This Article is written by Mridushi Damani student of Hidayatullah National Law University
Article 226 of the Indian Constitution
Article 226 of the Indian Constitution establishes the writ jurisdiction of all the High Courts in India to issue orders, directions, writs to any person or authority inclusive of the government, such as the writs of Mandamus, Certiorari, Habeas Corpus, Quo Warranto or Prohibition.
The powers vested in the High Courts through this Article is similar to those vested in the Supreme Court under Article 32, however, the scope of powers vested in the High Court is larger than those vested in the Supreme Court because unlike the Supreme Court, which can only hear cases where there has been a violation of any rights mentioned in Part III of the Constitution, i.e. fundamental rights, the High Courts in addition to that can also entertain cases where legal rights have been infringed.
All the more, unlike the writ jurisdiction of the Supreme Court whereby it is imperative for the same to entertain cases filed under Article 32, the High Courts enjoy the liberty to exercise the option to refuse to entertain a case under their writ jurisdiction. Nonetheless, the power conferred on a High Court by this article is not in derogation of the power conferred on the Supreme Court by clause (2) of Article 32 as also upheld in the landmark case of Collector of Central Excise v. Dunlop India Ltd, the Supreme Court held that Article 226 is not meant to short-circuit or circumvent statutory procedures.
Thus, Article 226 of the Indian constitution forms an integral part of the judicial system under which each High Court exercises its vested powers upon the territories which lie within its jurisdictive scope.
Article 227 of the Indian Constitution
Upon going through Article 227 of the Indian Constitution one may rightly conclude that the same establishes the superintendence of the High Courts over all other tribunals and courts which lay within the respective High Court’s territorial jurisdiction with the exception of those Courts which have been formed under a law related to the armed forces.
Sub-section (2) and (3) of the referred Article also vests the High Courts with the authority to:
- Call for returns from such courts or tribunals which lay within the High Court’s territorial jurisdiction,
- Make and issue general rules and prescribe forms for regulating the practice and proceedings of such above-referred courts and tribunals.
- Prescribe forms in which books, entries, and accounts are to be kept by the officers of any such said courts and tribunals.
- Settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and tribunals.
Thus, the powers conferred upon the High Courts through this Article are also rightly referred to as the Supervisory Powers of the High Courts. The history of supervisory jurisdiction exercised by the High Court, and how the jurisdiction has culminated into its present shape under Article 227 of the Constitution, has been rightly traced in case of Waryam Singh & Anr. v. Amarnath & Anr.
This jurisdiction can be said to be traced back to Section 15 of High Courts Act, 1861 which gave the power of judicial superintendence to the High Courts apart from, and independently of, the provisions of other legislation conferring revisional jurisdiction on the High Courts. Section 107 of the Government of India Act 1915 and then Section 224 of the Government of India Act 1935, was also similarly worded thus playing an essential role in shaping Article 227.
Difference between Article 226 and 227
Though, the two Articles i.e. Article 226 and Article 227 of the Indian Constitution seem similar in nature, the Hon’ble Supreme Court of India has time and again clarified the distinction between the two through various precedents.
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 in a decision reported in Ram Kishan Fauji v. State of Haryana stated that the power to issue writs under Article 226, is not the same as the power of superintendence as specified in Article 227 and that there is a fine line of distinction between the two.
The said situation was comprehensively explained by the Hon’ble Supreme Court in the matter titled as Umaji Keshao Meshram v. Radhika Bai, where the Hon’ble Supreme Court held that these two Articles stood on completely different foundations. It was explained the fact that the same result can at times be achieved by the two different processes, it did not mean that these two processes were the same. Their source and origin were different along with the models upon which they are patterned.
One of the most important and particular differences between the two Articles being proceedings under Article 226 is in the exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not within original jurisdiction, but only supervisory jurisdiction.
The basic difference which was drawn was that in Article 226, the person, authority or state against whom the direction, order or writ is sought is a necessary party. However, under Article 227, what comes up before the High Court is the order or judgment of a subordinate Court or Tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate Court or Tribunal has acted within its authority and according to law. Further, under Article 227, the High Court in addition to setting aside the judgment or order of the Tribunal can further issue directions to such subordinate Court or Tribunal to act in a particular manner whereas no such power is conferred to the High Court under Article 226.
Therefore, there can be no doubt that there is a huge difference between Article 226 and Article 227 of the Indian Constitution where both the Articles operate in different circumstances and cases. Hence, not only are the two non-identical in nature but also play a separate and unique role in the Indian Judicial System having a significance of their own.
- Article 226 of the Indian Constitution.
- Article 227 of the Indian Constitution.
- Article 32 of the Indian Constitution.
- Collector of Central Excise v. Dunlop India Ltd (1 SCC 260).
- Waryam Singh & Anr. v. Amarnath & Anr. (1954) SCR 565.
- Section 15 of High Courts Act, 1861.
- Section 107 of the Government of India Act 1915.
- Section 224 of the Government of India Act 1935.
- Surya Devi Rai vs. Ram Chander Rai , Appeal (civil) 6110 of 2003
- Ram Kishan Fauji v. State of Haryana (2017) 5 SCC 533.
- Umaji Keshao Meshram v. Radhika Bai 1986 (Supp) SCC 401.