Writ jurisdiction and alternative remedy


The High Courts in India possesses extraordinary powers under the writ jurisdiction under Article 226 of the Constitution of India for enforcement of fundamental as well as legal rights. These rights are subject to self-inflicted constraints about the existence of an alternative remedy such as approaching the Tribunals in cases of Special Acts where the Courts have refused to intervene even on violation of a legal right or violation of the principles of natural justice. Whereas, on the other hand, the Supreme Court has acknowledged time and again that the existence of an alternative remedy shall not be an absolute bar to the exercise of Writ jurisdiction by the High Court.


Taking reference to a case, in the matter of Whirlpool Corporation vs. Registrar of Trade Marks, the question which arose pertained to the maintainability of a writ when an alternative remedy before a Registrar already existed under the Trade Marks Act, 1940 when the Supreme Court laid down the three parameters concerning the exception to the general rule of an alternative remedy which pertained to enforcement of a fundamental right, violation of the principle of natural justice and where the proceedings are whole without jurisdiction or vires of the Act is challenged.


The divergent decisions given by the Hon’ble Supreme Court and various High Courts makes every legal practitioner carefully assess his or her chances before filing a Writ Petition especially when a Special Act ensues such as the Insolvency and Bankruptcy Code, 2016, Arbitration and Conciliation Act 1996, Prevention of Money Laundering Act, 2003, Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 etc. where the respective Tribunals such as the NCLT, Arbitration Tribunal, ATPLMA, DRT etc, have especially been constituted to hear the disputes about the respective Acts which makes the existence of an alternative remedy even more conspicuous since the Special Acts not only provide a piece of machinery for redressal, but they also provide a mechanism for appeals.


The captivating question which emerges is why the litigants prefer trying their luck under a Writ Court instead of approaching a Tribunal and avail the available alternative remedy? This is because the uncertainty concerning the success of