedies are constitutional safeguards for the citizenry. Despite legislative and judicial efforts to expand and preserve these remedies, it seems that the Supreme Court in

Bandyopadhyay has eaten into them. Unfortunately, the law has regressed to the 1950s era, and in such a regression the Constitution may have met Ford.

This column first appeared in the print edition on January 28, 2022 under the title ‘Misreading jurisdiction’. The writer is an advocate at the Punjab and Haryana High Court

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