Comparative scope of writs under Articles 32 & 226
Comparative Scope of Writs under Articles 32 & 226
Articles 32 and 226 of the Indian Constitution provide for the right to constitutional remedies in case of violation of fundamental rights and other legal rights, respectively. While both are meant to protect citizens' rights, their scope, applicability, and the kind of writs they allow differ significantly.
Article 32 - The Right to Constitutional Remedies (Writs for Enforcement of Fundamental Rights)
Article 32 of the Constitution provides direct access to the Supreme Court for the enforcement of fundamental rights. It guarantees that any person whose fundamental rights have been violated can approach the Supreme Court by filing a writ petition. The Constitution allows the Supreme Court to issue various types of writs, including habeas corpus, mandamus, prohibition, quo warranto, and certiorari.
Key Features:
Scope: It is applicable for the enforcement of fundamental rights only.
Court: The writs under Article 32 can only be filed in the Supreme Court.
Nature of Remedy: The writs issued under this article are considered remedial and can lead to the direct enforcement of rights.
Enforceability: The Supreme Court is the guardian of fundamental rights, and its jurisdiction under Article 32 is part of its original jurisdiction.
Types of Writs under Article 32:
Habeas Corpus: A writ to produce a person who has been detained unlawfully before the court.
Mandamus: A writ directing a public authority to perform a public or statutory duty.
Prohibition: A writ to prevent an inferior court or tribunal from exceeding its jurisdiction.
Certiorari: A writ to quash the decision of a lower court or tribunal that has acted beyond its jurisdiction.
Quo Warranto: A writ questioning the authority of a person holding a public office without legal authority.
Case Law:
K.K. Verma v. Union of India (1954): This case emphasized that the Supreme Court can issue writs to enforce fundamental rights, showing its role as the final authority in such matters.
Maneka Gandhi v. Union of India (1978): The Supreme Court interpreted Article 32 expansively, affirming that a person can approach the Court under this article to enforce their fundamental rights, even when the legislation doesn’t seem to violate the letter of the law.
Article 226 - The Power of High Courts to Issue Writs (Writs for Enforcement of Other Rights)
Article 226 of the Constitution extends the power to issue writs to High Courts, not just for enforcing fundamental rights but also for enforcing other legal rights. High Courts can issue writs not only for the violation of fundamental rights but also in cases where there is a breach of any legal right, which could include statutory rights, rights under ordinary law, or even public duties owed by a person or authority.
Key Features:
Scope: Writs under Article 226 are broader, as they can enforce both fundamental and non-fundamental rights, including statutory rights and public duties.
Court: The writs can be filed in any High Court in India, not just the Supreme Court.
Nature of Remedy: Writs under this article have a wide scope and can be issued against any public authority and in a variety of situations where an individual seeks redress for violations.
Enforceability: High Courts exercise extraordinary jurisdiction, but this is not limited to fundamental rights. Courts under Article 226 have the power to review administrative decisions and even issue writs against individuals, corporations, and quasi-judicial bodies.
Types of Writs under Article 226:
Habeas Corpus: Similar to Article 32, this writ can be issued by High Courts to enforce an individual's personal liberty.
Mandamus: The High Court can issue a writ of mandamus to a public authority or a person to perform their duty.
Prohibition: A writ can be issued to prevent a lower court or tribunal from exercising jurisdiction that it does not have.
Certiorari: The High Court can quash the decision of an inferior court or tribunal if it exceeds its jurisdiction.
Quo Warranto: A High Court can issue this writ to question the authority of a person holding a public office without legal authority.
Case Law:
R. D. Shetty v. International Airport Authority (1979): The Supreme Court ruled that High Courts can issue writs not just for the enforcement of fundamental rights but also for other legal rights such as rights under a statute or contractual obligations.
L. Chandra Kumar v. Union of India (1997): This case held that judicial review under Article 226 can be used to challenge the constitutional validity of laws and orders, especially by a High Court.
Comparison of the Scope of Articles 32 and 226
| Aspect | Article 32 | Article 226 |
|---|---|---|
| Jurisdiction | Only the Supreme Court can issue writs under this article. | High Courts have jurisdiction over writs. |
| Scope of Rights | Primarily for the enforcement of fundamental rights. | For both fundamental and non-fundamental rights. |
| Scope of Application | Limited to cases of violation of fundamental rights. | Can be invoked for enforcement of statutory and other legal rights. |
| Accessibility | Accessible to citizens for fundamental rights violations only. | Accessible for a broader set of violations, including statutory and common law rights. |
| Remedy | Issued only by the Supreme Court as a remedy for violations of fundamental rights. | Issued by High Courts, which have broader powers to issue writs in a wide variety of cases. |
| Constitutional Mandate | Constitutionally mandated by Article 32 as a fundamental right to access the Supreme Court. | Article 226 provides High Courts with discretionary powers to issue writs. |
Important Points of Distinction
Accessibility:
Article 32 provides direct access to the Supreme Court for fundamental rights violations. It is often considered the last resort for enforcement of rights.
Article 226, on the other hand, provides access to High Courts and has a wider scope that includes the enforcement of statutory rights and other legal rights.
Enforcement of Rights:
Article 32 is narrower, focusing only on fundamental rights.
Article 226 can be invoked for not just fundamental rights but also statutory rights, public duties, or any legal rights that are enforceable under law.
Jurisdiction:
Article 32 can be invoked only in the Supreme Court.
Article 226 can be invoked in any of the High Courts, making it more accessible at the regional level.
Discretionary Powers of Courts:
The Supreme Court under Article 32 has inherent jurisdiction, and the remedy is more mandatory.
The High Courts under Article 226 have more discretionary power, and they may refuse to issue writs if they think that the circumstances do not justify it.
Conclusion
While Article 32 guarantees the right to constitutional remedies specifically for the enforcement of fundamental rights and is a fundamental right in itself, Article 226 is more expansive, empowering High Courts to issue writs for a variety of legal violations, not just those related to fundamental rights. Both Articles play an essential role in the judicial review process and in ensuring that the rights of individuals are protected under the law. However, Article 32 is more focused and restrictive in terms of the subject matter it deals with, whereas Article 226 provides a broader mechanism for challenging both public and private bodies on various legal grounds.
RELATED Blog
comments