Doctrine of Forum Non-Conveniens and Writ Jurisdiction under Article 226

Source: Supreme Court

Why in News? 

A Division Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma of the Supreme Court of India, in the case of Baksish Ahmad v. Union of India & Anr. (2026), held that the doctrine of forum non conveniens has limited application in proceedings under Article 226 of the Constitution. The Court held that where a writ petition is filed invoking jurisdiction under Article 226(1) — that is, on the basis of the situs of the respondents' office — the doctrine would rarely justify a High Court in declining to exercise jurisdiction.  

• The Court set aside the Delhi High Court's order that had refused to entertain a BSF constable's writ petition on the ground that Delhi was not the forum conveniens, and restored the petition for consideration on merits.

What was the Background of Baksish Ahmad v. Union of India & Anr. (2026)  Case? 

• The case arose from disciplinary proceedings against Baksish Ahmad, a constable in the Border Security Force (BSF). 
• A show-cause notice was served on him alleging violations of the Border Security Force Rules, 1969 and the Central Civil Services (Conduct) Rules, 1964. 
• Having failed to submit a reply within the prescribed period, he was dismissed from service by the Commandant. 
• His statutory petition under Rule 28A of the BSF Rules was subsequently rejected by the Inspector General, Frontier Headquarters, BSF, Jammu. 
• The constable challenged both orders before the Delhi High Court. The High Court declined to entertain the petition, holding that the relevant events had occurred either in West Bengal, where the dismissal order was issued, or in Jammu and Kashmir, where the statutory petition was rejected. It concluded that Delhi was not the forum conveniens and dismissed the petition, granting liberty to approach the appropriate High Court. 
• The constable challenged this order before the Supreme Court, relying on the decision in Abrar Ali v. CISF, where the Delhi High Court's jurisdiction under Article 226(1) had been upheld on the ground that CISF headquarters were located in Delhi.

What were the Court's Observations? 

• On territorial jurisdiction under Article 226: The Court held that Article 226(1) enables a High Court to issue writs against any authority located within its territorial limits. Since the Union of India and the Director General, BSF — both necessary parties — had their offices situated in Delhi, the Delhi High Court was competent to entertain the writ petition. The existence of alternative forums did not displace this jurisdiction. 
• On the limited application of forum non conveniens in writ proceedings: The Court held that the doctrine of forum non conveniens has been misapplied in the context of writ jurisdiction referable to Article 226. The doctrine permits a court with jurisdiction to decline to hear a matter if another forum is more appropriate, but its application in constitutional writ proceedings is rare and must be approached with considerable caution. 
• On the distinction between Article 226(1) and 226(2): The Court clarified that Article 226(1) confers jurisdiction based on the situs of the respondents' offices, while Article 226(2) confers jurisdiction based on where the cause of action arises wholly or partly. Where jurisdiction is traced to clause (1), the doctrine of forum non conveniens would rarely apply. 
• On access to justice in certiorari proceedings: The Court observed that in proceedings seeking a writ of certiorari, the relevant records are ordinarily available with the respondent authorities and can readily be produced before the court. A litigant who has chosen a forum on the basis of the respondents' location should not be directed away from it, as such an approach could impede rather than advance access to justice. 
• On the legal principles laid down: The Court summarised the following propositions: 
  • The doctrine of forum non conveniens does not ordinarily apply when a litigant invokes writ jurisdiction under Article 226(1) on the basis of the respondents' location within the High Court's territorial limits. 
  • Where the jurisdictional basis is the situs of the respondents' offices, the existence of other forums with concurrent jurisdiction does not justify refusing to exercise jurisdiction. 
  • In certiorari proceedings, records can be called for from the respondents' offices and produced before the court; logistical considerations cannot override the petitioner's choice of forum in such cases. 
  • Applying the doctrine in such circumstances would be self-defeating and would deny access to justice rather than advance it. 
• Accordingly, the Delhi High Court's judgment was set aside and the writ petition was restored for adjudication on merits.

What is the Doctrine of Forum Non Conveniens? 

Meaning: 

• Forum non conveniens is a common law legal principle that allows a court to dismiss or stay a case when it believes that another forum is more appropriate for hearing the matter, even if the court itself has jurisdiction over the case and the parties.  
• The term is Latin for "inconvenient forum." 
• It plays a critical role in private international law, where courts frequently deal with cross-border disputes involving multiple jurisdictions. 

Historical Origins: 

• The doctrine has its origins in Scottish law and was later adopted in common law countries including England, the United States, Canada, and Australia.  
• In English law, it was first affirmed in Spiliada Maritime Corp v Cansulex Ltd (1987), where Lord Goff provided a comprehensive framework for its application. 

Key Considerations — Private Interest Factors: 

• Convenience of parties: location, ease of travel, and financial considerations. 
• Location of witnesses and evidence: if the majority of evidence or witnesses are located in a foreign jurisdiction, the court may be inclined to apply the doctrine.  
• Cost of litigation: if the cost of litigating in the current forum is significantly higher, the court may favour dismissing the case in favour of a more economical venue.

Key Considerations — Public Interest Factors: 

• Administrative burden on the court: courts may dismiss a case to avoid overburdening their docket, especially if the case has minimal connection to the jurisdiction.  
• Application of foreign law: if the case involves the application of foreign law, the court may determine it is better suited to be heard in a forum familiar with that law. 

Adequate Alternative Forum: 

• The defendant must demonstrate that an alternative forum exists where the case can be adequately heard — that forum must have jurisdiction over the parties and the subject matter and must provide the plaintiff with an adequate remedy. 

Deference to Plaintiff's Choice: 

• Generally, courts give significant weight to the plaintiff's chosen forum; this deference is diminished when the plaintiff is foreign.

What is Article 226 of the COI? 

• Article 226 is enshrined under Part V of the Constitution which puts power in the hand of the High Court to issue the writs. 
• Article 226(1) of the COI states that every High Court shall have powers to issue orders or writs including habeas corpus, mandamus, prohibition, quo warranto, and certiorari, to any person or any government for the enforcement of fundamental rights and for other purpose. 
• Article 226(2) states that the High Court has the power to issue writs or orders to any person, or government, or authority -  
  • Located within its jurisdiction or 
  • Outside its local jurisdiction if the circumstances of the cause of action arises either wholly or partly within its territorial jurisdiction. 
• Article 226(3) states that when an interim order is passed by a High Court by way of injunction, stay, or by other means against a party then that party may apply to the court for the vacation of such an order and such an application should be disposed of by the court within the period of two weeks.  
• Article 226(4) says that the power granted by this article to a high court should not diminish the authority granted to the Supreme Court by Clause (2) of Article 32. 
• This Article can be issued against any person or authority, including the government. 
• This is merely a constitutional right and not a fundamental right and cannot be suspended even during an emergency. 
• Article 226 is of mandatory nature in case of fundamental rights and discretionary nature when it is issued for “any other purpose”. 
•  It enforces not only fundamental rights, but also other legal rights.