Comparative scope of writs under Articles 32 & 226
Comparative Scope of Writs under Articles 32 & 226 of the Indian Constitution
Overview
Writs are judicial orders issued by courts to enforce fundamental rights or legal rights. Under the Indian Constitution, two articles empower courts to issue writs:
Article 32: Grants the Supreme Court the power to issue writs for enforcement of fundamental rights.
Article 226: Grants the High Courts the power to issue writs for enforcement of both fundamental rights and other legal rights.
Nature and Scope
| Feature | Article 32 | Article 226 |
|---|---|---|
| Authority | Supreme Court | High Courts |
| Purpose | Enforcement of Fundamental Rights only | Enforcement of Fundamental Rights and other legal rights |
| Jurisdiction | Nationwide | Territorial jurisdiction of the respective High Court (usually the state) |
| Types of Writs | Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto | Same five writs as Article 32 |
| Scope of Rights Protected | Fundamental Rights only | Fundamental Rights + other rights under ordinary law |
| Availability | Direct remedy for fundamental rights | Wider scope, can be invoked even when fundamental rights are not violated |
| Nature of Remedy | Constitutional remedy | Constitutional and statutory remedy |
Key Differences
Scope of Rights:
Article 32 protects only fundamental rights (Part III of Constitution).
Article 226 protects both fundamental rights and other legal rights.
Jurisdictional Reach:
Supreme Court under Article 32 has all-India jurisdiction.
High Courts under Article 226 have limited territorial jurisdiction but wider scope in terms of rights protected.
Discretion and Flexibility:
Article 226 is more flexible; High Courts can entertain writ petitions for any legal right.
Article 32 is confined to fundamental rights violations.
Accessibility:
High Courts are more accessible to citizens than the Supreme Court due to proximity and territorial jurisdiction.
Landmark Case Laws
1. Keshavananda Bharati v. State of Kerala (1973) 4 SCC 225
Context: Discussed the basic structure doctrine but reaffirmed the significance of writ jurisdiction under Articles 32 and 226.
Importance: Both Articles are essential to protect fundamental rights; Article 32 as the "heart and soul" of the Constitution and Article 226 as an equally powerful but more flexible remedy.
2. Hussainara Khatoon v. State of Bihar (1979) 3 SCC 749
Context: Right to speedy trial (Fundamental Right to life and liberty).
Significance: Demonstrated the role of High Courts under Article 226 in enforcing fundamental rights and other legal rights, emphasizing their proactive role in delivering justice locally.
3. State of Rajasthan v. Union of India (1977) 3 SCC 592
Context: Discussed the discretionary nature of Article 226 and how High Courts may refuse relief even if fundamental rights are involved.
Importance: Established that the High Courts' writ jurisdiction is discretionary and not absolute.
4. Bachan Singh v. State of Punjab (1980) 2 SCC 684
Context: Death penalty case where Supreme Court exercised its writ jurisdiction under Article 32.
Significance: Emphasized Article 32 as a powerful safeguard for fundamental rights.
5. Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161
Context: Addressed bonded labor and exploitation under Article 226.
Significance: Illustrated how High Courts under Article 226 can issue writs to protect social and economic rights, not strictly fundamental rights.
6. S.P. Gupta v. Union of India (1981) 2 SCC 87
Context: Discussed the scope of judicial review and writ jurisdiction.
Importance: Highlighted the broad scope of Article 226 in addressing administrative and executive actions beyond fundamental rights.
Detailed Case Analysis
Case 1: Hussainara Khatoon v. State of Bihar (1979)
The case was a public interest litigation highlighting the plight of undertrial prisoners. The High Court under Article 226 ordered the release of prisoners who had been detained beyond their maximum sentence. This case illustrated the High Court’s proactive use of writ jurisdiction for protecting life and liberty and highlighted the practical accessibility of Article 226 remedies.
Case 2: Bandhua Mukti Morcha v. Union of India (1984)
The Supreme Court took suo moto cognizance of bonded labor conditions, issuing writs under Article 226 to protect the rights of bonded laborers, showing that Article 226 covers a wide range of social justice issues beyond fundamental rights.
Case 3: State of Rajasthan v. Union of India (1977)
This case underscored the discretionary nature of writs under Article 226, highlighting that even if fundamental rights are violated, High Courts may refuse relief if alternative remedies are available, thus exercising judicial restraint.
Case 4: Keshavananda Bharati v. State of Kerala (1973)
The Supreme Court reaffirmed that Article 32 is the guardian of fundamental rights, but the High Courts under Article 226 are equally important for enforcement and can sometimes be a more practical remedy.
Case 5: S.P. Gupta v. Union of India (1981)
This case elaborated the broad scope of judicial review under Article 226 and emphasized the High Courts’ power to address administrative actions affecting legal rights, expanding the remedy beyond constitutional violations.
Summary Table: Comparison of Articles 32 and 226
| Aspect | Article 32 | Article 226 |
|---|---|---|
| Court | Supreme Court | High Courts |
| Rights Enforced | Fundamental Rights only | Fundamental & Legal Rights |
| Territorial Jurisdiction | Nationwide | Territorial (state or union territory) |
| Discretionary Power | Limited (must entertain fundamental rights cases) | Broad discretion to entertain/refuse |
| Accessibility | Less accessible (centralized) | More accessible (local/state level) |
| Scope of Writs | Habeas Corpus, Mandamus, etc. | Same five writs |
| Remedy | Constitutional remedy | Constitutional + Statutory remedy |
Conclusion
Article 32 is the direct and primary remedy for enforcement of fundamental rights by the Supreme Court and is fundamental to the Constitution’s guarantee of rights.
Article 226 provides a broader and more flexible writ jurisdiction to High Courts for enforcement of fundamental rights and other legal rights, making justice more accessible.
Both articles are complementary and vital to maintaining the rule of law and protecting individual liberties.
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