Analysis of the Judicial Decisions on Clause (3) of Article 226 of the Constitution of India, 1950
-- TAYENJAM MOMO SINGH, Advocate, High Court of Manipur & Advocate-on-Record, Supreme Court of India --


            Under Article 226 of the Constitution of India (hereinafter, “Constitution”) every High Court have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

            As per clause (3) of the Article 226, Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without (a)furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b)giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open. And, if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated. This Article analysis clause (3) of Article 226 of the Constitution and the judicial decisions on the said clause.

Insertion of clause (3) of Article 226(3) of the Constitution:

            The 44th Amendment Act, 1978 of the Constitution, by Section 30 amended Article 226 and inserted the clause (3) of Article 226. The Statement of Objects and Reasons of the said amendment does not state the reason for the said amendment of Article 226. However, it is stated therein that the other amendments proposed in the Bill are mainly for removing or correcting the distortions which came into the Constitution by reason of amendments enacted during the period of the Internal Emergency.

Judicial decisions on clause (3) of Article 226(3) ) of the Constitution:

            The main issue, which has arisen with regard to clause (3) of Article 226, is whether the said clause it is mandatory or directory. There are two divergent views prevailing amongst different High Courts, most of the High Courts, viz., Rajasthan High Court in Gheesa Lal v. State of Rajasthan, AIR 1981 Raj. 65 : 1980 Legal Eagle (RAJ) 97, Gujarat High Court in District Development Officer v. Mainben Virabhai, AIR 2000 Guj 225, Calcutta High Court in Krishan Kumar Agarwala v. RBI, AIR 1991 Cal. 272 : 1990 Legal Eagle (CAL) 128, Allahabad High Court in R.C. Chaudhary v. Vice-Chancellor, Dr Bhim Rao Ambedkar University, AIR 2004 All 95, Kerala High Court in P.Raghunandanan v. RTA,Palakkad, AIR 1996 Ker. 115 : 1995 Legal Eagle (Ker) 675, Gauhati High Court in Thokchom Anita Devi v. Tayenjam Herojit, 2012 STPL 21444 Gauhati, and Manipur High Court in Khaipao Haokip v. G. Suanchinpau, 2019 (4) GLT 217 : 2018 Legal Eagle (Manipur) 80 held that Clause (3) of Article 226 is mandatory in nature and if the Court does not dispose of the application for vacating the interim order within 2(two) weeks of the furnishing a copy of the application for vacation to the party in whose favour the earlier interim order was passed, the said interim order will stand vacated automatically. Some of the reasons that persuaded majority of the High Courts to take the view that the said provision is mandatory are :

(i)       The language of constitutional provision is plain and unambiguous, hence, it would be impermissible to read down the provision on consideration that if plain meaning is assigned, the consequences would be inconvenient or unjust to a party.

(ii)     This provision does not lead to any unjust result against the party who had obtained the ex parte order.

(iii)  The object and intention of the Parliament behind the constitutional amendment has to be kept in view in construing the provision as it was incorporated to deal with a large number of cases where ex parte orders of stay or injunction are obtained and such ex parte orders continue to remain in operation to the prejudice of the aggrieved party for a long period of time as the stay matters do not receive consideration by the High Court within a reasonable period of time.

(iv)  This provision has been incorporated to protect the interest of such aggrieved parties suffering under ex parte stay orders.

(v)   The object and purpose of the legislation would be defeated if it is held to be directory.

            The opposite view in the said issue was expressed by Madras High Court in T. Gnanasambanthan v. Board of Governor, 2014 SCC OnLine Mad. 235 : 2014 Legal Eagle (Madras) 1006 wherein it was held that clause (3) of Article 226 is not mandatory, but directory and that even if the application could not be disposed of by the court within 2 (two) weeks because of reasons attributable to the Court, no party should be made to suffer and hence there would not be an automatic vacation of the interim order. In coming to the aforesaid conclusion that the provision of Article 226(3) is directory, the Madras High Court held that no party should be prejudiced because of the act of the Court based on the principle actus curiae neminem gravabit. It held that non-listing of an application within the 2(two) weeks" time mentioned under Article 226(3), which is not due to the fault of the party but due to the fault of the Registry of the Court, would fall under the category of “act of omission” and the party must not be made to suffer. In that context it also held that Clause (3) of Article 226 is directory and not mandatory. It was thus held that if the condition imposed by the provision of law to do a certain thing within a time frame is upon an institution and the consequences of that institution in not complying with the condition is to fall upon someone else who have no control over the institution which is to perform the duty, then the provision of law cannot be construed as mandatory, but only directory. It was held that what Article 226(3) imposes is an obligation upon the High Courts to dispose of the application for vacating the stay within two weeks and the failure of the High Court to comply with this Constitutional mandate, cannot result in an adverse consequence upon the party. On the other hand, if an obligation is cast upon one party and the consequences of failure to fulfil the obligation are to be suffered by another party, the provision prescribing such an obligation and consequence, cannot be treated as mandatory, but can be treated as directory.

            The said view of the Madras High Court was later relied upon the Division Bench of the : Gauhati High Court in Rukuvoto Ringa and Ors v. Meyalemia and Ors, (2020) 5 GLR 422 : 2020 Legal Eagle (GAU) 327 in deciding the said issue .While considering this issue, the Gauhati High Court had also dealt with a plea which may be legitimately raised, that is, if Clause (3) of Article 226 is mandatory, can a party waive a mandatory provision?. On the said issue, the Gauhati High Court held that even if Clause (3) is deemed to be mandatory as held by the earlier bench on earlier occasions such a provision can be waived as held in Dhirendra Nath Gorai v. Sudhir Chandra Ghosh ,AIR 1964 SC 1300, as it is essentially for the benefit of a specific category of a contesting party and it is not obligatory on the part of such party that he has to mandatorily invoke Clause (3) of Article 226. The result will be that even if such an application is filed under Article 226(3), under the circumstances mentioned above and also as described in the decision in T. Gnanasambanthan (Supra) of the Madras High Court case, the application will be treated as a normal application and interim order may be vacated or continued in the usual manner, without invoking the provisions of Article 226(3) of the Constitution. In conclusion, the Gauhati High Court took the view that Clause (3) of Article 226(3) is directory in nature as opposed to the view taken earlier and deem it appropriate that the issue may be referred to a larger Bench to decide as to whether the provisions of Clause (3) of Article 226 are mandatory or director

            In the recent case of High Court Bar Association, Allahabad v. State of UP & Ors., 2024 SCC Online SC 207 : 2024 Legal Eagle (SC) 98, the issue whether clause (3) of Article 226 of the Constitution is mandatory or directory was considered by the Supreme Court. In the said judgment, it was observed that in the said case, it is unnecessary for the Supreme Court to decide whether clause (3) of Article 226 of the Constitution of India is mandatory or directory. Further, it was observed that on its plain reading, clause (3) is applicable only when an interim relief is granted without furnishing a copy of the writ petition along with supporting documents to the opposite party and without hearing the opposite party. Even assuming that clause (3) is not directory, it provides for an automatic vacation of interim relief only if the aggrieved party makes an application for vacating the interim relief and when the application for vacating stay is not heard within the time specified. Clause (3) will not apply when an interim order in a writ petition under Article 226 is passed after the service of a copy of the writ petition on all concerned parties and after giving them an opportunity of being heard. It applies only to ex-parte ad interim orders.


            In conclusion, it is clear that there are divergent views on the mandatory or directory nature of clause (3) of the Article 226 of the Constitution, and the Supreme Court in High Court Bar Association, Allahabad (Supra), did not settle the matter. The High Courts in its judgments have expressed various reasons behind its views, which are binding precedents insofar as the respective High Courts are concerned. However, it is important that in deciding an application for vacation of interim order filed by invoking clause (3) of the Article 226, it would be proper to decide the application by considering that the ex-parte ad-interim order passed at the time of first hearing was in aid of the main relief and the said order was passed after application of judicial mind and the same ought to be not allowed to be automatically vacated due to the same being not decided within 2 (two) weeks. The automatic vacation of interim order will lead to the matter becoming infructuous and the litigant would suffer for no fault of his own. Therefore, a more balance and justice oriented approach will be required in future in dealing with such application until the issue is settled by the Supreme Court.


29 Mar 2024


-RAJKUMAR UMAKANTA SINGH, Public Prosecutor cum Govt. Advocate (HC), Manipur

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