Parameters of power exercised by the High Court under Articles 226 and 227 of the Constitution

The Constitution of India [“the Constitution”] endows the High Courts with powers to issue Writs under Article 226 of the Constitution for enforcement of fundamental rights conferred by Part-III of the Constitution. The types of Writs that the High Court can issue are given below in brief-

Habeas Corpus (You may have the body) – To release a person who has been detained unlawfully whether in prison or in private custody.
Mandamus (We Command) – To direct the Government official or statutory body to fulfil their statutory duties.
Certiorari (To be certified) – To quash or set aside the order passed by an inferior court or tribunal.
Prohibition (To Forbid) – To prohibit an inferior court or tribunal from exceeding its jurisdiction.
Quo Warranto (by what warrant) – This writ lies against a person who is not entitled to an office of public nature and is only a usurper in office. By way of this writ, the Court directs the person to show by what authority has he been holding office.

Article 226 postulates that the above Writs can be issued against any person or authority, including, in appropriate cases, any Government within the territory of the concerned High Court.

On the other hand Article 227 of the Constitution confers upon the High Courts, the power of superintendence over all the courts subordinate to it. 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.

Therefore, under Article 227 of the Constitution, the High Court acts as a custodian of all the courts below it and ensures that all the subordinate courts functions within the limits of its authority.

Distinction between Article 226 and Article 227

The power of High Court under Article 226 by way of Writ of Certiorari and under Article 227, by way of acting as superintendent of the courts subordinate to it, are often seen as akin to one another as it effectively allows the High Court to scrutinize the order passed by a court inferior to it. Therefore, a dilemma arises, in a given case having similar facts and circumstance, whether to invoke the writ jurisdiction of High Court or invoke the power of superintendence of High Court under Article 227 of the Constitution. The Supreme Court in Surya Devi Rai vs Ram Chander Rai and Ors.¹ [“Surya Dev Rai”] had the occasion to delve into the difference between a Writ of Certiorari and supervisory jurisdiction of High Court under Article 227. The Supreme Court succinctly carved out the following differences between the above two Articles as follows:

Writ of Certiorari is an exercise of its original jurisdiction; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction.
In 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 annual or quash the proceedings and then do no more. However, in exercise of supervisory jurisdiction under Article 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 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 however, the supervisory jurisdiction is capable of being exercised suo motu as well.

As per the above ratio, the powers under Article 227 of the constitution are wider compared to writ jurisdiction of High Court under a Writ of Certiorari as it not only enables the High Court to quash the order of the subordinate court but also allows the High Court to make further orders/directions to meet the ends of justice. However, the Supreme Court added a caveat and a word of caution by stating that the power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. The Supreme Court categorically stated that the High Court, in exercise of Writ of Certiorari or supervisory jurisdiction will not convert itself into a court of Appeal and indulge in re-appreciation of evidence or correct errors in drawing inference or correct errors of mere formal or technical character.

The Supreme Court further held that a litigant cannot seek recourse to Writ of Certiorari or Supervisory jurisdiction to correct mere errors of fact or law unless the following requirements are satisfied-

The error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and
A grave injustice or gross failure of justice has occasioned thereby.

It is pertinent to mention that above judgment of Apex Court in Surya Dev Rai was referred to a larger bench in another case as the Court was doubtful as to the correctness of the ratio laid down in Surya Dev Rai inasmuch as that the Court held that an order of Civil Court is amenable to Writ jurisdiction under Article 226 of the Constitution. Therefore, the Supreme Court in Radhey Shyam and Anr. vs Chhabi Nath and Ors. Civil Appeal No. 2548 of 2009 [“Radhey Shyam”]overruled the above ratio to the extent that judicial orders of Civil Court are not amendable to writ jurisdiction of High Court under Article 226.

The differences culled out by the Supreme Court in Surya Dev Rai were followed and affirmed by the Supreme Court in Shalini Shyam Shetti and Ors. vs Rajendra Shankar Patil² [“Shalini Shyam Shetty”] wherein the Supreme Court inter alia also held that a petition filed under Article 227 of the Constitution cannot be called a Writ Petition. The Court, inter alia laid down the following principles on the exercise of powers under Article 226 and 227 of the Constitution-

The High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the orders of tribunals or court inferior to it.
The parameters of interference under Article 227 have to be guided by the ratio laid down by the Apex Court in Waryam Singh and Ors. Vs. Amarnath and Ors.³ wherein the Court has held that the High Court in exercise of its jurisdiction of superintendence can interfere in order only to keep the tribunals and Courts subordinate to it ‘within its jurisdiction’
High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted.
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.
This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

In what circumstances the powers under Article 226 or 227 can be invoked?

The ratio laid down in Surya Dev Rai and Shalini Shyam Shetty, although carves out the difference in the jurisdiction of Articles 226 and 227 and its limitations, however, fails to explicate in what particular circumstances the power under 226 or 227 may be invoked. That Supreme Court in Surya Dev Rai rather concedes on this aspect that parameters of exercise of jurisdiction under Articles 226 and 227 of the Constitution cannot be tied down in a straight jacket formula or rigid rules. The relevant paragraph is reproduced hereinbelow:

“38. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted an appeal or revision preferred at the conclusion of the proceedings. But there may be cases where ‘a stitch in time would save nine’. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by juridical experience and practical wisdom of the Judge.”

Powers of High Court under Article 226 and 227 are separate and distinct

As seen from the above, there are glaring differences between the powers of High Court exercised under Article 226 and 227 of the Constitution. The Supreme Court in Shalini Shyam Shetty has gone so far to state that a Petition filed under Article 227 of the Constitution cannot be called a Writ Petition. Furthermore, the Supreme Court in Surya Dev Rai, has deprecated the practice of labelling petitions as one common under Articles 226 and 227 of the Constitution. In Radhey Shyam, the Supreme Court affirmed the position of law that in Petition filed under Article 227, the Court does not issue a Writ of Certiorari.

In the matter of Rangojoo Vidyanath vs Mattewada Sowmya⁴, before the Telagana High Court, a Civil Revision Petition under Article 227 of the Constitution was filed seeking a direction to the Trial Court judge, to first decide the Application filed by the Petitioner under Order XIV Rule 2 of CPC, requesting the court to decide the preliminary issues therein and dismiss the case, before proceeding further with the matter. The Civil Revision Petition was opposed by the Respondent on the ground that such a direction can only be obtained by way of filing a Writ Petition, that too under Article 227 of the Constitution. The High Court repelled the said argument of the Respondent by relying upon Shalini Shyam Shetty and reiterated the position of law that a Writ cannot be issued under a Petition filed under Article 227 of the Constitution as both the Articles confer separate and distinct powers upon the High Court. The jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. However, jurisdiction under Article 226 is normally exercised where a party is affected. The Court further held that powers of High Court under Article 227 of the Constitution can be invoked in the following circumstances when the Court or Tribunal subordinate to it has-

Assumed jurisdiction which it does not have;
Failed to exercise jurisdiction which it does have, such failure occasioning in failure of justice, and
The jurisdiction, though available, is being exercised in a manner which tantamount to overstepping the limits of jurisdiction.

However, the Court reiterated the caveat that such exercise of power is entirely discretionary, and no person can claim it as a matter of right. In the facts and circumstances of the above case, the High Court observed that it is a fit case to exercise its discretionary power under Article 227 of the Constitution as the High Court observed that the lower court erred in not preliminarily deciding the Application filed under Order XIV Rule 2 by the Petitioner. Therefore, the High Court directed the Trial Court decide the aforesaid Application before proceeding further with the matter.

Supervisory Jurisdiction of High court w.r.t orders passed by Arbitral Tribunal

In Deep Industries vs ONGC⁵, the Appellant was awarded a contract by the Respondent which the Respondent later terminated vide notice dated 11.10.2017. Subsequently, a show cause notice dated 18.10.2017 was issued by the Respondent to the Appellant to show cause why Appellant should not be blacklisted. Later the Appellant invoked arbitration proceedings challenging the termination and the show cause notice. During the pendency of the arbitration proceedings the Respondent blacklisted the Appellant for a period of two years vide notice dated 15.02.2018. Thereafter, the Respondent moved an application u/s 16 of the Arbitration Conciliation Act, 1996 [“the Act”] challenging the jurisdiction of the Tribunal inasmuch as that the jurisdiction of the Tribunal has been invoked by the Appellant only limited to the termination notice and show cause notice issued by the Respondent. The blacklisting notice dated 15.02.2018 is outside the scope of arbitration. However, the Arbitrator dismissed the Section 16 application. On the same day, the Arbitrator also allowed Section 17 Application filed by the Appellant, ordering stay on the blacklisting notice issued by the Respondent. This order was subsequently challenged in Appeal u/s 37 of the Act by the Respondent before the Court, which also came to be dismissed by the Court. Against this order of dismissal of Section 37 passed by the Civil Court, the Respondent approached the High Court invoking its jurisdiction under Article 227 of the Constitution. The High Court, instead of addressing the jurisdictional issue, passed an order on merits of the case inter alia stating that arbitration dispute was limited to termination of the agreement and not the blacklisting notice dated 15.02.2018. The High Court further held that injunction u/s 17 was not warranted when the party could have been compensated in damages. The Appellant challenged the High Court order before the Supreme Court.

The Supreme Court emphasised upon the principle of minimal judicial interference enshrined under Section 5 of the Act. After going through the scheme of the Act, the Supreme Court observed that against an order passed by the Tribunal in Section 17 application, the only recourse available to the aggrieved party is to file an appeal u/s 37 before the Court. In this regard Section 37(3) of the Act categorically bars second appeal from an order passed under Section 37. Section 16(5) of the Act, on the other hand, further limits judicial interference by categorically stating that if an Application under Section 16 challenging the jurisdiction of the Arbitral Tribunal is dismissed by the Arbitrator, then the Arbitrator would continue the proceedings and proceed to make an arbitral award. In which case, the only recourse available to the aggrieved party, as per Section 16(6) is to challenge the Arbitral Award under Section 34 of the Act. Therefore, the Supreme Court inter alia held as follows-

The High Court committed jurisdictional error by entertaining the petition. Once a Section 16 Application was dismissed by the Arbitrator, the proceedings were to continue until the award is made.
The High Court has decided the same question of challenge which was put to the Arbitrator u/s 16 and arrived at a contrary finding i.e. the tribunal lacked jurisdiction in view of the fact that dispute was only limited to termination of agreement and not blacklisting.
Arbitration is a self contained code outlining various time limits for disposal of cases. If jurisdiction under Article 227 is invoked then the same will derail the arbitration proceedings.
Jurisdiction of the High Court under Article 227 can be invoked challenging orders of allowing or dismissing an appeal u/s 37 of the Act, however, in doing so, the High Court would be circumspect of the legislative intent of the Act i.e. minimal judicial interference and speedy resolution of disputes. Interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction.
The High Court has decided the issue by going into the merits of the case. Entering into the general thickets of the disputes between the parties does not behove a court exercising jurisdiction under Article 227, where only jurisdictional errors can be corrected.
The High Court’s finding that injunction u/s 17 was not warranted when the party could have been compensated by way of awarding damages (Section 41 (e) of the Specific Relief Act, 1963) is a mere error of law and not of jurisdiction.
When alternative remedy is available, jurisdiction under Article 227 should not be invoked.

Against whom writ jurisdiction can be invoked?

Although Article 226 elucidates that the High Court has the power to issue Writ to any person, authority or the Government as well. However, the Supreme Court in Shalini Shyam Shetty observed that Writ Petition is a remedy in public law which may be filed by any person, but the main Respondent in the Petition should be either Government, Governmental Agencies or a State or instrumentalities of a State within the meaning of Article 12. The Court further noted that private individuals cannot be equated with State or instrumentalities of the State and all the Respondents in the Writ Petition cannot be private parties. However, the Court observed that private parties acting in collusion with State can be Respondent in a Writ Petition. The Court further observed that 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. However the Supreme Court carved out an exception to the general rule that Writ cannot be issued against private individuals i.e. only a Writ of Habeaus Corpus can be directed not only against the State but also against private person.

In Shalini Shyam Shetty, the dispute was pertaining to landlord and tenant, both private parties. Therefore, the Supreme Court held that the High Court erred in entertaining Writ Petition.

In which cases Writ jurisdiction must not be invoked?

In Shalini Shyam Shetty and Radhey Shyam, the Supreme Court observed the following cases in which the Writ Jurisdiction must not be invoked-

Dispute between private parties. (except in the case for Writ of Habeaus Corpus)
Property disputes or disputes relating to title.
Judicial orders of Civil Court are not amenable to Writ Jurisdiction.
High Court will also decline to exercise Writ jurisdiction or power of Superintendence if there is an alternative remedy available.

In case i and ii, the High Court will only entertain Writ Petition if it is shown that there is violation of some statutory duty on the part of a statutory authority or private individual has acted in collusion with the State. However, at the same time there are various judgments which state that a Writ under Article 226 is maintainable against any person or entity, including a private party, if they perform functions that can be considered as ‘public functions’⁶.

Conclusion

From the aforesaid discussion and conspectus of case laws, the position of law that emerges is that powers of the High Court under Articles 226 and 227 are separate and distinct. While an individual can approach High Court under Article 226 as a matter of right, the same is not the case under Article 227. The High Court would be bound to exercise its original jurisdiction under Article 226 if a just cause and case is made out, however, under Article 227, even if an infraction of law is shown warranting an interference by the High Court, the High Court is not bound to exercise its jurisdiction under Article 227 not only as measure of self-imposed restriction but also as a matter of discipline and prudence.⁷ The Court would be bound to look at several factors before exercising its jurisdiction under Article 227 viz.

If an alternative remedy is available,
whether any infractions of law shown in the case is rectifiable in Appeal,
whether interference at this stage would delay the proceedings, etc.

The Supreme Court in Suray Dev Rai, observed that powers under Article 227 are not original but akin to appellate revisional or corrective jurisdiction. Another glaring feature of difference that emerges is that under Article 226, the Court cannot entertain a judicial order of Civil Court as it cannot issue a Writ to a Civil Court inferior to it, however, under Article 227, as a custodian of justice and superintendent of all the Courts below, the High Court can entertain and set aside any order passed by the lower Court, whether a Civil Court or a Tribunal.

The position of law that also emerges is that the power of High Court under Article 226, under a Writ of Certiorari is limited when compared to power of Superintendence under Article 227, in similar facts and circumstances. As observed by Supreme Court in Suraya Dev Rai, under a Writ of Certiorari, maximum the Court can do is only quash or set aside the order of the inferior Court, however, under Article 227 the Court can not only set aside the order of inferior Court but also make further directions to meet the ends of justice. That is why Article 227 is regarded as a remedy akin to appellate revisional or corrective jurisdiction.

By Daksh Pandit