On 3^rd of Asoj 2072 BS, Nepal got its present constitution. This new constitution is really new in many aspects, as it transformed the entire polity of the nation. With its promulgation new systems of governance got introduced, which the Nepalese people had never witnessed in its 68 years of constitutional history. One notable transformation was the shift from Unitary System to Federal structure. As a result, the state’s centralised executive as well as legislative powers got divided within the layers of government viz., Central, Provincial & Local levels.  

In the midst of these sweeping changes taking place, the Judiciary[2] too could not remain unnoticed. Although, the framers of the constitution adopted the federal polity, it rejected the idea of adopting the federal judicial system. Nonetheless, to make the judiciary homologous with the newly adopted Federalism, several structural transformations were made in the judicial framework of the country in which the major development was that the replacement of Appellate Courts (at zones) by the High Courts (at provinces). 

In this column we will be discussing about the constitutional position of the newly transformed High Courts, how they are different from the erstwhile Appellate Courts (Punaravedan Adalats), then we will be comparing the extra-ordinary jurisdiction of High Courts(“HC”) with that of Supreme Court(“SC”) and finally we will try to figure out that does our HCs are functioning the way they have been mandated by the Constitution.

Extra-Ordinary/Writ Jurisdiction

The present Constitution has for the first time granted the extra-ordinary jurisdiction to the HCs under the constitutional scheme itself. Before this, Section 8(2) of then Administration of Justice Act, 2048 (hereinafter referred as “AJA, 2048”) had provided Appellate Courts the power to issue the writ of Habeas corpus, mandamus, ^[3]certiorari, quo warranto, prohibition and injunction for the enforcement of legal rights of people under its territorial jurisdiction. However, there were no any provisions regarding such writ jurisdiction under the constitution itself, it was merely a statutory arrangement.

Here, we can see that even before the promulgation of this present constitution there were Appellate Courts like today’s HCs, and both have had the power to exercise the writ jurisdiction. Now some obvious queries might have crossed our minds that why was the establishment of HCs deemed necessary despite the existence of operational Appellate Courts? Is it merely a renaming orchestrated by our constitution drafters, or did they really intend to institute a more federal and authoritative court than what existed previously? 

Appellate Court and High Court: a mere rename or transformation?

Comparing the legal framework regarding extraordinary jurisdiction of erstwhile Appellate Courts and today’s HC, we can find that the difference between them is as vast as the contrast between the chalk and cheese. As, sec. 8(2) of AJA, 2048 has already been mentioned above, it becomes pertinent to direct our attention towards Article 144 of the Constitution which talks about the writ jurisdiction of the HC. It says^[4] that the High Court shall have the power to issue necessary and appropriate orders, for the enforcement of the fundamental rights conferred by this Constitution or the enforcement of any other legal rights for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective or for the settlement of any legal question involved in any dispute of public interest or concern. And for the purpose of which it may issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.

From the above constitutional provision, it is evident that the present Constitution has significantly widened the scope of powers of today’s HCs rendering them much more potent than that of yesterday’s Appellate Court. Previously, the Appellate Court was limited to issuing writ orders only for the enforcement of legal rights solely within its territorial jurisdiction. However, the present constitution itself has broadened the scope of jurisdiction of HC up to the extent that it can now issue writ orders not only for the enforcement of legal rights but also for the fundamental rights. It has also mandated the HC to issue other necessary and appropriate orders for the sake of complete justice.  Its extraordinary jurisdiction can also be invoked for the settlement of any legal question involved in any dispute of public interest or concern. Another noteworthy point is that while the appellate court’s writ jurisdiction was confined within its geographical limits, the present constitution has not mentioned anything regarding such territorial limitation of HC.  

Territorial Jurisdiction of High Court

Article 139 (1) of the constitution says that there shall be a HC in each province. However, as far as the territorial jurisdiction of HC is concerned, from the plain reading of Article 144, it appears that the present constitution has not intended to confine the scope of extraordinary jurisdiction within its provincial territory only, as nowhere in this Article, anything about such confinement of territorial jurisdiction been mentioned.  Thus, we can say that each HCs are constitutionally capable of settling disputes between any person or party without being constrained by its provincial territory[5].

But having said that, an alternative interpretation^[6] also comes before us suggesting that even though the Constitution does not explicitly address the territorial jurisdiction of HCs, it is always upon the HCs to exercise self-restraint and refrain itself from exceeding its provincial jurisdiction while settling the matters. It is important for maintaining the judicial discipline and decorum in respect of the Supreme Court.

Comparing Extraordinary Jurisdiction: Supreme Court vs. High Court

Many individuals, including legal professionals, often find themselves in a quandary when contemplating the filing of any writ petition. The dilemma often revolves around whether they should approach the HC or directly to the Supreme Court, and whether there will be the finality of judgment if they approach HC instead of SC.

In addressing this quandary, Justice Ananda Mohan Bhattarai offered valuable insights in the case of Ramesh Aryal vs. Patan High Court[7]. The Hon’ble bench elucidated that regardless of the terminology employed by the constitution's drafters in structuring provisions related to the writ jurisdiction of both the SC and HC, the essence of writ jurisdiction remains as prerogative powers granted to these courts, inherently characterized as extraordinary powers. This suggests that in accordance with the constitutional spirit, the constitution does not intend to differentiate between the HC’s and SC’s writ jurisdiction. Instead, it provides equal authority upon both the HC and the Supreme Court in the exercise of their writ jurisdiction.

In this case, the court propounded a very significant precedent that the writ jurisdiction is an exclusive kind of jurisdiction which implies that if any party chooses to invoke the jurisdiction of either HC or the SC, then such party shall have to expect the desired justice from such Court itself. And the SC shall not entertain the petitions challenging the Interim order or interlocutory order or even the final decision passed by the HC while exercising its extra-ordinary jurisdiction. The SC shall only entertain the review petition for the same.

Thus, it is evident that the writ jurisdiction of both SC and HC under Articles 133 and 144 exist independently of each. That is to say, for the enforcement of Fundamental and legal rights, both the HC and the SC possess parallel writ jurisdiction. The HC’s Jurisdiction is not in derogation of the Supreme Court’s jurisdiction. Therefore, whether you invoke the jurisdiction of HC or the SC there will be the finality of the judgment[8]. 

A reality check

However, despite both the HC and the SC possessing parallel powers regarding writ jurisdiction, a disconnecting reality emerges at the ground level. In numerous instances, it appears that even the judges within the HCs may not fully grasp the extent of the constitutional powers vested in them. There is often hesitation among HC judges to issue orders and interpretations they are constitutionally mandated to deliver[9].

Compounding this issue, advocates frequently opt to approach the SC even in cases that could be well settled by the HC. This dilemma underscores a significant challenge within our judicial system. It prompts us again to the same question that whether our HCs are genuinely serving as "the High Courts[10]" envisioned by the constitution or whether they remain akin to a renamed version of the erstwhile Appellate Courts. Thus, it is high time to realize the high powers of HCs and shed the feeling of subordination.

Prashant Bikram Shah is a dedicated student currently pursuing a BA LLB, 3rd Semester from National Law College. With a passion for the intricacies of law and a commitment to academic excellence, Prashant is on a journey to expand their knowledge and skills in the legal field.

All posts in Paluwa Blog are solely the opinion of their authors and do not, in any way, represent the viewpoint of Paluwa Pleaders.