[Opinion] Writ vs Appeal – The Quintessential Conundrum

Sanjeeva Narayan and Bhavesh Jindal – [2022] 145 taxmann.com 262 (Article)

Prologue

1. The question of resort to the regular appellate process as incorporated in the relevant governing statute as opposed to filing a Writ petition before Supreme/High Court seeking the exercise of its power of extraordinary review has been the focus of intense professional discussion.

2. The issue has gained increased focus in the recent past consequent upon the increased awareness (perhaps ill-informed) as a fall out of the proliferation of social media and the facilities provided by the implosion of the internet. In the context of taxation statutes, since the power to levy taxes and the process of their adjudication is derived from the Constitution and is subject to the limitations ascribed therein, a proper understanding and analysis of the underlying issues involved vis-à-vis the appellate process and the exercise of writ jurisdiction becomes critical to the judicious exercise of powers by the adjudicating authorities and awareness of and exercise of rights by the taxpayers.

3. The purpose of this article is to understand the underlying complementarily between the two seemingly conflicting courses of action by considering the basic concepts, constitutional and other regulatory provisions and the views of the various Courts of laws, specially the Apex Court, on the issue

Writs-concept, Definition & Constitutional Provisions

4. In its most elementary meaning, a “Writ” is a legal order given by a Court of law directing the behaviour of a lower court, agency, specific official or another branch of the Government to do or not to do something. A writ petition, in its essence is a petition to a higher court seeking the exercise of its extraordinary jurisdiction to intervene in a review of lower court/authority/agency’s order/proposed action. The Constitution of India grants powers to the Supreme Court and the jurisdictional High Court to issue “prerogative writs” reflecting their discretionary, prerogative and extraordinary powers.

5. Under article 32 of the Constitution of India, an aggrieved person can move the Supreme Court for a legal remedy in case of an alleged infringement of the Fundamental Right(s) for an appropriate writ, direction or order. Similarly, article 226 empowers High Courts to issue to any person or authority, including the Government (in appropriate cases) directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them. The power of High Courts to issue writs under Article 226 of the constitution is much broader and can be issued for the enforcement of fundamental rights as well as for any other purpose. A writ is issued only in exercise of the supervisory jurisdiction of the High Courts under article 226 and not under their appellate jurisdiction.

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