Subtle Differences Between Article 226 and Article 227 of the Constitution of India

This article has been written by Advocate Sushant Biswakarma (LL.M Business Laws) of DasLegal Advocates, Kolkata.

Introduction

It is a general practice to file a writ petition before a High Court under Article 226 read with 227 as they might look similar in terms of practice. However, there are some major differences that make the scope of both articles totally different. The Hon’ble Supreme Court through its various judgements have condemned Advocates filing a petition under both Articles as they have distinct scope and application. This article shall critically analyse both Articles with respect to various judicial pronouncements and try to illustrate the subtle differences between them.

Article 226

Article 226 of the Constitution of India provides High Courts with the power to issue certain writs to any person or authority, including Government in appropriate cases for enforcing our fundamental rights provided under Part III of the Constitution, or for any other purpose. These writs include the writs of habeas corpus, mandamus, prohibition, quo warranto, and certiorari.

These writs can be explained as follows:

• Habeas Corpus – The literal translation of this Latin term is “you should have the; body”, meaning that any person who has been arrested must be brought before a court to ascertain the legality of such arrest or detention. This ensures the person’s release if the detention is made on unlawful grounds.
• Mandamus – Through this writ courts can order an inferior government official or a statutory body to properly perform and fulfil their statutory duties.
• Prohibition –This writ is issued to prohibit any inferior court or tribunal when they exceed their jurisdiction and/or act in contravention to the rules of natural justice.
• Quo Warranto –It literally translates to “by what warrant”. This writ requires a person to show by what authority an office or franchise is being held or exercised. In other words, it is issued to determine the legality of the claim of a person or a public office and restrains a person or an authority controlling an office without having the right to do so.
• Certiorari –It literally means “to be certified” and is issued by a High Court to quash or set aside an order or a decree of inferior Courts.

Article 226 of the Constitution confers High Courts with the power to issue these writs for enforcement and protection of fundamental rights as provided under Part III of the Constitution. A person willing to get any of these writs issued can file a Writ Petition under Article 226 praying for issuance of appropriate writ.

Article 227

Article 227 of the Constitution lays down that the High Courts have superintendence over all Courts and Tribunals within the territory where such High Court exercises Jurisdiction, with courts or tribunals formed under a law relating armed forces being an exception to it.It simply means that High Courts is the top most Court of their respective states or union territories within which it exercises Jurisdiction, apart from military courts.

Article 227 further provides that a High Court can:

• Call for returns from such courts;
• 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 shall 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;

The proviso to this Article states that any rules made, forms prescribed, or tables settled as mentioned above must be consistent to the law being in force at the time, and also requires an approval of the Governor beforehand.

It can be understood from the mere reading of these articles that appropriate writs can be issued under Article 226 and direction in furtherance of those writs can be passed under Article 227.These articles are sometimes misunderstood to be interchangeable and have similar application, however there are different scope and application to the powers conferred under these Articles.

Distinctions between Articles 226 & 227

No proper distinction was laid down by law between Article 226 and Article 227, creating much ambiguity and confusion in the minds of Advocates while filing writ petitions, the Apex court aimed to settle the dispute once and for all and in the case of laid down the scope and differences between these articles, which are as follows:

• High Court exercises its ‘original jurisdiction’ when a petition is filed under Article 226, whereas, petitions under Article 227 have supervisory jurisdiction.
• While Article 226 has been formulated to protect fundamental rights by issuing appropriate writs, Article 227 is intended to be used in appropriate cases for keeping the subordinate courts and tribunals within the bounds of their authority and is not meant for mere correction of errors.
• Article 226 can be used whenever issuance of an appropriate writ is required, but, Article 227 is to be exercised only in cases of grave injustice or failure of justice such as:

• A court or tribunal exceeds their jurisdiction and passes such order which is ultra vires;
• A court or tribunal has failed to exercise the jurisdiction vested within them;
• A court or tribunal has exercised its available jurisdiction in such a manner which tantamount to exceeding the limits of jurisdiction.

The Hon’ble Apex Court further observed that it has been a general practice of advocates to file their one petition labelled under both Article 226 Article 227 of the Constitution due to lack of knowledge and understanding of the provisions. Such practice has been criticised and disapproved by the Hon’ble Court.

Therefore, as per the decision of the Hon’ble Apex Court in the following differences are to be kept in mind before filing a writ petition.

• In a petition for issuance of writ of certiorari filed under Article 226, the High Court exercises its original jurisdiction of quashing or setting an impugned order of a subordinate court, where as in a petition filed under Article 227, the High Court exercises its supervisory jurisdiction and not original jurisdiction. This supervisory jurisdiction is similar to appellate revision jurisdiction.
• In case of writ of certiorari, the impugned order to be quashed comes up from a subordinate Court or Tribunal, and the same is quashed or set aside if the Court deems fit. Whereas, while exercising supervisory jurisdiction under Article 227, the Hon’ble High Court may not only quash such impugned order, but also pass such further directions as may be required by the case, and guide the subordinate court or tribunal on how it may proceed further in the case.In some cases, the High Court may substitute the impugned decision of its subordinate Court/Tribunal with a decision of its own.
• The power under Article 226 of the Constitution can only be exercised by a High Court when someone has filed a petition praying for issuance of a writ under Article 226, whereas, power under Article 227 being a supervisory jurisdiction can be exercised suo moto as well.

The law laid down by the Hon’ble Apex Court in Surya Devi Rai v. Ram Chander Rai was scrutinised by a Constitution Bench of the Hon’ble Apex Court in RadheyShyamAnr v. Chhabi Nath

The decision laid down in Surya Devi Rai v. Ram Chander Rai was over ruled by the Court and it was held that there should not be suchhard and fast rulesfor differentiating the powers and jurisdiction of Articles 226 & 227. The Court observed and held as follows:

“This Court unfortunately discerns 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 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 individual’s 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.

And further observed that:

“We may also observe that in some High Courts there is a tendency of entertaining petitions under 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 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 that 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

The Apex Court held that the scope of Article 227 is different from Article 226, therefore, the differences laid down in Surya Devi Rai v. Ram Chander Rai was upheld but a few powers laid down in the Judgement for Hon’ble High Courts was curtailed. The High Courts are not meant to entertain matters filed under Article 226 but not affecting anyone’s fundamental rights.

Conclusion

Article 226 & Article 227 both have wide scope and applications; however, it can be understood from the various judicial pronouncements that the power vested upon High Courts by Article 226 is absolute and must be exercised to issue appropriate writs for protection of fundamental rights. Whereas, powers under Article 227 are to be exercised in order to keep lower courts and tribunals within their bounds. The exercise of power under the latter is to be kept to minimum for the ends of justice, and must be used when lower Courts and Tribunals overstep their jurisdiction and cause grave violation of justice.