Monday, January 25, 2021
Home Editor's picks Scope of Article 226 and Article 227: That the same result can be achieved...

Scope of Article 226 and Article 227: That the same result can be achieved by 2 different processes, does not mean the processes are the same

It is the paradox that there is no difference between Article 226 and 227.  Rather this is no more res-integra that both Articles 226, as well as 227, operate under different situations and different areas.

The writ jurisdiction is a very potent and important tool given to the High Courts under the Constitution of India. The purpose of writ jurisdiction is to ensure that necessary directions in the form of writs can be issued both as administrative orders as well as on the judicial side. In this article, I will not go in detail as to the nature of the writs. As known, Constitution of India has given powers to the High Courts under Article 226 to issue directions or orders or writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari as per the respective requirement and the necessity. Under Article 227, the High Courts are vested with the powers of General Superintendence over all Courts and Tribunals. The powers vested to the High Courts under Article 227 are wider than the one conferred on the High Court by Article 226. This is because the power of Superintendence under Article 227 is not subject to the technicalities of the procedure or traditional fetters which are found in writ jurisdiction.

Difference between Article 226 and Article 227

The Hon’ble Supreme Court in a decision reported in (2017) 5 SCC 533 titled Ram Kishan Fauji vs State of Haryana has explained that under Article 226, the High Courts have the power to issue directions, orders and writs to any person or authority including any Government.  Under Article 227, every High Court has the power of Superintendence over all Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction. However, the power to issue writs is not the same as the power of superintendence. There is a fine line of distinction between the two. Sometimes there has been confusion that while challenging a decision passed by an administrative authority, whether the petition is to be filed under Article 226 or under Article 227. There have been instances where a lawyer to avoid this objection from the Court, labels the petition both under Article 226 and 227 of the Constitution.

The said situation was comprehensively explained by the Hon’ble Supreme Court in the matter titled “Umaji Keshao Meshram vs Radhika Bai” reported in 1986 (Supp) SCC 401. The Hon’ble Supreme Court held that these two Articles stand on an entirely different foundation. It was explained that the fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same. Their source and origin are different and models upon which they are patterned are also different. It was also held that the power to issue writs under Article 226 is not the same as the power of Superintendence under Article 227. The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction and is in addition to that conferred upon the High Court by Article 226.

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 of 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.

The proceeding under Article 226 is an original proceeding when it concerns civil rights of a person whereas a proceeding under Article 227 is not an original proceeding.

Therefore, if an order passed by a subordinate Court or a Tribunal is being challenged before the High Court where there is no remedy of filing an appeal, it has to be judged that whether it is seeking a simpliciter setting aside an order or that in addition to the setting aside / quashment of the order, certain directions are also prayed for. If along with the prayer of setting aside/quashment certain directions are prayed, a petition can only be filed under Article 227 of Constitution of India.

In the aforesaid circumstances, even if the petition is labelled under Article 226, then it is the duty of the High Court to consider the same under Article 227 and not under Article 226. Similar shall be the result if a petition is labelled both under Article 226 as well as 227 of the Constitution.  However, if any civil rights of a person have been infringed by any Government authority or state then the remedy lies only under Article 226 and certainly not under Article 227.

Provision of Writ Appeal

The High Courts by virtue of their own rules have provided a right of appeal against the order passed under Article 226. It has also been a matter of debate that whether an order passed by the High Court while deciding a petition under Article 227 can be challenged by way of appeal before the Division Bench of the concerned High Court.  The said situation was dealt with by the Hon’ble Supreme Court in (2008) 15 SCC 233 titled “State of Madhya Pradesh vs Visan Kumar Shiv Charan Lal”.  The Hon’ble Supreme Court while deciding the said issue held that the nomenclature is of no consequence and it is the nature of the relief sought for and the controversy involved which determines the Article which is applicable, i.e. whether a Petition is to be treated under Article 226 or Article 227.  As stated by above, if the nature of the prayer relates only to quashing or issuance of a specific writ against the state, the same shall be considered under Article 226 irrespective of its nomenclature.  Therefore, even if a petition was filed and labelled as Article 227 but the same after examining its contents comes out to be that of a petition under Article 226 certainly the litigant has a right for filing the appeal as provided under the rules of a respective High Court.

Conclusion

Therefore, it is the paradox that there is no difference between Article 226 and 227.  Rather this is no more res-integra that both Articles 226, as well as 227, operate under different situations and different areas. The jurisdiction of a Court under Article 226 as well as 227 are also different and the powers under both the Articles vary.  At the risk of repetition, it is stated that under Article 226, High Courts have powers to issue directions, orders and writs to any person or authority including any Govt whereas under Article 227, every High Court has a power of Superintendence offered to Courts and Tribunals throughout the territory in relation to which it exercises jurisdiction.

The power of superintendence conferred upon every High Court by Article 227 is a supervisory jurisdiction intended to ensure that subordinate Courts and Tribunals act within the limits of their authority and according to law.  The orders, directions and writs under Article 226 are not intended for the purpose and power of superintendence conferred upon the High Court by Article 227. Rather the powers given under Article 227 are in addition to the power conferred upon the High Court by Article 226. The fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same.

(This article has been written by Sameer Vashisht who is a B.Com, LLB (Hons), LLM and Additional Standing Counsel (Civil), GNCTD) 

  Support Us  

Whether NDTV or 'The Wire', they never have to worry about funds. In name of saving democracy, they get money from various sources. We need your support to fight them. Please contribute whatever you can afford

Sameer Vashisht
B.Com, LLB (Hons), LLM Additional Standing Counsel (Civil), GNCTD Enrolled with Bar Council of Delhi in 2002.

 

Related Articles

Trending now

Delhi Police grants permission for Tractor Parade by farmer protesters on Republic Day: Details

Permission has been granted to the farmer protesters to conduct a tractor parade at Delhi on Republic Day, said Delhi Police.

Russian Government metaphorically spanks Shekhar Gupta’s The Print for peddling fake news, advises editors to focus on facts, not flashy headlines

MFA, Russia said that The Print's "attempt to create a sensation from nothing failed and looked ludicrous and helpless."

Rahul Gandhi says if farmers and labourers are strong, India does not need to deploy armed forces at Indo-China border

Rahul Gandhi said that if India's labourers, farmers and weavers were strong, China would never dare to come inside India.

Photograph of PM Modi landing in Kolkata goes viral, clocks over 1 million likes on Facebook in less than 24 hours

The photograph was captured after PM Modi reached Kolkata to pay tribute to Netaji Subash Chandra Bose on 'Parakram Diwas'

How to be “Godi media”? Learn from American ‘liberals’

It’s a classic case of projection. Liberals see their opponents as they themselves are. Fawning over their leaders in a way that would rival North Korean state television.

From Rafale jets to Bangladesh contingent: Here is what will make 2021 Republic Day Parade special

Rafale jets, Bangladesh Armed Forces, Ram Mandir and VIjaynagar Tableau are the few main attractions of Republic Day parade this year

Recently Popular

Professor who translated Rahul Gandhi’s “don’t need army if farmers are strong” speech in Erode faints after the speech: Reports

Muhammed Imran, who translated Rahul Gandhi's speech at Erode, collapsed after interpreting the speech from English to Tamil

‘I allow you housewives to have extra-marital affair with man of your choice’: Video of Mamata Banerjee’s ‘progressive’ speech goes viral

Mamata Banerjee says she is so "flexible" that she has given permission to housewives to have extra-marital affairs

‘Groping a minor without skin contact is not sexual assault’: Read details of the justification used by the Bombay High Court to deliver the...

The Bombay High Court in a recent verdict has ruled that groping without skin-to-skin contact is not sexual assault.

Gujarat Forest Dept to take legal action against Christian Evangelist Paul Dhinakaran over unauthorised use of the department’s logo

Website of Paul Dhinakaran claims of collaborating with the Gujarat Forest Department, a claim junked by the latter

The life and times of Vibhor Anand: A clown, fraud or simply deranged? The story of his descent into wild conspiracy theories

Vibhor Anand has spread bizarre conspiracy theories about the death of Sushant Singh Rajput and was arrested for it.

#BanSportsTak: Netizens angry after India Today owned sports channel claims Virat Kohli suffers from ‘disorder’

"It is a disorder for a captain to (be as aggressive as Virat Kohli). It might be acceptable for a player to have this aggression (but nor for a captain)," the journalist claimed.
- Advertisement -

 

The Rahul Gandhi blooper collection: When the Gandhi-scion goofed up and made zero sense at public rallies

Rahul Gandhi announced his return to India quintessentially by goofing-up public rallies recently, which has now taken the internet by storm.

Media houses spread fake news saying RBI is discontinuing old series of Rs.100, Rs.10 and Rs.5 notes from circulation

PIB said that RBI did not issue any order that says Rs.100, Rs.10 and Rs.5 notes will go out of circulation in March-April

Congress MP says Khalistanis are attempting to hijack farmer protests after party accused govt of maligning farmers for saying the same

Congress MP Ravneet Singh Bittu says Khalistanis are attempting to hijack farmer protests after being booed away.

Madhya Pradesh Protem Speaker Rameshwar Sharma sends Ramayana to WB CM Mamata Banerjee

Rameshwar Sharma, Protem Speaker of Madhya Pradesh, asked Banerjee if she is under pressure of extremists, and sent her a copy of Ramayana

Farmer protestor writes to PM Modi’s mother requesting her to order the PM to scrap the farm laws

Harpreet Singh said that mothers can pull the ear of son, and hoped that Modi's mother will order the PM to revoke the farm laws

Delhi Police grants permission for Tractor Parade by farmer protesters on Republic Day: Details

Permission has been granted to the farmer protesters to conduct a tractor parade at Delhi on Republic Day, said Delhi Police.

Pakistan-sponsored Islamic terrorists hiding in launch pads to infiltrate into India to carry out attacks: Intelligence reports

Intelligence reports say that terrorists have been given clear instructions to carry out attacks on Army installations in Kashmir.

‘This is Tulsi Gabbard’: Former US Congresswoman announces the launch of her podcast

On the 22nd of January, she released a video on YouTube announcing that 'This is Tulsi Gabbard' will be launched soon.

While India administers over a million vaccine doses in a week, Pakistan awaits its ‘unsafe gift’ from China

Pakistan is world's fifth most populous country but it is amongst the 51 countries which is yet to start immunisation program for its citizens.

Professor who translated Rahul Gandhi’s “don’t need army if farmers are strong” speech in Erode faints after the speech: Reports

Muhammed Imran, who translated Rahul Gandhi's speech at Erode, collapsed after interpreting the speech from English to Tamil

Connect with us

245,563FansLike
496,912FollowersFollow
22,900SubscribersSubscribe