Jurisdictional Limitation Of A Constitutional Court In Light Of Covid-19

Neelabh Kumar Bist and Sikander Hyaat Khan argue that the Covid-19 pandemic, by itself and because of its consequences, is likely to invite writ petitions that will be constitutionally permissible but may be hit by the lack of jurisdiction due to the conjunctive reading of Article 226(2) and the doctrine of forum non-conveniens. The authors propose that the High Courts in these instances must use their discretion to rule in favor of their jurisdiction if a reasonable cause of action arises within their territorial jurisdiction, even if they may not be a convenient forum.

  • Neelabh Kumar Bist
  • Sikander Hyaat Khan


The historical origins of the doctrine of forum non conveniens can be traced back to as early as the eighteenth century in Scottish law, where Courts used the doctrine to decline pre-existing jurisdiction. 1 Incidentally, the evolution of this doctrine was a result of the increased practice of forum shopping. 2 While juries started actively participating in fact-finding, cases in which an offence was ‘transitory’ in nature had trials that were amenable to different jurisdictions, finally resulting in the selection between forums. 3 Henceforth, due to the beginning of intensive trade during those times, its usage became a prominent feature of private international law regulating relationships between individuals of different nationalities. 4 Today, due to its wide-scale usage and practical implications, it hasn’t just become an integral part of local laws, but has registered itself as an important governing doctrine under public international law. 5

1. William Martin Finch, Forum Conveniens and Forum Non Conveniens — Judicial Discretion and The Appropriate Forum, 6 QUT Law Review (1990)
2. Roger S. Foster, Place of Trial. Interstate Application of Intrastate Methods of Adjustment, 44 Harvard Law Review41 (1930)
3. John Bies, Conditioning Forum Non Conveniens, 67 The University of Chicago Law Review 489 (2000).
4. Ardavan Arzandeh, The origins of the Scottish forum non conveniens doctrine, 13 Journal of Private International Law 130–151 (2017)
5. For reference, see the ILCs fragmentation report emphasising to discipline international tribunals by adoption of forum non conveniens as a usable doctrine. ILC, ‘Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law’ (13 April 2006) U.N. Doc. A/CN.4/L.682

In India, the doctrine has been used by the court time and again in matters ranging from matrimonial disputes 6 to telecast and broadcasting. 7 In general, the usage of the doctrine has been subjected to the fulfilment of two conditions: 8

  • 1. Whether there is an alternative competent forum, which is appropriate?
  • 2. Whether it is in the interest of justice to relegate the parties to the alternative forum?

The subjective fulfilment of these two conditions is then incumbent upon other connecting factors including the balance of convenience highly favouring the defendant 9 or the plaintiff not indulging in the practice of forum shopping. 10

Under the Indian law, the issue of deciding the appropriate forum therefore first requires the establishment of the jurisdiction of the courts over the matter. The contention then relates to finding the territorial jurisdiction by the ‘cause of action’ accruing in any given case. This particular question of establishing the cause of action is made mandatory both by the CPC as well as the Constitution of India as can be observed under.

Clause (2) of Article 226 of the Constitution of India reads as:

“(2) The power conferred by Clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.”

Section 20(c) of the Code of Civil Procedure reads as:

“20. Other suits to be instituted where defendants reside or cause of action arises—
Subject to the limitation aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction -

  • (c) the cause of action, wholly or in part, arises.”

6. Santhini v. Vijaya Venketesh, AIR 2017 SC 5745
7. Modi Entertainment Network & Anr vs W.S.G.Cricket Pte. Ltd, AIR 2003 SC 1177
8. Glaxosmithkline and Horlicks Limited v Heinz India (MANU/DE/0011/2009)
9. India TV Independent News Services Ltd. v. India Broadcast Live LLC and others, (2008) 22 CLA BL Supp 37 (Del)
10. M/s Chetak Construction Ltd. v. Om Prakash & Ors, 1998(4) SCC 577

The Supreme Court has held the language of both the texts to be parimateria, thereby decisions on the interpretation of one follow that of the other. 11 However, it is important to draw out the distinction that between the two provisions for the purposes of the present paper. While Section 20(c) of the CPC mandates the establishment of the cause of action for matters between private parties, Article 226 of the Constitution confers the power on the High Court of any State to protect the fundamental rights of a person thus governing the relationship between a citizen and the State.


The position of law on the power of the High Courts to issue writs before the Fifteenth Amendment to the Constitution in 1963, was plain and simple. As has been noted by the Delhi High Court in the Ex. Rect./GD Vinod Kumar v. Union of India & Ors., “the consistent view in regard to scope and limitation of jurisdiction under Article 226, as it stood on that date…….there are only two limitations placed upon the exercise of these powers by a High Court under Article 226 of the Constitution of India”. 12 The first limitation entailed that the writs are restricted to not be effectuated beyond the territories subject to its jurisdiction and the second was that the authority over whom the High Court has the power to issue writs is to be found within the said territorial jurisdiction.

With the insertion of clause (2) in 1963, the power of the High Court to issue writs was enlarged. As per the provision, if a cause of action, wholly or in part, has arisen within the territorial jurisdiction of a particular High Court, “not withstanding that the seat of such Government or Authority or residence of such person is not within those territories”. 13

However, the Indian Courts have not used this provision to accept jurisdiction, even when a part of the cause of action arises within their territorial limits. They have interpreted this jurisdictional clause in light of the doctrine of forum non conveniens.

11. Kusum Ingots and Alloys Ltd v. Union of India, AIR 2004 SC 2321
12. ILR 1982 Delhi 1024
13. Article 226 (2), Constitution of India

In the case of State of Maharashtra v. Ramdas Shrinivas Nayak and Anr, the Calcutta High Court, finding the Patna High Court to be a more appropriate forum, held that “judicial propriety demands that in such a situation the writ petitioner should have gone before the Patna High Court against the order impugned in the instant writ petition”. 14

The Supreme Court, in M/S. Kusum Ingots & Alloys Ltd vs Union Of India And Anr, opined that even “if a small part of cause of action arises within the territorial jurisdiction of the High Court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit”. 15 Elaborating further, the Court held that “in appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens”. 16

Even in cases where a High Court did accept jurisdiction, it did so because it found that the petitioners had no case. In New Horizons Limited and Ors. vs. Union of India, the Court observed that it “could decline to exercise jurisdiction under Article 226 of the Constitution in such a matter in spite of the fact of [it] having jurisdiction in the matter” but, because “the arguments were addressed at length [it did not] think any useful purpose will be served by sending the petitioners to Hyderabad”. 17 This finding draws a reasonable inference that had the Court found a case, it could have dismissed the case for a lack of jurisdiction, considering it was not an appropriate forum.

The position of the law is clear and can be summarized in three points

  • 1. It is constitutionally permissible for a High Court to assume writ jurisdiction over a matter in which the cause of action has arisen, wholly or in part, within its territorial limits, irrespective of whether the authority to which such writ is issued is outside of its territorial limits.
  • 2. Additionally, if the authority is located within its territorial limits but no part of the cause of action can be traced within its territorial limits, the High Court will be constitutionally unable to exercise writ jurisdiction.

14. 1982 Cri LJ 1581
15. AIR 2004 SC 2321
16. Ibid
17. (1995) 1 SCC 478

  • 3. However, even though constitutionally permissible, jurisdiction under Article 226(2) is discretionary and is construed in light of the doctrine of forum non conveniens. While the Supreme Court provides for exercise of this discretion “in appropriate cases”, no Court has addressed what may constitute such appropriate cases and the trend has been to deny jurisdiction if the predominant cause of action has not arisen within the territorial limits of a particular High Court.


a. The lockdown

The Covid-19 pandemic is the biggest health challenge that the world has faced in the modern era. With over 5.45 million people affected till date, 18 it has brought the world to a stand-still. Even on the academic field, it has proven to give much trouble across disciplines, as it presents an unprecedented problem, the likes of which had not been foreseen before. Within the legal sphere, questions relating to the interaction between Covid-19 and mass surveillance, 19 federal polity, 20 judicial activism, 21 socio-economic rights, 22 the usage of archaic laws, 23 are leading to divided opinions between jurists on the best method to follow in such an extraordinary situation.

18. Coronavirus, World Health Organization, (last visited May 25, 2020)
19. Gautam Bhatia, The Mandatory Imposition of the AarogyaSetu App, (last visited May 2, 2020)
20. TejasPopat, The State Disaster Risk Management Fund and the Principle of Equal Distribution – A Response, visited May 4, 2020)
21. Aditya Phalnikar, Migrant Workers, Freedom of Movement, and Positive Obligations, visited May 16, 2020)
22. V.G. Shreeram, Socio-Economic Rights and the Shifting Standards of Review, visited May 9, 2020)
23. Gautam Bhatia, The Curfew and the Quarantine, visited March 27, 2020)

The biggest of these is the concern of how the current disaster management laws are helping control the disaster while at the same time interacting with the rights of the citizens.

On March 22, 24 a nationwide lockdown was imposed in India, to curb the spread of this Covid-19. As has been noted by scholars, 25 executive directions to impose this lockdown have been passed at three levels- national, state and district. The Central Government had issued orders under Section 10 of the National Disaster Management Act, 2005 which authorises the relevant authority to issue binding guidelines to manage the disaster. Similarly, the State Governments had invoked the Epidemic Diseases Act, 1897, which, under Section 2A provides a mandate similar to Section 10 of the NDMA. The Criminal Procedure Code, 1973 effectively authorizes senior police officers, operating within the jurisdictional limits of their districts, to pass orders restricting individual movement where there is an anticipated danger to human “life, health, or safety”. 26 The collective effect of these legislations is that the government, both at the level of the center and the state, is empowered to enforce any arbitrary measures which it deems desirable to tackle the Covid-19 situation. This has led to a lot of new challenges and problems that are being witnessed by the Courts, some of which were unfathomable till before the outbreak.

b. Impact and the aftermath

Through their statutory powers, different governments have imposed lockdown with varying degrees of relaxation. This has interfered with the civil rights of citizens because of which the Courts in India have witnessed an exponential surge in writ petitions. From matters ranging from extension of time in insolvency matters 27 and privacy concerns 28 to grant of interim bails 29 or protection of migrant labourers 30, writs have flooded the Court during this pandemic. The rise in the case results due to the effect that the lockdown has had on the general conduct of life. The tumultuous times have raised several new challenges to the Court. However, the chief concern here lies in the inadequacy of the legal system to dispense justice in such times and this starts with the primary step of access to justice of a citizen to the Courts.

24. 'Janata curfew': India readies for a complete lockdown on Sunday,, (last visited March 21, 2020)
25. Gautam Bhatia, An Executive Emergency: India's Response to Covid-19, (last visited Apr 26, 2020)
26. Section 144, The Code of Criminal Procedure, 1973
27. Amrita Thakore, IBC And The Pandemic: Is There A Way Out For Resolution Applicants? (last visited May 23, 2020)
28. Radhika Roy, SC Issues Notice On Plea Seeking Ban On 'ZOOM' Software ApplicationLive Law(2020), (last visited May 22, 2020)
29. Radhika Roy, Single Benches Of SC To Hear Transfer Petitions, Bail Matters Of Offences Punishable With 7 Yrs Imprisonment From May 13 [Read Circular]Live Law(2020), (last visited May 13, 2020)
30. Sanya Talwar, 'Inaction Towards Protection Of Migrant Workers Affected SC's Reputation': Plea In SC Seeks Directions To Protect & Safeguard MigrantsLive Law(2020), (last visited May 22, 2020)
c. Impediments in approaching Courts

Given the lockdown, while the Courts have effectively started with the e-filing of suits, there is much debate over its effectiveness. Issues ranging from what constitutes ‘urgent’ matters which will be heard 31 to the various District Courts not possessing the infrastructure for making it virtually accessible 32, eyebrows are raised on the access to justice that the system provides.

However, the larger concern which remains, one that has been acknowledged by the BCI Chairman in his letter to the CJI, is with the lawyers not having the requisite skills to work virtually. 33 While this may sound as an innocuous problem at first blush, however, delving deep in the matter reveals the crisis that it casts upon the justice delivery system. Most of the lawyers, that are technologically challenged, are the ones having clientele from the weaker and poorer section of the society. This essentially implies that while it is the rich class that are having their cases heard, the poor have this big barrier to access to justice. The problem is further exacerbated when there is concurrent jurisdiction of two high courts and the doctrine of forum non conveniens is in operation. It concerns the jurisdictional power of the Court vis-a-vis the breach of the civil rights of the citizens. The following case in point will help elucidate the same.

31. Sandhya et al., Corona is a wake up call for Indian courts. They aren't equipped to function in a crisisThePrint(2020), (last visited May 10, 2020)
32. Vidhi Center for Legal Policy, Building Better Courts Surveying the Infrastructure of District Courts,
https://vid visited May 5, 2020)
33. Akshita Saxena, '90% Advocates And Lawyers Unaware Of Technology': BCI Chairman Writes To CJI Advising Against Continuation Of Virtual Hearings Post Lockdown [Read Letter]Live Law(2020), (last visited May 10, 2020)


(a) The Judgment

In a writ petition filed in the Kerala High Court (Court), 34 the Kerala High Court Advocates Association challenged the Karnataka Government’s decision to block some of the road routes between Karnataka and Kerala. The petition pleaded for the opening of the routes so as to facilitate the passage of vehicles carrying patients who required urgent medical attention. The Center was also impleaded as a party as the blockades were in the National Highway, and therefore within the territory of the Center.

The Karnataka Government's main contention against the petition remained that the High Court lacked jurisdiction because the ‘cause of action’ had arisen in Karnataka and therefore the Karnataka High Court was the proper forum to deal with the issue. Additionally, they argued that the Epidemic Diseases Act read with the enabling provisions under the Disaster Management Act gave them the power to erect blockades. The petitioner on their part argued that it is a claim for the enforcement of the fundamental rights of the citizens before a constitutional court and to its effect, the Court had the duty to direct the Karnataka government to uplift the ban for the entry of citizens seeking medical relief.

Without going into the merits of the order, the aspect that is most relevant to the discussion, is the jurisdictional limits of the Court to enforce a fundamental right. The Court in the case had the opportunity to declare itself as an inappropriate forum to hear the matter. But, there were practical considerations like the feasibility to file the petition and the urgency with which it would be heard, that the Court had to take into account. To this effect, the Court ordered a very unique but bizarre opinion. While declaring that it lacked jurisdiction to direct the Karnataka Government, it ordered the central government to remove the blockades. The Court does not elaborate upon this finding and instead places reliance on the submissions of the Advocate General of Karnataka without discussing the legal points made by him. Therefore, the Court does recognise the federal distribution of jurisdictional powers between Courts, but circumvents the same by ordering the Center to carry out the orders. The Court states that - “We are well aware of our jurisdictional limitations and we, therefore, do not propose to issue any direction to the State of Karnataka in this matter. We might however observe that when a High Court of a State in the Union of India, finds and declares the actions of the executive Government of another State to be illegal and unconstitutional, the said State Government would be obliged, under our Constitution, to defer to the said declaration of law by a Constitutional Court of this Country, notwithstanding that the said Court is situated beyond the territorial limits of the said State.”

34. The Kerala High Court Advocates’ Association v. The State of Kerala and Ors., W.P. (TMP) NO. 2/2020
(b) The right’s approach

The authors, while unequivocally agree with the operational order of the Court, humbly differ with the ratio adopted to reach the same. The Court blows hot and cold, when it indirectly enters into the territorial jurisdiction of Karnataka by directing the Center rather than the State to act on its orders. It rests the ratio solely on the justification of upholding the constitutional rights of citizens without any engagement on how the power is found on the touchstone of Article 226. However, as can be seen from a catena of cases, 35 the Court usually dismisses such cases where the cause of action falls outside their jurisdiction and therefore, it is left for the determination of the correct forum whether to enforce the rights being challenged.

However, it is our humble submission that in the present case, the correct forum is Kerala High Court itself. While, it may appear that the cause of action has taken place in Karnataka due to the roadblocks being set there, this would only amount to adopting a narrow definition of the term ‘cause of action’. However, a wider interpretation of the term would reveal that the Kerala High Court had the power as provided under Article 226 to maintain the petition and pass the requisite order.

35. Ambica Industries vs. Commissioner of Central Excise, AIR 2014 SC 3607; Neeraj Shankar Saxena and Ors. vs. Appellate Tribunal For Electricity, New Delhi, 2019 (9) ADJ 377; Nawal Kishore Sharma vs. Union of India, AIR 2014 SC 3607; Kartar Singh vs. State of U.P. and Ors, 2018 (126) ALR 807

The Court has time and again held 36 that the wider interpretation of the term ‘cause of action’ would denote a whole bundle of essential facts necessary for the plaintiff to prove before he can succeed. The essential facts have been held to be the factors without the proof of which the plaintiff’s suit would fail. 37 In the given case, the most imperative fact is the requirement of urgent medical attention of the citizens residing in Kerala. The Court categorically recognises the same when it acknowledges that if there is any further delay, then there is a risk of the loss of precious lives of citizens. Moreover, the Supreme Court has, in the past, recognised the importance of healthcare, 38 created the positive obligation on the State for the protection of the health of a citizen, 39 and most importantly, has held that the failure to provide timely medical care to a patient is a violation of his right to life under Article 21. 40 Therefore, given that the medical need was an essential fact in the present case, the cause of action did arise in the state of Kerala and therefore the Kerala High Court did have the jurisdiction to maintain the petition under Article 226. Further, if the writ is made maintainable after the establishment of the cause of action, then the Court reserves the power under Article 226(2) to pass any order to any government, in the territory of India.

An argument here can be made on the discretion of the Court to exercise the doctrine of forum non conveniens even when the jurisdiction is found. However, on a perusal of the second requirement of the doctrine, it is for the Court to find whether it is in the interest of justice to relegate the parties to the alternative forum. In the present matter, the urgency of the matter warranted for the speedy treatment of the patient. Moreover, assuming that the treatment of the patient was a long standing one, even then due to the perplexity of the functioning of the Courts in these testing times would support the cause of a patient enforcing his rights in the nearest Constitutional Court present.

Therefore, the correct approach in this present matter would have been to direct the Karnataka government, and through them serve the Center, to remove the blockade. A part of the cause of action arose in Kerala and the High Court was constitutionally capable of issuing directions to the Karnataka Government with regard to this specific act of the blockade.

36. Alchemist Limited and Ors. vs. State Bank of Sikkim and Ors, AIR 2007 SC 1812; A.B.C. Laminart Pvt. Ltd. and Ors. vs. A.P. Agencies, Salem, AIR 1989 SC 1239 ;Cooke v. Gill (1873) 8 CP 107 : 42 LJ PC 98
37. Gurdit Singh and Ors. vs. Munsha Singh and Ors., AIR 2004 SC 2321
38. State of Punjab v. Ram LubhayaBagga (1998) 4 SCC 117
39. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
40. Paschim Banga Khet Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426
(c) Protecting the rights of the citizens in testing times

The Covid-19 crisis poses a big challenge to the administrators of the country. However, as has been commented recently by Justice Chandrachud, it is in times of public health crisis like these, that the Court has the additional duty to protect rights of citizens. 41 The Supreme Court has in the past not only held access to justice as a fundamental right 42 but has held that the process of adjudication must be speedy 43 and that the mechanism provided must be reasonably accessible in terms of distance 44

The Kerala High Court in this light has rightly relied on the infringement of Art.19 (1)(d) and Art. 21 of the Constitution resulting from the road blockade. Further reiteration on India’s duty under Art.12 of International Convention on Economic, Social and Cultural Rights to provide accessibility to everyone for the attainment of the standard of physical and mental health, is a reminder of the duty of India as a democratic country.

While, it is trite to say that this order challenges the federal scheme of the Constitution as the Kerala High Court has overtaken the role which ostensibly should be played by the Karnataka High Court, it has to be borne in mind that India is a union of states with federal polity. 45 The Court in the judgment acknowledges this and states that “So long as it is an integral part of the Union of India, the State of Karnataka has necessarily to respect, and guarantee, the fundamental rights of a citizen of this country, irrespective of the place of his residence or domicile within the country”. Therefore, in matters concerning the protection of the rights of the citizens, the duty of the Constitutional Courts is not subserved by procedural infirmities like jurisdictional limitations.


While the order of the Kerala High Court is progressive, it is not to suggest that there is a need for relaxation of lockdown on grounds other than ones affecting the right to life of a person. To this effect, the Court’s order to open the road routes to everyone, and not just the people requiring medical attention, is a bad in law and should be narrowed to be utilised for people in need of urgent transportation between the two states.

41. Scroll Staff, Despite public health crisis, it is courts' duty to protect rights of citizens: Justice Chandrachud, (last visited May 25, 2020)
42. District Bar Association, Dehradun vs. Ishwar Shandilya and Ors, SLP (Civil) No. 5440 of 2020
43. Anita Kushwaha and Ors. vs. Pushap Sudan and Ors, AIR 2016 SC 3506
44. D.K. Basu v. State of West Bengal, (2015) 8 SCC 744
45. K. Lakshminarayanan and Ors. vs. Union of India and Ors, 2018 (15) SCALE 644

This reasoning is best displayed in a recent decision of the Supreme Court in the wake of the Covid-19 crisis. In this case, a division bench of the Madras High Court extended the payment of special allowance to a constable in the Central Industrial Security Force (CISF) to not just in the State but across India. This meant usurping the jurisdiction of other High Courts across the country. The Supreme Court in this case rightly held that the High Court has gone overboard to pass a judgment of uniform application across states on a matter that was not even urgent. The requirement of fundamental rights being at stake was not found in the case and therefore the Supreme Court was right to issue an order denying the usurpation of the territorial powers of the Court.

The world today has entered a grim period in history. India, in its part is fighting everyday against Covid-19 but with acts, both at the central and state level, which are a matter of much debate 46 due to their powers to captivate the rights of the citizens beyond what is required. It is times like these that the Supreme Court has to not act as the custodian of the fundamental rights of the citizens and not repose to the policy of judicial abnegation. 47 A recent judgment of the Telangana High Court, 48 helps highlight this point. 49 Furthermore, what is even more important is that the Court does not run by nitty-gritty of procedure and is able to understand the demand of the times to suit the pattern of reasoning which is replete for the dispensation of justice. This has been best brought out by Krishna Iyer J in Fertiliser Corporation Kamgar Union v. Union of India, 50 where he stated: “In simple terms, locus standi must be liberalized to meet the challenges of the time. Ubi Jus ibiremedium must be enlarged to embrace all interests of public minded citizens or organizations with serious concerns for conservation of public resources and the direction and correction of public power so as to promote justice in trinity facets.”

46. V.G. Shreeram, Socio-Economic Rights and the Shifting Standards of Review, visited May 9, 2020), Ravindra Garia, Covid-19 pandemic and the Judiciary, visited May 9, 2020), Aditya Phalnikar, Migrant Workers, Freedom of Movement, and Positive Obligations, visited May 16, 2020)
47. Mihir Naniwadekar& Mihir Naniwadekar, The Supreme Court's 4G Internet Order: Evasion by AbnegationIndian Constitutional Law and Philosophy(2020), (last visited May 15, 2020)
48. GantaJai Kumar v. State of Telangana and Ors., W.P. (PIL) 75 of 2020
49. Swapnil Tirpathi, elangana HC's Powerful Decision On Right To Health In Times Like COVID-19 visited May 25, 2020)
50. AIR 1981 SC 344
NEELABH KUMAR BIST and SIKANDER HYAAT KHAN are students studying B.A. LL.B (Hons.) at Maharashtra National Law University, Mumbai. They may be reached at