By BC Aryan
Understanding Article 226 under the Indian Constitution
Article 226 is enshrined under Part V Chapter V of the Constitution. It empowers the High Courts to issue certain writs. Article 226 gives discretionary power to the High courts to issue direction, order, writs including the writs in nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Article 226 is invoked not only to for the fundamental rights but also a violation for other rights.
Article 226(1) states that in spite of Article 32, High court has the power to issue direction, order, or writs, including the writs in the nature of the writs in nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari to any person, authority, government or public officials for enforcement of fundamental rights or any other rights under its own local jurisdiction.
Article 226(2) states that in spite of the seat of government or authority or residence of the person is not in the local jurisdiction of the High court still high court can issue direction, order to such government, authority or person if the cause of action wholly or in part arises in relation to its own jurisdiction.
Article 226(3) states that the (i)When against a party any interim order is issued by high court in way of interim injunction or stay, or any proceedings relating to a petition under Article 226 without (a) giving copy of the petition or copies of all documents of the interim order to such party and (b) giving opportunity to hear.
(ii) And if such party makes an application to the High court for the vacation of such interim order or petition and also furnishes a copy of the application of vacation to the party in whose favor such interim order or petition is made, or to the counsel of the party.
(iii) Then High court shall dispose of the application
∙ within a period of two weeks from the date on which it is received or,
∙ from the date on which the copy of such application is so furnished, whichever date is later or
∙ where the High Court is closed on the last day of that period, before the expiry of the next day afterward on which the High Court is open
(iv) and if the application is not so disposed of by the High court, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, will be vacated
Article 226(4) states that the power given to the high court to issue direction, order or writ will not derogate the power given to the Supreme court under Article 32(2)
The scope of Article 226
The extent of Article 226 is a lot of wide than Article 32. Article 226 not just provides the ability to give guidance, request or writs not uphold fundamental rights yet in addition for the implementation of different rights as well. Article 226 engages High court to give bearings, requests or writs to any individual, authority, government, or open authorities. Article 226 additionally discusses the between time request for writs and furthermore expresses the component of how break request will be discarded by the High courts.
Understanding Article 32 under the Indian Constitution
Article 32 is the right to constitutional remedies enshrined under Part III of the constitution. Right to constitutional remedies was considered as a heart and soul of the constitution by Dr. Bhim Rao Ambedkar. Article 32 makes the Supreme court as a protector and guarantor of the Fundamental rights.
Article 32(1) states that if any fundamental rights guaranteed under Part III of the Constitution is violated by the government then the person has right to move the Supreme Court for the enforcement of his fundamental rights.
Article 32(2) gives power to the Supreme court to issue writs, orders or direction. It states that the Supreme court can issue 5 types of writs habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of any fundamental rights given under Part III of the constitution. The Power to issue writs is the original jurisdiction of the court.
Article 32(3) states that parliament by law can empower any of courts within the local jurisdiction of India to issue writs, order or directions guaranteed under Article 32(2).
Article 32(4) states that rights given under Article 32 cannot be suspended except such suspension provided by the constitution.
Article 32 is called the heart and soul of the constitution because it gives rights to people to move Supreme court directly for enforcement of their fundamental rights. Article 32 is itself a fundamental right and it makes article 32 soul of the constitution. According to the Supreme court, Article 32 is the basic feature of the constitution it cannot be amended even by way of amendment in the constitution.
The scope of Article 32
The scope of Article 32 is not wide enough as Article 226. Article 32 can be invoked only to enforce fundamental rights under Part III. One cannot approach the Supreme court for enforcement for other rights except fundamental rights. Power to issue writs under Article 32 is mandatory for the Supreme court because Article 32 is itself a fundamental Right and Supreme Court is the protector of these the Fundamental Rights. The writs are strong instruments issued against the government and government officials.
Writs under Article 32 and Article 226
Habeas Corpus is a Latin expression, which actually signifies “You ought to have the body”. The writ is given to a produce an individual under the steady gaze of a Court who has been confined or detained and not delivered before the judge inside 24 hours whether in jail or private authority and would deliver the individual if such confinement is discovered unlawful. The motivation behind the writ isn’t to rebuff the transgressor yet only to deliver the individual unlawfully confined.
In any case, Article 21 (Protection of life and individual freedom) can’t be suspended in any event, during the declaration of Emergency. Along these lines, Habeas Corpus turns into a truly important writ for protecting the individual freedom of a person. While the Supreme Court can give the writ of habeas corpus just against the State in the event of infringement of Fundamental Rights though the high court can give it additionally against private people unlawfully or discretionarily confining some other individual.
Writ of habeas corpus can be recorded by any individual for the benefit of the individual kept or by the confined individual himself. In Sunil Batra ll versus Delhi administration, a letter composed by a convict to one of the adjudicators of the Supreme Court was treated as a writ appeal. The court utilized this writ for the disregard of State reformatory offices. The writ was additionally given when a boycott was forced on the law understudies to lead interviews with jail mates to give them legitimate alleviation.
Mandamus is a Latin word, which signifies “to order”. It is a legal cure as a request to act lawfully and to go without executing an unlawful demonstration. Where A has a legitimate right which cast certain lawful commitment on B, A can look for a writ of mandamus guiding B to play out its lawful obligation. This writ of order is given by the Supreme Court or High Court when any Government, court, company or council or open authority needs to play out an open or legal obligation yet neglects to do as such.
The Supreme Court may give a mandamus to authorize the principal right of an individual when its infringement by some administrative request or act is asserted. The High courts may give this writ to guide an official to practice his sacred and legitimate forces, to propel any individual to release obligations cast on him by the constitution or the sculpture, to urge a legal position to practice its locale and to arrange the legislature not to authorize any illegal law.
In Unni Krishnan versus Union of India, held that a private clinical/designing school comes quite close to the court independent of the subject of help and association.
In Jatinder Kumar versus State of Punjab, held that Article 320(3) of the constitution which gave that before an administration worker was excused, the UPSC ought to be _ounselled, didn’t give any privilege on a community worker and subsequently inability to counsel the open help commission didn’t qualifies the local official for get mandamus for convincing the legislature to counsel the commission. In any case, if the authority is under law obliged to practice an analyzation, Mandamus would deceive practice it in one way or the other.
Certiorari is a Latin word signifying ‘to educate’. ‘Certiorari’ might be characterized as a legal request working in persona and completed in the first lawful procedures, be given against sacred bodies, legal bodies like partnership, non legal bodies like organizations and agreeable social orders and private bodies and individual requiring the records of any activity to be ensured by the court and managed by the law.
There are different grounds based on which the writ of certiorari is given:
1. Lack of locale
2. Excess of locale.
3. Abuse of locale.
4. Violation of the standards of regular equity.
5. Error of law clear on the essence of the record
In Syed yakoob versus Radhakrishnan, held that the locale of the high court to give a writ of certiorari is an administrative ward and the court practice it isn’t qualified for go about as an investigative court. A blunder of law which is obvious on the essence of the record can be adjusted by a writ, however not a mistake of truth. Nonetheless, if a finding of truth depends on ‘no proof’ that would be viewed as a blunder of law which can be revised by certiorari.
Prohibition alludes “to preclude or to stop” and is prominently known as “Stay request”. The writ is given by the Supreme Court or any High Court when a lower court or a semi legal body attempts to abuse the forces vested in it, denying the last from proceeding with the procedures in a specific case.
In India, Prohibition is given to shield the person from discretionary managerial activities. Preclusion doesn’t lie against a position releasing leader works yet against an authority releasing legal capacities.
Quo warranto is a Latin expression, which implies ‘’ by what warrant’. The writ is given to control an individual from holding an open office to which he isn’t entitled. It very well may be given against workplaces made by the constitution, for example, the Advocate-General, the speaker of administrative get together, officials under the civil demonstration, individuals from a neighborhood gove'rnment board, University authorities and educators, yet it won’t issue against the overseeing council of a tuition based school which isn’t named under the authority of a sculpture.
How Article 32 is different from the Article 226
1. Article 32 offers capacity to Supreme Court while Article 226 offers capacity to the High court
2. Article 32 is summoned for the implementation of principal Rights while Article 226 is conjured for authorization of central right just as other lawful rights as well.
3. The capacity to High court under Article 226 is wide than the intensity of the Supreme court under Article 32
4. Power to give writs under Article 32 is compulsory for the Supreme court though High court has optional capacity to give writs under Article 226
5. Article 32 is suspended during the time of the crisis while Article 226 can’t be suspended during crisis
6. Territorial Jurisdiction of the High court under Article 226 is smaller than the Territorial purview of Supreme court under Article 226.
7. The request passed by the Supreme court under Article 32 will consistently supplant the request passed by the High courts under Article 226.
8. Article 32 is itself an essential (Right to established Remedies) though Article 226 is certifiably not a basic Right.
The similarities between Article 32 and Article 226
1. Both Article 32 and 226 is invoked for the enforcement of Fundamental Rights 2. Both the Supreme court and High court has the power to issue writs under Article 32 and Article 226 respectively.
The scope of Article 226 is wider than Article 32 but still, Article 32 is called the heart and soul of the Constitution?
It is because : (i) Article 32 is itself a fundamental Right
(ii) Supreme court is guarantor and defender of the Fundamental Rights and Constitution
Important difference between Article 32 and Article 226
Sr No | Article 32 | Article 226 |
1. | It is for enforcement of Fundamental Rights only | It is for enforcement of Fundamental Rights as well as other legal Rights |
2 | Power of Supreme court to issue writs | Power of High courts to issue writs |
3 | Mandatory power to issue the writ is Mandatory | Discretionary power to issue writs |
4 | Scope is narrow | Scope is Wide |
5 | It is fundamental Right | It is not a Fundamental Right |
6 | Article 32 is suspended during the period of Emergency | It cannot be suspended during emergency |
7 | Territorial Jurisdiction is wide | Territorial Jurisdiction is narrower than the Supreme Court. |
Scope, Powers and Difference between Article 226 and Article 227
Article 227 gives every High Court power to have superintendence over all courts and tribunals throughout the territories regarding which high court exercises its jurisdiction (except a court formed under a law related to armed forces).
Under article 227 of Indian constitution, every high court of India has following powers – ∙ High court can call for returns from such courts,
∙ High court has an authority to 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 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.
In the case of Surya Devi Rai vs. Ram Chander Rai, the Supreme Court of India relied on many previous constitutional Judgments of the Hon'ble Supreme court, one of those judgments were Umaji Keshao Meshram and Ors. vs. Smt. Radhikabai and Anr, it was this case who laid down scope, power and differences between Article 226 and Article 227.
The most significant and specific contrast between the two articles is that Proceedings under Article 226 are in exercise of the first purview of the High Court while procedures under Article 227 of the Constitution are not unique but rather just administrative. Article 227 gives the arrangements of Section 107 of the Government of India Act, 1915, barring the way that the administration power has been stretched out by this Article to councils also. Despite the fact that the force is like that of a normal court of advance, yet at the same time the force given Article 227 is with a point that it must be utilized extraordinarily and just in explicit cases to keep the subordinate courts and councils inside the restriction of their power and not for revising unimportant blunders.
It was additionally seen by the court that power under Article 227 will be practiced distinctly in instances of grave unfairness or disappointment of equity, for example,
(I) When the court or council has had faith in a purview which essentially it doesn't have,
(II) The court or court has failed to practice a ward which it has, such disappointment occasioning a disappointment of equity, and
(III) The ward which is accessible to the court however it is being utilized in such wrong way that it is over venturing the restrictions of purview.
In the case of Surya Devi rai versus Slam Chander Rai, the Hon'ble Supreme Court saw that there is absence of information on the differentiation between the comprehension of Article 226 and 227 and subsequently it is a typical custom with the attorneys marking their petitions as one regular under Articles 226 and 227 of the Constitution, however such practice has been expostulated in some legal declarations.
The Hon'ble Supreme Court in the wake of investigating its past decisions if there should be an occurrence of Surya Devi Rai versus Smash Chander Rai iset out the accompanying contrasts:
I. Initially, the writ of certiorari is an activity of its unique ward (Article 226) by the High Court; exercise of administrative locale (Article 227) isn't a unique purview and in such manner, it is much the same as investigative modification or remedial locale.
ii. Furthermore, in a writ of certiorari, the record of the procedures having been guaranteed and sent up by the second rate court or council to the High Court, the High Court whenever slanted to practice its purview, may just revoke or suppress the procedures and afterward do no more (Art 226). In exercise of administrative locale (Art 227) the High Court may not just suppress or put aside the criticized procedures, judgment or request however it might likewise make such headings as the realities and conditions of the case may warrant, might be by method of managing the sub-par court or council with regards to the way in which it would now continue further or once again as recognized to or guided by the High Court. In suitable cases the High Court, while practicing administrative locale, may substitute the reproved choice with its very own choice, as the second rate court or council ought to have made.
iii. The purview under Article 226 of the Constitution is fit for being practiced on a petition made by or for the benefit of the gathering wronged yet the force presented under Article 227 viz the administrative locale is equipped for being practiced suomoto also.
The court additionally included that under Article 226 of the Constitution, writ is given for rectifying gross mistakes of purview, fundamentally when a subordinate court is found to have acted in following way:
(I) When subordinate court expect ward where it doesn't have any
(ii) In abundance of its ward – by exceeding or intersection the restrictions of purview, or
(iii) Acting in wrong negligence of law or the standards of technique or when subordinate court acts disregarding standards of normal equity where there is no system determined, and accordingly occasioning disappointment of equity.
Administrative purview under Article 227 of the Constitution is practiced for keeping the subordinate courts inside the limits of their ward. At the point when the subordinate court has expected a locale which it doesn't have, or has neglected to practice a purview which it has, or the ward however accessible is being practiced by the court in a way not allowed by law, and disappointment of equity or grave bad form has occasioned in this manner, the High Court may step in to practice its administrative locale.
The Hon'ble Supreme Court, through this judgment, brought all the subordinate Judicial bodies under the ambit of Article 226 of the Constitution of India, lessening the substitute fix of Appeal open to the violated, which direct or in an indirect way had no impact in the powers of Article 226 and 227 of the Constitution of India.
The distinction between Article 226 and Article 227 of the Indian Constitution was initially raised on account of Umaji Keshao
The Court has held that
“Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction.
25. Upon a review of decided cases and a survey of the occasions, wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement. Without entering into niceties and technicality of the subject, we venture to state the broad general difference between the two jurisdictions. Firstly, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate, revisional or corrective jurisdiction. Secondly, in a 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 annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, 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, maybe, 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; the supervisory jurisdiction is capable of being exercised suo motu as well.
Radhey Shyam & Anr vs Chhabi Nath & Ors
It was in the year 2015 that the Constitution Bench of the Hon'ble Supreme Court involving H.L Dattu. CJI, Sikri.J, and A.K. Goel. J, were to investigate the matter of rightness of the law which was declared for another situation.
The Hon'ble Court saw that:
"This Court unfortunately discerns (with Surya Devi Rai vs. Ram Chander Rai) 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 Article 227 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 individuals, 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.
We may also observe that in some High Courts there is a 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 and in view of the recent amendment to Section 115 of the Civil Procedure Code by the Civil Procedure Code (Amendment) Act, 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, it 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.
Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226."
Thus, the Supreme Court noticed the contrast between Article 226 and Article 227. It additionally dense a few forces to the High Courts under Article 226. They need to go to petitions which don't contact, in any capacity, the Fundamental Rights of any individual.
The extent of Article 226 and Article 227 is very huge. The High Court has the ability to address blunders of ward. In any case, it can't upset the genuine discoveries of the realities since they are inside the re-appraising Court's ward as it were.
Another intensity of High Court is the intensity of modification. It empowers the correction Court to make certain of the accompanying of a finding
1. Rightness
2. Lawfulness
3. Appropriateness
4. Sentence or request recorded/passed
Under Article 226, High Court can't be viewed as a Revision or Appellate Court since when any subordinate Court dismisses the request, the legitimate cure of advance is accessible to the bothered party to find a solution of the topic of infringement of basic right.
The author of this article is BC Aryan, a fifth-year BALLB student at Symbiosis Law School, Pune.
This article contains the view of the author and the publisher in no way associates with the views or ideologies of the author. All the moral rights vests with the Author(s).
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