Critical Analysis of Supervisory Jurisdiction of the High Courts in India

Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court, while the proceedings under Article 227 are not original but only supervisory.

The High Courts in the States have been conferred the Supervisory jurisdiction as prescribed under Article 227 of the Indian Constitution. The High Courts exercise the power of superintendence over all other courts and tribunals throughout the territories in relation to which it exercises jurisdiction except any court or tribunal constituted by or under any law relating to the armed forces.

It is well-settled that the power of superintendence so conferred on the High Court is administrative as well as judicial, and is capable of being invoked at the instance of any person aggrieved or may even be exercised suo motu. The objective behind vesting such wide power of superintendence in the High Court is to keep the subordinate Courts and Tribunals within the four corners of law and thereby securing the path of justice and removing any obstacles therein. In nutshell the basic idea, behind conferring the above power is to keep the subordinate Courts within its jurisdiction. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar.

Difference between a writ of certiorari under Article 226 and supervisory jurisdiction under Article 227

The difference between Articles 226 and 227 of the Constitution was well brought out in Umaji Keshao Meshram v. Smt. Radhikabai. Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court, while the proceedings under Article 227 are not original but only supervisory. 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 the court or tribunal has assumed a jurisdiction which it does not have.
  • When the court has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and
  • When the court the jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction.
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, 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; the supervisory jurisdiction is capable of being exercised suo motu as well.
The scope and power of High Court under Article 226 was discussed in detail by the constitution bench of the Supreme Court in the judgement titled as Syed Yakoob v. K.S. Radhakrishnan. The case held that a writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals.

In Chandrasekhar Singh v. Siva Ram Singh, the scope of jurisdiction under Article 227 of the Constitution came up for the consideration of this Court in the context of Sections 435 and 439 of the Criminal Procedure Code (CrPC) which prohibits a second revision to the High Court against decision in first revision rendered by the Sessions Judge. On a review of earlier decisions, the three-Judges Bench summed up the position of law as under:-
  • That the powers conferred on the High Court under Article 227 of the Constitution cannot, in any way, be curtailed by the provisions of the Code of Criminal procedure;
  • The scope of interference by the High Court under Article 227 is restricted. The power of superintendence conferred by Article 227 is to be exercised 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;
  • That the power of judicial interference under Article 227 of the Constitution is not greater than the power under Article 226 of the Constitution;
  • That the power of superintendence under Article 227 of the Constitution cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as the Court of Appeal; the High Court cannot, in exercise of its jurisdiction under Article 227, convert itself into a Court of Appeal.
Does the amendment in Section 115 of CPC have any impact on jurisdiction under Articles 226 and 227?

The amendment in Section 115 of Code of Civil Procedure (CPC) cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.

Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.

In Surya Dev Rai vs Ram Chander Rai, the Apex Court laid down the broader principles, the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution which cannot be tied down in a straitjacket formula or rigid rules.

Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, as hereunder:-
  • Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction (ii) in excess of its jurisdiction or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
  • Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have, the High Court may step in to exercise its supervisory jurisdiction.
  • Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) 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 (ii) a grave injustice or gross failure of justice has occasioned thereby.
  • 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 High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
  • In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions.