In the Naz Foundation case, the Delhi High Court partially struck down as being unconstitutional, Section 377 of the Indian Penal Code. Does this judgment have force in the whole of India? In practical terms, the question translates to whether the Delhi High Court’s judgment prevents police officials in the rest of India, from acting on Section 377.

The extent of a High Court’s powers is to be found in Article 226 of the Constitution. Article 226(1) provides that the writ of a High Court ordinarily runs only within the territory of the state. Article 226(2) provides that the High Court has extra-territorial reach over persons and authorities outside the state territory where the cause of action upon which the writ issues, arises within its state territory.

One line of thinking about the issue has it that when a High Court strikes down a Central statute, it is unconstitutional for the whole of India. One inclined to think in this fashion would turn to Article 226(2) for support — as did the Supreme Court in a 2004 judgment Kusum Ingots — arguing that any High Court is competent to declare the statute unconstitutional and that would be binding on all legal officials, throughout India. The other line of thinking about the issue has it that the High Court can exercise jurisdiction only over authorities within its territories. This seems to be the view of the Supreme Court in two subsequent judgments: Ambika Industries (2007) and Durgesh Sharma (2008).

What we have before us then is, to use an overworked phrase ubiquitous in the legal world, a classic example of a ‘grey area’ of law. In such cases the best we can do is turn to logic and common sense in the hope that we correctly anticipate what the courts are likely to do in the future about the issue.

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