"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well."

-Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Friday, December 5, 2008

SC Judgments

Its all in the cause tilte - the (non- existence of ) difference between Arts. 226 and 227 of the Constitution of India in certain aspects
State of Madhya Pradesh & Ors. v. Visan Kumar Shiv Charan Lal , Civil Appeal No. 7134 of 2008. Date of Judgment 5-12-08
The HC of Madhya Pradesh refused to entertain an appeal under Letters Patent. The reason was that it was hit by Clause 15 of the Letters Patent, since the order appealed against is presumed to be made under Art. 227 of the Constitution.

The order (by the Labour Court under under Section 10 of the Industrial Disputes Act, 1947) appealed against was filed under both Articles 226 and 227.

Clause 15 prescribes as follows
“… [A]n appeal shall lie to the said High Court … from the judgment (not being ajudgment passed in the exercise of appellate jurisdiction in respect of a decree or order made in the exercise of appellate jurisdiction by a Court subject to the superintendence of the said High Court, and not being an order made in the exercise of revisional jurisdiction …) of one Judge of the said High Court or one Judge of any Division Court …"
The clause do not provide for an appeal against an order which is passed in the exercise of appellate jurisdiction. The HC in this case has presumed the order of the Single Judge to be one under appellate jurisdiction as Article 227 is there in the cause title and rejected the appeal.
SC in this case attempted a mapping of the principles that offer guidance in the issue and held that the HC went wrong in rejecting the appeal.
The principles are given below;
‘1. The pleadings in the writ petition, nature of the order passed by the learned Single Judge, character and the contour of the order, directions issued, nomenclature given the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hypertechnical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Court has to be treated all the time for all purposes to be under Article 227 of the Constitution of India
2. It cannot be put in a state jacket formula that any order of the learned judge that deals with an order arising from an inferior tribunal or the subordinate court is an order under Article 227 of the Constitution of India and not an order under Article 226 of the Constitution.
3. An order in a writ petition can fit into the subtle contours of Articles 226 and 227 of the Constitution in a composite manner and they can coincide, co-exit, overlap imbricate.
4. When the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 … the distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is the reason why it has become customary with the lawyers labelling their petitions as one common under Articles 226 and 227 of the Constitution, though such practice has been deprecated in some judicial pronouncement.
5. The broad general difference between the two jurisdictions are
a. 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.
b. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction, the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, maybe, by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made.
c. 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.’

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