This article is written by Kritika Garg from National Law University Odisha. This is an exhaustive article which deals with the difference between Article 32 and Article 226 of the Constitution of India.
Table of Contents
Judiciary plays a very important role in a democracy as it not only prevents the government authorities from using their powers arbitrarily but it also safeguards the rights of the citizens and the very Constitution of India. Thus, The Constitution of India envisages a strong, independent, and well-organised judiciary.
Article 32 and 226 empowers the Supreme Court and the High Courts respectively, with the power to initiate an action against a government body in case of violation of rights and liberties of the citizen. This article describes the writ power that the Supreme Court and High Courts have under Article 32 and 226 and how these articles are different from each other.
Referred to as the ‘heart and soul of the constitution’ by Dr Bhim Rao Ambedkar, Article 32 is a fundamental right envisaged under Part III of the Constitution of India. It is a ‘right to constitutional remedies’ which provides a right to protect other fundamental rights from violation. In other words, if any fundamental right is violated by the government, then Article 32 empowers the person whose fundamental right has been violated to approach the Supreme Court for the enforcement of his/her fundamental rights.
Article 32(1) confers the right to approach the Supreme Court for claiming or enforcing the fundamental rights provided under Part III of the Constitution of India.
Article 32(2) confers power to the Supreme Court to issue directions, orders, or writs, namely Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto for enforcing those fundamental rights.
Article 32(3) empowers the parliament to confer the power to issue orders, directions, and writs to any other court within the local jurisdictional limits of India.
Article 32(4) states that unless provided by the constitution, the right to constitutional remedy conferred under this Article cannot be suspended.
Article 32: A basic structure
In the case of Fertilizer Corporation Kamgar (Union) v. Union of India, 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.
Applicability of Article 32
In the case of Ramdas Athawale v. Union of India, it was held that Article 32 is applicable in cases where there is a question of enforcement of fundamental rights. If the question of enforcement of fundamental rights does not arise then Article 32 will not be applicable.
Scope of Article 32
As held in the case of Nain Sukh Das v. State of Uttar Pradesh, the scope of Article 32 is quite narrow as it can be enforced only in cases of violation of fundamental rights conferred under Part III of the constitution.
Enforceability against private individuals
As per the decision of the apex court in the case of PUDR v. Union of India, Article 32 is enforceable against private individuals as well.
Enshrined under Part V of the Constitution of India, Article 226 confers power to the High Courts to issue orders, directions, and writs in the nature of Habeas corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto.
As per Article 226(1), every High Court within the territory of India has the power to issue orders, directions, and writs to any individual or authority including the Government for the enforcement of fundamental rights as well as other legal rights under its own local jurisdiction.
Article 226(2) confers the power to the High Courts to issue orders, directions, and writs outside their own local jurisdiction in the cases where the cause of actions lies wholly or in part within their local jurisdiction.
Article 226(3) states that when an interim order has been passed under Article 226 by way of injunction or stay against the respondent without:
- i) providing the copy of the petition and evidential document to the respondent;
- ii) giving an opportunity of being heard.
then, if the respondent moves to the High Court to cancel the interim order and provides a copy of such petition to the petitioner, then, the High Court shall decide the application within a period of two weeks of receiving such application or within the period of two weeks from the date on which the other party received such application, whichever is later.
As per Article 226(4), the power conferred to the High Courts under Article 226 is not in derogation to the powers conferred to the Supreme Court under Article 32(2).
Scope of Article 226
As held in the case of Bandhua Mukti Morcha v. Union of India, the scope of Article 226 is much wider than Article 32 as it confers power to the High Courts to issue orders, directions, and writs not only for the enforcement of fundamental rights but also for the enforcement of legal rights which are conferred to the disadvantaged by way of certain statutes and are as important as the fundamental rights.
As defined under Article 32 and Article 226, there are 5 writs, namely Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo warranto.
Habeas Corpus is a Latin term which means “produce the body”. It is a writ that is issued for releasing an illegally detained person. It is issued to an individual or an authority to bring the person who has been illegally detained before the court. This is done to know the grounds for detention. The court decides the validity of the detention and in case of no legal justification of detention, the person so detained is set free.
Article 22 of the Constitution of India mandates it for the police to present a detained person before the magistrate within 24 hours of his arrest (excluding the travelling time), failure of which would lead to the release of the detained person.
ADM Jabalpur v. Shivakant Shukla
This case is also known as the ‘Habeas Corpus case’. It is a landmark judgement in which it was held that writ of Habeas Corpus cannot be suspended even at the time of an emergency.
Sheela Barse v. State of Maharashtra
In this case, the court held that if any detained person is incapable of praying for the writ of habeas corpus for himself, then somebody else may pray for the same on his behalf. The court further emphasized upon the importance of legal assistance and how legal aid to a poor person who is jailed is not only a mandatory provision under Article 39A but also under Article 14 and 21 of the Constitution of India.
Kanu Sanyal v. District Magistrate
In this case, the Supreme Court of India held that the court may decide upon the legality of detention without having the detained person produced before it. The court emphasized that the focus must be on the legality of the detention which should be determined by looking into the facts and circumstances of the case. The court further stated that the writ of habeas corpus is a procedural writ and not a substantive writ.
Nilabati Behera v. State of Orissa
This is a case in which the petitioner was a mother whose son was taken away by the police for interrogation, but later his dead body was found near a railway track. During the investigation, it was revealed that the victim died because of an injury caused by some blunt object like a lathi. The apex court held that remedy under Article 32 is a public law and therefore, the principle of sovereign immunity does not apply. Thus, the petitioner was awarded compensation of an amount of Rs. 1,50,000 and directions were given to the State of Orissa to initiate proceedings against the individuals involved in the death case.
Mandamus is a Latin term which means “we command”. The writ of mandamus is issued by a higher court to an inferior court or any public authority, commanding it to perform an official duty imposed by the law. This writ is used to compel a public authority to discharge its legal obligations and perform its legal duty effectively and efficiently.
Grounds for issuing a writ of mandamus
Writ of Mandamus can be issued against any public authority in certain cases:
- misuse of discretionary power;
- exceeding its scope of power;
- ignoring relevant factors;
- deciding on irrelevant factors;
- acting with mala fide intentions.
Circumstances where the writ of mandamus cannot be issued:
- Private body entrusted with public duty;
- When the duty is discretionary in nature; and
- When the duty arises out of a contract.
Barada Kanta v. State of West Bengal
In this case, the court held that the writ of mandamus cannot be issued against any private individual because the main essence of the writ of mandamus is to compel the authority to perform its public duty and private individuals are not entrusted with public duty.
Hemendra Nath Pathak v. Gauhati University
In this case, the petitioner prayed for a writ of mandamus against the university where he studied because the university failed the petitioner even after he scored passing marks which were required as per the statutory rules of the university. The writ of mandamus was issued and the university was directed to declare him pass as per the university rules.
Certiorari means “to be certified”. Writ of certiorari is issued by the higher court to an inferior court to quash any wrongful order. This writ is both curative as well as preventive.
Grounds for Certiorari
Writ of certiorari can be issued by the Supreme Court and High Court against any inferior court, tribunal, or quasi-judicial body on certain grounds:
- exceeding the jurisdictional limit;
- violating the principle of natural justice;
- passing a wrongful order or judgement;
- overlooking the procedure established by law.
T. C. Basappa v. T. Nagappa & Anr.
In this case, it was held that writ of certiorari may be issued when a court has either acted without its jurisdiction or has acted beyond its jurisdiction. The court also laid down the parameters for deciding the question of exercise of jurisdiction.
Surya Dev Rai v. Ram Chander Rai & Anr.
In this case, the apex court held that writ of certiorari can be issued against an inferior court only and not against any higher court or court of the same hierarchy.
Writ of prohibition is issued by a higher court to a lower court, or a tribunal or a quasi-judicial body to stop it from proceeding in a case because it either does not have jurisdiction or it exceeds the jurisdiction in deciding the case. It is important to note that writ of prohibition is issued against a judicial body only, and not against a legislative or an administrative body.
Difference between Certiorari and Prohibition
- Writ of certiorari is issued to quash an order wrongfully passed by an inferior court whereas writ of prohibition is issued to stop the court from proceeding in the case.
- Writ of prohibition is issued while the proceedings are pending whereas writ of certiorari is issued when an order is passed.
East India Company Commercial Ltd. v. Collector of Customs
In this case, the Supreme Court emphasized on the meaning of writ of prohibition and stated that it is an order passed by a higher court directing a lower/inferior court to stop the proceedings on the grounds that the court either does not have a jurisdiction or the court is exceeding its jurisdiction in deciding the case.
Writ of quo warranto means “by what authority”. This type of writ is issued by the court against a person holding a public office over which he has no authority.
Conditions for quo warranto
- The office needs to be a public office created by a statute;
- A private person should have occupied the office wrongfully;
- The office must have a public duty to perform;
- The person must be using the office.
Writ of quo warranto can also be issued against a person who was initially qualified to occupy the office, and later on became disqualified but still holds the office.
Jamalpur Arya Samaj v. Dr. D Ram & Ors.
In this case, the Patna High Court held that writ of quo warranto can be issued against a person holding a public office wrongfully only. It is not applicable in the case of a private office. The decision was so given when a petition was filed praying for a writ of quo warranto against the working committee of a private body, Bihar Raj Arya Samaj Pratinidhi Sabha. The Court denied issuing the writ.
Major Difference between Article 32 and Article 226
|Basis of difference||Article 32||Article 226|
|Right||Article 32 is a fundamental right.||Article 226 is a constitutional right.|
|Suspension||Article 32 can be suspended if an emergency has been declared by the President.||Article 226 cannot be suspended even at the time of emergency.|
|Scope||Article 32 has a narrow scope as it is applicable only in case of violation of a fundamental right.||Article 226 has a broader scope as it is applicable not only in the case of violation of a fundamental right but also of a legal right.|
|Jurisdiction||Article 32 empowers the Supreme Court to issue writ all over India. Therefore, the Supreme Court has broader territorial jurisdiction.||Article 226 empowers the High Court to issue a writ in its own local jurisdiction only. Therefore, High Courts have narrower territorial jurisdiction as compared to the Supreme Court.|
|Discretion||Since, Article 32 is a fundamental right, the same cannot be refused by the Supreme Court.||Article 226 confers Discretionary power to the High Court which means it is at the discretion of the High Court to issue a writ or not.|
With the same power of enforcing fundamental rights, Article 226 has a much broader scope than Article 32 because it can also be used to enforce other legal rights conferred by the Constitution or any other statute.
However, it is Article 32 which is known as the heart and soul of the Constitution and for the fact that it is a fundamental right in itself cannot be refused. Whereas, Article 226 being a constitutional right gives discretionary power to the High Courts. Further, it is the decision of the Supreme Court under Article 32 which supersedes the decision of High Courts under Article 226. Thus, with the difference in powers both articles ensure that the rights of the citizens are protected and provisions of the constitution are upheld.
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