Understanding Article 32 under the Indian Constitution
Article 32 is the right to constitutional remedies enshrined under Part III of the constitution. Right to constitutional remedies was considered as a heart and soul of the constitution by Dr. Bhim Rao Ambedkar. Article 32 makes the Supreme court as a protector and guarantor of the Fundamental rights. Article 32(1) states that if any fundamental rights guaranteed under Part III of the Constitution is violated by the government then the person has right to move the Supreme Court for the enforcement of his fundamental rights. Article 32(2) gives power to the Supreme court to issue writs, orders or direction. It states that the Supreme court can issue 5 types of writs habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of any fundamental rights given under Part III of the constitution. The Power to issue writs is the original jurisdiction of the court.
Article 32(3) states that parliament by law can empower any of courts within the local jurisdiction of India to issue writs, order or directions guaranteed under Article 32(2). Article 32(4) states that rights given under Article 32 cannot be suspended except such suspension provided by the constitution.
Babasaheb Ambedkar called Article 32 as heart and soul of the constitution?
Article 32 is called the heart and soul of the constitution because it gives rights to people to move Supreme court directly for enforcement of their fundamental rights. Article 32 is itself a fundamental right and it makes article 32 soul of the constitution. According to the Supreme court, Article 32 is the basic feature of the constitution it cannot be amended even by way of amendment in the constitution.
The scope of Article 32
The scope of Article 32 is not wide enough as Article 226. Article 32 can be invoked only to enforce fundamental rights under Part III. one cannot approach the Supreme court for enforcement for other rights except fundamental rights. Power to issue writs under Article 32 is mandatory for the Supreme court because Article 32 is itself a fundamental Right and Supreme Court is the protector of these the Fundamental Rights. The writs are strong instruments issued against the government and government officials.
Understanding Article 226 under the Indian Constitution
Article 226 is enshrined under Part V Chapter V of the Constitution. It empowers the High Courts to issue certain writs. Article 226 gives discretionary power to the High courts to issue direction, order, writs including the writs in nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Article 226 is invoked not only to for the fundamental rights but also a violation for other rights.
Article 226(1) states that in spite of Article 32, High court has the power to issue direction, order, or writs, including the writs in the nature of the writs in nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari to any person, authority, government or public officials for enforcement of fundamental rights or any other rights under its own local jurisdiction.
Article 226(2) states that in spite of the seat of government or authority or residence of the person is not in the local jurisdiction of the High court still high court can issue direction, order to such government, authority or person if the cause of action wholly or in part arises in relation to its own jurisdiction.
Article 226(3) states that the (i)When against a party any interim order is issued by high court in way of interim injunction or stay, or any proceedings relating to a petition under Article 226 without (a) giving copy of the petition or copies of all documents of the interim order to such party and (b) giving opportunity to hear.
(ii) And if such party makes an application to the High court for the vacation of such interim order or petition and also furnishes a copy of the application of vacation to the party in whose favor such interim order or petition is made, or to the counsel of the party.
(iii) Then High court shall dispose of the application
- within a period of two weeks from the date on which it is received or,
- from the date on which the copy of such application is so furnished, whichever date is later
- where the High Court is closed on the last day of that period, before the expiry of the next day afterward on which the High Court is open
(iv) and if the application is not so disposed of by the High court, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, will be vacated
Article 226(4) states that the power given to the high court to issue direction, order or writ will not derogate the power given to the Supreme court under Article 32(2)
The scope of Article 226
The scope of Article 226 is much wide than Article 32. Article 226 not only gives the power to issue direction, order or writs not enforce fundamental rights but also for the enforcement of other rights too. Article 226 empowers High court to issue directions, orders or writs to any person, authority, government, or public officials. Article 226 also talks about the interim order for writs and also states the mechanism of how interim order will be disposed of by the High courts.
Writs under Article 32 and Article 226
- Habeas Corpus – It means to produce the body of or have a body of. This writ is issued by the court to the person or the authority who has detained or imprisoned another person to bring that person before the court So that court can examine the reason and validity of his detention. If no valid justification or reason for his detention is found by the court then the court will release him from that detention. Writ of Habeas corpus can be issued to both public and private persons. It can be filed by anybody on the behalf of the detainee.
- Mandamus – Mandamus literally means “We Command”. In this, court order the public authorities directing them to perform their duty imposed by the law. The writ of mandamus can be issued to the government, govt officials, public corporations, inferior courts or tribunals, etc. It cannot be imposed on private persons. It is issued when public authority refused to perform an obligation under law but it cannot be issued where duty is discretionary.
- Quo Warranto – It is means “what is your Authority”. This writ is issued by the court to the person holding the public office questioning him under What authority he is holding the public office. If he fails to prove his authority than the court will issue order refraining him to hold that office and court also mah declare office vacate.
- Certiorari – The writ of Certiorari means “to be certified”. This writ is issued to the inferior court or tribunals directing them to transmit the matter to the court of record proceedings pending before them. This writ gives power to Supreme court or High court to determine the validity or legality of matter disposed of by the lower courts or tribunals
- Prohibition – Th writ of the Prohibition is issued to the lower courts or tribunals when:
(i) They act contravene to rule of natural justice
(ii) They Act without jurisdiction or excess to their jurisdiction
(iii) They act ultra vires i.e. beyond the powers
(iv) They act in contravention of Fundamental Rights.
How Article 32 is different from the Article 226
- Article 32 gives power to Supreme Court whereas Article 226 gives power to the High court
- Article 32 is invoked for the enforcement of fundamental Rights whereas Article 226 is invoked for enforcement of fundamental right as well as other legal rights too.
- The power to High court under Article 226 is wide than the power of the Supreme court under Article 32
- Power to issue writs under Article 32 is mandatory for the Supreme court whereas High court has discretionary power to issue writs under Article 226
- Article 32 is suspended during the period of the emergency whereas Article 226 cannot be suspended during emergency
- Territorial Jurisdiction of the High court under Article 226 is narrower than the Territorial jurisdiction of Supreme court under Article 226.
- The order passed by the Supreme court under Article 32 will always supersede the order passed by the High courts under Article 226.
- Article 32 is itself a fundamental right (Right to constitutional Remedies) whereas Article 226 is not a fundamental Right.
What are the similarities between Article 32 and Article 226?
- Both Article 32 and 226 is invoked for the enforcement of Fundamental Rights
- Both the Supreme court and High court has the power to issue writs under Article 32 and Article 226 respectively.
The scope of Article 226 is wider than Article 32 but still, Article 32 is called the heart and soul of the Constitution? Why?
It is because : (i) Article 32 is itself a fundamental Right
(ii) Supreme court is guarantor and defender of the Fundamental Rights and Constitution.
Does member of any Armed forces can approach the Supreme court or High court for enforcement of Fundamental Rights?
No, According to Article 33 of the constitution, member of armed forces cannot approach the Supreme Court or High court under Article 32 and Article 226 respectively. Article 33 empowers the parliament to restrict the fundamental Rights of the members of Armed and
Parliamentary forces. The idea behind inserting this provision is to oblige them to perform their duties and make discipline among them.
What is the doctrine of Compensatory Jurisprudence?
The doctrine of Compensatory Jurisprudence means compensating the victim for his loss or injury suffered. This doctrine was identified by the various Law commissions reports and many judgments of the court. This doctrine was prevalent in tort, criminal law, and Civil Law.
Does the Supreme Court have the power to grant compensation for violation of fundamental Rights under Article 32?
Yes, Scope of the Supreme court is wide under Article 32 to grant compensation to the victim for violation of his fundamental Rights1 In the case of the Rudul Shah vs. the State of Bihar2, Supreme court Court invented new doctrine called compensatory jurisprudence under Article 32. The court directed the State of Bihar to give compensation for illegally detaining the victim for the 14 years on a wrongful charge of the Murder.
Article 32 is a fundamental right which empowers the Supreme court to issue direction, order, and writs. Article 226 is the constitutional right which empowers High court to issue a direction, order, and writs for enforcement of fundamental rights and other legal rights. The writs in form of Habeas Corpus, Mandamus, Quo Warranto. Prohibition, Certiorari can be issued under Article 32 and Article 226. It is concluded that the scope of Article 226 is wide than the Article 32. Unlike 32, Article 226 cannot be suspended during the period of the emergency.
Here are some 7 important difference between Article 32 and Article 226
|It is for enforcement of Fundamental Rights only
|It is for enforcement of Fundamental Rights as well as other legal Rights
|Power of Supreme court to issue writs
|Power of High courts to issue writs
|Mandatory power to issue the writ is Mandatory
|Discretionary power to issue writs
|Scope is narrow
|Scope is Wide
|It is fundamental Right
|It is not a Fundamental Right
|Article 32 is suspended during the period of Emergency
|It cannot be suspended during emergency
|Territorial Jurisdiction is wide
|Territorial Jurisdiction is narrower than the Supreme Court.
1. M.C. Mehta vs. Union of India AIR 2003 SC 3469
2. (1983) 4 SCC 141
Symbiosis Law School, NOIDA