Write A Note On Article 32 And 226. What Is The Difference Between Article 32 And 226 Of Indian Constitution?


The apex court has time and again averred that the liberty of an individual to exercise his fundamental rights and the protection of those fundamental rights by the judiciary is the very spirit of the democratic way of life[1] as all the rights in all the constitutions across the world are unintelligible unless there are adequate safeguards to ensure enforcement of such rights. The court as the ‘sentinel on the quiver’[2]has the duty imposed on it by the holy book of the land, the constitution of the country to protect the fundamental rights of the citizens as the breach of the basic fundamental rights by the state cannot in any way be excused.

In the case of Basheshwar Nath v. Commissioner, Income Tax, the court held that “A large majority of people are socially poor educationally backward and politically yet not conscious of their rights, cannot be pitted against the state or the institution or they cannot be put on equal status with the state or large organisations. The people are required to be protected from themselves. It is therefore the duty of the court to protect their rights and interests.

Fundamental rights are therefore transcendental in nature and created and enacted in national and public interest and therefore they cannot be waived.”[3]Article 32 or the ‘heart and soul of the constitution, as called by BR Ambedkar provides a guarantee and is itself a fundamental right to move to the supreme court for the enforcement of the fundamental rights.

Article 226 on the other hand, provides the right to the high court to issue writs not only in case of infringement of fundamental rights but also for the enforcement of other rights as well. Both article 32 and article 226 are similar in a way that they both issue writs which is an instrument or order of the Court by which the Court (Supreme Court or High Courts) directs an Individual or official to do or to abstain from doing something but both the articles are very different when it comes to their scope, jurisdiction and power.

Five types of Writ issued by Supreme Court and High Court:

1. Habeas Corpus:

“Habeas Corpus” is a Latin term which means ‘to have the body’. In case of unlawful detention of a person, any other person irrespective of the locus standi rule can move the to court by filing an application under Article 226 in High Court or under Article 32 in Supreme Court. The writ originated from the English legal system and is now be provided in Constitutions all across the world. Historically, it’s been an important legal instrument protecting individual freedom against the arbitrary action of the state. It has been extended to non-police authorities, as in the 1898 Queen’s Bench case of Ex Parte Dorothy Hopkins, and is successfully been used in India to liberate a woman from a madrasa.

The writ is in fact an order to the detainer to produce the detainee before the court so that the court knows the ground on which he/she has been detained and set him free if there is no legal justification for the detention or the confinement. Courts can act suo motu in the interests of justice as the basic principle is that a person illegally detained without legal proceedings is entitled to seek the remedy of habeas corpus (Sunil Batra Vs Delhi Administration, AIR 1980).[4]The Court may also award exemplary damages as in Bhim Singh Vs State of Jammu & Kashmir, the apex court awarded the exemplary damages to the detainee. [5]

2. Mandamus:

‌Mandamus is a Latin word, which means “We Command”. It is an order from a superior Court which can be issued to the government, government officials, public corporations, inferior courts and tribunals but cannot be imposed on private persons. It cannot be claimed as a matter of right as it comes under the discretionary power of a court. Its main purpose is to keep the government officials in check for the proper functioning of the government machinery.

3. ‌Prohibition:

‌The word prohibition means ‘to prohibit’. It can be issued by the apex court and the high courts to the lower courts and tribunals to stop proceedings on the matter exceeding their jurisdiction or to keep their authority within the limits prescribed for them. The scope of the writ of prohibition has recently been increased from judicial and quasi-judicial bodies to administrative bodies as well.

4. ‌Certiorari:

The word certiorari means ‘to be certified’. It is issued by the apex court or high courts to the inferior courts or tribunals to transfer the matter to it or for quashing the order already passed by the inferior courts or tribunals. While the writ of prohibition is available at the earlier stage and is only preventive in nature, certiorari can be made available on the same grounds but at a later stage and is preventive as well as curative in nature.

5. Quo-Warranto:

The word quo-warranto means “by what warrant or by what authority”. It is issued to prevent a person from acting in a public office to which he is not entitled. It is basically to prevent illegal appropriation or usurpation of a public office and does not apply to a private office. Say for example, if a person of 62 years of age has been appointed to fill a public office which has an age bar of 60 years, the court has a right to issue a writ of quo-warranto against the person.

The difference between article 32 and article 226:

1. Article 32 deals with the power of the Supreme Court to issue writs whereas article 226 deals with the power of high courts to issue writs.

2. Article 32 is itself a fundamental right (right to constitutional remedies) as it falls under part III of the constitution whereas article 226 fall under part V of the constitution and is not a fundamental right. Say for example, in Darya and others v. State of Uttar Pradesh, it was held that Article 32 is not merely a fundamental right of a citizen but also the duty of the supreme court to protect those fundamental rights. As Article 32 is a fundamental right which is substantive in nature and not merely procedural, it’s not needed to file an application before the High Court before approaching the Supreme Court under Article 32.

3. Article 32 only be used for the enforcement of fundamental rights whereas article 226 has a wider scope and can be used for the enforcement of fundamental rights and other legal rights as well but when it comes to granting compensation to the victim, the scope of the supreme court is wider under article 32 than that of the high court under article 226 as in the case of the Rudul Shah vs. The State of Bihar, Supreme court invented new doctrine called compensatory jurisprudence under Article 32 and compensated the detainee for being in detention for 14 years on a wrongful charge of the Murder.[6]

4. Article 32 can be suspended as all the fundamental rights except for articles 21 and 22 can be suspended during an emergency whereas article 226 cannot be suspended even during an emergency.

5. The territorial jurisdiction of article 32 is much wider than that of article 226 as in the case of Election Commission v. Saka Venkata Rao[7] and Khajoor Singh v. Union of India[8], it was held that the high court could issue writs only to the authority if it is located in the jurisdiction of the said high court.

6. Article 32 has more power than article 226 and can supersede the order passed by the High Court under Article 226 of the Constitution. However, in Daryao and others v. State of Uttar Pradesh, the court decided that the rule of res judicata was not a mere technical rule but was based on sound public policy, the binding character of judgments pronounced by courts of competent jurisdiction was itself an essential part of the rule of law and the rule of law was the basis of the administration of justice which is the ultimate motive of the very existence of the constitution.[9]

7. The supreme court under article 32 has a mandatory duty to issue writs as it is regarded as guarantor and protector of the fundamental rights of the people whereas the high court has discretionary power in deciding whether to issue writs or not depending upon the facts of the case. Say for example, in Collector of Central Excise v. Dunlop India Ltd, the Supreme Court held that Article 226 is not meant to short-circuit or circumvent statutory procedures.

It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the vires of the statute are in question or where private or public wrongs are inextricably linked and the prevention of public injury and the vindication of public justice require it, that recourse may be had to Article 226 of the Constitution. A writ will not ordinarily be issued by the Court where the impugned order, not patently erroneous, is made by an authority within his jurisdiction.[10]

[1]RomeshThapar v State of Madras, 1950

[2]State of Madras v. VG Row, 1952

[3]BasheshwarNath v. Commissioner of Income Tax, 1955

[4] Sunil Batra Vs Delhi Administration, 1980

[5]Bhim Singh vs State of J&K, 1985

[6]Rudul shah vs State of Bihar, 1983

[7]1953 SCR 1144

[8]AIR 1961 SC 532

[9]Daryao v. State of UP, 1959

[10]Collector of Central Excise v. Dunlop India Ltd, 1985

This Article is Authored by Sadaf Parvez, 2nd Year BALLB (Hons) Student at Faculty of Law, Jamia Milia Islamia.

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