Article 226 is Not a Magic Wand
There is a running joke in every High Court corridor and, like most courtroom jokes, it carries a quiet bitterness within it. Ask any junior advocate what the most common ground of dismissal is, and he will tell you without a moment's hesitation: alternative remedy. He has probably heard it more times than he has eaten lunch in the canteen.
And yet, the petitions keep coming.
Every week, dockets swell with writ petitions that have no business being there. Show-cause notices are challenged before a reply is even filed. Tax demands are dragged into constitutional courts when a statutory appeal sits right there, untouched. Factual disputes, matters of evidence, credibility, and competing claims, are dressed up in the solemn language of Articles 226 and 32, as though the Constitution were a convenient shortcut around the inconvenience of regular litigation.
The Supreme Court has said it plainly and repeatedly, from Thansingh Nathmal in 1964 to Godrej Sara Lee in 2023: writ jurisdiction is extraordinary. It is not a parallel channel. It is not a fast lane for those who find statutory forums tedious. The remedy is discretionary, and discretion, properly understood, means it can be withheld.
But before we speak of discretion, let us speak honestly about the five instruments themselves. Because writs are not interchangeable tools to be picked off a shelf depending on which sounds most impressive in a petition heading. Each carries its own internal logic, its own preconditions, and its own characteristic ways of failing.
Habeas Corpus is perhaps the most powerful of them all. Its very command, produce the body, carries the weight of centuries of struggle against arbitrary detention. And yet, it fails the moment detention rests upon valid judicial or statutory authority. A court-issued warrant, a remand order, or a lawful executive detention under a properly enacted statute are not cracks through which habeas corpus creeps. The writ does not question the wisdom of confinement. It questions its legality. File it without that foundation, and it collapses at the threshold.
Mandamus, the command to perform, sounds formidable until one remembers what it actually requires: a clear, enforceable public duty and a corresponding right in the petitioner to demand its performance. It is not available to enforce contractual obligations dressed up as public duties. It cannot compel the exercise of discretion in a particular direction. And it certainly cannot be invoked against private parties simply because the petitioner has run out of other ideas. Many mandamus petitions have been dismissed for the simple reason that the Court looked at the alleged duty and found nothing legally enforceable there at all.
Certiorari is perhaps the most frequently misunderstood. Litigants approach it as though it were an appeal with constitutional branding, a way to place an unfavourable decision before a higher court and ask it to reconsider. It is nothing of the sort. Certiorari corrects jurisdictional error. It does not re-appreciate evidence. It does not second-guess findings of fact arrived at by a competent authority applying its mind honestly to the material before it. The moment a petition under certiorari asks the Court to re-weigh evidence, to prefer one version of facts over another, or to substitute its judgment for that of the authority below, it has strayed outside the writ's proper territory, and dismissal follows as a matter of course.
Prohibition lies to prevent a court or tribunal from exceeding its jurisdiction, but only while proceedings are alive. Once the matter is concluded, prohibition has nothing left to prohibit. It cannot be invoked retrospectively against a decision already made and an order already passed. And where the inferior court or tribunal is exercising jurisdiction properly conferred upon it, prohibition has no foothold at all. Yet petitions seeking prohibition against concluded proceedings, or against tribunals properly seized of a matter, appear with dispiriting regularity.
And then there is Quo Warranto, the writ that asks bluntly: by what authority do you hold that office? Its purpose is public, not personal. It exists to protect the integrity of public office, not to settle political scores or pursue institutional rivalries through constitutional litigation. When an appointment satisfies statutory eligibility criteria and follows due process, quo warranto cannot be used merely because the petitioner disapproves of the appointee. Courts have seen enough of these petitions, wrapped in the language of public interest but smelling strongly of private grievance, to treat them with considerable wariness.
Five writs. Five distinct architectures of constitutional relief. And yet, in practice, petitions continue to fail not only because the wrong writ is invoked, but for reasons that cut across all of them: suppression of material facts, inordinate delay without explanation, incomplete pleadings, wrong parties arrayed, premature challenges, and prayers so vague that even the petitioner cannot clearly define what satisfaction would look like. Courts are not being harsh when they dismiss such petitions. They are reacting to the reality that shoddy litigation wastes time that could otherwise be spent on genuine urgency.
But here is what troubles me.
The “alternative remedy” doctrine, sound as it is in principle, has started functioning like a trapdoor. Courts invoke it swiftly, sometimes mechanically, and a petition is dismissed before the bench pauses long enough to ask: is there something genuinely wrong here? Is this a litigant abusing process, or a citizen who genuinely has nowhere else to go?
Because those two situations are not the same thing. And they cannot be treated as though they are.
And the Constitution itself understood this. That is precisely why writ jurisdiction was never conceived as purely reactive, waiting for a properly drafted petition to arrive at the registry, stamped, numbered, and filed in triplicate. The framers built something far more alive than that.
The Court can move on its own. It always could.
Suo motu cognizance, the Court acting on its own motion without a petitioner, without a cause title, sometimes without anything more than a newspaper report or a letter written in pencil from a prison cell, is perhaps the most honest expression of what constitutional courts were always meant to be. Not passive arbiters waiting to be approached. Active guardians, watching.
When Justice Krishna Iyer’s court in Sunil Batra v. Delhi Administration received a letter from a prisoner describing the torture of a fellow inmate, it did not return it to the registry for want of proper format. It read it. It acted. It treated that letter as a writ petition and expanded, in the process, the entire architecture of prisoners’ rights under Article 21. No advocate filed that case. The Constitution filed it through the voice of a man who had no other voice.
Decades later, when the pandemic tore through the country’s infrastructure and tens of thousands of migrant workers found themselves stranded on highways without food, transport, or a State willing to acknowledge them, it was not a public interest lawyer who first moved the Supreme Court. The Court took up In Re: Problems and Miseries of Migrant Labourers on its own. It directed. It monitored. It did not wait to be asked.
Similarly, when prisons swelled dangerously and contagion threatened to make detention itself a death sentence, In Re: Contagion of COVID-19 Virus in Prisons was registered and heard without a petitioner’s brief in sight.
And when the entire legal system ground to a halt and litigants across the country faced the absurdity of limitation periods running against them during a lockdown they did not choose, the Court stepped in through Suo Motu Writ Petition (Civil) No. 3 of 2020 and extended limitation periods across all courts and tribunals.
The Yamuna River did not file a petition either. But the Court noticed it, year after year, through suo motu proceedings concerning pollution, sewage discharge, and civic accountability, in proceedings that began from newspaper reports and continued long after most people stopped expecting resolution.
High Courts have been no less alert. A Gujarat High Court judge once read a newspaper report about a widow whose pension had been withheld on procedural grounds and resolved it suo motu before the next hearing. Madras High Court took up the condition of domestic violence survivors during the pandemic lockdown without waiting for an advocate to brief it. Courts across the country have acted on road safety, illegal hoardings, child rights violations, and environmental hazards not because someone filed a proper petition, but because the facts existed and the conscience of the Court would not permit looking away.
And there is something else worth noting, something that speaks to how constitutional institutions move when they must. When a matter involving the professional integrity of advocates arose and required the Supreme Court’s attention, it was not a writ of certiorari filed by a lawyer that brought it before the bench. It was institutional intervention, representations made and resolutions passed by the Supreme Court Bar Association and the Bar Council of India, and the Court took cognizance. Not through adversarial litigation. Through the Court’s own recognition that the matter demanded attention. That too is a form of suo motu. The form may differ; the animating principle remains identical.
This is what constitutional courts look like when they function as they were meant to.
And yet, this must also be said clearly: suo motu jurisdiction is not a licence for permanent judicial governance. The power exists for exceptional circumstances: urgency, systemic failure, fundamental rights in genuine peril, and situations where no individual litigant can carry the burden of the issue alone. It is not an invitation for courts to become administrators, to monitor civic bodies indefinitely, or to substitute judicial directions for legislative policy. These criticisms have been fairly made, and they deserve to be taken seriously.
The same discipline that applies to the petitioner at the filing counter applies, in spirit, to courts exercising suo motu power. The question always remains the same: is this a genuine constitutional emergency, or merely judicial instinct dressed up as constitutional necessity?
The advocate bears real responsibility here as well. There is a temptation, especially early in practice, to file under Article 226 whenever a client walks in agitated. It feels powerful. It feels constitutional. But a writ petition is not a demonstration of seriousness. It is a choice of forum, and that choice must be justified.
Approach the High Court only when you can honestly say: the statutory remedy is either unavailable, illusory, or structurally inadequate. There is a jurisdictional error, not merely a decision you disagree with. Natural justice has been violated, not merely ignored in spirit. A fundamental right is genuinely at stake, not merely invoked as rhetorical decoration. The injury cannot wait and cannot be undone through delayed statutory appeal.
If you cannot say these things with conviction, you should probably not be filing the petition.
And courts, in turn, must resist the pull of formulaic dismissal. Alternative remedy is a principle, not a policy of non-engagement. The Supreme Court itself has carved out exceptions, and those exceptions exist precisely because the Constitution anticipated situations where ordinary legal channels fail the citizen. When the State exercises power arbitrarily and wraps it in the language of discretion, the High Court must look beyond the wrapping. When natural justice becomes a ritual without substance, the Court must call it out. When fundamental rights are sacrificed not because they are outweighed, but because they are inconvenient, the sentinel cannot look the other way.
" The Court is not a rubber stamp for executive action. But neither is it a second-guesser of every departmental decision. The line between those positions is not always comfortable to walk. Judicial wisdom lies in walking it honestly, case by case, without refuge in mechanical formulas on either side."
Article 226 is not a shortcut. It is not a last resort for the impatient. It is a serious constitutional instrument, and it deserves serious constitutional use.
But it is also, when everything else has failed, when no petitioner can be found, when injustice is too large or too silent for ordinary litigation to reach, capable of acting on its own conscience.
File it when it must be filed. Argue it as though it matters. And if you are on the bench, hear it with the same care with which it was written. And when no one files it at all, but justice still demands to be heard, find it the way courts always have.
That is the only way this jurisdiction keeps its promise.
Adv. Mangesh Dhumal.
indialegalsolutions17@gmail.com.