Article 226

Article 227: superintendence

Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction; and without prejudice to that generality it may call for returns, make general rules and prescribe forms regulating the practice and proceedings of such courts, prescribe the forms of books and accounts, and settle tables of fees.

Two points connect it to this book. Superintendence extends to tribunals, which is why L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, groups articles 226 and 227 together in holding that jurisdiction to be inviolable basic structure. And superintendence is both administrative and judicial, so a High Court may interfere with a subordinate court's order under article 227 where no writ under article 226 is sought.

What the 42nd and 44th Amendments did

This history is worth two sentences in an answer, because it is the clearest illustration in the Constitution of an attempt to narrow access and its reversal.

The 42nd Amendment 1976 substituted article 226 with a much narrower version, confining the High Court's power in various ways and requiring, for certain kinds of relief, that the illegality complained of should have resulted in a substantial failure of justice; and it inserted article 226A, providing that the constitutional validity of a Central law should not be considered in proceedings under article 226. It also inserted article 32A for article 32.

The 43rd and 44th Amendments undid this. Article 226A and article 32A were omitted, and article 226 was restored substantially to its original width from 1 August 1979.

So the same amendment that created tribunals with power to exclude the High Courts also narrowed article 226 directly, and both moves were reversed, the first by the courts in L. Chandra Kumar and the second by Parliament in 1977 and 1978.

Article 226 in the Emergency

This is why MU sets the comparison, and the facts are worth knowing precisely.

The Presidential order of 27 June 1975 suspended the right of any person to move any court for the enforcement of articles 14, 21 and 22. The petitioners in the High Courts argued that a detenu could still be heard on grounds that did not require the enforcement of those articles: that the detention was not under the statute at all, that the order was made by an authority not empowered, that it was mala fide, or that it did not comply with the statute's own conditions. Those are the Makhan Singh pleas, worked in [What a Presidential Order Can Never Bar: Makhan Singh].

Nine High Courts accepted that argument. They held, under article 226, that the order did not bar such a plea.

The Supreme Court reversed them, four to one, in ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, and one strand of the reasoning was precisely about article 226: that the jurisdiction under that article is a constitutional jurisdiction, but that a person had no locus standi to move for habeas corpus while the order was in force.

Which shows two things. That article 226 is where the resistance came from, because it is wider and nearer; and that its width did not save the detenus, because the Supreme Court held that what was suspended was the standing to move any court at all.

A worked example

A detention order is made by the Government of one State and served on a person resident in another, where he is held. He wishes to say the order was made by an officer not empowered by the statute, and that the grounds were served on the twelfth day.

Which High Court? Either, on clause (2), if part of the cause of action arose within its territories; the place of detention will ordinarily do.

Under which head? Both. The failure to serve the grounds within the statutory period is a breach of article 22(5), a Part III right; the want of power in the officer is a plain illegality, and article 226 lies for any other purpose.

Would article 32 lie? For the article 22(5) point, yes. For the want of power, only so far as it can be put as a Part III violation, which in a detention case it usually can be under article 21.

If the High Court refuses on the ground of an alternative remedy? It may, article 226 being a discretionary power; the Supreme Court under article 32 is on a guaranteed right, though in practice it will send him back.

Could a statute say no High Court shall entertain such a petition? No. On L. Chandra Kumar the jurisdiction under articles 226 and 227 is part of the inviolable basic structure.

What it does NOT mean

Article 226 is not confined to fundamental rights. Its words are for the enforcement of Part III rights and for any other purpose.

It is not available in every High Court. Territorial jurisdiction, or a cause of action arising in part within the territories, is required.

It is not a guaranteed right. It is a power of the High Court, exercisable in its discretion.

Its width did not defeat the Presidential order of 1975. The Supreme Court held that the order removed the standing to move any court, which included article 226.

Quick revision

• 226(1): every High Court may issue to any person or authority, including any Government, within its territories, directions, orders or writs including the five writs, for the enforcement of Part III rights and for any other purpose.
• 226(2): also where the cause of action wholly or in part arises within the territories, notwithstanding that the Government, authority or person is outside them.
• 226(3): a party against whom an ex parte interim order is made may apply for its vacation.
• Art 227: superintendence over all courts and tribunals within the territories.
• Wider than art 32 in three ways: any other purpose; cause of action jurisdiction; any person or authority. Narrower in one: a power, not a guaranteed right, and not in Part III.
• The 42nd Amendment narrowed art 226 and inserted arts 32A and 226A; the 43rd and 44th Amendments restored it from 1 August 1979.
• In 1975 nine High Courts held for detenus under art 226 and were reversed in ADM Jabalpur.

Test yourself

1. Give the three respects in which article 226 is wider than article 32. It lies for the enforcement of Part III rights and for any other purpose; it may be exercised by a High Court within whose territories the cause of action wholly or in part arises even though the authority is elsewhere; and it runs to any person or authority, including in appropriate cases any Government.

2. In what respect is it narrower? Article 32 confers a guaranteed right which is itself a fundamental right, whereas article 226 confers a power on the High Court, exercisable in its discretion and refusable on grounds such as delay or an alternative remedy.

3. What does article 227 add? Superintendence over all courts and tribunals within the High Court's territories, including the power to call for returns, to make rules regulating practice and proceedings, and to prescribe forms and settle fees.

4. What did the 42nd Amendment do to these provisions, and what happened next? It substituted a much narrower article 226 and inserted articles 32A and 226A restricting the consideration of the validity of laws in proceedings under articles 32 and 226; those provisions were omitted and article 226 was substantially restored by the 43rd and 44th Amendments, article 226 from 1 August 1979.

5. What happened to article 226 during the 1975 Emergency? Nine High Courts held under it that a detenu could still be heard on pleas not requiring the enforcement of the suspended articles, and the Supreme Court reversed them in ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207, holding that no person had locus standi to move any court for habeas corpus while the Presidential order was in force.