Differentiating Article 226 and Article 227: Supreme Court Jurisprudence

Introduction

Articles 226 and 227 of the Indian Constitution establish distinct yet complementary powers of the High Courts. Article 226 provides expansive writ jurisdiction for enforcing fundamental and legal rights, while Article 227 grants targeted superintendence over subordinate courts and tribunals.

Before deliberating on the subject, it would be trite to reproduce Articles 226 & 227 of the Constitution, which read as under:

Article 226: Power of High Courts to Issue Certain Writs

Clause (1)

(1) Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrantor and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

Clause (1-A)

(1-A) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

Clause (2)

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the scat of such Government or authority or the residence of such person is not within those territories.

Clause (3)

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—

1. furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
2. giving such party an opportunity of being heard,

makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the 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 is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

Clause (4)

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.

Article 227: Power of Superintendence Over All Courts by the High Court

Clause (1)

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

Clause (2)

(2) Without prejudice to the generality of the foregoing provisions, the High Court may—

1. call for returns from such courts;
2. make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
3. prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

Clause (3)

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:

Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

Clause (4)

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.

Distinct Constitutional Powers Under Articles 226 and 227

From the plain reading of both the Articles, it transpires that the power mandated by the Constitution provides separate and distinct powers to the High Courts acting under Articles 226 and 227 of the Constitution.

Supreme Court jurisprudence, from foundational decisions like Waryam Singh v. Amarnath (1954) to contemporary clarifications in Shalini Shyam Shetty v. Rajendra Shankar Patil (2010), Radhey Shyam v. Chhabi Nath (2015), and Bhaven Construction v. Executive Engineer (2022), consistently reinforces their non-overlapping roles.

I. Constitutional Framework

Article 226: Writ Jurisdiction

Article 226 confers plenary writ authority on High Courts to issue directions, orders, or writs—including habeas corpus, mandamus, prohibition, quo warranto, and certiorari—for enforcing fundamental rights or “any other purpose.” This jurisdiction is:

• Original in nature
• Discretionary in exercise
• Subject to principles of alternative remedies

Foundational Principle: Whirlpool Corporation (1998)

In Whirlpool Corporation v. Registrar of Trade Marks (1998) 8 SCC 1, the Supreme Court elucidated:

“Under Article 226… the High Court… has a discretion to entertain or not to entertain a writ petition… [but] the alternative remedy… [does] not… operate as a bar… where the writ petition has been filed for the enforcement of any of the Fundamental Rights or… violation of the principle of natural justice or… wholly without jurisdiction or the vires of an Act is challenged.”

Key Characteristics of Article 226

• Provides remedy for rights violations
• Creates new causes of action
• Permits review of both jurisdictional and certain non-jurisdictional errors
• Available against state and non-state actors in appropriate circumstances
• Original jurisdiction—not appellate or supervisory

Article 227: Supervisory Jurisdiction

Article 227, in contrast, vests High Courts with superintendence over all courts and tribunals within their territorial jurisdiction. This power is exercised to:

• Keep subordinate forums within jurisdictional bounds
• Prevent abuse of process
• Correct grave injustices
• Not to review merits or correct every error

Basic Structure Protection: L. Chandra Kumar (1997)

The landmark L. Chandra Kumar v. Union of India (1997) 3 SCC 261 affirmed:

“High Courts’ Articles 226/227 jurisdiction over tribunals ‘cannot wholly be excluded,’ serving to filter frivolous claims via reasoned tribunal decisions.”

This ensures judicial review remains a basic structure feature, even over specialized tribunals.

Foundational Principle: Waryam Singh (1954)

The early cornerstone Waryam Singh v. Amarnath (1954) 1 SCR 565 (AIR 1954 SC 215) established the supervisory ethos:

“The powers of superintendence conferred by Art. 227 are to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.”

Key Characteristics of Article 227

• Supervisory, not appellate
• Limited to jurisdictional errors and patent illegality
• Cannot substitute High Court’s view for that of subordinate court
• Preserves judicial hierarchy
• Both administrative and judicial superintendence

II. Core Distinctions

A. Nature of Jurisdiction

Article 226	Article 227
Original jurisdiction, akin to certiorari for reviewing orders on grounds including jurisdictional errors, violations of natural justice, or legal rights infringement.	Supervisory jurisdiction—not original. Functions more like revisional oversight to ensure subordinate bodies stay within bounds.

B. Landmark Clarification: Umaji Keshao Meshram (1986)

Umaji Keshao Meshram v. Radhikabai (1986) Supp SCC 401 sharpened this distinction:

“Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227… are not original but only supervisory… Article 227 is intended to be used… for keeping the subordinate courts and tribunals within the bounds of their authority and is not meant for mere correction of errors.”

C. Application to Civil Courts: Radhey Shyam (2015)

Critical Case: Radhey Shyam v. Chhabi Nath (2015) 5 SCC 423:

“Judicial orders of civil courts are not amenable to writ jurisdiction under Article 226. They can be challenged only under Article 227… A mere wrong decision is not enough to attract the jurisdiction of the High Court under Article 227.”

Key Holdings from Radhey Shyam

• Judicial orders of civil courts cannot be challenged under Article 226
• Such orders can only be challenged under Article 227
• Article 227 does not issue writs of certiorari
• The supervisory power under Article 227 must be exercised very sparingly
• Cannot be used to correct mistakes of fact or law
• Only for manifest miscarriage of justice

D. Exception Clarified: Harbanslal Sahnia (2003)

Harbanslal Sahnia v. Indian Oil Corpn. Ltd. (2003) 2 SCC 107 held that Article 226 remains viable despite alternative remedies when there is:

• Enforcement of Fundamental Rights
• Failure of principles of natural justice
• Action wholly without jurisdiction

III. Alternative Remedy Doctrine

High Courts must generally require exhaustion of statutory remedies before invoking constitutional jurisdiction, barring exceptional circumstances.

A. Foundational Principle: Thansingh Nathmal (1964)

Thansingh Nathmal v. Supdt. of Taxes (1964) 6 SCR 654 (AIR 1964 SC 1419) warned:

“Resort to [Article 226] is not intended as an alternative remedy… Ordinarily the court will not entertain a petition… where the petitioner has an alternative remedy… [or to] by-pass… the machinery created under the statute.”

Principles from Thansingh Nathmal

• Jurisdiction under Article 226 is discretionary
• Not exercised merely because it is lawful to do so
• High Court does not enter upon elaborate examination of evidence
• High Court does not act as court of appeal to correct errors of fact
• Statutory machinery cannot be bypassed

B. Modern Application: Radha Krishan Industries (2021)

Radha Krishan Industries v. State of H.P. (2021) 6 SCC 771 reiterated:

“Article 226 defers unless ‘fundamental right… violation of… natural justice… wholly without jurisdiction,’ declining factual disputes.”

C. State of U.P. v. Mohd. Nooh (1958)

State of U.P. v. Mohd. Nooh (1958) SCR 595 (AIR 1958 SC 86) established enduring principles:

“The jurisdiction under Art. 227… is not to be exercised unless there is a patent error on the face of the record or the subordinate court has acted without jurisdiction.”

Key Principles

• Patent error on face of record required
• Jurisdictional defect must be shown
• Violation of natural justice justifies intervention
• Doctrine of alternative remedy applies

IV. Resolving The Confusion: Surya Dev Rai Overruled

The Problem: Surya Dev Rai (2003)

Surya Dev Rai v. Ram Chander Rai (2003) 6 SCC 675 created confusion by suggesting the distinction between certiorari under Article 226 and superintendence under Article 227 had “almost” been obliterated.

The Solution: Shalini Shyam Shetty (2010)

This was definitively corrected in Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 8 SCC 329:

“The supervisory jurisdiction under Art. 227… is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of fact… [Overruling] the view in Surya Dev Rai that the distinction between Articles 226 and 227 stood almost obliterated.”

Effect: This landmark clarification restored doctrinal clarity and has been consistently followed. The distinction between Articles 226 and 227 is not obliterated but remains clear and fundamental.

Limiting Merits Review: Estralla Rubber (2001)

Estralla Rubber v. Dass Estate (P) Ltd. (2001) 8 SCC 97 limited Article 227 to “glaring defects” without evidence re-weighing:

“The High Court… under Article 227… does not sit as a court of appeal over the orders of a tribunal.”

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V. Tribunal Oversight And Modern Applications

Article 227’s oversight extends comprehensively to tribunals, ensuring reasoned decisions without wholesale exclusion of judicial review.

A. Tribunal Classification

• Ibrat Faizan v. Omaxe Buildhome (P) Ltd. (2023) 11 SCC 594 classified National Commissions as “tribunals” amenable to Article 227 supervision for non-appealable orders.
• Universal Sompo General Insurance Co. Ltd. v. Suresh Chand Jain (2024) 9 SCC 148 advised preferring High Court jurisdiction under Article 227 before direct Supreme Court appeals under Article 136.

B. Preventing Statutory Bypass

Rikhab Chand Jain v. Union of India (2025 SCC OnLine SC 2510) barred Article 226 invocation where Article 227 suffices:

“Article 226 cannot be invoked to circumvent the supervisory framework under Article 227.”

Rationale: Prevents forum shopping and preserves integrity of established appellate structures.

C. Restraint With Concurrent Findings

Sadhana Lodh v. National Insurance Co. Ltd. (2003) 3 SCC 524 clarified non-interference with concurrent findings absent perversity:

“Under Article 227, the High Court cannot act as a second court of appeal.”

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VI. Specialized Contexts

A. Arbitration Matters

In arbitration, the Supreme Court has emphasized exceptional restraint. Bhaven Construction v. Executive Engineer, Sardar Sarovar Narmada Nigam Ltd. (2022) 1 SCC 75 held:

“The High Court should exercise its jurisdiction under Articles 226 and 227… very sparingly and in appropriate cases… only if the order is completely perverse, i.e., the perversity must stare in the face.”

Rationale: Reflects pro-arbitration policy and minimizes judicial interference in arbitral processes.

B. MSME Disputes: The Evolving Landscape

A significant 2025 development came in Tamil Nadu Cements Corpn. Ltd. v. Micro and Small Enterprises Facilitation Council (2025 INSC 91). A three-judge bench referred critical questions to a five-judge bench regarding whether writs under Article 226 are maintainable against MSME Facilitation Council orders despite statutory remedies under the MSMED Act.

Key Observations

• Recognition that “an absolute bar on writ jurisdiction could render the right to challenge… illusory”
• Acknowledgment that judicial review under Articles 226/227 is part of the Constitution’s basic structure
• Need to balance statutory scheme efficiency with constitutional safeguards
• Conflicting precedents requiring authoritative resolution

Significance: Illustrates ongoing judicial grappling with balancing statutory frameworks and constitutional protections.

C. Preventing Routine Interference

K. Valarmathi v. Kumaresan (2025) cautioned against routine misuse:

“High Court’s supervisory power under Art. 227 can’t be invoked to usurp original jurisdiction… or reject a plaint”

Effect: Disapproves using Article 227 for matters properly within trial court discretion.

VII. Additional Supreme Court Precedents

A. Natural Justice And Bias

Rattan Lal Sharma v. Dr. Hari Ram (1993) 3 SCC 421:

• Relied on Mohd. Nooh for principles of natural justice
• Bias vitiates entire proceedings
• Nemo debet esse judex in propria causa (no one should be judge in his own cause)

B. Financial Institutions And Recovery

United Bank of India v. Satyawati Tondon (2010) 8 SCC 110:

Alternative remedy rule applies with greater rigour in matters of:

• Recovery of taxes, cess, fees
• Public money
• Dues of banks and financial institutions

The High Court ordinarily will not entertain an Article 226 petition if an effective alternative remedy exists.

C. Private Disputes

Ghan Shyam Das Gupta v. Anant Kumar Sinha (1990) 3 SCC 102:

• Remedy under Article 226 not intended to supersede civil remedies
• Jurisdiction to issue certiorari is supervisory, not appellate
• Civil Procedure Code provides exhaustive remedies for execution matters
• Relied on Thansingh Nathmal and other precedents

D. Motor Vehicles Act Cases

M. Naina Mohammed v. K.A. Natarajan (1976) 1 SCR 102:

• Power under Article 226 is supervisory in nature
• High Courts should not slip into appellate review
• Relevant for tribunal orders under specialized statutes

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VIII. Practical Guidance For Legal Practitioners

When To Invoke Article 226

Use Article 226 when:

• Enforcing fundamental rights
• Violations of principles of natural justice
• Actions wholly without jurisdiction
• Constitutional validity challenges
• Statutory remedy is ineffective or illusory
• Against administrative/executive action (primary use)
• No adequate alternative remedy available
• Public law remedy required

When To Invoke Article 227

Use Article 227 when:

• Challenging judicial orders of subordinate civil/criminal courts
• Challenging tribunal orders where no effective appeal exists
• Patent jurisdictional errors exist
• Gross abuse of process occurred
• Perversity “stares in the face”
• Subordinate court or tribunal exceeded its jurisdiction

Do not use Article 227 for:

• Mere errors of law or fact
• Re-appreciation of evidence
• Bypassing established appellate mechanisms
• Acting as a substitute for appeal or revision
• Seeking merits review under Article 227
• Ignoring alternative statutory remedies
• Forum shopping

Filing an Article 226 petition against judicial orders of civil courts is impermissible—Article 227 must be used instead. Courts will dismiss petitions absent exceptional circumstances. A “mere” error is insufficient.

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IX. Synthesis: The Constitutional Balance

The framework established by Articles 226 and 227 represents a careful constitutional balance.

• Article 226 provides a constitutional safety valve—ensuring access to justice where rights are violated or justice is otherwise unavailable through regular channels.
• Article 227 maintains judicial hierarchy—empowering High Courts to supervise lower forums without becoming routine appellate courts for every error.

Together, they exemplify the principle that judicial review is part of the Constitution’s basic structure and cannot be wholly excluded, but must be exercised with appropriate restraint to preserve institutional efficacy and respect for specialized tribunals and statutory schemes.

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X. Conclusion

The distinction between Articles 226 and 227 is neither academic nor obsolete—it is fundamental to constitutional practice. Practitioners must choose the correct provision based on the nature of the impugned order.

As the Supreme Court consistently emphasizes, these provisions exist to ensure justice, not to encourage litigation. Their sparing, principled use preserves both access to justice and institutional efficiency—the twin pillars of a functioning legal system.