Article-32 and Article-226: Purpose and Distinction

This article is written by Sharat Gopal, studying BA-LLB at Delhi Metropolitan Education, GGSIPU, Delhi. This article mentions about the importance of writs in Articles 32 and 226 of the constitution and between them.

Introduction

Before discussing the constitutional remedies also known as writs’, we must first familiarize ourselves with the fundamental rights guaranteed by the Constitution. Fundamental Rights as the term itself suggests are the ‘basic rights’ which are ensured to the citizens. These rights are deemed essential for the intellectual, moral and spiritual development of individuals and also to avoid tyrannical form and to grant special rights and protection of rights through various provisions. Merely mentioning provisions does no good, some type of constitutional remedies must be provided, this is when writs come into the picture. Whenever an individual’s basic rights are infringed by an administrative authority, constitutional writs come into the picture.

To protect the basic rights, the Indian Constitution, under Articles 32 and 226, provides the right to approach the Supreme Court or High Court, respectively, to any person whose Fundamental Right has been violated.

What is a writ?

Writs are the constitutional remedies available to the citizens of a nation when their fundamental rights are infringed. Writs are basically official orders issued by a court. Any warrant, orders, directions, and so on, issued by the supreme court and or the High court are called writs.

There are 5 types of writs, that are as follows-

Habeas Corpus– ‘Habeas Corpus” is a Latin word which means “to have the body”. If a person is detained unlawfully then any person from his behalf can file a writ of “Habeas Corpus” in High Court using article 226 and using article 32 in Supreme Court. The main purpose of this writ is to provide an immediate remedy to a person who has been detained without lawful justification. A lawful detention also becomes unlawful if the detained person is not presented before the magistrate within 24 hrs of his arrest.

By the adoption of the 42^nd amendment and with the judgement of Maneka Gandhi v. Union of India, the scope of Habeas Corpus was increased.

Mandamus– the term “Mandamus” means, “to order”. It is a writ which is issued in a superior court against a person or a public authority to do any act or forbid to do an act, which they are legally bounded to do so. The nature of duty must of public nature and not of private nature. The main purpose of this writ is to limit the powers of public authorities and make them work in their limited powers. There are various conditions for using this writ,-

There must be a legal right of the petitioner.
The legal duty must be imposed on an authority and the fulfilment of duty must be of importance in nature. The duty imposed must be statutory in nature which is either given by the constitution of India, or any law, but should not be of contractual in nature. If the authority abuses or exceeds the power given, then the writ of mandamus can be filed.
Writ of mandamus can only be issued in good faith and not for taking personal grudges.

Prohibition– the term prohibition means to “prohibit”. This writ is issued by the High Court or Supreme Court to lower courts or other quasi-judicial authorities to stop further proceeding of a matter which exceeds their jurisdiction. This writ is used to keep lower courts within their prescribed limits. Earlier this writ was only used on judicial and quasi-judicial bodies. But now it is used even on administrative bodies. The scope of this writ has been increased from the past.

Certiorari– the Writ of certiorari is similar to the writ of prohibition. Certiorari is available at a later stage and prohibition is available at an earlier stage. The writ of certiorari is issued by the Supreme Court or High Court to inferior court to quash the order already passed by a lower court. As it not only quash their order but also passes that matter to themself. Hence, it is not only preventive in nature but also curative in nature.

Quo-Warranto– the term “Quo- Warranto” means “by what warrant?” This writ is issued to refrain a person who is acting in a public office which he is not allowed to. It is used to prevent a person from illegally using a public office.

These are the 5 writs that can be issued in both the Supreme Court and High Courts.

Article 32

DR B R Ambedkar called article 32 as the “heart and soul of the constitution”. The reason behind calling Article-32 as “the heart and soul of the constitution” was, he believed that just by providing fundamental rights without proper machinery for their enforcement they will be a useless action. Article 32 guarantees that, if any person’s fundamental rights are infringed then he/she could approach the Supreme Court for remedy. This article provides a quick and immediate remedy for enforcement of fundamental rights. Using this article, any person could directly approach the Supreme Court for seeking remedy, without requiring undergoing through the dilatory procedure from lower to higher courts as in ordinary circumstances.

Article 226

Article 226 is very similar to article 32, as article 226 also talks about writs. Any person can approach the High Court using article 226, if their fundamental rights or any other right is being infringed. No doubt that the jurisdiction of the high court is very wide, as it can issue writ not only for the infringement of fundamental rights as by supreme court but also for enforcement of any other right as well. The only thing court needs to establish that the party had such right and which has been threatened or illegally invaded.

Difference between Article 32 and Article 226

Article-32	Article-226
Article-32 can only be used for enforcement of Fundamental Rights	Article-226 can be used for enforcement of Fundamental Rights and other purposes as well
Scope of Article-32 is lesser than Article-226	Scope of Article-226 is wider than Article-32
Article-32 is used for approaching Supreme Court	Article-226 is used for approaching High Court
The order passed by SC supersedes the order passed by the HC	The order passed by HC under article-226 has lesser power than order passed by the SC under Article-32
Article-32 is a Fundamental Right	Article-226 is not a Fundamental Right

Case Laws

In the case of Aditanar Educational Institution v. Assistant Director of Income-tax (297 I.T.R. 376), Madaras High Court held that relief under Article-226 of the constitution can be granted when there is no other remedy available under the statute and have undisputed facts. And when the High Court found that the disputes mentioned are disputed, it won’t be desirable to deal with those matters using writ petition.

In the case of Daryao v. State of U.P., it was held that to approach Supreme Court with Writ should not be merely considered as a right, instead, it should be considered as the Supreme Courts duty to protect the fundamental rights of people.

Conclusion

Article-32 of the constitution has very well been said as the heart and soul of the constitution. Till now it has been proved that these Writs mentioned in Article-32 and Article-226 to be filed before Supreme Court and High Court, respectively are the most effective remedy provided in constitution to protect the rights of the individuals.