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NIRMA UNIVERSITY

INSTITUTE OF LAW

Subject: Constitutional Law II


Article Submission on:
Comparative Study of Article 32 and 226 of the
Constitution of India: Original Jurisdiction
Date: 25/09/2012

Submitted By:

Submitted To:

Sidhant Ajmera (10BBL003)


Moliya

Prof. Tarkesh

Comparative Study of Article 32 and 226 of


the Constitution of India: Original
Jurisdiction
From the earliest stage in the Constituent Assembly, the founding fathers
seemed to be agreed on the need of the constitutional remedies for the
enforcement of the Fundamental Rights.
There is no doubt that the right to move to the court is a Fundamental
Right conferred to the citizen of this country by Article 32 but the sole
object of the Article 32 of the Constitution of India is the enforcement of
the fundamental rights guaranteed under Part III of the Constitution of
India. Whatever other remedies may be open to a person aggrieved, he
has no right to complain under Article 32 where no fundamental right has
been infringed1. It follows that no question other than relating to a
fundamental right will be determined in a proceeding under the Article 32
including

interlocutory

reliefs.

Although

threat

of

infringement

of

Fundamental right is enough to justify the issue of writ 2. A writ under the
said Article 32 would not lie to enforce the Government policy 3 or a
Directive Principle4. Also provisions of this Article does not work
retrospectively5
Clause 4 , lays down that this right shall not be suspended except as
otherwise provided for by the Constitution.
However, a writ may lie under Article 226 of the Constitution of India to
the High Courts. The Writ Jurisdiction of Supreme Court can be invoked

1
2
3
4
5

Haji Esmail v. competent Officer, AIR 1967 SC 1244


Simranjit v. UOI, (1992) 4 SCC 865
Shri Sitaram Sugar Co. Ltd. v. UOI, AIR 1990 Sc 1277
B. Krishna Bhatt v. UOI, (1990) 3 SCC 65
Janardan Reddy v. State of Hyderabad, AIR 1951 SC 217

under Article 32 of the Constitution for the violation of fundamental rights


guaranteed under Part III of the Constitution.

Any provision in any Constitution for Fundamental Rights is meaningless


unless there are adequate safeguards to ensure enforcement of such
provisions. Since the reality of such rights is tested only through the
judiciary, the safeguards assume even more importance. In addition,
enforcement also depends upon the degree of independence of the
Judiciary and the availability of relevant instruments with the executive
authority. Indian Constitution, like most of Western Constitutions, lays
down certain provisions to ensure the enforcement of Fundamental Rights.
These are as under:
The first section is general in scope and says that "the right to move the
Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed".
The second section deals, in more specific terms, with the power of the
Supreme Court to issue writs including writs in the nature of habeascorpus, mandamus, prohibition, quo warranto and certiorari for the
enforcement of any of the rights.
The third section empowers Parliament to confer the power of issuing
writs or orders on any other court without prejudice to the power of the
Supreme Court in this respect. So far, Parliament has not passed any law
conferring the power of issuing writs on any courts. The last section deals
with the conditions under which this right can be suspended.
The first three provisions of the Article, taken together, make fundamental
rights under the Constitution real and, as such, they form the crowning

part of the entire chapter. Adverting to the special importance of this


Article, Ambedkar declared in the Assembly:
"If I was asked to name the particular Article in this Constitution
as the most important without which this Constitution would be a
nullity, I could not refer to any other Article except this one. It is
the very soul of the Constitution and the very heart of it and I am
glad that the House has realised its importance.
Hereafter, it would not be possible for any legislature to take away
the writs which are mentioned in this Article. It is not that the
Supreme Court is left to be invested with the power to issue these
writs by a law to be made by the legislature at its sweet will.
The Constitution has invested the Supreme Court with these writs
and these writs could not be taken away unless and until the
Constitution

itself

is

amended

by

means

left

open

to

the

legislatures. This in my judgment is one of the greatest safeguards


that can be provided for the safety and security of the individual."
This opinion of the Chairman of the Drafting Committee has been
reaffirmed by the Court itself on several occasions. In Romesh Thappar
vs. the State of Madras6 the Court held:
"Article 32 provides a guaranteed remedy for the enforcement of the
rights conferred by Part III (of the Constitution) and this remedial right is
itself made a fundamental right by being included in Part III.
The Court is thus constituted the protector and guarantor of fundamental
rights and it cannot, consistently with the responsibility so laid upon it,
refuse to entertain applications seeking protection against infringements
of such rights."
6AIR 1950 SC 124

Thus for the same reason, in the case of Kihota v. Zachilhu7 Supreme
Court held it as a basic feature of the Constitution of India, and hence
beyond the plae of ameandibility.
However, the Court will not entertain any application under Article 32
unless the matter falls within the scope of any of the fundamental rights
guaranteed in Part III of the Constitution.
As the guardian of fundamental rights the Supreme Court has two types
of jurisdiction, original and appellate. Under its original jurisdiction, any
person who complains that his fundamental rights have been violated
within the territory of India may move the Supreme Court seeking an
appropriate remedy. The fact that he may have a remedy in any of the
High Courts does not preclude him from going directly to the Supreme
Court. Unless a question of violation of Fundamental Rights are involved,
it does not apply.
We have already seen under Article 32(4) that the Right to Constitutional
Remedies

may

be

suspended

under

certain

circumstances.

These

circumstances are the Emergency Provisions of the Constitution. Chiefly,


these emergencies are three: External aggression, internal disturbance
and breakdown of constitutional machinery in the States.
Under such conditions the President of India is empowered to proclaim an
emergency. During the period of emergency he may by order declare that
the right to move any Court for the enforcement of any fundamental right
shall remain suspended up to a maximum period of the existence of the
emergency (Art. 359). Every such order should be placed before each
House of Parliament as soon as possible.

7 AIR 1993 SC 412

Until 1976 the Supreme Court had power to consider the constitutional
validity of any State law in any proceedings initiated under Article 32. But
this power was taken away by the Forty-second Amendment (1976).
As a result the Supreme Court could consider the constitutional validity of
any State law only if the constitutional validity of any Central law was also
an issue in such proceedings. The Forty-third Amendment (1978) however
has restored the original position
However, Article 32 is referred to as the "Constitutional Remedy" for
enforcement of Fundamental Rights. This provision itself has been
included in the Fundamental Rights and hence it cannot be denied to any
person. Dr. B.R.Ambedkar described Article 32 as the most important one,
without which the Constitution would be reduced to nullity. It is also
referred to as the heart and soul of the Constitution. By including Article
32 in the Fundamental Rights, the Supreme Court has been made the
protector and guarantor of these Rights. An application made under Article
32 of the Constitution before the Supreme Court, cannot be refused on
technical grounds.
In addition to the prescribed five types of writs, the Supreme Court may
pass any other appropriate order. Moreover, only the questions pertaining
to the Fundamental Rights can be determined in proceedings against
Article 32. Under Article 32, the Supreme Court may issue a Writ against
any person or government within the territory of India. Where the
infringement of a Fundamental Right has been established, the Supreme
Court cannot refuse relief on the ground that the aggrieved person may
have remedy before some other court or under the ordinary law.
The Jurisdictions of Supreme Court under Article 32 of the Constitution of
India and of different High Courts in India under Article 226 of
Constitution are original in nature and writ Petition directly lies to

Supreme Court or High Courts, according to relief sought under Article 32


or 226 of the Constitution of India.
The difference between the jurisdiction of Supreme Court under Article 32
and that of a High Court under Article 226 of the Constitution is that a
Writ Petition before Supreme Court, under Article 32 lies only for
enforcement of a fundamental right, while a Writ Petition before a High
Court has a wider scope and a fundamental as well as ordinary legal right
can be enforced by means of a Writ Petition before a High Court under
Article 226 of the Constitution of India.
Thus as regard to the enforcement of fundamental rights,the jurisdictions
of the Supreme Court under Article 32 and that of a High Court under
Article 226 are concurrent. However in recent cases the Supreme Court
have discouraged Petitions under Article 32, without first resorting to the
High Court under Article 226 of the Constitution8.
The relief can also not be denied on the ground that the disputed facts
have to be investigated or some evidence has to be collected 9. Even if an
aggrieved person has not asked for a particular Writ, the Supreme Court,
after considering the facts and circumstances, may grant the appropriate
Writ and may even modify it to suit the exigencies of the case.
Normally, only the aggrieved person is allowed to move the Court. But it
has been held by the Supreme Court that in social or public interest
matters, any one may move the Court. A Public Interest Litigation can be
filed before the Supreme Court under Article 32 of the Constitution or
before the High Court of a State under Article 226 of the Constitution
under their respective Writ Jurisdictions.

8 Kanubhai Bhrambhatt v. State of Gujrat, AIR 1987 SC 1159


9 Surendra Prasad Khugsal v. Chairman MMTC, AIR 1993 SC 2491

This extraordinary jurisdiction was exercised by the Supreme Court for the
enforcement of fundamental rights, in its jurisdiction under Article 32,
where two Law Professors addressed a letter to the Supreme Court
complaining that the fundamental rights of the inmates of the Protective
Home under Article 21 were being violated by the Government Home.
In Gupta's case10 where Upendra's case11 was referred to, the doctrine of
public interest litigation was formulated by a Bench of 7 Judges in a
comprehensive form, to apply to any case of public injury arising from
the breach of any public duty, or the violation of some provision of the
Constitution, or of the law
Though the doctrine was initially applied by the Supreme Court to enforce
fundamental rights under Article 32, it soon came to be applied by the
High Courts, in their jurisdiction under Article 226, not only to enforce
fundamental rights but also to restrain the Executive from undermining
the public interest. As the Government is encouraging sports, grant of
lease of land for that purpose even at concessional rates cannot be said to
be not to sub-serve the public purpose.
The power of the court is not only preventing the infringement of
Fundamental Right, but is also remedial in scope and provides relief
against breach of Fundamental Right already committed. 12 The Court may
grant both compensation and exemplary cos tin various cases, directing
the state to pay the same in some cases where there is infringement of
Fundamental Rights13
The Supreme Court under Article 32(1) is free to devise any procedure
appropriate for the particular purpose of the proceeding, namely,
10
11
12
13

AIR 1982 SC 149


1983 (2) SCC 308
M.C Mehta v. UOI, Air 1987 SC 1086
Munna v. State of U.P., AIR 1982 SC 806: Gulam Abbas v. State of U.P, AIR 1983 SC 1268: Rudal Shah v.
State of Bihar, (1983) 4 SCC 141

enforcement of a Fundamental Right and under article 32(2) the court has
the implicit power to issue whatever directions, order or writs is necessary
in a given case, including all ancillary powers necessary to secure
enforcement of Fundamental Rights.
Under the doctrine of Judicial review, High Courts and the Apex Courts
exercise a supervisory jurisdiction over persons who are charged with the
performance of public acts and duties. What is generally reviewed is is not
the merits of the action but the decision making process itself. Thus
administrative action is subject to judicial review on three grounds:

illegality

irrationality

procesual impropriety14

Judicial Review is not concerned with the matters of economic policy.15 The
court

will

not

interfere

with

an

administrative

order

when

it

is

constitutionality has not been challenged on the grounds that it is in


contravention of part 3 of the Constitution of India 16 They cannot
adjudicate policy matters unless the policy is alleged to be mala fide17
Admittedly, the provision of Limitation Act do not apply to proceeding
under Art. 226 and 32. Makers of the Constitution wisely excluded the
application of those provisions to proceedings under articles32 and 226
cardinal to the effective of the constitutional remedies should be left to the
tender mercies of the legislature.

14
15
16
17

Supreme Court Advocates -on Record Association v. UOI, AIR 1994 SC 268
Shri Sitaram Sugar Co. Ltd. V UOI, AIR 1990 SC 1277
R. Gandhi v. UOI (1999) 8 SCC 106
Bennett Colemann & co. v. UOI, AIR 1973 SC 106

Writs
The Supreme Court under Article 32 and the High Courts under Article 226
are vested with the powers to issue directions, orders or writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, which ever may be appropriate in the case. A brief explanation
of these remedies is appropriate here.

(i)Writ of Certiorari:
The term of the old writ was that of a royal demand to be informed
(certiorari) of some matter, and in early times it was used for many
different purposes. It became a general remedy to bring up for review in
the court of Kings Bench any decision or order of an inferior tribunal or
administrative body. In the modern times the scope of certiorari was laid
down in the Electricity Commissioner's case by Lord Atkin which is
classical and approved in many English and Indian decisions. Lord Atkin
said:
Wherever any body of persons having legal authority to determine
questions affecting the rights of subjects and having the duty to act
judicially, act in excess of their legal authority, they are subjected to the
controlling jurisdiction of the Kings Bench Division exercised in these
writs.
According to the above statement the conditions are:

(i) body of persons having legal authority to determine question;

(ii) the determination must affect the rights of subjects;

(iii) having the duty to act judicially;

(iv) act in excess of their legal authority.


The most controversial condition was the requirement of acting judicially.
It was interpreted as an additional requirement apart from affecting the
rights by Lord Hewert in R. v. Legislative Com. etc. 18 This was confirmed
by the Privy Council in Nakkuda Ali case 19 Our courts also adopted this
interpretation. In England this confusion was cleared by Lord Reid in the
landmark decision of Ridge v. Baldwin20. Lord Reid reinterpreted Atkin LJ's
words about the duty to act judicially. Accordingly it was not additional
condition but a qualification of the earlier condition. Therefore, acting
judicially means acting fairly where the determination affects a person's
rights. This interpretation has extended the writ to administrative actions
also which of course affect his rights.
In A.K.Kraipak v. Union of India 21, the Supreme Court accepted Lord Reid's
interpretation and held that distinction between quasi-judicial and
administrative has become thin but it is not completely obliterated for
other purposes. Therefore, since Kraipak a new trend has emerged in the
expanding horizon of the writ of certiorari in India to control the
administrative actions. It applies not only to legal authority but also to any
agency or instrumentality of the state who acts arbitrarily in violation of
law or Constitution. The broad grounds for issuing the writ are:

18
19
20
21

1982 (1) KB 411


1951 AC 66.
1964 AC 40.
AIR 1970 SC 150

(i) Lack or excess of jurisdiction

(ii) Violation of the principles of natural justice.

(iii) Error of law apparent on the face of the records.


The last ground 'error of law apparent on the face' has become redundant
in English law since the decision of the House of Lords in Anisminic Ltd. v.
Foreign Compensation Commissioner22, where the Court (Lord Reid),
brought all errors of law under the jurisdictional law. This position is now
confirmed after some controversy in the earlier stages after the decision
in the Anisminic case. In India, our courts are still hesitant in this regard.
The ground of 'error of law apparent on the face' is still being employed
for certiorari. It is hoped that our courts will also follow the broad principle
of 'jurisdiction law' as laid down in Anisminic case.
Thus the writ of certiorari is an important remedy to quash a decision of
any court, tribunal or administrative authority if it acted ultra vires their
powers.
(ii) Writ of Prohibition

In the same manner Electricity Commission case23Lord Atkin LJ said:


I can see no difference in principle between certiorari and prohibition,
except that the latter may be invoked at an earlier stage. If the
proceedings establish that the body complained of is exceeding its
jurisdiction by entertaining matters, which would result in its final decision

22 1969 (2AC) 147.


23 1924 (1KB) 171.

being subject to being brought up and quashed on certiorari, I think that


prohibition will lie to restrain it from so exceeding its jurisdiction.
In Hari Vishnu Kamath v. S. Ahmad Ishaque 24, the Supreme Court said:
Both the writs of prohibition and certiorari have for their object the
restraining of inferior courts from exceeding their jurisdiction and they
could be issued not merely to court but to authorities exercising judicial or
quasi-judicial functions.
Since these decisions the scope of prohibition has expanded and it lies
against the administrative authorities also. Lord Denning said, It is
available to prohibit administrative authorities from exceeding their
powers or misusing them. In particular, it can prohibit a licensing
authority. From making rules or granting licenses which permit conduct
which is contrary to law25. In India, prohibition is issued to protect the
individual from arbitrary administrative actions.
It is an efficacious and speedy remedy where a person does not desire
any other relief except to stop the administrative agency. An alternative
remedy does not bar the issue of this writ. It can be issued even when the
matter is decided to stop the authority from enforcing its decision. If the
lack of jurisdiction is patent, the writ is issued as a writ of right.

(iii) Writ of Mandamus

The prerogative remedy of mandamus has long provided the normal


means enforcing the performance of public duties by public authorities of
all kinds. While certiorari and prohibition deal with wrongful action,

24 A.I.R 1955 SC 233.


25 A.I.R 1955 SC 233.

mandamus deals with wrongful inaction. These prerogative remedies,


thus, together cover the field of governmental powers and duties.
Mandamus is issued only when a legal duty is imposed on a public
authority in the performance of which the petitioner has a legal right 26.
Mandamus would also lie when there is a failure to perform a mandatory
duty. The petitioner must show that he has made a demand to enforce
that duty and the demand was refused.
Mandamus will not lie when the duty is merely discretionary. In State of
M.P. v. Mandawara27, the Supreme Court held that granting of Dearness
Allowance is discretionary for the Government and it cannot be compelled
by mandamus to grant the same. However, the court may issue a writ of
mandamus where the public authority has failed to exercise or has
wrongfully exercised discretion conferred on it by a statute or has
exercised such discretion mala fide or on irrelevant considerations.
The

writ

of

mandamus

is

issued

against

any

court,

tribunal

or

administrative authority. The Supreme Court has developed a new concept


of continuing Mandamus by issuing directions from time to time and keep
the matter pending, requiring the agencies to report the progress of
investigation so that monitoring by the court could ensure continuance of
the investigation.28

(iv) Writ of Habeas Corpus

It is a process by which a person, who is confined without legal


justification may secure a release from his confinement. The writ is an
26 G.B Reddy v. ICR Institute 2003, SC 1764
27 A.I.R 1954 SC 93.
28 Vinnet Narayan v. Union of India A.I.R 1998 SC 2684

order issued by the High Court calling upon the person by whom a
prisoner is alleged to be kept in confinement to bring him before the Court
to let the Court know on what ground the prisoner is confined. However,
the production of the body of the person alleged to be unlawfully detained
is not essential in modern times.29
The rule of standing is relaxed in habeas corpus petition which can be
made by any person on behalf of the prisoners but not an utter stranger.
Application for habeas corpus has to be accompanied by an affidavit
stating the nature and circumstances of the restraint. If the court is
satisfied that there is prima facie case, it issues a rule nisi requiring the
opposite party to show cause, on a day specified, why an order granting
the writ should not be made. After hearing the parties, the court may
make the rule absolute or it may discharge it as the case may be.
The writ of habeas corpus has assumed great importance in the
administrative process as wide powers of detention are conferred on the
administrative authorities in the modern times. The fundamental right to
personal liberty as a human right has further enhanced the importance of
this remedy. The grounds of habeas corpus are the same grounds of
judicial review based on ultra vires doctrine. So if the detention powers
are used mala fide or based on irrelevant or extraneous considerations or
are used in violation of statutory provisions, the writ of habeas corpus will
issue to quash such a detention. There is no need for a separate certiorari.
The writ of habeas corpus is issued against any order of detention by any
authority including the Speaker of Parliament or State Assemblies 30.
However, no writ of habeas corpus will lie in regard to a person who is
undergoing imprisonment on a sentence of a court in a criminal trial even
on the ground of erroneousness of conviction31.
29 Kanu Sanyal v. D.M Darjelling A.I.R 1973 SC 2684
30 Ganpati v. Masi Nafisul Hasan A.I.R 1954 SC 636
31 (1984) 4SCC 251.

Before Constitution (44th Amendment) Act, 1978, enforcement of the writ


of habeas Corpus was liable to be suspended. The Supreme Court in the
habeas corpus case32 held that no person could have any locus standi to
move the court to challenge the legality of an order of his detention on
any grounds. This was challenged on limited grounds before this decision.
This was the most unfortunate decision of the apex court. It utterly failed
to protect the life and liberty of the people when it was most needed.
Therefore, by the 44th amendment, now the enforcement of the writ of
habeas corpus cannot be suspended during Emergency under Article 352.
The scope of the writ has been further expanded by the Supreme Court by
prohibiting torture or inhuman treatment while in detention in a prison by
the prison authorities. In this respect the law is more advance in India
than

prevailing

in

England

where

detention

conditions

cannot

be

challenged by habeas corpus.

(v) Writ of Quo Warranto:

The writ of quo warranto is issued against the holder of a public office
calling upon him to show with what authority he holds that office. It is
issued against the usurper of an office.
The object is to confer jurisdiction upon the judiciary to control the
executive action in making appointments to public offices and also to
protect the public from usurpers of public offices.
The law of standing is relaxed so that any member of the public can
challenge the action by this writ.

32 B.K Basu v. State of West Bengal A.I.R 1997 SC 610, Vishakha v. State of Rajasthan 1997 SC 3011

The following conditions apply:

(i) The office in question must be a public office.


(ii) The office must be substantive in character.
(iii) The holder must not be legally qualified to hold the office or to
remain in the office .
(iv) The person must be holding the office when the writ is heard.
The writ will not lie in respect of an office of a private nature. The writ is
discretionary in nature and the court may refuse to grant it.
What are the consequences of granting of the writ? Will the actions of
usurper become null and void ab initio? It will depend upon the nature of
disqualification. If the disqualification is of technical nature, the acts will
not be null and void and the principle of de facto office will be applied to
save such actions. However, where defect in the qualification is fatal, then
everything done by him will be null and void. The benefit of the colour of
office will not be available.
Directions and Orders
The powers conferred by Articles 32 and 226 are very wide. Supreme
Court observed that, In view of the express provision in our Constitution
we need not now look back to the early history or the procedural
technicalities of these writs in English Law, nor feel oppressed by any
difference or change of opinion expressed in particular cases by English
Judges., so long as we keep to the broad and fundamental principles
that regulate the exercise of jurisdiction in the matters of granting such
writs in English law . This is the meaning of the wide phraseology 'the

writs in the nature of' should be understood. The courts have been very
liberal in this regard. It is the duty of the court to provide appropriate
remedy to the petitioner. A petition will not be thrown out on procedural
and technical defects. However, broad principles must be followed. Apart
from these writs, the court can issue any directions or orders to
supplement the writs, for examples, declaratory orders or injunctions in
the same petitions. In fact declaratory orders are the appropriate remedy
for setting aside an ultra vires rule or legislative measure and not the writ
of certiorari which is appropriate for quashing a determination or decision
of a body or authority. In Prabodh Verma v. State of U.P., the Supreme
Court deprecated the slipshod drafting of a writ petition asking for
certiorari to quash a legislative measure. Proper pleading rules must be
followed since ill-drafted pleading results in wastage of precious time of
the court.
The power of issuing directions or orders is frequently used to provide
relief to the parties and monitor the implementation of the decision of the
court.
Articles 32 and 226 are the provisions of the Constitution that together
provide an effective guarantee that every person has a fundamental right
of access to courts. Article 32 confers power on the Supreme Court to
enforce the fundamental rights. It provides a guaranteed, quick and
summary remedy for enforcing the Fundamental Rights because a person
can go straight to the Supreme Court without having to go undergo the
dilatory process of proceeding from the lower to higher court as he has to
do in other ordinary litigation. The Supreme Court is thus constitution the
protector and guarantor of the fundamental rights.
Thus The High courts have a parallel power under Article 226 to enforce
the fundamental rights. Article 226 differs from Article 32 in that whereas
Article 32 can be invoked only for the enforcement of Fundamental Rights,

Article 226 can be invoked not only for the enforcement of Fundamental
Rights but for any other purpose as well. This means that the Supreme
Courts power under Article 32 is restricted as compared with the power of
a High Court under Article 226, for, if an administrative action does not
affect a Fundamental Right, then it can be challenged only in the High
Court under Article 226, and not in the Supreme Court under Article 32.
Another corollary to this difference is that a PIL (Public Interest Litigation)
writ petition can be filed in Supreme Court under Article 32 only if a
question concerning the enforcement of a fundamental right is involved.
Under Article 226, a writ petition can be filed in a High court whether or
not a Fundamental Right is involved.
The provision of legal aid is fundamental to promoting access to courts.
The Supreme Court of India has taken imaginative measures to promote
access

to

justice

when

people

would

otherwise

be

denied

their

fundamental rights. It has done this by the twin strategy of loosening the
traditional rules of locus standi, and relaxing procedural rules in such
cases. Thus where it receives a letter addressed to it by an individual
acting pro bono publico, it may treat the letter as a writ initiating legal
proceedings. In appropriate cases it has appointed commissioners or
expert

bodies

to

undertake

fact-finding

investigations.

Thus,

the

mechanism of PIL now serves a much broader function that merely


espousal of the grievances of the weak and the disadvantaged persons. It
is now being used to ventilate public grievances where the society as a
whole, rather than a specific individual, feels aggrieved.
Application under Articles 32 and 226 :

Article 32 and Article 226 both deal with enforcement of right of the
citizen against the Government or Governmental Authorities. However, the
scope of Article 32 is limited to the extent of enforcement of the

fundamental rights stated in the Part III of the Constitution, whereas the
scope of Article 226 of the Constitution is much wider than Article 32 of
the Constitution. The High Court while exercising the Article 226 can give
reliefs in case of quasi-Judicial Tribunals and authorities or other acts by
such lower authorities even though the acts of such authorities do not
infringe the fundamental rights.
The Supreme Court is competent to give relief under Article 32 against
any authority within the territory of India. The power of High Court under
Article 226 is confined to its territorial Jurisdiction, so that even where
fundamental rights have been infringed, the High Court cannot grant
reliefs against an authority located outside its territorial jurisdiction except
in certain exceptional cases, namely where the causes of action arises, in
whole or in part, within territorial jurisdiction of that Court. However, a
writ against Union of India can be filed in any High Court in India.
Amplitude

of

Supreme

Court's

jurisdiction

under

Article

32

The powers given to the Supreme Court under Article 32, for the
enforcement of fundamental rights, are not confined to issuing prerogative
writs only, and are not necessarily circumscribed by the conditions which
limit the exercise of the prerogative writs. The said Article is wide enough
to consider even claims for compensation arising from the violation of
fundamental rights. The range of judicial review recognised in the superior
judiciary of India is, perhaps, the widest and the most extensive known to
the world of law. The power extends to the examining the validity to even
an amendment to the Constitution. No Constitution amendment can be
sustained which violates the basic structure of the Constitution.
Who may apply under Article 32
Any person who complains of infraction of any of the fundamental rights
guaranteed by the Constitution is at liberty to move the Supreme Court,

including corporate bodies, except where the language of the provisions or


the nature of right compels the inference that they are applicable only to
natural persons. Conversely, one cannot apply under Article 32 in respect
of a fundamental rights which he does not possess. There are certain
fundamental rights which are confined on citizen alone viz., rights under
Article 19 of the Constitution. A non citizen cannot, therefore, apply for
the enforcement of any such rights. But a non citizen or a company or a
statutory authority may apply for enforcement of any of the fundamental
rights, which have been confined on all persons under Article 14 of the
Constitution.
Article 226
1. Article 226 empowers every High Court to issue the writs.
2. Article 32 is itself a fundamental right. Article 226 is not a fundamental
right.
3. The President of India cannot suspend Article 226 during the period of
Emergency
4. Article 226 is not a right as that of Article 32. The High Court may issue
writs according to its discretionary power.
5. Article 226 enables the High Court to issue orders to writs in the nature
of habeas corpus, mandamus, prohibition, certiorari, quowarranto, to
protect aggrieved and any other purpose.
Article 32
1. Article 32 empowers the Supreme Court to issue writs.

2. Article 32 is a fundamental right, and it is included in Part III of the


Constitution. Article 32 is a basic feature of the Constitution. Article 226 is
a fundamental right.
3. During the period of emergency, the fundamental rights (Excepts the
articles 21 and 22) can be suspended. Therefore, Article 32 can also be
suspended during emergency Period.
4. The applicant can approach the Supreme Court as a right, being it is
fundamental right.
5. Article 32 empowers the Supreme Court to issue the writs only when
the Fundamental Rights are violated or threatened