By Saji Koduvath, Advocate, Kottayam
13/08/2022
Sabarimala Review and Conflict in Findings between
Shirur Mutt Case& Durgah Committee Case
(By Saji Koduvath, Advocate, Kottayam)
Introduction
Sabarimalacase (pertaining to right of entry of women in Sabarimala Temple) is
placed before a nine-Judge-bench of the Supreme Court of India for considering the Review-Reference. Following matters are also pending before the nine-Judge-bench:
i. Right of entry of Muslim Women in Durgahs/Mosques,
ii. Right of entry of Parsi Women, married to non-Parsis, into the holy fire place of Agyari and
iii. The challenge to the practice of female genital mutilation in Dawoodi Bohra Community.
Important Constitutional issues arise for consideration in these cases will be the following:
1. Do the words, “right freely to practice religion” in Article 25 of the Indian Constitution protects (all)’acts done in pursuance of a religion’;
2. Do the words “religious denomination or any section thereof” in Article 26 take-in ‘Organizations, Sects, Sub-sects, etc.;
3. Do all religious practices that do not run counter to “public order, health and morality”, be honoured under the freedom of religion guaranteed by the Constitution; and
4. Do the words “every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion” in Article 26 give a fundamental right to the denomination or any section thereof to (i) ‘manage its own affairs’ which no legislature can take away and (ii) enjoy complete autonomy so that ‘no outside authority has any jurisdiction’.
5. Article 25(2) allows the “State to make any law regulating or restricting any other secular activity which may be associated with (essential) religious practices”. Should such essential religious practices (subject to public order, health and morality) be ‘left to be determined by the denomination or any section thereof itself’?
6. Or, whether all the afore-stated rights and protections (given in paras 1 to 5 above) are confined to such practices as are an essential and an integral part of RELIGION and NO OTHER; and
7. Whether the determination of essential religious practices (given in para 6 above) remains in the field of COURTS?
Articles 25 & 26 of the Constitution is the Heart and Soul of Religious Freedom
The framers of the Constitution placed the heart and soul of the religious rights and freedom in Articles 25 and 26 of the Constitution of India. They are the Fundamental Rights relating to the Freedom of Religion.
Article 25 and 26 read as under:
25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law –
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II – In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
26. Freedom to manage religious affairs –Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b)to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d)to administer such property in accordance with law.
Cardinal Question before the Nine-Judge-Bench
Do the following words in Article 25 and 26 give ‘wider rights’ is the cardinal question that requires answer from the nine-Judge-bench:
(i) Subject to public order, morality and health all persons are entitled to the right freely to practise religion (Article 25).
(ii)Subject to public order, morality and health every religious denomination or any section thereof have the right to manage its own affairs in matters of religion (Article 26).
Two Important Decisions that Verbalized the Law on Article 26
The following are the two important decisions of the Constitution Bench of our Apex Court that articulated and verbalized the law on Article 26:
1. The Commr., Hindu Religious Endowments v. Sri LakshmindraThirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282); and
2. Durgah Committee, Ajmer v. Syed Hussain Ali(AIR 1961 SC 1402).
Following important findings are rendered in the first decision, Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt:
(i). Right to manage the affairs of religion is a fundamental right which cannot be taken away by legislature.
(ii).The right and guarantee given to administer property being ‘in accordance with law’, the law, ‘must leave the right of administration to the religious denomination itself’ subject to such restrictions and regulations imposed by laws by legislature.
Following important finding is rendered in the second decision, Durgah Committee, Ajmer v. Syed Hussain Ali:
“Unless such practices are found to constitute an essential and integral part of a RELIGIONtheir claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”
Conflict in Shirur Mutt and Durgah Committee
The law handed down by the Supreme Court in these two rulings are divergent in certain material particulars. They are:
1. Whether protections in Article 25 and 26 are limited to practices that are ESSENTIAL and INTEGRAL part of religion and, no other? (Durgah).
°Do Article 25 and 26 that give right ‘to manage its own affairs in matters of religion’ and freedom to ‘practice religion’ protect (all) ‘acts done in pursuance of a religion? (Shirur).
2. Who determines -what constitutes the essential part of a religion? Is it the COURT? (Durgah)
°Is it left to be determined by the Denomination or Section, and no outside authority has any jurisdiction to interfere with their decision in such matters? (Shirur).
3. Whether the Protection is limited to ESSENTIAL and INTEGRAL part of
‘RELIGION’ in a strict sense, and no other? (Durgah).
°Whether ‘religious Denomination/Section’ extends to religious ‘Organization’,
‘Sect, Sub-sect’, etc.? (Shirur).
°Whether freedom of religion is guaranteed to all practices, except that which
run counter to public order, health and morality? (Shirur).
°A religion or any section thereof holds the fundamental right to’manage its
own affairs’ (which no legislature can take away) and enjoys complete autono
my (so that no outside authority has any jurisdiction). (Shirur).
Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004)
It is the second Ananda Margi case. In the first Ananda Margi case (Acharya Jagdishwaran and Avadhuta v. Commissioner of Police (1984 KLT SN 3 (C.No.7) SC= AIR 1984 SC 51),the Supreme Court held that the Tandava dance in public (with knife, live snake, trident, skull, etc.) was not an essential rite of the Ananda Margi faith. In this second Ananda Margi case, Commissioner of Police v. Acharya Jagadish warananda Avadhuta (2004 (2) KLT SN 36 (C.No.41) SC = AIR2004 SC 2984), the majority rendered its verdict following Durgah Committee, Ajmer v. Syed Hussain Ali, which observed that ‘the protection must be confined to such religious practices as are an essential and integral part of it and no other’.
The minority view in this decision is rendered by AR Lakshmanan, J. It is laid down as under:
“This observation of this Court (in Durgah Committee, Ajmer v. Syed Hussain Ali), in our view,runs counter to the observation of Mukherjee, J. In The Commissioner, Hindu Religious Endowment, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra). In this context, it is useful to reproduce a passage from the above judgment which explains the definition of religion in paragraphs 14 and 19 of the judgment which are -
“We now come to Art. 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others....
....If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire all these would be regarded as parts of religion...”
In a subsequent decision, namely, His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami etc. v. The State of Tamil Nadu (AIR 1972 SC 1586), this Court has held that-
‘Worshippers lay great store by the rituals and whatever other people, not of the faith may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious.’
The contention that the word ‘religion’ under Article 25(1) of the Constitution of India does not include sect of religion of Ananda Marga being declared as religious denomination does not qualify for the same protection as religion in our view is not tenable. The learned Judges of the Calcutta High Court in their judgment impugned in this appeal has categorically dealt with the question following the decision exactly on the same point in the case of Shirur Mutt (supra) and the National Anthem case (Bijoe Emmanuel v. State of Kerala) reported in (1986 KLT 1037 (SC) = AIR 1987 SC 748) and SriVenkataramana Devaru & Ors. v. State of Mysore & Ors. (1958 KLT SN 29 (C.No.51) SC = AIR 1958 SC 255) held that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion they hold and outside authority has no jurisdiction to interfere with their decision in such matters.”
The Crux of Sabarimala-Review-Matter
In the Sabarimala review-reference (to Higher Bench) Judgment,Kantaru Rajeevaru v. Indian Young Lawyers Association (2019 (4) KLT OnLine 3029 = (2020) 2 SCC 1), it is observed that there is conflict between the Shirur Mutt case and Durgah Committee case. In the aforesaid review-reference-judgment the Court said as under:
“7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras v. Shri LakshmindraTirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself and the subsequent view of a Five Judges bench in Durgah Committee, Ajmer v. Syed Hussain Ali & Ors. carving out arole for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.”
The issues placed before the nine-Judge-bench are reframed in Kantaru Rajeevaru v. Indian Young Lawyers Association (2020 (1) KLT OnLine 1209 (SC) = (2020) 3 SCC 52), as under:
1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
2. What is the inter-play between the rights of persons under Article 25 of the
Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
6. What is the meaning of expression “Sections of Hindus” occurring in Article 25(2)(b)
of the Constitution of India?
7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?
Conclusion
The jurisprudential importance of the ensuing nine-Judge-bench decision is not limited as to whether the decision in Shirur Mutt case will prevail over the decision in Durgah Committee case; because, the enquiries of the Court will not end there; but, it has to go beyond and record findings on the newly framed issues. The issues are couched in a manner that they definitely embrace, whether the decision in Shirur Mutt requires reconsideration, mainly on two points:
· First, whether the ‘religious denomination or any section thereof’ stated in
Article 26 shall be liberally construed (or, whether the constitutional protection must be confined to ‘such religious practices as are an essential and an integral part of RELIGION and no other’.)?
· Second, whether the ‘essential religious practices’ are matters that are left to be determined by the ‘denomination’ (or whether it should remain in the realm of Court)?
One thing is definite: the march of law in this topic has reached a breaking point, whereby the answers of the Apex Court will be from a ‘juridical’ vantage; rather than in an ‘ideological’ perspective.
By Devi A.R., Section Officer, Law Dept. Govt. Secretariat, TVM
13/08/2022Prohibition of Child Marriage (Amendment) Bill, 2021 –
A Milestone Towards Social Uniformity
(By Devi A.R., Section Officer, Law Department, Govt.Secretariat, Thiruvananthapuram)
In a welfare State the primary and ultimate goal of a statutory law is to control the human conduct in such a way to maintain social order.Unity in diversity is such an ideal concept to keep the different societal group under an umbrella but when it comes to its practical operation some kind of uniformity should be there to keep those unities flourishing.
Coming straight off to the new proposal of the Union Ministry to raise the minimum age of marriage of women to 211. Prohibition of Child Marriage (Amendment) Bill, 2021 seeks to prohibit solemnisation of child marriage in our society and to bring the women in par with men in terms of marriageable age. The bill is supposed to make uniformity in different groups of the society by making the marriageable age uniform to every one irrespective of their religion and also to make uniformity in marriageable age of men and women.
Prohibition of Child Marriage (Amendment) Bill, 2021
The Prohibition of Child Marriage (Amendment) Bill, 2021 is proposed to seek achieve the following object:- (i) amend the Prohibition of Child Marriage Act, 2006, to reinforce its application overriding all other existing laws, including any custom, usage or practice governing the parties in relation to marriage; (ii) bring women at par with men in terms of marriageable age; (iii) prohibit child marriage irrespective of any law, custom, usage or practice governing the parties; (iv) declare that provisions of the Act shall have overriding effect over every other law, custom, usage or practice governing the parties; (v) make consequential amendments to the other laws relating to marriage; and (vi) make the amendments effective, in relation to marriageable age, two years from the date the Bill receives assent of the President, so as to provide sufficient opportunity to one and all in our collective efforts and inclusive growth, and to make effective other provisions immediately.
Law Commission report on minimum marriageable age
The 18th Law Commission as per its 205th report2 submitted proposal to amend the Prohibition of Child Marriage Act, 2006 & other allied Laws suggested as follows:“The age of marriage for both boys and girls should be 18 years as there is no scientific reason why this should be different. Consequently the present Section 2(a) of the PCMA should be deleted and replaced by the following Section 2(a):- “(a) ‘child’ means a person who has not completed 18 years of age.”
If the women at 18 can select the Government why not the partner
“If the women at 18 can select the Government why not the partner?”is the query raised by the various societal groups but this mistrust has no scope for discussion in the present bill because the capability of a person to make choices is not challenged in the bill. Every law is made for its own explicit purpose.This bill seeks to prohibit the child marriage in the society and for that particular purpose the marriageable age of women is raised. It is also a constitutional mandate to maintain equality in case of marriageable age as the protective discrimination for women is not attracted here.
Amendment in Child Marriage Act- is it move towards UCC?
As per the bill, the new minimum marriageable age of women shall prevail over all the personal laws therefore, the legal age of marriage will be raised for all females regardless of their religion.It seeks to amend seven personal laws – Hindu Marriage Act, Hindu Minority and Guardianship Act and the Foreign Marriage Act, Indian Christian Marriage Act, Parsi Marriage and Divorce Act, Muslim Personal Law (Shariat) Application Act and the Special Marriage Act. It is implicit from the above provision in the bill, apart from the main goal of social uniformity and welfare it may be a stepping stone towards the conitutional mandate under the directive principles of State policy to secure uniform civil code to its people.
Conclusion:The purpose to be achieved by the Prohibition of Child Marriage (Amendment) Bill, 2021 is clear from the statement and objectives of the bill. It is intended to prohibit solemnisation of child marriage and to secure the constitutional mandate of gender equality in marriageable age among men and women. The social welfare and uniformity intended by the legislature cannot be ignored only for the cause that it may be explored as a stepping stone towards uniform civil code. The new amendment should definitely be viewed as the milestone towards social uniformity and welfare.
Foot Note:
1. https://prsindia.org/files/bills_acts/bills_parliament/2021
2. https://lawcommissionofindia.nic.in/reports/report205.pdf
Difference Between a Contractual Tenant and a Statutory Tenant
By P.B. Menon, Advocate, Palakkad
12/08/2022Difference Between a Contractual Tenant and a Statutory Tenant
(By P.B.Menon, Advocate, Palakkad)
Is there not a difference between a “contractual tenant and a statutory tenant” of a building under law, I am prompted to write this article after reading the judgment of a Division Bench reported in 2021 (3) KLT 67. It is seen that the expression used throughout the reported judgment is “statutory tenant”. The facts of the case as reported therein are to the effect that the landlord therein leased out a building to the tenant for a period of 11 months, but the application for eviction was filed within 3 months of granting such lease on the ground of bona fide need of the landlord. The learned Judges hold that it is affected by S.11(9) of Act 2/65 in the following sentence “Thus the legal position that emerges from all that has been discussed by as above is that petition for eviction of a statutory tenant brought prior to the expiration of the term of lease is hit by Section 11(9) of the Act and is not maintainable before a Rent Control Court”.
Really was the tenant in that case a contractual tenant or a statutory tenant. True,
I believe, that both categories of tenants get protection under the provisions of the Act 2/65. But is there not a difference between contractual tenant and a statutory tenant before a Rent Control Court under law.
A contractual tenant is one who holds the building under a landlord under a lease deed/rent deed for the period specified therein under such tenancy. Till the expiry of the period of tenancy stated therein he is a contractual tenant.
On expiration of the period of tenancy if he continues in possession and the landlord accepts rent and recognize him to continue, he is called ‘a tenant holding over’ and if the landlord does not recognize his continuation in possession, he is called ‘a tenant at sufferance’. Under law his possession is akin to that of a trespasser.
In case the original tenant dies, his legal heirs and not legal representatives or legatees, who holds possession of such building continues as tenant of that building.
Such legal heirs of original tenant, a tenant holding over and a tenant at sufferance are all recognized by virtue of the difference of tenant u/S.2(6) of Act 2/65 and they are the real statutory tenants. Definition of tenant shows, such persons are also included. See 2001 (2) RCR 492 (Kerala), 1991 (2) KLT 598, 1999 (1) RCR 636 (Andhra Pradesh), 1971 KLT 571 and AIR 1972 SC 819.
The difference between contractual tenant and statutory tenant is explicit in one instance under the Rent Control Act, Act 2/65. Section 11(17) application for eviction on the ground of bona fide need. Protection is given only to a contractual tenant and not a statutory tenant.
See 2003(2) KLT 317; ILR 2005 (2) Ker.373.
The only probable instance when a contractual tenant becomes later a statutory tenant in cases where the application for eviction is dismissed against him, by virtue of S.11(15) of Act 2/65.
Incidentally in this connection it may be noted that as regards such building leases, no leasehold estate is created in favour of the tenant. There is no right or title which is marketable with such tenants. No estate passes to his legal heirs on his death, but for the purpose of the Rent Control Act.
To my knowledge there is one ruling of our High Court reported in 1982 KLT 83, which holds that “statutory tenant means it is the status of a tenant who continues to be in possession of a building during the pendency of the Rent Control Petition”. It is difficult to accept such a proposition as a general rule, as both contractual tenants and statutory tenants figure as respondents in Rent Control Petitions.
Equally so another decision of the Apex Court reported in AIR 1976 SC 2229 which holds that “a contractual tenant has an estate or property in the subject matter of tenancy and heritability is an incident of the tenancy”. This is true in the case of a lease of immovable property under the TP Act but cannot apply to a building lease, wherein the relationship is really that of landlord and tenant.
Regarding these matters, if there are other views apart from what I have expressed above, is welcome and will be appreciated.
Whether an Appeal will Lie u/Section 18(b) Against an Order u/Section 12(3)
by a Rent Control Court of Kerala Act 2/65
By P.B. Menon, Advocate, Palakkad
05/08/2022Whether an Appeal will Lie u/Section 18(b) Against an Order u/Section 12(3)
by a Rent Control Court of Kerala Act 2/65
(By P.B.Menon, Advocate, Palakkad)
Reported cases are too many and hence not referred to hereunder in this Article, which are either disposed of u/S.18(b) or under Art.227.
What is the correct legal position?
If we analyse S.12(1) it is crystal clear that what the tenant is obliged to deposit is “all arrears of rent admitted by the tenant to be due in respect of the building upto the date of payment or deposit and continues to pay or to deposit which may subsequently due in respect of the building until the termination of the proceedings etc”.
As regards the first part of the Section, relating to admitted arrears of rent, it is what the tenant admits upto the date of deposit or payment and as such no enquiry is contemplated as to whether such deposit is correct or not. As regards the latter part what is due is contract rent or if disputed what the tenant pleads according to him is the rent payable after the date of payment or deposit of admitted arrears of rent under the first part.
If the admitted arrears of rent due upto the date of deposit or payment during the statutory period of 4 weeks or the extended period; is not deposited or subsequent rent is not deposited within the statutory period of 2 weeks or extended period, the court is bound to pass an order u/S.12(3) after giving the tenant an opportunity to show sufficient cause for not depositing the rent.
So in both stages of payment or deposit 1) admitted arrears of rent due and 2) subsequent rent, there is absolutely no enquiry is contemplated. Rent Control Court in passing the order u/S.12(1) do not decide judicially anything. It just follows the procedure laid down u/S.12(1) andpasses an order first u/S.12(2) and then if necessary u/S.12(3). It is not just like posting the matter for written statement or for steps on death of a party just following the procedure under C.P.C. Extension of period which is discretionary may be a judicial order. When there is no enquiry judicial decision by the Rent Control Court or the only thing that has to be tested is as to whether such order is illegal or irregular in not allowing statutory period for payment or deposit or other connected matters how could an appeal lie against such order. But such mistakes or errors have to be rectified by the Hon’ble High Court by exercising its superintendence power under Art.227 and not by an appeal u/S.18(b) as such orders passed is irregular or illegal. If we go through various decision on this head, we will find that both provisions are made use of by concerned counsel and the court concerned dispose the matter without deciding as to what is the proper remedy i.e. an appeal u/S.18(b) or under Art.227. To my knowledge there is only one reported case wherein that no appeal will lie is decided - See 1994 (2) KLT 419. As regards review u/S.20, it is available only against the orders of the appellate authority before the Hon’ble High Court.
Hence anauthoritative pronouncement will be welcome by the Hon’ble High Court or Apex Court regarding the procedure to be adopted against such orders u/S.12(3) by the Rent Control Court and 2) at which stage 1) When order is passed u/S.12(2) to make a deposit and 2) When order is passed u/S.2(3).
Contours of Power under Article 226 & 227 of The Constitution Vis-À-Vis Quashing Civil Judicial Orders
By Shrikrishna Dagliya, Senior Civil Judge Tarana, Ujjain (M.P.)
02/08/2022CONTOURS OF POWER UNDER ARTICLE 226 & 227 OF THE CONSTITUTION VIS-À-VIS QUASHING CIVIL JUDICIAL ORDERS
SHRIKRISHNA DAGLIYA SENIOR CIVIL JUDGE TARANA, UJJAIN (M.P.)
PROLOGUE
Article 226 and 227 of the Constitution of India contain different sets of powers conferred on the High Courts of India. Article 226 contains the power of the High Courts to issue writs and other directions for the enforcement of fundamental rights. These writs and directions can be issued for other purposes also, unlike Article 32 of the Constitution. Article 227 contains the power of superintendence which the High Court exercises over Courts and Tribunals within its jurisdiction. This article focusses on the contours of the power of the High Courts under Article 226 and 227 to quash civil judicial orders including judgments passed by the Civil Courts.
INTEREST REPUBLICAE UT SIT FINIS LITIUM
It is in the interest of the State that there shall be an end to litigation. If there is not put an end to litigation at some point, then there is bound to be chaos. It is in this backdrop that the Legislature provides only limited remedies against an adjudication of a dispute. The final judgment, and the orders passed during the course of the determination of the lis receive varied treatments. The final judgment in a civil case is almost always open to a first appeal in the light of the provisions of section 96 read with order 41 of the Code of Civil Procedure (hereinafter referred to as the 'Code'), obviously except when an appeal is expressly barred. There may also be a second appeal if there is any substantial question of law involved. Orders passed by a Civil Court, on the other hand, stand on a different footing. Some orders are per se expressly made appealable in the light of the provisions of section 104 read with order 43 of the Code whereas the others are not so made per se appealable. Even the non-appealable orders can be assailed while preferring an appeal from the decree, in the light of the provisions of order 43 rule 1A of the Code. There is no provision for a second appeal against orders. Against those judgments and orders, with respect to which no right of appeal is conferred, they may be assailed in revision, on the limited grounds on which a revision is permitted by the Code. Similarly, review on very limited grounds, is another remedy conferred by the Legislature. There may be an appeal to the Supreme Court on a certificate issued by the High Court. Even without a certificate, a party aggrieved, from any order or judgment of the Civil Court, can apply for special leave to appeal to the Supreme Court and on the grant of such leave the matter is treated and disposed of as an appeal.
So there is a set of remedies available against the orders and judgments passed by a Civil Court. The idea is that against an adjudication the remedies available are reduced, as one moves up the ladder in the hierarchy of the Courts, with a view to bring an end to litigation. At the outset, keeping in mind the above backdrop, it would be apposite to clarify that remedy under Article 226 and under Article 227 of the Constitution of India are not in the nature of any appeal in disguise. These are extraordinary remedies, meant for specific purposes, which are to be sparingly used. These are not meant to be used in a routine manner just as any other general remedy.
DIFFERENCE BETWEEN ARTICLE 226 & 227
Articles 226 and 227 stand on substantially different footing. After the advent of the Constitution, every High Court has been conferred with the power to issue writs under Article 226 and these are original proceeding. The jurisdiction under Article 227 on the other hand is not original nor is it appellate. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Articles 226 and 227 are separate and distinct, and they operate in different fields. Another distinction between these two jurisdictions is that under Article 226, the High Court normally annuls or quashes an order or proceeding but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. The jurisdiction under Article 226 normally is exercised where a party is affected but power under Article 227 can be exercised by the High Court suo motu as a custodian of justice. In fact, the power under Article 226 is exercised in favour of persons or citizens for vindication of their fundamental rights or other statutory rights. The jurisdiction under Article 227 is exercised by the High Court for vindication of its position as the highest judicial authority in the State. From an order of a Single Judge passed under Article 226, a letters patent appeal or an intra-court appeal is maintainable. But no such appeal is maintainable from an order passed by a Single Judge of a High Court in exercise of power under Article 227.
WRIT OF CERTIORARI
The writ of certiorari is a command by a superior Court calling for the record of an inferior body to satisfy itself of the order passed by such later body and quashing the decision of such body when found to be not as per certain parameters. The origin of this writ dates back to the 18thcentury when it used to be issued by the Kings' Bench in England. In India, initially the three Supreme Courts exercised the power to issue this writ and then the three chartered High Courts got the power to issue this writ by virtue of the High Courts Act of 1861 and the respective letters patents. The High Courts established, after the chartered High Courts, were empowered to issue directions as per their respective letters patent. Then after the advent of the Constitution, by virtue of Article 225, the powers that were being enjoyed by the High Courts prior to the coming in force of the Constitution were saved; and the then existing High Courts as well as other High Courts which were to be later established were empowered by Article 226 to issue this writ.
NO REMEDY UNDER ARTICLE 226 OF THE CONSTITUTION
Against an order passed by a Civil Court, a writ of certiorari is not available. Earlier, the Supreme Court in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 had held that even against an order of a Civil Court, a writ of certiorari could be issued but later the law on this particular point was overruled by a larger Division Bench of the Supreme Court in the case titled Radhey Shyam vs. Chhabi Nath, (2015) 5 SCC 423 wherein it was held that judicial orders of Civil Courts are not amenable to the writ jurisdiction under Article 226 of the Constitution.
THE HISTORY OF THE POWER OF SUPERINTENDENCE
The High Courts' power of superintendence under Article 227 of the Constitution has its origin as early as in the Indian High Courts Act of 1861. This concept of superintendence has been borrowed from English Law. The power of superintendence owes its origin to the supervisory jurisdiction of the King's Bench in England. In the Presidency towns of the then Calcutta, Bombay, Madras, initially, Supreme Courts were established. Those Courts were endowed with the power of superintendence, similar to the powers of the King's Bench under the English Law. Then the Indian High Courts in three Presidency towns were endowed with similar jurisdiction of superintendence. Such power was conferred on them under Section 15 of the Indian High Courts Act, 1861. The material part of Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, except that the power of superintendence has been extended by the Article also to Tribunals. Section 107 of the Government of India Act, 1915, was reproduced in the Government of India Act, 1935, as Section 224. Section 224 of the 1935 Act, however, introduced sub-section (2), which was new, providing that nothing in the section should be construed as giving the High Court any jurisdiction to question any judgment of any inferior court which was not otherwise subject to appeal or revision. Section 224 of the 1935 Act has been reproduced with certain modifications in Article 227 of the Constitution. It is significant to note that sub-section (2) to Section 224 of the 1935 Act has been omitted from Article 227. This significant omission is regarded as having restored to the High Courts the power of judicial superintendence which it had under Section 15 of the High Courts Act, 1861, and Section 107 of the Government of India Act, 1915.
NATURE AND OBJECT OF POWER UNDER ARTICLE 227
The power of superintendence conferred by Article 227 is supervisory and not appellate. [1]The superintending power of the High Courts under Article 227 is to keep courts and tribunals within the bounds of the law[2] and not for correcting mere errors.[3] The Supreme Court in L. Chandra Kumar's[4] case has held that jurisdiction conferred upon the High Courts under Article 227 of the Constitution is a part of the inviolable basic structure of our Constitution.
Some statutes expressly or by necessary implication oust the jurisdiction of Civil Courts in respect of certain matters but such exclusion cannot affect the extraordinary powers of superior courts conferred under Arts. 227 of the Constitution.[5] The High Court in the exercise of its supervisory jurisdiction under Article 227 cannot only annul the decision of the Tribunal but can also issue further direction in the matter.[6] But the judgment in L. Chandra (supra) cannot be construed to enlarge the jurisdiction of the High Court under Article 227, to enable it to exercise appellate powers. Jurisdiction under Article 227 cannot be exercised “in the cloak of an appeal in disguise”. The High Court does not (under this power) re-assess or re-analyze the evidence and/or materials on record. This jurisdiction of the High Court cannot be converted into an alternative appellate forum, just because there is no other provision of appeal in the eye of law.[7] The paramount consideration behind vesting such wide power of superintendence in the High Court is paving the path of justice and removing any obstacles therein[8].
The main object of this Article (227) is to keep strict administrative and judicial control by the High Court on the administration of justice within its territory. The object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute.[9]
REMEDY UNDER ARTICLE 227 CANNOT BE CLAIMED EX DEBITO JUSTITIAE
The provision of Article 227 is not, ex facie, meant to be a remedy to any person. It provides for the power of superintendence which the High Courts have over Courts and Tribunals functioning under its jurisdiction. Remedy which a party gets is only incidental to the exercise of the power of superintendence. This power is meant to be exercised suo moto but it can also be exercised on an application by a party. But the exercise of power and the incidental grant of remedy under 227 of the Constitution cannot be claimed as a matter of right by any party.
"No doubt Article 227 confers a right of superintendence over all courts and tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under the said article as a matter of right. In fact power under this article casts a duty upon the High Court to keep the inferior courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals."[10]
REMEDY UNDER ARTICLE 227 NOT BY WAY OF A WRIT
Now, writs can be issued by the High Courts only under Article 226 of the Constitution and by the Supreme Court only under Article 32 of the Constitution. No writ petition can be moved under Article 227 of the Constitution nor can a writ be issued under Article 227 of the Constitution.
Therefore, a petition filed under Article 227 of the Constitution cannot be called a writ petition. This is clearly the constitutional position. No rule of any High Court can amend or alter this clear constitutional scheme.[11]
CONTOURS OF THE POWER OF SUPERINTENDENCE
There are various judgments of the Apex Court which have laid down the scope of the power under Article 227 of the Constitution. There are also subsequent judgments of various Courts which have the effect of either restricting or enhancing the scope of the power exercised by the High Courts under Article 227 of the Constitution. While analyzing these judgments, we must keep in mind the basic principles of the law relating to the precedential value of judgments, as laid down by the Constitution Bench of the Supreme Court in Central Board Of Dawoodi Bohra vs. State Of Maharashtra & Anr AIR 2005 SC 752:-
"(1) The law laid down by this Court (Supreme Court) in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength.
(2) A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing
before a Bench of larger quorum than the Bench whose decision has come up for
consideration."
In Subhash Chandra and Another vs. Delhi Subordinate Services Selection Board & Anr. (2009) 15 SCC 458, it was held by the Supreme Court as follows:-
"It is now a well settled principle of law that a division bench, in case of conflict between a decision of a Division Bench of two Judges and a decision of a larger Bench and in particular Constitution Bench, would be bound by the latter ..... It is also well known that a decision rendered in ignorance of a binding precedent and/or in ignorance of a constitutional provision, would be held to have been rendered per incuriam."
The contours of the power under Article 227 are broadly laid down by the following Constitution Benches of the Supreme Court in the following words:-
1. Unless there is any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under Article 227 of the Constitution to interfere. (D.N. Banerjee v. P.R. Mukherjee- 1953 SCR 302- 5 Judges- Date of Judgment- 05-12-1952)
2. This power of superintendence conferred by Article 227 is to be exercised most sparinglyand only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.(Waryam Singh v. Amarnath- 1954 SCR 565- 5 Judges- Date of Judgment- 19-01-1954)
3. Interference is justified only when the High Court records a finding that the inferior Tribunal's conclusion is based upon exclusion of some admissible evidence or consideration of some inadmissible evidence or the inferior Tribunal has no jurisdiction at all or that the finding is such, which no reasonable man could arrive at, on the materials on record. (State of Maharashtra vs. Milind- (2001) 1 SCC 4- 5 Judges- Date of Judgment- 28.11.2000)
4. Errors of law that are apparent on the face of the record can be corrected.(Madras Bar Assn. vs. Union of India- (2014) 10 SCC 1- 5 Judges- Date of Judgment- 25-09-2014)
5. The power of judicial superintendence must be exercised sparingly, to keep subordinate courts and tribunals within the limits of their authority. When a Tribunal has acted within its jurisdiction, the High Court does not interfere in exercise of its extraordinary writ jurisdiction unless there is grave miscarriage of justice or flagrant violation of law. Jurisdiction underArticle 227 cannot be exercised “in the cloak of an appeal in disguise”. In exercise of its extraordinary power of superintendence and/or judicial review under Article 227 of theConstitution of India, the High Courts restrict interference to cases of patent error of law which go to the root of the decision; perversity; arbitrariness and/or unreasonableness; violation of principles of natural justice, lack of jurisdiction and usurpation of powers. (Rajendra Diwan vs. Pradeep Kumar Ranibala and Another-2019 SCC OnLine SC 1586- 5 Judges- Date of Judgment- 10-12-19)
Hereinbelow is what the Supreme Court has laid down in Benches other than the Constitution Benches:-
6. The High Court under Article 227 of the Constitution of India cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice would be done unless the High Court interferes.[Laxmikant Revchand Bhojwani vs. Pratapsing Mohansingh Pardeshi (1995) 6 SCC 576]
7. Power under Article 227 is one of judicial superintendence and cannot be exercised to upset conclusions of facts however erroneous those may be (India Pipe Fitting Co. v. Fakruddin M.A. Baker, (1977) 4 SCC 587). The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and reappreciating it.(Bathutmal Raichand Oswal v. Laxmibai R. Tarta, (1975) 1 SCC 858)
8. If an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari it should follow a fortiori that it is not subject to correction by the High Court in the exercise of its jurisdiction under Article 227. The power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the Legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. (Bathutmal Raichand Oswal vs. Laxmibai R. Tarta, (1975) 1 SCC 858)
9. It is well settled that the High Court under Article 227 of the Constitution of India has jurisdiction to correct the error if apparent on the face of the record.(Kalpesh Hemantbhai Shah v. Manhar Auto Stores, (2014) 15 SCC 711)
10. Law is well settled by various decisions of this Court (Supreme Court) that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior court, the High Court should not quash the judgment of the subordinate court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 to interfere with the finding of fact if the subordinate court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse. If the evidence on record in respect of a question of fact is not at all taken into consideration and without reference to such evidence, the finding of fact is arrived at by inferior court or tribunal, such finding must be held to be perverse and lacking in factual basis. In such circumstances, in exercise of the jurisdiction under Article 227, the High Court will be competent to quash such perverse finding of fact.(Achutananda Baidya v. Prafullya Kumar Gayen, (1997) 5 SCC 76). A patent error is an error which is self-evident i.e. which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view, the error cannot be called gross or patent.[Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675]
11. Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.[Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675]
12. 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.[Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675]
13. 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. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred thereagainst and entertaining a petition invoking certiorari or supervisory jurisdiction of the High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. [Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675]
14. In order to safeguard against a mere appellate or revisional jurisdiction being exercised in the garb of exercise of supervisory jurisdiction under Article 227 of the Constitution, the courts have devised self-imposed rules of discipline on their power. Supervisory jurisdiction may be refused to be exercised when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. The High Court may have regard to legislative policy formulated on experience and expressed by enactments where the legislature in exercise of its wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision. So long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction, though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of discretion on the part of the High Court to refuse to exercise the power of superintendence during the pendency of the proceedings. However, there may be cases where but for invoking the supervisory jurisdiction, the jurisdictional error committed by the inferior court or tribunal would be incapable of being remedied once the proceedings have concluded.[Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675]
15. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of this power by the High Court. (Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil-MANU/SC/0508/2010)
16. Where the statute bans the exercise of revisional powers, it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised “as the cloak of an appeal in disguise”.(State v. Navjot Sandhu, (2003) 6 SCC 641)
17. The power of judicial superintendence under Article 227 could only be exercised sparingly, to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution since the power of superintendence was not meant to circumvent statutory law. (Jagir Singh vs. Ranbir Singh (1979) 1 SCC 560)
18. The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Articles 226/227 of the Constitution....Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. (Radhey Shyam vs. Chhabi Nath (2015) 5 SCC 423)
19. Despite the curtailment of revisional jurisdiction under Section 115 CPC by Act 46 of 1999, jurisdiction of the High Court under Article 227 remains unaffected. It has been wrongly assumed in certain quarters that the said jurisdiction has been expanded. (Radhey Shyam vs. Chhabi Nath (2015) 5 SCC 423)
20. 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 the High Court. (Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil-MANU/SC/0508/2010)
21. 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 unfetteredbut its exercise is subject to high degree of judicial discipline pointed out above. An improper and a frequent exercise of this power will be counterproductive and will divest this extraordinary power of its strength and vitality. (Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil-MANU/SC/0508/2010)
22. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. (State v. Navjot Sandhu, (2003) 6 SCC 641)
23. Only wrong decisions may not be a ground for the exercise of jurisdiction under this Article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party.(Ouseph Mathai v. M. Abdul Khadir, (2002) 1 SCC 319)
24. A mere wrong decision without anything more is not enough to attract the jurisdiction of the High Court under Article 227.(Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566)
25. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited “to seeing that an inferior court or tribunal functions within the limits of its authority”, and not to correct an error apparent on the face of the record, much less an error of law.(Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566)
26. In exercising the supervisory power under Article 227, the High Court does not act as an appellate court or tribunal. It will not review or reweigh the evidence upon which the determination of the inferior court or tribunal purports to be based or to correct errors of law in the decision. (Mohd. Yunus v. Mohd. Mustaqim, (1983) 4 SCC 566)
27. It can not be exercised like a “bull in a china shop”, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.(Jai Singh v. MCD, (2010) 9 SCC 385)
28. The High Court cannot lightly or liberally act as an appellate court and reappreciate the evidence. Generally, it can not substitute its own conclusions for the conclusions reached by the courts below or the statutory/quasi-judicial tribunals. The power to reappreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The exercise of such discretionary power would depend on the peculiar facts of each case, with the sole objective of ensuring that there is no miscarriage of justice.(Jai Singh v. MCD, (2010) 9 SCC 385)
29. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate courts or tribunals. Exercise of this power and interfering with the orders of the courts or tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The High Court can set aside or ignore the findings of facts of an inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or tribunal has come to.(Estralla Rubber vs. Dass Estate (P) Ltd. (2001) 8 SCC 97)
30. It is also well established that it is only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or a patent or flagrant error in procedure or law has crept in or where the order passed results in manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution.(Trimbak Gangadhar Telang vs. Ramchandra Ganesh Bhide (1977) 2 SCC 437)
APROPOS THE SUBORDINATE JUDICIARY
31. However, such power of superintendence does not imply that the High Courts can influence the subordinate judiciary to pass any order or judgment in a particular manner. The extraordinary power under Article 227 can only be used by the High Courts to ensure that the subordinate courts function within the limits of their authority. The High Court cannot interfere with the judicial functions of a Subordinate Judge.(Jasbir Singh v. State of Punjab, (2006) 8 SCC 294)
32. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions. (Jasbir Singh v. State of Punjab, (2006) 8 SCC 294)
33. Except giving general directions regarding any matter concerning administration of justice, any interference in the judicial functions of the presiding officer would amount to interference with the independence of the subordinate judiciary. (Jasbir Singh v. State of Punjab, (2006) 8 SCC 294)
EPILOGUE
There are various remedies available against a civil order or a civil judgment passed by a judicial Court. These remedies must be first availed before resorting to remedy under Article 227 of the Constitution. It is crystal clear that High Courts have no power to interfere with the orders passed by a Civil Court under Article 226 of the Constitution. An order passed by a Civil Court can only be assailed under Article 227 of the Constitution of India and that too, on the parameters of challenge which have been clearly laid down by the Supreme Court in a series of decisions. Under the power conferred by Article 227 of the Constitution, the High Courts can not only annul the impugned order, but can also issue appropriate directions and sometimes even substitute its own views in the place of the impugned order. The touchstone of measuring the contours of such power are the Constitution Bench judgments in D.N. Banerjee vs. P.R. Mukherjee, 1953 SCR 302 and Waryam Singh vs. Amarnath, 1954 SCR 565, which still hold the field and have not been departed from by any larger bench of the Supreme Court. It is not that the High Courts should never use their power under Article 227 of the Constitution. It is just that this extraordinary power should be used most sparingly and only when it is permitted, as per the law laid down, by judicial pronouncements of the Supreme Court. Non-exercise of such power, in a deserving case, may even lead to injustice.
Foot Notes
[1] Rajendra Diwan vs. Pradeep Kumar Ranibala and Another 2019 SCC OnLine SC 1586 ( 5 judge) 10-12-19
[2] Madras Bar Assn. v. Union of India, (2014) 10 SCC 1 25-09-2014,
Nagendra Nath Bora v. Commr. of Hills Division and Appeals, 1958 SCR 1240 ( 5 judge) 07-2-58,
State of Gujarat v. Vakhatsinghji Vajesinghji, (1968) 3 SCR 692 ( 5 judge) 08.04.68
[3] Waryam Singh v. Amarnath, 1954 SCR 565 ( 5 judge) 19-1-54
[4] L. Chandra Kumar v. Union of India, (1997) 3 SCC 261 (7 judge) 08-03-97
[5] Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621 ( 7 judge) 10-4-62
[6] Hari Vishnu Kamath vs. Syed Ahmed Ishaque (1955) 1 SCR 1104 ( 7 judge) 09.12.54
[7] Rajendra Diwan vs. Pradeep Kumar Ranibala and Another 2019 SCC OnLine SC 1586 ( 5 judge) 10-12-19
[8] Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675]
[9] Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil-MANU/SC/0508/2010
[10] Ouseph Mathai v. M. Abdul Khadir, (2002) 1 SCC 319
[11] Shalini Shyam Shetty v. Rajendra Shankar Patil (2010) 3 SCC (Civ) 338