Article 226 of Indian Constitution – Analysis And Interpretation

Introduction:

At times, the judicial functions of the Indian courts could merely construe as an arbitrator in settling down the fait accompli disputes arisen between the individuals or groups and the government. Purportedly, the awarded decision of the same is binding to all. However, the perceptions of an incognizant layman shall not limit the enhanced role of the judiciary in ensuring the wellbeing of the people by exercising the rule of law notion. As being the justice administrator, which checks and balances the functions of legislative and executive operations, it is considered to be the backbone of the government. Since the judiciary is the only governmental organ, which is meant to be a guardian of the Indian constitution, it has sceptered to act independently without any political coercion. Irrefutably, the judiciary is part of a democratic political structure; thereby, it is accountable to the constitution, democratic notions, and the people, but lucidly no other governmental organs can interfere in its decisions.

Indian citizens are bestowed with certain fundamental rights, which have been classified into six broad categories and dealt with under part III of the Indian constitution. These fundamental rights are guaranteed to every single citizen of India to ensure harmony and peace throughout the Indian Territory. But what if their right got infringed or have not enforced; where do they claim the right? Indian constitution directs them to approach either supreme or high courts by filing a writ petition for the enforcement of the fundamental rights. Thus, both the Supreme Court and the high court are the defenders of fundamental rights. 

Consequently, the upper courts should be granted with an intrinsic power to maintain balance and to reach the objectives laid down on the preamble. But then, from where these upper courts could acquires authority to initiate actions against the governmental bodies that violate a citizen’s rights and liberties? It is not a res Integra question since Article 32 and Article 226 of the Indian constitution endows supreme and the high court to issue writ orders to enforce fundamental rights provided under Part III (Article 12 to 35) of the Indian Constitution. In the words of Dr. B. R. Ambedkar, Article 32 is ‘the heart and soul of the constitution, as qua it is the ‘right to constitutional remedies, which works as a guarantor of other constitutional rights. Concerning the latter, it dealt with the high court’s power of issuing writ orders for the purpose of enforcing the legal rights of a person.

A brief outline of Article 226 of the Indian constitution:

Clause (1) of this Article provides that, ‘Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto, and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose’.

Thus, Article 226 of the Indian Constitution endowed the high court with the power to issue the aforementioned orders and writs to any individual or authority, inclusive of government so as to effectuate the legal rights of each citizen.

What are these writs and how it has interpreted?

Habeas Corpus,

The classic definition of habeas corpus in the context of the dictionary provides that, “it is a writ requiring a person to be brought before a judge or court, especially for the investigation of a restraint of the person’s liberty, used as a protection against illegal imprisonment”. Primary, it is a Latin term that literally means ‘Let us have the body’. Here, the court uses this writ to figure out the illicit detention of a person and the authority by which he has been detained. If the imprisonment has proven to be illegal, then the court would order to release such detenue. Thus, the object of this writ is to award immediate remedy to a person who is illegally detained by another and kept under private custody or in prison.

Case laws

One of the landmark judgments concerning the habeas corpus is ADM Jabalpur v. Shivakant Shukla[1]case. In this case, it was held that the habeas corpus is a writ that will not be waived even in the emergency period.

In the case of State of Maharashtra v. Tasneem Rizwan Siddiquee,[2] it was held that the petition of habeas corpus is not maintainable if the detenue is under judicial custody as the result of a remand order passed by the judicial magistrate.

It should be emphasized, that the default in producing the arrested person before the magistrate within 24 hours will amount to unlawful detention, and such person is entitled to release on the writ of habeas corpus.

Mandamus,

The term implies ‘we command or the order’. In a nutshell, it is a writ issued by an upper court to an inferior court or administrative or quasi-judicial authority, which directs them to discharge their duties and condemn their inactivity. In other words, the writ of mandamus is an order by a superior court commanding a person or a public authority (including the government and public cooperation) to do or forbear to do something in the nature of public duty or in certain cases of a statutory duty.[3]

Case laws

In the case of Barada Kanta v. State of West Bengal,[4] it was held that the writ of mandamus cannot be issued against a private individual or any other private organization since they are not engaged in any kind of public duty.

Similarly, in the cases of Bihar E.G.F. Cooperative society v. Sipahi Singh[5]and Mrs. Santosh Singh v. Union of India,[6] the court has elucidated the circumstance under which the writ of mandamus will not lie. In the former case, it was held, the writ of mandamus cannot be invoked for the enforcement of contractual rights. Besides, in the latter case, the apex court held that the writ of mandamus is not a panacea for all ills but only for fundamental rights.

Prohibition,

The writ of prohibition alias stay order, issued to a lower court viz. magistrate or tribunals to stop acting beyond its legal jurisdiction or power. The writ of prohibition can be issued by a Supreme Court or high court ordering the inactivity of a lower court in the concerned matter in dispute if the contrast the rules of natural justice.

Case laws

The case of East India Commercial Co v. Collector of Customs,[7] wherein the court elucidated the definition of the writ of prohibition as, it is a writ issued by a superior court to the inferior court for the purpose of preventing inferior courts from usurping a jurisdiction with which it was not legally vested, or in other words to compel an inferior court to keep within limits of jurisdiction.[8]

Certiorari,

The upper courts issue the writ of certiorari to nullify the wrongful orders passed by any lower courts, tribunals, authority, or quasi-judicial. The precise meaning of the term certiorari is ‘to be certified’. The writ of certiorari is a curative and preventive writ.

Writ of certiorari can be issued on the following grounds,

  • Functions exceeding the jurisdiction
  • Disregarding the principle of natural justice
  • An error of law but not the error of fact

Case laws

The State of UP v. Mohd Nooh,[9] is the case, in which the court has held that the writ of certiorari will be issued with the purpose of correcting the errors of jurisdiction committed by the body performing judicial or quasi-judicial functions.

One of the core principles apropos issuing the writ of certiorari was succinct in the T.C. Basappa v. T. Nagappa[10] case. It was held that the writ can be availed of only to remove or to adjudicate upon the validity of judicial acts. In other words, the aforesaid writ can be issued when an inferior court or tribunal acts either without its jurisdiction or beyond its jurisdiction.

Quo Warranto,

Latin for ‘by what warrant or authority?’ is Quo Warranto. This writ is used to challenge any person’s right to hold the public office or authority that he has no valid title to hold. Withal, it prohibits the unauthorized person to act in a public office. The object of this writ is to prevent the unauthorized person from holding the office to which he is not legally entitled to control the position. The primary grounds on which this writ can be invoked,

  • The office in dispute needs to be a public office,
  • The holder of that office is a private person without legal authority

Case laws

In the case of Jamalpur Arya Samaj v. Dr. D. Ram,[11] the Patna high court has denied issuing the writ of quo warranto against the member of the private association.

Even though the petitioner of quo warranto lacks the legal interest in the disputed public office, he has the title to challenge the right of a person holding the public office as qua a member of the public. The same was held in the case of G.D. Karkare v. Shevde.[12]

Scope of Article 226 of Indian Constitution:

Concerning the scope of Article 226, it was discussed in the case of T.C. Basappa v. Nagappa,[13] wherein the Apex court held that the said article was framed in a comprehensive phraseology for the purpose of conferring a wide power on the High court to rectify and remedy the injustice, whenever it is found. Indubitably, the scope of Article 226 is much broader than Article 32 of the Indian constitution.

It was reaffirmed in the case of Bandhua Mukti Morcha v. Union of India[14] that all the high courts could exercise its power granted by Article 226 for not only the enforcement of fundamental rights but all other legal of a citizen as well.

Underlying principles of Article 226:

Reiterating clause (1) of Article 226, which empowers the high court to issue writ orders for the enforcement of constitutional rights guaranteed to the citizens. The writs mentioned under Article 226 are known as prerogative writs since they had their origin from the prerequisite power of the supervisory authority over its inferior courts or officers. Back then, these writs were used by the British judiciary to uphold the rights and liberties of the people. Presently, this Article confers the high court with the power to issue prerogative writs within its jurisdiction.

It is widely acknowledged that Article 32 of the constitution vests the Supreme Court with the power to enforce fundamental rights by issuing writs. Per contra, Article 226 of the Indian Constitution has not limited the jurisdiction of high courts only to the protection of but also it empowers all high courts to safeguard other legal rights of a person as well. The wording “ for any other purpose” in the context of Article 226 refers to the enforcement of all other legal rights or duties, thus high courts are not confined to uphold only the fundamental rights guaranteed by the Indian constitution. But, it is noteworthy that, it does not mean that a high court can issue writs for any purposes it pleases.[15] Article 226 enables a high court to award relief to the aggrieved parties by examining the actions of administrators and the executive officials.

The subsequent Clause (2) of Article 226 permits a high court to perform the power conferred by clause (1) even outside its local jurisdiction, if that’s the case, where the cause of action has taken place wholly or partly within its local jurisdiction.

Interim relief:  

Clause (3) of Article 226 was added by the Constitution (44th amendment) Act, 1978, embedded with the regulatory procedure, which provided for the governance of interim orders that the high court can issue. It has provided in this clause that, if an interim order was issued against an ex parte without,

  • Providing them with copies of such petition and supportive evidential documents, or
  • Offering the party with an opportunity of being heard,

And, if the concerned party moves to the high court with an application for cancellation of such interim order, then the high court is bound to dispose of the application within 2 weeks. But, any default in the disposal of the same within the prescribed period will lead to the vacation of such order.

Locus Standi,

Since olden times, the person whose constitutional right has infringed can move the high court under Article 226 for relief and enforcement. But the status quo scenario is that the Apex court has widened the scope of the principle Locus Standi by permitting any public-spirited person to file a writ petition on behalf of the aggrieved party claiming the enforcement of their statutory rights.

The latest clause (4) of Article 226 provides that, the power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32. 

Notable judgments:

In the case of L. Chandra Kumar v. Union of India,[16] the Apex Court has held that the invested power on the high court in the matters of judicial review of legislative action by Article 226 is the cornerstone of the Indian constitution and the same cannot be ousted by the mean of constitutional amendments.

The same was upheld in the case of Sangram Singh v. Election Tribunal[17] as; the high court’s vested power of judicial review cannot be abridged even by the amendment.

In the State of W.B v. Ashutosh Lahiri case,[18] it was held that, since the petitioner has belonged to the Hindu community, he has locus standi to file a writ petition under Article 226 seeking the protection of religious sentiments of the community.

The case of Burmah Construction Co v. State of Orissa,[19] in which it has been held that the high court will not go into the disputed questions of facts in the exercise of its writ-jurisdiction.[20]

Conclusion: 

Comprehensibly, Article 226 of the Indian constitution is one of the key provisions, which has been enacted with the object to protect the legal rights of a person and award remedies to the aggrieved party. Thus, this Article empowers a person to move an application before the high court for the enforcement of their legal right. Unlike Article 32, it is a constitutional right and cannot be suspended even at the time of emergency. High courts have comparatively narrow jurisdiction over the Supreme Court. Since the invested power is discretionary in nature, the high court decides whether to issue a writ or not for the particular fact in issue.

References:

  • https://indiankanoon.org/doc/1712542/
  • https://blog.ipleaders.in/difference-article-32-article-226/#:~:text=Enshrined%20under%20Part%20V%20of,%2C%20Prohibition%2C%20and%20Quo%20Warranto.
  • https://vakilsearch.com/advice/writ-petition-india-filing-drafting/

[1] 1976 AIR 1207.

[2] AIR 2018 SC 4167.

[3] A. T. Markose, judicial control of Administrative Action in India.

[4] AIR 1963 Cal. 161.

[5] AIR 1977 SC 2149.

[6] AIR 2016 SC 3456.

[7] AIR 1967 SC 18893.

[8] Id at 7.

[9] AIR 1958 SC 86.

[10]  AIR 1954 SC 440.

[11] AIR 1954 Pat. 297.

[12] AIR 1952 Nag. 330.

[13] AIR 1954 SC 440.

[14]  1984 AIR 802, 1984 SCR (2) 67.

[15] .K Tope, constitutional Law of India, (1982 Edn).

[16] AIR 1997 SC 1125.

[17] AIR 1955 SC 425.

[18] (1995) 1 SCC 189.

[19] AIR 1962 SC 1320

[20] Id at 19.

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Snegapriya V S

A third-year student of law at Vellore Institute of Technology (VIT School of Law), budding first-generation lawyer cum legal researcher with multiple publications in various web journals and portals on different subject matters of law in issue. Being a zealous-natured person with thoughts enrooted in epistemophilia has boosted my passion for research writings by interpreting diversified legal facets. As a perceptive observer and reader, I pay greater attention to the overlooked legal fields where divergent challenges might arise, that include cyber law, environmental law, consumer law, and several constitutional provisions. Besides, I prioritize construing legal problems with social psychology. My dream and vision are to catch myself as a skilled legal adroit.