The Comparative Study of Article 32 and Article 226 of the Constitution of India

Author : Ananya Das, LLM student , Faculty of Law, University of Delhi.

Content

Abstract 

Introduction

Research Questions 

Aim and objective

Scope and Limitations

Article 32 : The Right to Constitutional Remedies

Article 226 : Power of High Courts

Writs :  Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo warranto.

Comparative Analysis of article 32 and article 226

Conclusion

References 

Abstract

The Constitution of India stands as the supreme legal authority, establishing a thorough framework for the country’s socio-political structure. Fundamental Rights, outlined in Part III (Articles 12-35) of the Indian Constitution, are guaranteed to all Indian citizens. Currently, there are six Fundamental Rights. The critical question arises: what recourse is available if these rights are violated? Articles 32 and 226 provide remedies for such infringements. Article 32 allows individuals to approach the Supreme Court for protection against violations of their Fundamental Rights, while Article 226 permits recourse to the High Courts. Although all six Fundamental Rights are crucial, Article 32 is particularly significant as it serves as a vital safeguard, granting citizens the right to seek justice directly from the highest court. Dr. B. R. Ambedkar, the “Father of the Indian Constitution,” referred to Article 32 as “The Heart and Soul of the Indian Constitution,” emphasizing its central role. This paper explores the scope and application of Articles 32 and 226, highlighting their similarities and differences. It also addresses concerns regarding the misuse of Article 32 and the issue of frivolous petitions, which contribute to the burden on the judiciary.

“Injustice anywhere is a threat to justice everywhere.”

• King Martin Luther

Introduction

In a democratic society, the judiciary plays a crucial role by not only curbing arbitrary use of power by government authorities but also by protecting the rights of citizens and upholding the Constitution of India. The Constitution envisions a robust, independent, and well-structured judiciary. Articles 32 and 226 empower the Supreme Court and High Courts, respectively, to take action against government bodies in cases of rights and liberties violations. This paper examines the writ powers granted under these articles, highlighting the distinctions between them. To fully understand these provisions, it is essential to analyze their literal and practical applications. The discussion will cover the scope, enforcement, and significant implications of these articles.

 Research Questions

1. Why has Article 226 been given a broader scope compared to Article 32, despite Article 32 being referred to as the “Heart & Soul of the Indian Constitution”?
2. What are the similarities and dissimilarities between Articles 32 and 226?

Aim and Objectives

This study aims to compare the roles of the High Courts and the Supreme Court in addressing violations of fundamental rights under Articles 32 and 226 of the Indian Constitution. It will clarify the differences between these two courts’ powers regarding writs and explore recent developments in their jurisdiction. The goal is to understand how the Supreme Court and High Courts have adapted their writ powers and to highlight the distinctive features of the Indian Constitution in this context.

Scope and Limitations

The scope of Articles 32 and 226 is expanding as they allow individuals to file Public Interest Litigations (PILs) and writ petitions if their constitutional rights are violated. A writ petition addresses personal rights violations, while a PIL serves the public interest. Both the Supreme Court (SC) and High Courts (HC) can issue five types of writs: Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari, depending on the case. Article 32 provides direct access to the SC, but this access has sometimes been misused for trivial matters, contributing to a backlog of cases. On February 21, 2021, Justice DY Chandrachud noted that the rising number of contempt petitions is adding to the judicial burden, a sentiment echoed by Justice MR Shah.

Article 32: The Right to Constitutional Remedies

Dr. B.R. Ambedkar, the “Father of the Indian Constitution,” described Article 32 as the “heart and soul” of the Constitution. This article provides a fundamental right to approach the Supreme Court to enforce other fundamental rights if they are violated.

• Article 32(1): Grants the right to approach the Supreme Court for enforcing fundamental rights.
• Article 32(2): Authorizes the Supreme Court to issue writs like Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto.
• Article 32(3): Allows Parliament to delegate these writ powers to other courts within India.
• Article 32(4): States that this right cannot be suspended except during a national emergency as defined in Article 359.

Important Judgements

• Fertilizer Corporation Kamgar (Union) v. Union of India: The Supreme Court’s power under Article 32 is a core part of the Constitution. It was held that the power conferred to the Supreme Court under Article 32 is an integral part of the constitution and thus, belongs to the basic structure of the Constitution of India.
• Ramdas Athawale v. Union of India: Article 32 applies specifically to the enforcement of fundamental rights.
• Nain Sukh Das v. State of Uttar Pradesh: Article 32’s scope is limited to fundamental rights violations.
• PUDR v. Union of India: Article 32 can be used against private individuals if they are violating rights.

Article 226: Powers of High Courts

Article 226, found in Part V of the Constitution, gives High Courts the authority to issue orders and writs similar to those of the Supreme Court under Article 32. However, Article 226 is not a fundamental right but a constitutional right.

• Article 226(1): Allows High Courts to issue writs within their jurisdiction.
• Article 226(2): Extends this power to cases with partial causes of action within their jurisdiction.
• Article 226(3): Requires High Courts to address petitions for interim orders within two weeks if the respondent requests it.
• Article 226(4): Clarifies that this power does not diminish the Supreme Court’s authority under Article 32.

Scope of Article 226

In the landmark case of Bandhua Mukti Morcha v. Union of India, it was established that Article 226 has a broader scope compared to Article 32. This is because Article 226 empowers High Courts to issue orders, directives, and writs not only for enforcing fundamental rights but also for upholding other legal rights granted by various statutes. These statutory rights, which protect the disadvantaged, are considered just as significant as fundamental rights.

Writs

• Habeas Corpus: Means “produce the body” and is used to release someone unlawfully detained.
  • ADM Jabalpur v. Shivakant Shukla: Habeas Corpus cannot be suspended even during emergencies.
  • Sheela Barse v. State of Maharashtra: Others can seek Habeas Corpus on behalf of those unable to do so themselves.
• Mandamus: Means “we command” and compels a public authority to perform a duty.
  • Barada Kanta v. State of West Bengal: Mandamus cannot be issued against private individuals.
  • Hemendra Nath Pathak v. Gauhati University (2008): Mandamus can force a university to correct its decisions.
• Certiorari: Means “to be certified” and is used to quash wrongful orders.
  • T.C. Basappa v. T. Nagappa & Anr.: Certiorari can be issued for actions beyond jurisdiction.
  • Surya Dev Rai v. Ram Chander Rai & Anr.(2003): Certiorari is only applicable to inferior courts.
• Prohibition: Orders a lower court or tribunal to stop proceedings due to lack of jurisdiction.
  • East India Company Commercial Ltd. v. Collector of Customs: Prohibition stops proceedings that exceed jurisdiction.
• Quo Warranto: Means “by what authority” and challenges a person’s right to hold a public office.
  • Jamalpur Arya Samaj v. Dr. D Ram & Ors.(1954) : Quo Warranto can only challenge public offices, not private ones.

Comparative Analysis: Article 32 vs. Article 226

Both Article 32 and Article 226 are pivotal in safeguarding citizens’ rights in India, but they serve distinct functions and have different scopes. Here’s a detailed comparison of these two constitutional provisions:

1. Nature of the Right:

• Article 32: This article enshrines a fundamental right, which means it is essential for the protection of personal liberties and is enshrined in Part III of the Constitution. It guarantees the right to move the Supreme Court directly for the enforcement of fundamental rights.
• Article 226: This article provides a constitutional right, which, while also crucial, is not classified as fundamental. It enables individuals to approach the High Court for the enforcement of both fundamental and legal rights.

2. Suspension During Emergencies:

• Article 32: The right to approach the Supreme Court under Article 32 can be suspended during a state of emergency declared by the President. This means that in times of national crisis, this fundamental right may be temporarily unavailable.
• Article 226: In contrast, the right to petition the High Court under Article 226 remains unaffected even during emergencies. This ensures that individuals still have a recourse to legal remedy through the High Courts under most circumstances.

3. Scope of Power:

• Article 32: The scope of Article 32 is narrower, focusing solely on violations of fundamental rights. It is specifically designed to protect these core rights guaranteed by the Constitution.
• Article 226: The scope of Article 226 is broader, addressing not only fundamental rights but also legal rights. This allows for a more extensive range of issues to be adjudicated by the High Courts.

4. Jurisdiction:

• Article 32: This provision grants the Supreme Court the authority to issue writs across the entire country, reflecting its extensive territorial jurisdiction.
• Article 226: Conversely, Article 226 empowers High Courts to issue writs only within their respective states or territories, limiting their jurisdiction to a more localized area.

5. Discretionary Powers:

• Article 32: The Supreme Court, under Article 32, is obliged to consider petitions regarding fundamental rights and cannot refuse to hear them, given the nature of the fundamental right.
• Article 226: The High Court, however, has discretionary power in issuing writs. This means the High Court can decide whether to entertain a petition based on its merits and circumstances.

6. Courts Involved:

• Article 32: Provides a direct route to the Supreme Court, which is the highest court in India and has the final say on constitutional matters.
• Article 226: Allows individuals to approach the High Courts, which operate at a more localized level but are still significant in administering justice.

Conclusion

The framers of the Indian Constitution recognized the importance of ensuring that the rights enshrined in Part III are not merely theoretical but actionable through the judiciary. Article 32 stands as a robust guardian of fundamental rights, unique in its provision and unparalleled in its direct access to the Supreme Court. Meanwhile, Article 226 complements this by allowing recourse through High Courts, thus offering a broader range of protection across various legal issues.

In essence, the Constitution ensures that where there is a right, there is also a remedy—a principle fundamental to justice. This dual mechanism reflects the Constitution’s commitment to providing both immediate and extensive avenues for legal redress, ensuring that rights are not just proclaimed but also effectively protected.

References 

1. Constitution of India 1950
2. MR Mallick , Writs Law and Practice, Eastern Law House , Kolkata, Second Edition, 2009.
3. V.G. Ramachandran, Law of writs, Eastern Book Company, Volume 1, Sixth Edition, 2002.
4. MP Jain, India Constitution Law, LexisNews Butterworths Wadhwa, Nagpur , Sixth Edition, 2012
5. D.D. Basu, Constitutional Remedy and Writs, Kamal Law House, KolKata, Third Edition, 2009.
6. Justice P.S. Narayana, Law of Writs Asia Law House, Fifth Edition, 2008.