This article has been written by Sneha Mahawar, from Ramaiah Institute of Legal Studies. This article discusses the concept of Article 226 in comparison to Article 227 and Article 32 under the Indian Constitution.

Introduction 

The judiciary in India is vital to democracy because it not only prevents government officials from misusing their powers but also safeguards the rights of citizens and guards the Indian Constitution. As a result, India’s Constitution envisions a powerful, independent, and well-organised judiciary. 

Articles 32 and Article 226 provide the Supreme Court and the High Courts the authority to bring a lawsuit against a government entity if any citizen’s rights and freedoms are violated.  The High Court has broad powers to issue orders and writs to any person or authority under Article 226 of the Indian Constitution. Before a writ or an order may be issued, the party who is petitioning the court must prove that he has a right that is being violated or endangered illegally. If the cause of action partly arises within its jurisdiction, the High Court can issue writs and directives to any Government, authority, or person even if they are located beyond its jurisdiction.

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In general, the High Court does not use its power under Article 226 when it comes to problems of fact. Similarly, when the petitioner has an alternative remedy, the Courts will not hear Article 226 petitions. In addition, if there is an excessive delay in contacting the court, the court may refuse to provide relief under this article.

Similar powers are available to the Supreme Court under Article 32 of the Constitution. The underlying reason for granting the High Court powers under Article 226 is to ensure that the rule of law is upheld in society. When the executive authorities overstep their authority and infringe on citizens’ rights, they must be held accountable and article 226 ensures it.

Article 226 of the Indian Constitution

Enshrined under Part V of the Constitution of India, Article 226 provides the High Courts with the power to issue writs, including writs in the form of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them, to any person or authority, including the government. Article 226 of the Indian Constitution gives High Courts the power and ability to enforce any of the basic fundamental rights guaranteed by Part III of the Constitution of India, 1949, or for any other reason.

According to Article 226(1), each High Court within India’s territorial jurisdiction has the ability and power to issue orders, instructions, and writs, to any individual or authority, including the government, for the enforcement of Part III of the Indian Constitution or basic fundamental rights and other legal rights within its own jurisdiction.

Article 226(2) empowers the High Courts with the authority to issue orders, instructions, and writs to any government authority or any individual, outside their own local jurisdiction in circumstances when the cause of action is completely or partially within their local jurisdiction despite the fact that such government or authority’s seat or the individual’s domicile is not within the territory. 

According to Article 226(3), when an interim order is issued against the respondent under Article 226 in the form of an injunction or a stay without: 

  1. providing the respondent with a copy of the petition and any relevant evidence; and
  2. providing the respondent with an opportunity to be heard.

The High Court shall decide on the application within two weeks of receiving the application or within two weeks of the date on which the other party received the application, whichever is later. If the application is not so disposed of, the interim order shall be vacated on the expiry of that period, or, if the High Court is closed on the last day of that period, before the expiry of the next day on which the High Court is open, the interim order shall be vacated.  

According to Article 226(4), the jurisdiction granted to the High Courts under Article 226 does not preclude the Supreme Court from using its powers under Article 32(2).

Difference between Article 32 and Article 226

  • Article 32 is a fundamental right, but Article 226 is a constitutional right.
  • Article 32 can be suspended if the President declares an emergency, however, Article 226 cannot be suspended even during an emergency.
  • Article 32 has a limited reach since it only applies when a fundamental right has been violated. Article 226 on the other hand, has a greater reach since it applies not only to violations of fundamental rights but also to violations of legal rights.
  • Under Article 32, the Supreme Court has the authority to issue writs across India. As a result, the Supreme Court’s territorial jurisdiction is broader and expanded. Article 226, on the other hand, allows the High Court to issue a writ exclusively in its own local jurisdiction. As a result, the territorial authority of High Courts is narrower and limited.
  • Since Article 32 is a basic right, the Supreme Court cannot dismiss it. However,  Article 226 gives the High Court discretionary power, which means it is up to the High Court to decide whether or not to issue a writ.

Difference between Article 226 and Article 227

The Supreme Court of India relied on many previous constitutional judgments of the Hon’ble Apex Court in the case of Surya Devi Rai vs. Ram Chander Rai, one of which was Umaji Keshao Meshram and Ors. vs. Smt. Radhikabai and Anr which established the scope, power, and differences between Articles 226 and 227.

After reviewing its prior decisions in the matter of Surya Devi Rai vs. Ram Chander Rai, the Supreme Court determined the following differences:

  • Article 226 gives High Courts the ability to issue instructions, orders, and writs to any person or authority, including the government. Whereas, Article 227 gives High Courts the power of superintendence over all courts and tribunals in the territory over which they have jurisdiction.
  • The most significant and distinguishing distinction between the two articles is that actions under Article 226 are in the exercise of the High Court’s original jurisdiction, whilst procedures under Article 227 are purely supervisory.
  • The writ of certiorari is an exercise of the High Court’s original jurisdiction (Article 226); supervisory jurisdiction (Article 227) is not an original jurisdiction and is more analogous to appellate revision or corrective jurisdiction in this regard.
  • The authority given by Article 226 of the Constitution can be exercised on a plea made by or on behalf of the party aggrieved, although the supervisory jurisdiction conferred by Article 227 can also be exercised suo moto.

Scope of Article 226

In Bandhua Mukti Morcha v. the Union of India (1984), it was held that Article 226 has a much broader scope than Article 32, as it gives the High Courts the power to issue orders, directions, and writs not only for the enforcement of fundamental rights but also for the enforcement of legal rights that are granted to the disadvantaged by statute and are just as important as the fundamental rights.

In Veerappa Pillai v. Raman and Raman Limited (1952), it was held that the writs referred to in Article 226 were clearly intended to enable the High Court to issue them in cases where subordinate bodies or officers act without jurisdiction, or in excess of jurisdiction, or in violation of natural justice principles, or refuse to exercise a jurisdiction vested in them, or there is an obvious error on the face of the record, and such act, omission, error, or excess has resulted in injustice. Regardless of how broad the jurisdiction is, it does not appear to be sufficiently broad or large to allow the High Court to turn it into a Court of Appeal and evaluate for itself the accuracy of the contested decisions and determine what is the right position to be taken or the order to be issued.

In Chandigarh Administration v. Manpreet Singh (1991), it was decided that the High Court does not sit and/or function as an appellate authority over the orders/actions of the subordinate authorities when working under Article 226. Its authority is purely supervisory. One of the jurisdiction’s key goals is to keep the government, as well as a number of other agencies and courts, inside their particular jurisdictions. While performing this job, the High Court must ensure that it does not go beyond the well-defined boundaries of its own jurisdiction.

In Burmah Construction Co. v. the State of Orissa (1961), It was held that the High Court does not normally entertain petitions under Article 226 of the Constitution to enforce a civil liability arising out of a breach of tort or breach of contract to pay an amount due to the claimant and that the aggrieved party must pursue the issue in a civil suit filed for that purpose. However, in order to execute a statutory duty, an order for payment of money may be issued in a petition under Article 226 against the state or an officer of the state.

In Jagdish Prasad Shastri v. the State of Uttar Pradesh (1970), it was held that if a writ petition raises factual problems that the High Court considers should not be decided in a petition for a high prerogative writ, the High Court has the right to refuse to resolve such matters and relegate the party seeking redress to his usual litigation process. The High Court’s decision to dismiss the petition because there were disputed factual matters to be resolved is unquestionably unlawful.

In the case of State of Madras v. Sundaram (1964), it was held that when it is proven that the impugned conclusions were not supported by any evidence, a High Court, in the exercise of its authority under Article 226 of the Constitution, cannot sit in appeal over the findings of fact made by a competent Tribunal in a properly conducted departmental investigation. When the High Court exercises its power under Article 226 of the Constitution, the adequacy of such evidence to support the allegation is not a matter before it.

In Common Cause v. the Union of India (2018), the Hon’ble Supreme Court stated that the High Court has been given the power and jurisdiction to issue appropriate writs in the nature of mandamus, certiorari, prohibition, quo warranto, and habeas corpus for the enforcement of fundamental rights or for any other purpose under Article 226 of the Constitution. As a result, the High Court can issue relief not only for the enforcement of fundamental rights but also for “any other reason,” which might include the enforcement of public responsibilities by public authorities.

Writs 

A writ is a written order issued by a court instructing someone to do or refrain from doing something. It possesses authority and the ability to compel compliance. We all have various rights, such as the right to life, the right to education, the right to dignity, and so on, but these rights can only be used if they are safeguarded. Our Constitution primarily mentions the protection of our fundamental rights in four articles: 

  • Article 13 of the Constitution of India discusses judicial review;
  • Article 359 of the Constitution of India states that fundamental rights cannot be curtailed at any time except in the situation of emergency; 
  • Article 32 of the Constitution of India mentions the protection of our fundamental rights by the Supreme Court;
  • Article 226 of the Constitution of India mentions the protection of our fundamental rights by the High Courts. 

Part III of the Indian Constitution deals with fundamental rights, it runs from Article 12 through Article 35. This essentially indicates that Article 32 of India’s Constitution, which stipulates the preservation of fundamental rights, is a fundamental right in and of itself.

Types of writs available under Article 226

Habeas Corpus

It’s a Latin phrase that means “to have a body or to produce a body.” This is the most powerful and most often used writ. For example, if a person is wrongfully held by the government, that person, or his family or friends, can file a writ of Habeas Corpus to have that person released. When this writ is used, the Supreme Court or the High Court interrogates the State about the reasons for the individual’s detention. If the ground is judged to be irrational, the person is promptly freed from custody. It is the court’s order to bring the detainee before the court and determine whether the arrest was valid or not. The primary objective of this writ is to free a person who has been unlawfully detained or imprisoned. This writ is crucial since it determines a person’s right to freedom and personal liberty. 

This writ cannot be used in the following four situations: 

  • Detention is legal;
  • Disobedience to the Court;
  • The Court has no jurisdiction over detention;
  • A Competent Court is in charge of detention.

Who may apply for the writ:

  • The individual who has been illegally imprisoned or incarcerated;
  • The individual who is aware of the advantage related to the case;
  • The individual who has knowledge about the facts and circumstances of the case willingly files a writ of habeas corpus under Articles 32 and 226.

Rudul Sah v. State of Bihar (1983)

In this case, a person who had already served his sentence was wrongfully held in prison for an additional fourteen years. The person was promptly freed from jail and was given exemplary damages after using the writ of Habeas Corpus.

Sunil Batra v. Delhi Administration (1980)

In this case, it was held that a writ petition for habeas corpus can be filed not only for the prisoner’s improper or illegal detention but also for his protection from any sort of ill-treatment or discrimination by the authority responsible for his detention. As a result, a petition for wrongful detention can be submitted, and the way in which the detention occurred can be investigated.

Nilabati Behra v. the State of Orissa (1993)

In this case, the petitioner’s son was hauled away by the Orissa police for interrogation. All attempts to track him proved futile. As a result, a habeas corpus writ petition was filed before the court. During the petition’s pendency, the petitioner’s son’s body was recovered from a railway track. The petitioner was awarded compensation of Rs. 1,50,000.

Mandamus

It’s a Latin phrase that translates to ‘we command.’ It is a type of command that can be used to execute public duties by constitutional, statutory, non-statutory, universities, courts, and other bodies. This writ is used to compel a public official to carry out the duties that have been assigned to them. The only requirement for using this writ is that there be a public duty. The writ of Mandamus is used to order any authority to carry out the public obligations given to them. It’s a directive or order that tells someone, a company, a lower court, or the government to do what they’re legally obligated to do. Any individual who is harmed by a breach or abuse of a public obligation and has the legal right to enforce its performance can seek a writ of Mandamus from a High Court or the Supreme Court.

This writ cannot be used in the following three situations: 

  • When a private body is entrusted with a public obligation; 
  • When the duty is discretionary;  
  • When the duty is based on a contract.

Gujarat State Financial Corporation v. Lotus Hotels (1983)

In this case, the Gujarat State Financial Corporation entered into an arrangement with Lotus Hotels, stating that the funds would be released so that the building work could proceed. They did not, however, release the monies subsequently. As a result, Lotus Hotels filed an appeal with the Gujarat High Court, which issued a writ of mandamus ordering Gujarat State Financial Corporation to perform its public duty as promised.

Hemendra Nath Pathak v. Gauhati University (2008)

In this case, the petitioner sought a writ of mandamus against the institution where he studied because the university failed him despite the fact that he received the requisite passing grades under the university’s statutory standards. The university was ordered to declare him pass according to university norms, and a writ of mandamus was issued.

Sharif Ahmad v. HTA., Meerut (1977)

In this case, the respondent failed to follow the tribunal’s instructions, and the petitioner went to the supreme court to have the tribunal’s orders enforced. The Supreme Court issued a Mandamus, requiring the respondent to obey the tribunal’s directives.

SP Gupta v. Union of India (1981)

In this case, the court concluded that the president of India cannot be served with a writ directing him to determine the number of High Court judges and fill vacancies. The courts cannot issue writs of Mandamus against individuals such as the president and governors.

Certiorari 

It’s a Latin phrase that means ‘to be certified.’ The Supreme Court and the High Court can use this writ to order other subordinate courts to submit their records for review. The purpose of these reviews is to see if the lower court’s decisions are legal or not. Their decisions may be illegal if they are made in excess of jurisdiction, in the absence of jurisdiction, in unconstitutional jurisdiction, or in violation of natural justice principles. If their decisions are found to be unconstitutional, or illegal then those judgments will be quashed. 

Conditions required for the issuance of a writ of certiorari:

  • There should be a court, tribunal, or an official with the legal power to decide the issue and the responsibility to act judicially;
  • Such a court, tribunal, or officer must have issued an order without jurisdiction or in excess of the judicial power granted to such a court, tribunal, or person by law;
  • The order might also be contrary to natural justice principles, or it could involve an error of judgement in assessing the circumstances of the case;
  • The order might also be contrary to natural justice principles, or it could involve an error of judgement in assessing the circumstances of the case.

A.K. Kraipak v. Union of India (1970)

In this case, the writ of certiorari was issued to the lower courts and their judgments delivered were quashed. The cases which were reviewed were termed illegal and were held as quashed and invalid for future purposes. 

Collector of Customs v. A.H.A. Rahiman (1956)

In this case, the customs collector issued a seizure order without any prior warning or investigation. The Madras High Court ruled that the collector’s order was made without hearing or understanding all of the facts of the case and that this was contrary to the principles of natural justice. As a result, the Madras High Court issued a writ of certiorari to quash the collector’s order.

Syed Yakoob v. Radhakrishnan (1964) 

In this case, the Court held that a writ of certiorari can fix an error of law that is obvious on the face of the record, but not an error of fact, no matter how bad it appears to be.

A. Ranga Reddy v. General Manager Co-op. Electric Supply Society Ltd. (1977) 

In this case, the Court held that a writ of certiorari cannot be issued against a private body. Co-operative Electricity Supply Society Limited, incorporated under the Co-operative Societies Act, is a private body rather than a public body discharging a public function, and the writ petition can’t be filed against such a private society.

Prohibition 

The distinction between a writ of prohibition and a writ of certiorari is minimal. The adage “Prevention is better than cure” exemplifies the distinction between the two writs. In this case, preventive is linked to prohibition, which means “to forbid,” while certiorari is linked to treatment or cure. If a judgement is given and it is invalid, it is quashed and a writ of certiorari is granted. However, if the judgement is still to be published and to prevent the mistake from occurring, a writ of prohibition is issued. This writ can only be used until the judgement has not been delivered. A writ of prohibition is issued to prevent a lesser court or tribunal from acting outside of its jurisdiction or in violation of natural justice standards. The lower court procedures come to a halt after the issuance of this writ. Except in cases of clear mistake of law on the face of the record, a writ of prohibition can be issued on the same grounds as a writ of certiorari.

A writ of prohibition is issued when an inferior court or tribunal:

  • Proceeds to act without authority or in excess of authority; or
  • Proceeds to act in contravention of natural justice rules; or
  • Proceeds to act in accordance with legislation that is itself ultra vires or unconstitutional; or
  • Proceeds to act in violation and contravention of fundamental rights

East India Company Commercial Ltd. v. Collector of Customs (1962)

In this case, the Supreme Court clarified the concept of a writ of prohibition, stating that it is an order issued by a higher court ordering a lower/inferior court to halt proceedings on the grounds that the court either lacks jurisdiction or is exceeding its jurisdiction in determining the matter.

P.S. Subramaniam Chettiar v. Joint Commercial Tax Officer (1966)

In this case, the court held that a writ of prohibition may only be issued if the petitioner can show that any government official owed him a duty that was under his authority but was not carried out.

Brij Khandelwal v. the Union of India (1975) 

In this case, the Delhi High Court declined to issue a restriction against the Central Government engaging in a boundary dispute agreement with Sri Lanka. The ruling was founded on the basis that prohibition does not restrict the government from performing executive tasks, and that prohibition is designed to regulate quasi-judicial rather than executive functions. 

With the growth of the notion of natural justice and the establishment of the concept of fairness even in administrative tasks, this position is no longer tenable, and the rigidity surrounding prohibition has also been reduced. If any of the grounds on which the writ is issued is present, the writ can now be issued to anybody, regardless of the nature of the function performed. Prohibition is currently seen as a broad remedy for judicial supervision over quasi-judicial and administrative decisions that impair rights.

Quo Warranto

It’s a Latin phrase that means ‘by what authority.’ The Courts can use this writ to ask any public official about the authority under which that public official has accepted that particular public office. If it is discovered that the public office was improperly occupied, the public official must quit the position immediately. Unlike the other four writs, this one can be filed by anybody.

Conditions to be satisfied for issuing the writ of quo warranto:

  • The office must be open to the public, and it must be established by statute or by the constitution;
  • The office must be a substantive one. 
  • In appointing such a person to such a position, there must have been a violation of the constitution or legislation, or statutory instrument.

Jamalpur Arya Samaj v. Dr. D Ram & Ors. (1954)

In this case, a quo warranto writ was brought against the working committee of a private entity, the Bihar Raj Arya Samaj Pratinidhi Sabha. The petition was refused by the court. The Patna High Court ruled that a writ of quo warranto may only be issued against someone who is unjustly holding a public office. In the event of a private office, it is not applicable.

In G. Venkateswara Rao v. Government of Andhra Pradesh (1966) 

In this case, the court held that a private individual may make an application for a writ of quo warranto. The individual filing the writ does not have to be directly impacted or engaged in the issue.

Puranlal v. P.C.Ghosh (1970)

In this case, the court held that a person’s election to or appointment to a particular post is insufficient for the issuance of quo warranto unless that person accepts the position.

Difference between Mandamus and Prohibition

  • The writ of mandamus is Issued against judicial, quasi-judicial, and administrative authority. Whereas, the writ of prohibition is Issued against judicial and quasi-judicial authority. 
  • The writ of mandamus is an order to a lower court to do something. Whereas, writ of prohibition is an order to a lower court to not do something. 
  • The writ of mandamus directs activity. Whereas, writ of prohibition directs inactivity. 
  • The writ of mandamus directs the performance of public duties. Whereas, writ of prohibition prohibits continuance in excess of their jurisdiction. 

Difference between Certiorari and Prohibition 

  • The writ of prohibition is issued to stop a decision or administrative action in the process from moving further, whereas the writ of certiorari is used to quash a judgement that has already been made.
  • When a subordinate court takes up hearing a subject over which it has no jurisdiction, the person being sued can file a writ of prohibition with the supreme court, and an order will be issued prohibiting the inferior court from continuing the case. When a subordinate court hears a cause or matter and makes a judgement on a case over which it has no jurisdiction, the aggrieved party must file a writ of certiorari with the Supreme Court, which will issue an order quashing the inferior court’s decision.
  • A writ of prohibition is issued prior to the conclusion of the proceedings. Writ of certiorari is issued after a subordinate court or Tribunal, or any other entity exercising judicial or quasi-judicial responsibilities, makes a judgement that is outside of its authority.
  • A writ of prohibition is intended to prevent rather than heal. Whereas, writ of certiorari is used to quash a decision made by a lower court.
  • Only judicial or quasi-judicial organisations are subject to a writ of prohibition. Writs of certiorari, on the other hand, are issued against a public authority acting only in an executive or administrative capacity, as well as legislative bodies, as well as judicial and quasi-judicial organisations.

Conclusion 

Martin Luther King once said, “Injustice anywhere is a threat to justice everywhere”.

This indicates that any unjust conduct or injustice perpetrated somewhere in the world will spread like a virus and will not be accepted everywhere. As a result, all the justice that has been done will be tainted, and everyone else will wonder what it would take for the same injustice to be done to them. Furthermore, there is a need to ensure that all people are treated fairly and that the system is free of bias. As a result, the notion of writ was established into Common Law in order to keep a judicial check on administrative operations. Therefore, the Indian Constitution’s Articles 226 and 32 guarantee people’s basic rights by executing writs. 

References

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