Article 32 and Article 226- Different Articles with Same Motive
Judiciary is known as the safeguard of laws drafted by legislature and it also keeps a check on the abuse of power by either executive or legislature. This is the reason why constitution framers provided judicial independence and judicial review to the Higher Judiciary of our country. There are enough powers given to the judiciary in the Constitution which the judges use from time to time whenever there is any abuse of power by the other to organs of the Government which have been resulted in the violation of constitutional, legal or fundamental rights of a citizen or citizens. In India if we see the hierarchy of Courts, Supreme Court is the apex body whose judgement cannot be challenged anywhere and then come 25 High Courts located in almost each state or one high court in a region holds a jurisdiction of more than one state or union territory and they are known as Courts of Appeal in which judgements of District Courts which are lower in hierarchy are challenged. The responsibility and power of safeguarding a citizen’s rights have been given to the higher judiciary i.e. the Supreme Court and High Courts through Article 32 (for the Supreme Court) and Article 226 (for the High Courts) in the Constitution of India. But if they have same motive how they both are different has been discussed in details below.
Article 32 of the Constitution of India was mentioned by Dr. B R Ambedkar as the “heart and soul of the Constitution” and he was right in his quoting. Article 32 has been given in the Chapter 3rd of the Constitution which is the chapter of Fundamental Rights, those basic rights which are enjoyed by every citizen of this country for a dignified life and even the government or parliament cannot infringe o curb those rights. Article 32 is a fundamental right which is known as Right to Constitutional Remedies and it holds a great importance as it gives power to the Supreme Court to issue writs in those cases where a citizen of India or anyone on his behalf has approached the court through a public interest litigation, seeking remedy or protection for the fundamental rights which are violated by the State or its authorities.
Article 32 (1) gives the right to move to the Supreme Court for the enforcement and claim the fundamental rights which are given under Part III of the Indian Constitution.
Article 32 (2) empowers Supreme Court to issue directions, orders or writs of Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto in order to enforce the fundamental rights.
Article 32 (3) gives power to the parliament to issue orders, directions, and writs to any court which is located within the local limits of India.
Article 32(4) states that unless it is provided by the constitution, provisions given under this Article cannot be suspended.
Earlier, only the person aggrieved by the actions of the Government bodies could approach the Supreme Court by submitting a writ petition under Article 32, but with the time and need, the scope of this article widened and now any person can approach the Supreme Court on the behalf of a person or persons whose fundamental rights have been violated. This concept is known as Public Interest Litigation.
Case- Calcutta Gas Case– In this case the Supreme Court held that not only the person convicted or detained in a confinement but any person on his behalf, provided he is not a complete stranger can approach the court for the institution of proceedings to issue writ of habeas corpus for the person to be freed who has been illegally imprisoned.
Sheela Barse v. State of Maharashtra– Sheela Barse, a journalist wrote a letter to the Supreme Court in which she complained about the custodial violence against the women prisoners who were confined in the jails of Bombay. The Supreme Court treated this letter as a Public Interest Litigation and issued guidelines for ensuring protection against inhumane behaviour, torture and ill treatment of women prisoners in jails.
SP Gupta v. Union of India– The Supreme Court observed in this case that if we want to insist on the traditional rules of locus standi it would mean that we are denying justice to the poor and weaker section of the society and this will be destructive and disastrous for the rules of law. The public authority will become more arbitrary in its nature and will expand its powers beyond the given ones. The advocates were allowed to file the writ petition to challenge the appointment and transfer of Judges of the High Court. This was the case where the Supreme Court of India defined the term ‘public interest litigation’ in the Indian conditions.
The concept of Public Interest Litigation was introduced by Justice PN Bhagwati in the case of Hussainara Khatoon v. State of Bihar, in which Kapila Hingorani; an advocate filed a petition on behalf of Hussainara Khatoon who was a prisoner in the jail of Bihar. The petition was about the condition of the prisoners convicted in the jails of Bihar. Justice PN Bhagwati headed the bench and introduced the relaxation in the rule of locus standi that anyone can file a petition before the court on the behalf of the aggrieved when the aggrieved is not capable of approaching the court and his fundamental rights were violated by the government or its authority. The Supreme Court ordered that free legal aid and speedy hearing should be provided to the 40,000 prisoners and as a result all of them were released from jail.
Even a non citizen can move to Supreme Court by filing a writ petition under Article 32 if his fundamental rights have been violated in India. Not all fundamental rights are given to a non citizen but Article 19 which is Right to Freedom is provided to even a non citizen and if it gets violated, he can approach the Apex Court for safeguarding his rights.
A person can also apply for the infringement of fundamental rights if there is an actual serious threat of violation arises and violation has not taken place.
Supreme Court cannot use his appellate power to interfere with an intra vires order of any inferior tribunal where the question of unconstitutionality cannot arise merely on the ground that the decision is depraved by an error of law which is not evident on the record.
However the Supreme Court discouraged the citizens from approaching the Court directly for violation of Fundamental Rights. If the remedy of moving to High Court is available, one must go there first.
Case– Kamubhai Brahmbhatt v. Gujarat– The Supreme Court observed that if it entertained every writ petition filed directly before it then there will be a massive increase of similar cases and the court will be over burdened. The Court asked the petitioner to first approach the High Court.
This article gives the power to the High Court to exercise its writ jurisdiction when a person approaches it if his legal, constitutional as well as fundamental rights have been violated. This article is much wider in scope as compared to Article 32 in which a person can only approach the Supreme Court when his fundamental rights have been violated but he cannot claim the violation of his constitutional and legal rights.
Article 226 (1) provides that in spite of Article 32, High Court has got the power to issue direction, order or writs, including writs of Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto against any action of the government, whether centre or state or local authority who is located within the jurisdiction of that High Court.
Article 226 (2) gives power to the High Court to issue directions, orders or writs against the seat of the government, centre or state or local authority even if it is not located within its local jurisdiction.
Article 226 (3) states that that the (i) When against a party any interim order is issued by high court in way of interim injunction or stay, or any proceedings relating to a petition under Article 226 without (a) giving copy of the petition or copies of all documents of the interim order to such party and (b) giving opportunity to hear.
(ii) And if such party makes an application to the High court for the vacation of such interim order or petition and also furnishes a copy of the application of vacation to the party in whose favour such interim order or petition is made, or to the counsel of the party.
(iii) Then High court shall dispose of the application
within a period of two weeks from the date on which it is received or,
from the date on which the copy of such application is so furnished, whichever date is later
where the High Court is closed on the last day of that period, before the expiry of the next day afterward on which the High Court is open
(iv) and if the application is not so disposed of by the High court, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, will be vacated
Article 226(4) states that the power given to the high court to issue direction, order or writ will not derogate the power given to the Supreme court under Article 32(2).
The High Court will issue a writ even if there is any other remedy available where the jurisdiction is available and there has been denial of natural justice.
Case- Bandhua Mukti Morcha v. Union of India- It was held in this case that Article 226 is much wider in scope than Article 32 because it gives power to the Supreme Court to issue orders, directions and writs not only for enforcing fundamental rights but also any other legal right which have been infringed by any statute of the government and those legal rights are as important as fundamental rights.
Detailed Explanation of Writs
Writs have been originally come from the English Legal System of Great Britain. It was adopted and evolved by the United States of America when it added this concept in its constitution as fundamental rights or bill of rights. India took this from the Constitution of USA and included them in the Constitution as a part of fundamental rights and gave the power to both Supreme Court as well as High Courts to issue them whenever there is a violation of fundamental rights by the statute or action of the government. This power is enshrined under Article 32 for Supreme Court and Article 226 for High Courts. However High Court can even issue writs in the cases where the legal rights have been violated.
Case- Smt. Imtiaz Bano v Masood Ahmad Jafri And Ors.- A mother filed a writ petition under Article 226 before the High Court and pleaded to issue the writ of Habeas Corpus as she was deprived from having the custody of her 2 children. The High Court entertained the petition and issued the writ in the favour of the petitioner.
Types of Writs
In the Constitution of India, there are 5 types of writs which a Supreme Court and High Courts can issue. They are:
1. Habeas Corpus- In Latin it means “to have the body”. It is issued by the Courts when a person has been illegally detained by the police. This writ is known as the most effective remedy available to a detained person. When a petition is filed before the Court pleading to issue the writ of Habeas Corpus, the Court orders the person or authority who has detained the aggrieved to present him before the Court. The detaining authority has to give valid reasons for the detention. If the authority fails to do so, the Court will order that the person detained must be released immediately.
This writ will only work if the restraint or arrest is unlawful, if the arrest is justified then the Court will not issue an order under this writ. Also if the order of arrest is made by the Court itself, this writ cannot be issued.
Not only the family members or the detained person himself but anyone from the society, even a stranger is allowed to file the petition for issuance of this writ before the Courts, only condition is petition must be in public interest.
The application for the writ cannot be made before the different judges of the same court. If one judge has rejected it and the application is then made before the judge and both belongs to the same court then the application will be rejected because of the principle of Res Judicata.
Case- Sunil Batra v. Delhi Administration- The petitioner, a prisoner in Tihar Central Jail, Delhi, against whom a death sentence was passed, wrote a letter to the Supreme Court about the inhumane behaviour and torture on both physical and mental basis by the head warden against one fellow prisoner, Prem Chand. He alleged that the jailor blackmailed the family members of the victim either to pay him money or he would continue the torture and even forcefully inserted the iron rod into the anus of the victim. The Court treated this letter as a Public Interest Litigation and issued guidelines for the jails about how the prisoners should be kept and sent two lawyers as amicus curiae for confirming the claims. They both investigated and confirmed that all the claims made by the petitioner were true. The Supreme Court held that prisoners also have fundamental rights like Article 14, 19 and 21 and so they could not be treated with such inhumane behaviour and Section 56 of the Prison Act was abused by the head warden and so he was held liable for his actions.
2. Mandamus- Mandamus is also one of the most important writs in which superior courts give order to inferior courts to act accordingly or abstain from doing something. An order can also be passed against an inferior tribunal, board, corporation or any type of administrative authority. This writ makes a person who holds a certain public office to fulfil his duty which he fails to do so. For example, a Judge has a duty to follow the principles of natural justice and if fails to follow the, the court higher in hierarchy can order him to fulfil his duty in a righteous manner.
Writ of mandamus cannot be issued against a private person, only the State and the offices come under it can be ordered under it.
Case- Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal- The Income Tax Appellate Tribunal gave clear directions to the respondent Income Tax Officer through its final order. The respondent still denied following the orders given by the tribunal. Supreme Court observed that the respondent had a compulsory duty to follow the directions issued by the tribunal and if he fails or refuse to follow them it will result in grave injustice. The Court issued writ of Mandamus and directed the officer to follow the orders given by the Tribunal.
It is to be noted that writ of mandamus is a discretionary power of the Court and is not an enforceable right of the petitioner and Court can refuse to issue the writ in some cases.
3. Certiorari– This writ is different from other writs because of it corrective nature. A superior court under the writ of Certiorari issues an order to the lower court when the lower court has given an order or passed a judgement which has some fundamental error in the procedure and if the lower court has violated the principles of natural justice. If the Superior Court finds out that there is some error in the order, it will quash the order. Only the body or person having legal authority can be ordered under this writ. Only the person aggrieved by the wrongful actions of the inferior court can approach the superior court for the issuance of certiorari and no one else on his behalf can move to the Court.
4. Quo Warranto- This writ is issued by the courts against a private person when he holds office on which he has no right. Quo Warranto in Latin means “by what authority”. It is seen as an effective means to prevent someone from taking over public offices. This is also a discretionary writ and the court is not bound to issue it. The office must be a public office and if it is a private office, the writ cannot be issued.
5. Prohibition- This is the extra ordinary writ rarely used by the Superior Courts to order the inferior courts or tribunals to stop them from passing an order or judgement on the ground that the inferior doesn’t have a jurisdiction to do so. If the inferior court or tribunal still passes an order, that order will be considered as invalid by the superior court. Proceedings must be going on in order to issue this writ.
Difference between Article 32 and Article 226 in a nutshell
Type of Right-
•Article 32 is a fundamental right
•Article 226 is a constitutional right
•Article 32 is narrow in scope as it can only be issued for the enforcement of Fundamental Rights
•Article 226 is wider in scope as it can be issued for the issuance of Fundamental, Constitutional as well as Legal Rights.
•Article 32can be suspended at the time of emergency
•Even at the time of emergency Article 226 cannot be suspended
•Article 32 empowers the Supreme Court to issue writs all over India. For this reason Supreme Court has broader territorial jurisdiction.
•Where as Article 226 empowers the High Courts to issue writs in its local jurisdiction only. Therefore this is narrower in scope of territorial jurisdiction.
•Article 32 cannot be refused by the Supreme Court as it is a fundamental right.
•Article 226 is a discretionary power and totally depends on the discretion of the High Court either to issue the writs or not.
Both the Articles are different in nature but have a same motive of safeguarding the rights of the citizens whenever the State or any of its authorities try to abuse its power and try to infringe the rights of the citizens. Both are wider in scope in some cases as Article 32 allows Supreme Court in any part of India where as Article 226 allows High Court to issue writs only within its local jurisdiction. Similarly Article3 2 can be issued only for the enforcement of fundamental rights whereas Article 226 can be issued for the enforcement of fundamental, constitutional and legal rights. Thus both are in short for the purpose of the betterment of the citizens of the country.
Author: Samiksha Mehta,
Invertis University/ Student ( LL.B 3rd year