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

News: Recently Supreme Court set aside the Calcutta High Court ruling which cost the Central administrative channels decision in the Alapan Bandyopadhyay case.

What is the subject matter of the case?

Then West Bengal Chief Secretary did not attend a meeting chaired by the Prime Minister. He was charge-sheeted by the Centre for this event.  He approached the Central Administrative Tribunal (CAT) Kolkata bench against the charge sheet and the case was admitted for hearing. The Centre then petitioned the CATs chairperson at Delhi to transfer the case out of Kolkata.

Mr Bandyopadhyay filed a writ petition in Kolkata High Court. The division bench ruled in the chief secretaries favour. However, Supreme Court has allowed the Centre’s appeal and ruled that Kolkata High Court lacked jurisdiction to entertain the Bandyopadhyay’s writ petition.

What is the scope of the High Court writ petition under article 226?

Article 226 confers upon high courts the power to issue writs against an authority.
In 1950, Article 226 limited the jurisdiction of the High Court to issue writs only to authorities resident within its territory.

In 1963, Clause 1A was inserted under Article 226 to allow for extraterritorial jurisdiction so that the High Court could issue writs to authorities resident outside its territory.

In 1966 Delhi High Court was established to address writs being issued against central authorities.

In 1977, Clause 1A was renumbered as Clause 2.

Thus, Article 226, Clause 1 and Clause 2, cumulatively determine the writ jurisdiction of the High Court.

How does CAT come under High Court jurisdiction?

CAT was set up under Article 323A by the administrative tribunals act 1985. Section 28 excludes the jurisdiction of all courts except the Supreme Court. In L Chandra Kumar case, it was ruled that the writ jurisdiction of the High Court under article 226 is part of the basic structure of the constitution and cannot be limited by statute.

What are the differences associated with the current ruling of the Supreme Court?

The Supreme Court held that the CAT chairperson was a resident in Delhi, so Kolkata High Court jurisdiction does not apply. The jurisdiction cannot be equated to territory, as provided in Article 226 (2).  This clause specifically provides for extraterritorial jurisdiction.

In fact, not a single case from L Chandra Kumar to Roger Matthew (2019), describe the extraterritorial jurisdiction of high courts.

Moreover, the judgement also creates different remedies against tribunals under Article 323A and 323B, and other tribunals and authorities. Not all tribunals have been created under Article 323A and 323B. While for other tribunals, a litigant can seek remedy under Article 226(1) and Article 226. But for tribunals under Article 323A and 323B, A litigant can seek remedy only under article 226 (2).

Writ remedies are constitutional safeguards for the citizens. But in this case, the Supreme Court seems to have curtailed it instead of expanding it.

Source: This post is based on the article “Why Supreme Court’s order in Alapan Bandyopadhyay case is worrying’ ” published in the Indian Express on 28th January 2022.