ACADEMIC YEAR 2021-22

DEPARTMENT OF LAW
SCHOOL OF LEGAL STUDIES

ASSIGNMENT ON: SCOPE OF ARTICLE 32 & 226

NAME: ZEESHAN TAMANNA

Er. No. :2007CUKmr45
SUBJECT: CONSTITUTIONAL LAWS
COURSE: BA.LLB SEMESTER: 4TH
SUBMITTED TO:Prof.DR.YUSUF AHMAD DAR
DATE:19th JULY,2022

I.INTRODUCTION
The apex court has time and again averred that the liberty of an individual to
exercise his fundamental rights and the protection of those fundamental rights by
the judiciary is the very spirit of the democratic way of life as all the rights in all
the constitutions across the world are unintelligible unless there are adequate
safeguards to ensure enforcement of such rights. The court as the ‘sentinel on the
quiver’ has the duty imposed on it by the holy book of the land, the constitution
of the country to protect the fundamental rights of the citizens as the breach of
the basic fundamental rights by the state cannot in any way be excused.
In the case of Basheshwar Nath v. Commissioner, Income Tax, the court held that
“A large majority of people are socially poor educationally backward and
politically yet not conscious of their rights, cannot be pitted against the state or
the institution or they cannot be put on equal status with the state or large
organisations. The people are required to be protected from themselves. It is
therefore the duty of the court to protect their rights and interests.
Fundamental rights are therefore transcendental in nature and created and
enacted in national and public interest and therefore they cannot be
waived.”Article 32 or the ‘heart and soul of the constitution, as called by BR
Ambedkar provides a guarantee and is itself a fundamental right to move to the
supreme court for the enforcement of the fundamental rights.
Article 226 on the other hand, provides the right to the high court to issue writs
not only in case of infringement of fundamental rights but also for the
enforcement of other rights as well. Both article 32 and article 226 are similar in a
way that they both issue writs which is an instrument or order of the Court by
which the Court (Supreme Court or High Courts) directs an Individual or official to
do or to abstain from doing something but both the articles are very different
when it comes to their scope, jurisdiction and power.

II.UNDERSTANDING ARTICLE 32
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 because it gives
rights to people to move Supreme court directly for enforcement of their
fundamental rights

III.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.

IV.UNDERSTANDING ARTICLE 226

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

 withina 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)

V.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.

VI.WRITS UNDER ARTICLE 32 & 226

1.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.

By the adoption of the 42nd amendment and with the judgement of Maneka
Gandhi v. Union of India, the scope of Habeas Corpus was increased.The Court
may also award exemplary damages as in Bhim Singh Vs State of Jammu &
Kashmir, the apex court awarded the exemplary damages to the detainee.

2.‌Mandamus- It is a Latin word, which means “We Command”. It is an order from

a superior Court which can be issued to the government, government officials,
public corporations, inferior courts and tribunals but cannot be imposed on
private persons. It cannot be claimed as a matter of right as it comes under the
discretionary power of a court. Its main purpose is to keep the government
officials in check for the proper functioning of the government machinery.

3. 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.

4.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.

5.The writ of the Prohibition is issued to the lower courts or tribunals when:

i. act contravene to rule of natural justice

ii. 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.

VII.DISTINCTION BETWEEN ART 32 & 226

i. 32 deals with the power of the Supreme Court to issue writs
whereas article 226 deals with the power of high courts to issue
writs.

ii.Article 32 is itself a fundamental right (right to constitutional

remedies) as it falls under part III of the constitution whereas
article 226 fall under part V of the constitution and is not a
fundamental right. Say for example, in Darya and others v. State
of Uttar Pradesh, it was held that Article 32 is not merely a
fundamental right of a citizen but also the duty of the supreme
court to protect those fundamental rights. As Article 32 is a
fundamental right which is substantive in nature and not merely
procedural, it’s not needed to file an application before the High
Court before approaching the Supreme Court under Article 32.

iii.Article 32 only be used for the enforcement of fundamental rights

whereas article 226 has a wider scope and can be used for the
enforcement of fundamental rights and other legal rights as well but
when it comes to granting compensation to the victim, the scope of
the supreme court is wider under article 32 than that of the high
court under article 226 as in the case of the Rudul Shah vs. The
State of Bihar, Supreme court invented new doctrine called
compensatory jurisprudence under Article 32 and compensated the
detainee for being in detention for 14 years on a wrongful charge of
the Murder.

iv.Article 32 can be suspended as all the fundamental rights except

for articles 21 and 22 can be suspended during an emergency
whereas article 226 cannot be suspended even during an
emergency

V.The territorial jurisdiction of article 32 is much wider than that of

article 226 as in the case of Election Commission v. Saka
Venkata Rao and Khajoor Singh v. Union of India, it was held
that the high court could issue writs only to the authority if it is
located in the jurisdiction of the said high court.

vi. 32 has more power than article 226 and can supersede the order
passed by the High Court under Article 226 of the Constitution.
However, in Daryao and others v. State of Uttar Pradesh, the
court decided that the rule of res judicata was not a mere technical
rule but was based on sound public policy, the binding character of
judgments pronounced by courts of competent jurisdiction was itself
an essential part of the rule of law and the rule of law was the basis
of the administration of justice which is the ultimate motive of the
very existence of the constitution

vii.The supreme court under article 32 has a mandatory duty to

issue writs as it is regarded as guarantor and protector of the
fundamental rights of the people whereas the high court has
discretionary power in deciding whether to issue writs or not
depending upon the facts of the case. Say for example, in Collector
of Central Excise v. Dunlop India Ltd, the Supreme Court held
that Article 226 is not meant to short-circuit or circumvent statutory
procedures.

But both articles also have some similarities between them that are

i.Both Article 32 and 226 is invoked for the enforcement of

Fundamental Rights

ii.Both the Supreme court and High court has the power to issue
writs under Article 32 and Article 226 respectively.
VIII. 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.