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Articles 226 And 227 : Power, Scope And Difference

The Constitution of India confers various powers on High Court which are provided under Articles 225 to 228, of which the powers conferred under Article 226 and 227 are extraordinary in nature and are said to be endowed upon the High Court to ensure proper and effective administration of justice. The nature and the scope of the powers conferred under Articles 226 and 227 respectively, is different and distinct from one another. However, today it can be seen that most of the petitions are presented before the High Court, seeking relief either under Article 226 or Article 227 are filed in oblivion of the existing distinction between the two Articles and the orders are passed by the Court in ignorance of the law governing the jurisdiction. The Hon'ble Supreme Court of India has time and again deprecated such practices. It is relevant here to reiterate the observations of Hon'ble Supreme Court in Shalini Shyam Shetty and Anr. v. Rajender Shankar Patil 2010(8) SCC 32 thereby cautioning the Courts to honour the constitutional provisions governing its jurisdiction, same are reproduced as follows:

`80. We may also observe that in some High Courts there is 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 (AIR 2003 SC 3044 (supra) and in view of the recent amendment to Section 115 of the Civil Procedure Code by Civil Procedure Code (Amendment) Act, 1999. It is urged that as a result of the amendment, scope of Section 115 of Civil Procedure Code has been curtailed. In our view, even if the scope of Section 115 Civil Procedure Code is curtailed that has not resulted in expanding 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.

81. As a result of frequent interference by Hon'ble High Court either under Article 226 or 227 of the Constitution with pending civil and at times criminal cases, the disposal of cases by the civil and criminal courts gets further impeded and thus causing serious problems in the administration of justice.

82. This Court hopes and trusts that in exercising its power either under Article 226 or 227, Hon'ble High Court will follow the time honoured principles discussed above. Those principles have been formulated by this Court for ends of justice and the High Courts as the highest Courts of justice within their jurisdiction will adhere to them strictly'

Thus, in the light of the aforesaid, the present Article endeavors to elicit the differences between Article 226 and 227 respectively.

Nature of Jurisdiction

The High Court exercises original jurisdiction under Article 226 of the Constitution. The object of Article 226 is to provide a quick and inexpensive remedy to aggrieved parties. The High Court has been vested with the power to issue to any person or authority, including in appropriate cases, any Government within the jurisdiction of the High Court, directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. The power under Article 226 is available not only for the enforcement of Fundamental rights, as conferred under Part-III of the Constitution, but also for the enforcement of legal rights. It is pertinent to mention here that the power under Art. 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution and being Constitutional power, it not fettered by anything contained in any statutory provision.

The remedy under Article 226 is pre-eminently a public law remedy and it is available against a body person performing a public law function and is not generally available as a remedy against private wrongs. It is used primarily for the enforcement of various rights of the public or to compel public/statutory authorities to discharge their duties and to act within their powers. However, under our Constitution, Article 226 is couched in such a way that an order or writ can also be issued against a private authority or a person. However, such private authority or person must be discharging a public function and that the decision sought to be corrected or enforced must be in discharge of a public function only.^[1*] It is pertinent to mention that the writ jurisdiction cannot be made a forum for adjudicating civil rights, because in cases of disputes as to civil rights, writ proceedings cannot be a substitute for a civil suit, where the jurisdiction is very wide and plenary.^[2*]

[1* Binny Ltd. v. V. Sadasivan 2005(6) SCC 657

[2* P.R. Muralidharan v. Swami Dharmananda Theertha Padar, (2006) 4 SCC 501.]

As stated aforesaid, the jurisdiction under Article 226 is the original jurisdiction of the High Court. Even if the decision of a tribunal is challenged in writ petition it would be the original and initial jurisdiction of the court and it is not a continuation of the proceedings of the earlier court or tribunal. It is because of the fact that it is different from appellate jurisdiction wherein the facts of the case and appreciation of evidence have to be re-examined. However, the only thing which is important, to be seen by the court in writ jurisdiction, is the appreciation of application of law and the jurisdiction and competency of such application. Therefore, the position of the court is that of a sentinel. Even if a wrong appreciation of fact has led to a wrong conclusion by the lower court or tribunal, the court may not give its decision on this issue and such issues are left for the appellate court to take appropriate decision if approached by the aggrieved party.

Article 227 of the Constitution confers `Power of Superintendence' on the High Court. The High Court exercises superintendence over all Subordinate Courts situated within its jurisdiction by virtue of Article 227 of the Constitution. As per Article 227, the High Court may call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. The power of Superintendence of the High Court under this Article is not confined to administrative Superintendence only, but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the courts and tribunals inferior to the High Court have done what they were required to do. The Constitution Bench of Hon'ble Supreme Court of India in Waryam Singh v. Amarnath, AIR 1954 SC 215, after a giving a detail account of history of Article 227, observed as follows:

13. Re. 2.- The material part of Article 227 substantially reproduces the provisions of section 107 of the Government of India Act, 1915 except that the power of superintendence has been extended by the Article also to Tribunals. That the Rent Controller and the District Judge exercising jurisdiction under the Act are Tribunals cannot and has not been controverted. The only question raised is as to the nature of the power of superintendence conferred by the Article. Reference is made to clause (2) of the Article in support of the contention that this Article only confers on the High Court administrative superintendence over the Subordinate Courts and Tribunals. We are unable to accept this contention because clause (2) is expressed to be without prejudice to the generality of the provisions in clause (1). Further, the preponderance of judicial opinion in India was that section 107 which was similar in terms to section 15 of the High Courts Act, 1861, gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisional jurisdiction on the High Court.

The above decision makes it clear that the jurisdiction under Article 227 is neither original nor it is appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct and operate in different fields.^[3*]

[3* Shalini Shyam Shetty and Anr. v. Rajender Shankar Patil, 2010(8) SCC 32.]

Historical Background

For the better understanding of the difference between the two Articles, it is imperative to look at the evolution of the two distinct powers which were exercised by the High Courts. The writs are originated in the English Judicial System from the orders passed by King's bench in England. It used to be issued on a petition presented to the king in council for exercise of the extra-ordinary judicial powers in a particular matter. The writ was issued in such cases which did not fall under any of the fixed remedies and were beyond the jurisdiction of the common law courts. In India, prior to the Constitution, only three High Courts i.e. Calcutta, Bombay and Madras were empowered to issue the writs and the other High Courts in India had no such power as they were newly created under section 16 of the High Courts Act, 1861 and thus did not enjoy the powers conferred to the presidency Courts. The writ jurisdiction of the High Courts was only limited to their original civil jurisdiction, which they enjoyed under section 45 of Specific Relief Act, 1877. Therefore, the power to issue writs was truncated and pruned. It is pertinent to mention that even in common law, the writ has limited scope, however, the framers of constitution retained the concept of writs as such, but enlarged the scope in application by conferring the power on Supreme Court under Article 32 for enforceability of fundamental rights and on High Court under Article 226 for the Fundamental as well as legal rights. Therefore the power to issue writ underwent a sea-change and has been further expanded through the judicial pronouncements.

The history of Article 227 has been elaborately explained by the Constitutional Bench of Hon'ble Supreme Court of India Waryam Singh and another v. Amarnath and another, AIR 1954 SC 215 and in Shalini Shyam Shetty and Anr. v. Rajender Shankar Patil 2010(8) SCC 32. The power of superintendence owes its origin to the supervisory jurisdiction of King's Bench in England. The presidency Courts of Calcutta, Madras and Bombay were given the power of superintendence similar to that as was exercised by Kings Bench in the English Law. The High Courts were conferred with jurisdiction of superintendence under section 15 of Indian High Courts Act, 1861, which reads as follows:

"15. Each of the High Courts established under this Act shall have superintendence over all Courts which may be subject to its Appellate Jurisdiction, and shall have Power to call for Returns, and to direct the Transfer of any Suit or Appeal for any such Court to any other Court of equal or superior Jurisdiction, and shall have Power to make and issue General Rules for regulating the Practice and Proceedings of such Courts, and also to prescribe Forms for every Proceeding in the said Courts for which it shall think necessary that a form be provided, and also for keeping all Books, Entries, and Accounts to be kept by the officers, and also to settle Tables of Fees to be allowed to the Sheriff, Attorneys, and all Clerks and Officers of Courts, and from Time to Time to alter any such Rule or Form or Table; and the Rules so made, and the Forms so framed, and the Tables so settled, shall be used and observed in the said Courts, provided that such General Rules and Forms and Tables be not inconsistent with the Provisions of any law in force, and shall before they are issued have received the Sanction, in the Presidency of Fort William of the Governor-General in Council, and in Madras or Bombay of the Governor in Council of the respective Presidencies."

Later on under the Government of India Act, 1915 section 107 was included which endowed the High Courts with the similar powers. Section 107 was similar to the present Article 227, only difference is that by virtue of Article 227 the power of superintendence was extended to the Tribunals as well. Section 107 was incorporated as it is in Government of India Act, 1935, however a new sub section (2) was introduced which provided that nothing in the section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior Court which was not otherwise subject to appeal or revision. However, this sub section was omitted from Article 227, thereby implying that the intention of the Constitution fore fathers was to give ample power to the Courts vis-a-vis the superintendence not only administrative but also judicial.

It is pertinent to note that the historical background would show that the nature of Article 226 and 227 is totally different and both the powers cannot be exercised together. As is observed by Hon'ble Supreme Court in Shalini Shyam Shetty (Supra) that `no writ petition can be moved under Article 227 of the Constitution nor can a writ be issued under Article 227 of the Constitution. Therefore, a petition filed under Article 227 of the Constitution cannot be called a writ petition. This is clearly the Constitutional position. No rule of any High Court can amend or alter this clear Constitutional scheme.'

Objective and Scope of Article 226 and 227

The perusal of the Articles 226 and 227 would show that the objective and nature of the two is unlike and poles apart. Article 226 is meant for the protection of individual grievance and is normally exercised when a person is affected due to infringement of some fundamental or statutory right. In certain cases where there is infringement of fundamental right, the relief under Article 226 of the Constitution can be claimed exdebito justicia or as a matter of right. It is couched in the widest possible terms and the power conferred therein can be exercised when there is any act which is against any provision of law or violates constitutional provision and when recourse cannot be had to the provisions of the Act for the appropriate relief. Though the powers of the High Court under Article 226 are discretionary and no limit can be placed on the discretion, however the power of the High court is subject to certain self-imposed conditions, which are necessary so as to ensure that the power is not arbitrarily used. One such limitation is that the High Court does not sit or act as Appellate Authority over the actions of the subordinate authorities or courts. The power of judicial review under Article 226 is not directed against the decision but is confined to the decision making process. Judicial review is not an appeal from a decision but a review of the manner in which decision is made.^[4*] However, while examining and scrutinising the decision making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. How far the court of judicial review can reappreciate the findings of facts depends on the ground of judicial review. The Hon'ble Supreme Court in Hari Vishnu Kamath v. Ahmad Ishaque and ors. AIR 1955 SC 233, while discussing the scope of Article 226 held that the Court while exercising jurisdiction under Article 226 may annul or set aside the act, order or proceedings of the subordinate authority, but cannot substitute its own decision in place thereof.

[4* Durga Das Basu, Shorter Constitution of India Vol. 2 14th Edition 2009 pg 1192]

On the other hand when we talk about the power of superintendence of the High Court, the very purpose and object of such power distinct it from Article 226. The supervisory jurisdiction is exercised sparingly only for keeping the Subordinate Courts within the bound of their authority and is confined only to see whether an inferior Court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of record, much less an error of law. It is imperative to mention that the jurisdiction under Article 227 cannot be exercised in the "cloak of an appeal in disguise", implying that where the statute bans the exercise of the revisional powers it would require very exceptional circumstances to warrant interference under this article since the power of superintendence was not meant to circumvent statutory law. Article 227 does not vest the High Court with limitless power which may be exercised at the Court's discretion to remove the hardship of particular decisions. The power of superintendence it confers is a power of a known and well-recognised character and should be exercised on those judicial principles which give it its character.^[5*] The High court exercises the power as custodian of justice and for vindication of its position as the highest judicial authority in the State. The exercise of jurisdiction under Article 227 is entirely discretionary and no person can claim it as a matter of right.

[5* Dalmia Jain Airways Limited v. Sukumar Mukherjee, AIR 1951 Calcutta 193]

As contrary to the exercise of power under Article 226, wherein the Court can only set aside or annul the order, the Court while exercising the power under Article 227 may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case.^[6*] However, at the same time it is pertinent to refer to the constitutional Bench judgment of Hon'ble Supreme Court in Nagendra Nath Bora and another v. Commissioner of Hills Division and Appeals, Assam AIR 1958 SC 398, wherein the Court held that, `The powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the powers under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. Thus it is clear that as against the scope of Article 226, the power under Article 227 can be exercised only if there has been an (a) unwarranted assumption of jurisdiction, not vested in Court or tribunal, or (b) gross abuse of jurisdiction or (c) an unjustifiable refusal to exercise jurisdiction vested in Courts or tribunals.^[7*]

[6* Shalini Shyam Shetty and Anr. v. Rajender Shankar Patil, 2010(8) SCC 329]

[7* Jodhey and others v. State through Ram Sahai, reported in AIR 1952 Allahabad 788]

The distinction in the scope of powers becomes all the more relevant in view of the fact that from an order of a Single Judge passed under Article 226, a Letters Patent Appeal or an Intra Court appeal is maintainable, however, no appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227. In almost all High Courts, rules have been framed for regulating the exercise of jurisdiction under Article 226. No such rule appears to have been framed for exercise of High Court's power under Article 227 possibly to keep such exercise entirely in the domain of the discretion of High Court.

Maintainability of the petition

Another point necessary to distinguish the two articles, is that of maintainability of the petition filed under them. As far as Article 226 is concerned it is a remedy in public law which may be filed by any person but the main respondent should be either Government, Governmental agencies or a State or instrumentalities of a State within the meaning of Article 12. However, the private parties acting in collusion with State can be respondents in a writ petition and under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom writ will be issued must have some statutory or public duty to perform. The writ petition is maintainable against the order passed by the statutory authorities and for enforcement of fundamental or legal rights. However, no writ petition is maintainable against the judicial orders of the civil court.^[8*]

[8* Radhey Shyam v. Chhabi Nath 2015(5) SCC 423]

On the other hand judicial orders can be assailed under Article 227 of the Constitution. As can be inferred from the discussion above that the scope of exercise of power of the Court under Article 227 is limited one, it is necessary to refer to the decision of Hon'ble Supreme Court in Sadhana Lodh v. National Insurance Co. Ltd., 2003(1) R.C.R.(Civil) 772, wherein the Court observed that, "Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution."

On a proper appreciation of the wide and unfettered power of the High Court under Article 226 and 227, it transpires that both confers wide discretionary power on the High Court and since, the constitutes the basic structure of the Constitution, hence cannot be curtailed by any Statute. However, at the same time it is important to understand and keep in mind the basic difference between the two as the former confers plenary powers to issue writs and directions for protection of individual grievances and the latter is exercised to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court.

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