t is settled law that the decision of one High Court is not a binding precedent on other High

Courts, though due deference ought to be given to such judgments as they have persuasive
value.2

In this article, the author aims to analyse the aspect as to whether a decision of a High Court on
the constitutionality of a Central Legislation is binding on other High Courts. The ancillary
question that arises is whether the decision of a High Court on the constitutionality of a Central
Legislation is applicable only to the relevant state or throughout the country. The analysis will be
based on the judgment of the Supreme Court of India in Kusum Ingots & Alloys Ltd. v. Union
of India3 ("Kusum Ingots"), the applicable constitutional provisions and other legal
pronouncements. The author shall begin with an in-depth analysis of the decision in Kusum
Ingots.

For ease of reference, the relevant constitutional provisions dealt with are Article 226(1) and
Article 226(2) of the Constitution of India, 1950 ("Constitution"). Article 226(1) confers power on
the High Courts to issue writs for enforcing fundamental rights, or for any other purposes. Such
power can be exercised by the High Court 'throughout the territories in relation to which it
exercises jurisdiction'. Article 226(1) further provides that the writs can be issued to 'any
person or authority, including in appropriate cases, any Government, within those territories'.
Article 226(2) states that the power conferred by Article 226(1) may be exercised by any High
Court under whose territorial jurisdiction the whole or part of cause of action arises.

II. THE KUSUM INGOTS EFFECT

Background

The decision of the Supreme Court in Kusum Ingots pertained to a challenge to the
constitutionality of SARFAESI Act, 2002, and the issue in contention was whether the 'cause of
action' arose so as to confer jurisdiction on the Delhi High Court as per Article 226(2). While
answering the said question in the negative, the ratio decidendi of Kusum Ingots was that (i)
the situs of the office of a legislative / rule-making / executive authority alone would not confer
jurisdiction on the court in whose territory such authority is located, (ii) when an order is passed
by a court / tribunal / executive authority, the High Courts of both places, i.e. where the original
authority is located and where the appellate authority is located, would have writ jurisdiction and
(iii) even if a small part of cause of action arises within the territorial jurisdiction of a High Court,
the High Court cannot be compelled to render a decision on the merits of the matter since the
High Court has the power to refuse exercise of its discretionary jurisdiction by invoking the
doctrine of forum conveniens.

Observations regarding extra territorial applicability of High Court orders

The portion of the judgment relevant for this article is Para 22 where the Supreme Court
observed that:

'22. The Court must have the requisite territorial jurisdiction. An order passed on a 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.'
As the ratio decidendi of Kusum Ingots culled out hereinabove show, Para 22 was clearly obiter
dictum ("Obiter Dictum" / "Para 22"). On further scrutiny, it would be fair to even suggest that
the Obiter Dictum does not appear to be in consonance with the rest of the judgment or with the
literal interpretation of the constitutional provision cited.

Perhaps, the Supreme Court was highlighting the implications of orders passed by High Courts
on Central Legislations and was thus, emphasising the importance of cause of action arising
within the territory of a High Court for conferring jurisdiction on it.

Whether the Obiter Dictum is good in law?

The Obiter Dictum in Kusum Ingots mentioned above, is problematic since it does not conform
with the constitutional mandate of Article 226 of the Constitution. Article 226(1) specifies that the
power conferred is to be exercised within the territorial jurisdictional limits of a High Court.
Article 226(2) merely provides that (i) such power can be exercised by any High Court, provided
that whole or part of cause of action arises within its territorial limits and (ii) such power is not to
be confined only because of the reason that such Government / authority / person is not located
within the territorial limits of the particular High Court.

Based on the aforesaid, there is no indication that the territorial jurisdictional limitation expressly
placed by Article 226(1) is wholly exempted by Article 226(2) with respect to Central
Legislations. The only exemption provided in Article 226(2) is that the power conferred can be
exercised notwithstanding that the relevant Government / authority / person is located outside
the territorial limits of the High Court. However, this is no way extends to an interpretation that
any such order passed in exercise of the power conferred by Article 226(1) will apply to the
whole of the country when the question at hand involves constitutional challenge to Central
Legislations.

Furthermore, the Obiter Dictum is problematic since it essentially takes away the power of the
High Court where the Central Act or Provision has been subsequently challenged, to adjudicate
on the constitutionality of the same (if it has already been adjudicated by another High Court
previously). This problem is aggravated if an act or provision has been upheld as constitutional
by one High Court and other High Courts are thus precluded from interfering and rendering an
opposite finding to protect the rights of the people. It is pertinent to note that an order of the
nature described in Para 22, is not qualified to be an order striking down or staying a Central
Legislation as unconstitutional, and it could also be an order upholding its constitutional validity.

A further outcome of such a scenario is that it results in stifling of different interpretations and
contrary opinions from arising, which also means an alternate view is not available to the
Supreme Court if and when the constitutional challenge reaches there.

Whether the Obiter Dictum is binding on High Courts?

As provided in Article 141 of the Constitution and as reiterated by the Supreme Court in the
case of Bengal Immunity Co. v. State of Bihar4, all courts within the territory of India including
the High Courts are bound by the judgments of Supreme Court. The only court that is not so
bound is the Supreme Court itself.

Even an obiter dictum of the Supreme Court may bind the High Courts in the absence of any
other direct pronouncement on that question by the Supreme Court.5 The obiter dicta of the
Supreme Court are entitled to considerable weight6 and 'normally even an "Obiter Dictum" is
expected to be obeyed and followed'7.

However, although obiter dictum of Supreme Court should be accepted as binding by High

Courts, it does not mean that every statement contained in a judgment of the Supreme Court
would be attracted by Article 141. The same was held by Kerala High Court in the case of State
of Kerala v. Parameswaram Pillai8 and relied upon by Supreme Court in Municipal
Committee, Amritsar v. Hazara Singh9. It was further held that 'Statements on matters other
than law have no binding force.'

- Where judicial law making is

necessary
to avoid exploitation (inter-country adoption, the education ofthe children of the prostitutes).
- Where judicial intervention is necessary for the protection of the sanctity of democratic
institutions (independence of the judiciary, existence of grievances redressal forums).

- Where administrative decisions

related
to development are harmful
to the
environment and jeopardize people's right to natural resources such as air or water".
79. There is, in recent years, a feeling which is not without any foundation that public
interest litigation is now tending to become publicity interest litigation or private interest
litigation and has a tendency to be counterproductive.

80. PIL is not a pill or a panacea for all wrongs. It was essentially meant to protect basic
human rights of the weak and the disadvantaged Judgment pil119.18 and was a procedure
which was innovated where a public spirited person files a petition in effect on behalf of
such persons who on account of poverty, helplessness or economic and social disabilities
could not approach the Court for relief. There have been, in recent times, increasingly
instances of abuse of PIL. Therefore, there is a need to re- emphasize the parameters within
which PIL can be resorted to by a petitioner and entertained by the Court. This aspect has
come up for consideration before this Court and all we need to do is to recapitulate and re-
emphasize the same."

19. In case of Janta Dal .vrs. H.S. Chowdhary [(1992) 4 SCC 305], the Hon'ble Supreme
Court has opined as under :
"109. It is thus clear that only a person acting bona fide and having sufficient interest in the
proceeding of PIL will along have a locus standi and can approach the court to wipe out the
tears of the poor and needy, suffering from violation of their fundamental rights, but not a
person for personal gain or private profit or political motive or any oblique consideration.
Similarly, a vexatious petition under the colour of PIL brought before the court for
vindicating any personal grievance, deserves rejection at the threshold."
Judgment pil119.18
20. The Hon'ble Supreme Court in case of Guruvayoor Devaswom Managing Committee and
another .vrs. C.K. Rajan and others [(2003) 7 SCC 546], took survey of various decisions in
the field and summarized the position in paragraph no.50 of the judgment. One of the
principle which the Hon'ble Supreme Court noted, is reproduced hereinbelow :
"50[i] ...
[ii] ...
[xi] Ordinarily, the High Court should not
entertain a writ petition by way of public interest litigation questioning the constitutionality
or validity of a statute or a statutory rule."
21. Present petition is silent about any nexus of petitioner with the cause which has been self
shouldered. In this luxury litigation, the petitioner has nothing to lose, but, is trying to gain
and thus, it is a wastage of valuable time of the Court. Our system should not afford us to
succumb to such attacks. No doubt the doors of Courts are open in entertaining the real and
genuine public interest involved matters, but, certainly the adventurous experiments are to be
nipped into the bud. The system is not so fragile which can be usurped by anybody for no
reason by Judgment pil119.18 invoking the extra ordinary jurisdiction which has its own
sanctity and object.

22. In the result, we are not inclined to entertain the petition which is styled as Public Interest
Litigation. We are of the opinion that this is not a fit case where Public Interest Litigation
jurisdiction should be invoked or