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ARTICLE 226 AND ARTICLE 227: POWERS, SCOPE AND DIFFERENCE
kartik mago 27 Feb 2019

ARTICLE 226 AND ARTICLE 227: POWERS, SCOPE AND DIFFERENCE

Articles 226 and 227 of the Indian constitution define the powers of the High Court of India.

Article 226, give High Courts the power to issue any person or authority, including the government in some cases, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.

What are these Writs?

Habeas Corpus - A simple dictionary meaning of the writ of Habeas Corpus is "a writ requiring a person under arrest of illegal detention to be brought before a judge or into court, especially to secure the person's release unless lawful grounds are shown for their detention".

Mandamus- A writ issued as a command to an inferior court or ordering a person to perform a public or statutory duty.

Prohibition- A writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural justice.

Quo warranto - This simply means "by what warrant?” This writ is issued to enquire into the legality of the claim of a person or public office. It restrains the person or authority to act in an office which he / she is not entitled to; and thus, stops usurpation of public office by anyone. This writ is applicable to the public offices only and not to private offices.

Certiorari- Literally, Certiorari means "to be certified". The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi-judicial authority.

The High Court is conferred with this power under Article 226 of the Constitution of India for enforcement of any of the fundamental rights conferred by part III of the Constitution or for any other purpose.

Article 227 gives every High Court power to have superintendence over all courts and tribunals throughout the territories regarding which high court exercises its jurisdiction (except a court formed under a law related to armed forces).

Under article 227 of Indian constitution, every high court of India has following powers –

  • High court can call for returns from such courts,
  • High court has an authority to make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts.
  • Prescribe forms in which books, entries and accounts be kept by the officers of any such courts.
  • Settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts.

 

Scope, Powers and Difference between Article 226 and Article 227

 In the case of Surya Devi Rai vs. Ram Chander Rai, the Supreme Court of India relied on many previous constitutional Judgments of the Hon'ble Apex court, one oof those judgments were Umaji Keshao Meshram and Ors. vs. Smt. Radhikabai and Anr, it was this case who laid down scope, power and differences between Article 226 and Article 227.

The most important and particular difference between the two articles is that Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 gives the provisions of Section 107 of the Government of India Act, 1915, excluding the fact that the superintendence power has been extended by this Article to tribunals as well. Though the power is similar to that of an ordinary court of appeal, but still the power given Article 227 is with an aim that it must be used exceptionally and only in specific cases for the purpose of keeping the subordinate courts and tribunals within the limit of their authority and not for correcting mere errors.

It was also observed by the court that power under Article 227 shall be exercised only in cases of grave injustice or failure of justice such as

(i) When the court or tribunal has believed in a jurisdiction which basically it does not have, (ii) The court or tribunal has flunked to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and

(iii) The jurisdiction which is available to the court but it is being used in such wrong manner that it is over stepping the limits of jurisdiction.

In the case of Surya Devi rai vs. Ram Chander Rai,the Hon'ble Supreme Court observed that there is lack of knowledge of the distinction between the understanding of Article 226 and 227 and hence it is a common custom with the lawyers labeling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncements.

The Hon'ble Supreme Court after looking into its previous judgements in case of Surya Devi Rai vs. Ram Chander Rai laid down the following differences:

i. Firstly, the writ of certiorari is an exercise of its original jurisdiction (Article 226) by the High Court; exercise of supervisory jurisdiction (Article 227) is not an original jurisdiction and in this regard, it is akin to appellate revision or corrective jurisdiction.

ii. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more (Art 226). In exercise of supervisory jurisdiction (Art 227) the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute the impugned decision with a decision of its own, as the inferior court or tribunal should have made.

iii. The jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved but the power conferred under Article 227 viz the supervisory jurisdiction is capable of being exercised suomoto as well.

The court further added that under Article 226 of the Constitution, writ is issued for correcting gross errors of jurisdiction, basically when a subordinate court is found to have acted in following manner:

(i) When subordinate court assumes jurisdiction where it does not have any

(ii) In excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or

(iii) Acting in wrong disregard of law or the rules of procedure or when subordinate court acts in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate court has assumed a jurisdiction which it does not have, or has failed to exercise a jurisdiction which it does have, or the jurisdiction though available is being exercised by the court in a manner not permitted by law, and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.

The Hon'ble Supreme Court, through this judgment, brought all the subordinate Judicial bodies under the ambit of Article 226 of the Constitution of India, curtailing the alternate remedy of Appeal available to the aggrieved, which directly or indirectly made no difference in the powers of Article 226 and 227 of the Constitution of India.

The difference between Article 226 and Article 227 of the Indian Constitution was very firstly brought up in the case of Umaji Keshao[1].

The Court has held that

“Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction.

 

25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well.

 

Radhey Shyam & Anr vs Chhabi Nath & Ors

It was in the year 2015 that the Constitution Bench of the Hon'ble Supreme Court comprising of H.L Dattu. CJI, Sikri.J, and A.K. Goel. J, were to look into the matter of correctness of the law which was promulgated in another case.[2]

The Hon'ble Court observed that:

"This Court unfortunately discerns (with Surya Devi Rai vs. Ram Chander Rai) that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also, in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases, the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals, writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority.

We may also observe that in some High Courts there is a tendency of entertaining petitions under Article 227 of the Constitution by terming them as writ petitions. This is sought to be justified on an erroneous appreciation of the ratio in Surya Dev and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 CPC has been curtailed. In our view, even if the scope of Section 115 CPC is curtailed, it has not resulted in expanding the High Court's power of superintendence. It is too well known to be reiterated that in exercising its jurisdiction, High Court must follow the regime of law.

Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226."

Hence, the Supreme Court noted the difference between Article 226 and Article 227. It also condensed some powers to the High Courts under Article 226. They have to attend petitions which do not touch, in any way, the Fundamental Rights of any person.

The scope of Article 226 and Article 227 is quite vast. The High Court has the power to correct errors of jurisdiction. But it cannot disturb the true findings of the facts because they are within the appellate Court’s jurisdiction only.

Another power of High Court is the power of revision. It enables the revision Court to be sure of the following of a finding

1.      Correctness

2.      Legality

3.      Propriety

4.      Sentence or order recorded/passed

Under Article 226, High Court can’t be regarded as a Revision or Appellate Court because when any subordinate Court rejects the order, the legal remedy of appeal is available to the aggrieved party to get an answer of the question of violation of fundamental right.



[1] Umaji Keshao Meshram v. Radhikabai [1986 Supp. SCC 401]

 

[2] Surya Devi Rai vs. Ram Chander Rai

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