Article 226 of Indian Constitution - Analysis and Interpretation

7/2/22, 8:02 AM Article 226 of Indian Constitution – Analysis And Interpretation
Article 226 of Indian

Constitution – Analysis And
Interpretation
Introduction:
At times, the judicial functions of the Indian courts could merely
construe as an arbitrator in settling down the fait
accompli disputes arisen between the individuals or groups and
the government. Purportedly, the awarded decision of the same is
binding to all. However, the perceptions of an incognizant layman
shall not limit the enhanced role of the judiciary in ensuring the
wellbeing of the people by exercising the rule of law notion. As
being the justice administrator, which checks and balances the
functions of legislative and executive operations, it is considered
to be the backbone of the government. Since the judiciary is the
only governmental organ, which is meant to be a guardian of the
Indian constitution, it has sceptered to act independently without
any political coercion. Irrefutably, the judiciary is part of a
democratic political structure; thereby, it is accountable to the
constitution, democratic notions, and the people, but lucidly no
other governmental organs can interfere in its decisions.
Indian citizens are bestowed with certain fundamental rights,

which have been classified into six broad categories and dealt
with under part III of the Indian constitution. These fundamental
rights are guaranteed to every single citizen of India to ensure
harmony and peace throughout the Indian Territory. But what if
their right got infringed or have not enforced; where do they claim
the right? Indian constitution directs them to approach either
supreme or high courts by filing a writ petition for the
enforcement of the fundamental rights. Thus, both the Supreme
Court and the high court are the defenders of fundamental
rights.
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Consequently, the upper courts should be granted with an

intrinsic power to maintain balance and to reach the objectives
laid down on the preamble. But then, from where these upper
courts could acquires authority to initiate actions against the
governmental bodies that violate a citizen’s rights and liberties?
It is not a res Integra question since Article 32 and Article 226 of
the Indian constitution endows supreme and the high court to
issue writ orders to enforce fundamental rights provided under
Part III (Article 12 to 35) of the Indian Constitution. In the words
of Dr. B. R. Ambedkar, Article 32 is ‘the heart and soul of the
constitution, as qua it is the ‘right to constitutional remedies,
which works as a guarantor of other constitutional rights.
Concerning the latter, it dealt with the high court’s power of
issuing writ orders for the purpose of enforcing the legal rights of
a person.
A brief outline of Article 226 of the

Indian constitution:
Clause (1) of this Article provides that, ‘Notwithstanding
anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercises
jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibitions, quo warranto, and
certiorari, or any of them, for the enforcement of any of the rights
conferred by Part III and for any other purpose’.
Thus, Article 226 of the Indian Constitution endowed the high
court with the power to issue the aforementioned orders and writs
to any individual or authority, inclusive of government so as to
effectuate the legal rights of each citizen.
What are these writs and how it has interpreted?
Habeas Corpus,
The classic definition of habeas corpus in the context of the

dictionary provides that, “it is a writ requiring a person to be
brought before a judge or court, especially for the investigation
of a restraint of the person’s liberty, used as a protection against
illegal imprisonment”. Primary, it is a Latin term that literally
means ‘Let us have the body’. Here, the court uses this writ to
figure out the illicit detention of a person and the authority by
which he has been detained. If the imprisonment has proven to be
illegal, then the court would order to release such detenue. Thus,
the object of this writ is to award immediate remedy to a person
who is illegally detained by another and kept under private
custody or in prison.
Case laws
One of the landmark judgments concerning the habeas corpus is
ADM Jabalpur v. Shivakant Shukla[1]case. In this case, it was
held that the habeas corpus is a writ that will not be waived even
in the emergency period.
In the case of State of Maharashtra v. Tasneem Rizwan Siddiquee,

[2] it was held that the petition of habeas corpus is not
maintainable if the detenue is under judicial custody as the result
of a remand order passed by the judicial magistrate.
It should be emphasized, that the default in producing the

arrested person before the magistrate within 24 hours will amount
to unlawful detention, and such person is entitled to release on
the writ of habeas corpus.
Mandamus,
The term implies ‘we command or the order’. In a nutshell, it is a

writ issued by an upper court to an inferior court or
administrative or quasi-judicial authority, which directs them to
discharge their duties and condemn their inactivity. In other
words, the writ of mandamus is an order by a superior court
commanding a person or a public authority (including the

government and public cooperation) to do or forbear to do
something in the nature of public duty or in certain cases of a
statutory duty.[3]
Case laws
In the case of Barada Kanta v. State of West Bengal,[4] it was
held that the writ of mandamus cannot be issued against a
private individual or any other private organization since they are
not engaged in any kind of public duty.
Similarly, in the cases of Bihar E.G.F. Cooperative society v. Sipahi

Singh[5]and Mrs. Santosh Singh v. Union of India,[6] the court
has elucidated the circumstance under which the writ of
mandamus will not lie. In the former case, it was held, the writ of
mandamus cannot be invoked for the enforcement of contractual
rights. Besides, in the latter case, the apex court held that the
writ of mandamus is not a panacea for all ills but only for
fundamental rights.
Prohibition,
The writ of prohibition alias stay order, issued to a lower court viz.
magistrate or tribunals to stop acting beyond its legal jurisdiction
or power. The writ of prohibition can be issued by a Supreme
Court or high court ordering the inactivity of a lower court in the
concerned matter in dispute if the contrast the rules of natural
justice.
Case laws
The case of East India Commercial Co v. Collector of Customs,[7]

wherein the court elucidated the definition of the writ of
prohibition as, it is a writ issued by a superior court to the
inferior court for the purpose of preventing inferior courts from
usurping a jurisdiction with which it was not legally vested, or in
other words to compel an inferior court to keep within limits of
jurisdiction.[8]
Certiorari,
The upper courts issue the writ of certiorari to nullify the

wrongful orders passed by any lower courts, tribunals, authority,
or quasi-judicial. The precise meaning of the term certiorari is ‘to
be certified’. The writ of certiorari is a curative and preventive
writ.
Writ of certiorari can be issued on the following grounds,
Functions exceeding the jurisdiction

Disregarding the principle of natural justice
An error of law but not the error of fact
Case laws
The State of UP v. Mohd Nooh,[9] is the case, in which the court
has held that the writ of certiorari will be issued with the purpose
of correcting the errors of jurisdiction committed by the body
performing judicial or quasi-judicial functions.
One of the core principles apropos issuing the writ of certiorari

was succinct in the T.C. Basappa v. T. Nagappa[10] case. It was
held that the writ can be availed of only to remove or to
adjudicate upon the validity of judicial acts. In other words, the
aforesaid writ can be issued when an inferior court or tribunal
acts either without its jurisdiction or beyond its jurisdiction.
Quo Warranto,
Latin for ‘by what warrant or authority?’ is Quo Warranto. This

writ is used to challenge any person’s right to hold the public
office or authority that he has no valid title to hold. Withal, it
prohibits the unauthorized person to act in a public office. The
object of this writ is to prevent the unauthorized person from
holding the office to which he is not legally entitled to control the
position. The primary grounds on which this writ can be invoked,
The office in dispute needs to be a public office,
The holder of that office is a private person without legal

authority
Case laws
In the case of Jamalpur Arya Samaj v. Dr. D. Ram,[11] the Patna
high court has denied issuing the writ of quo warranto against the
member of the private association.
Even though the petitioner of quo warranto lacks the legal

interest in the disputed public office, he has the title to challenge
the right of a person holding the public office as qua a member of
the public. The same was held in the case of G.D. Karkare v.
Shevde.[12]
Scope of Article 226 of Indian Constitution:

Concerning the scope of Article 226, it was discussed in the case
of T.C. Basappa v. Nagappa,[13] wherein the Apex court held that
the said article was framed in a comprehensive phraseology for
the purpose of conferring a wide power on the High court to
rectify and remedy the injustice, whenever it is found. Indubitably,
the scope of Article 226 is much broader than Article 32 of the
Indian constitution.
It was reaffirmed in the case of Bandhua Mukti Morcha v. Union

of India[14] that all the high courts could exercise its power
granted by Article 226 for not only the enforcement of
fundamental rights but all other legal of a citizen as well.
Underlying principles of Article 226:

Reiterating clause (1) of Article 226, which empowers the high
court to issue writ orders for the enforcement of constitutional
rights guaranteed to the citizens. The writs mentioned under
Article 226 are known as prerogative writs since they had their
origin from the prerequisite power of the supervisory authority
over its inferior courts or officers. Back then, these writs were
used by the British judiciary to uphold the rights and liberties of
the people. Presently, this Article confers the high court with the
power to issue prerogative writs within its jurisdiction.
It is widely acknowledged that Article 32 of the constitution vests

the Supreme Court with the power to enforce fundamental rights
by issuing writs. Per contra, Article 226 of the Indian Constitution
has not limited the jurisdiction of high courts only to the
protection of but also it empowers all high courts to safeguard
other legal rights of a person as well. The wording “ for any other
purpose” in the context of Article 226 refers to the enforcement
of all other legal rights or duties, thus high courts are not
confined to uphold only the fundamental rights guaranteed by the
Indian constitution. But, it is noteworthy that, it does not mean
that a high court can issue writs for any purposes it pleases.
[15] Article 226 enables a high court to award relief to the
aggrieved parties by examining the actions of administrators and
the executive officials.
The subsequent Clause (2) of Article 226 permits a high court to

perform the power conferred by clause (1) even outside its local
jurisdiction, if that’s the case, where the cause of action has
taken place wholly or partly within its local jurisdiction.
Interim relief:
Clause (3) of Article 226 was added by the Constitution (44th
amendment) Act, 1978, embedded with the regulatory procedure,
which provided for the governance of interim orders that the high
court can issue. It has provided in this clause that, if an interim
order was issued against an ex parte without,
Providing them with copies of such petition and

supportive evidential documents, or
Offering the party with an opportunity of being heard,
And, if the concerned party moves to the high court with an

application for cancellation of such interim order, then the high
court is bound to dispose of the application within 2 weeks. But,
any default in the disposal of the same within the prescribed

period will lead to the vacation of such order.
Locus Standi,
Since olden times, the person whose constitutional right has
infringed can move the high court under Article 226 for relief and
enforcement. But the status quo scenario is that the Apex court
has widened the scope of the principle Locus Standi by permitting
any public-spirited person to file a writ petition on behalf of the
aggrieved party claiming the enforcement of their statutory
rights.
The latest clause (4) of Article 226 provides that, the power

conferred on a High Court by this article shall not be in
derogation of the power conferred on the Supreme court by
clause (2) of Article 32.
Notable judgments:
In the case of L. Chandra Kumar v. Union of India,[16] the Apex
Court has held that the invested power on the high court in the
matters of judicial review of legislative action by Article 226 is
the cornerstone of the Indian constitution and the same cannot
be ousted by the mean of constitutional amendments.
The same was upheld in the case of Sangram Singh v. Election

Tribunal[17] as; the high court’s vested power of judicial review
cannot be abridged even by the amendment.
In the State of W.B v. Ashutosh Lahiri case,[18] it was held that,

since the petitioner has belonged to the Hindu community, he has
locus standi to file a writ petition under Article 226 seeking the
protection of religious sentiments of the community.
The case of Burmah Construction Co v. State of Orissa,[19] in

which it has been held that the high court will not go into the
disputed questions of facts in the exercise of its writ-jurisdiction.
[20]
Conclusion:
Comprehensibly, Article 226 of the Indian constitution is one of
the key provisions, which has been enacted with the object to
protect the legal rights of a person and award remedies to the
aggrieved party. Thus, this Article empowers a person to move an
application before the high court for the enforcement of their
legal right. Unlike Article 32, it is a constitutional right and
cannot be suspended even at the time of emergency. High courts
have comparatively narrow jurisdiction over the Supreme Court.
Since the invested power is discretionary in nature, the high court
decides whether to issue a writ or not for the particular fact in
issue.
References:
https://indiankanoon.org/doc/1712542/
https://blog.ipleaders.in/difference-article-32-article-
226/#:~:text=Enshrined%20under%20Part%20V%20of
,%2C%20Prohibition%2C%20and%20Quo%20Warranto.
https://vakilsearch.com/advice/writ-petition-india-filing-
drafting/
[1] 1976 AIR 1207.
[2] AIR 2018 SC 4167.
[3] A. T. Markose, judicial control of Administrative Action in

India.
[4] AIR 1963 Cal. 161.
[5] AIR 1977 SC 2149.
[6] AIR 2016 SC 3456.
[7] AIR 1967 SC 18893.
[8] Id at 7.
[9] AIR 1958 SC 86.
[10] AIR 1954 SC 440.
[11] AIR 1954 Pat. 297.
[12] AIR 1952 Nag. 330.
[13] AIR 1954 SC 440.
[14] 1984 AIR 802, 1984 SCR (2) 67.
[15] .K Tope, constitutional Law of India, (1982 Edn).
[16] AIR 1997 SC 1125.
[17] AIR 1955 SC 425.
[18] (1995) 1 SCC 189.
[19] AIR 1962 SC 1320
[20] Id at 19.
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7/2/22, 8:02 AM Article 226 of Indian Constitution – Analysis And Interpretation

Article 226 of Indian

Indian citizens are bestowed with certain fundamental rights,

Consequently, the upper courts should be granted with an

A brief outline of Article 226 of the

What are these writs and how it has interpreted?

The classic definition of habeas corpus in the context of the

In the case of State of Maharashtra v. Tasneem Rizwan Siddiquee,

It should be emphasized, that the default in producing the

The term implies ‘we command or the order’. In a nutshell, it is a

commanding a person or a public authority (including the

Similarly, in the cases of Bihar E.G.F. Cooperative society v. Sipahi

The case of East India Commercial Co v. Collector of Customs,[7]

The upper courts issue the writ of certiorari to nullify the

Writ of certiorari can be issued on the following grounds,

Functions exceeding the jurisdiction

One of the core principles apropos issuing the writ of certiorari

Latin for ‘by what warrant or authority?’ is Quo Warranto. This

The office in dispute needs to be a public office,

The holder of that office is a private person without legal

Even though the petitioner of quo warranto lacks the legal

Scope of Article 226 of Indian Constitution:

It was reaffirmed in the case of Bandhua Mukti Morcha v. Union

Underlying principles of Article 226:

It is widely acknowledged that Article 32 of the constitution vests

The subsequent Clause (2) of Article 226 permits a high court to

Providing them with copies of such petition and

And, if the concerned party moves to the high court with an

any default in the disposal of the same within the prescribed

The latest clause (4) of Article 226 provides that, the power

The same was upheld in the case of Sangram Singh v. Election

In the State of W.B v. Ashutosh Lahiri case,[18] it was held that,

The case of Burmah Construction Co v. State of Orissa,[19] in

[1] 1976 AIR 1207.

[2] AIR 2018 SC 4167.

[3] A. T. Markose, judicial control of Administrative Action in

[4] AIR 1963 Cal. 161.

[5] AIR 1977 SC 2149.

[6] AIR 2016 SC 3456.

[7] AIR 1967 SC 18893.

[9] AIR 1958 SC 86.

[10] AIR 1954 SC 440.

[11] AIR 1954 Pat. 297.

[12] AIR 1952 Nag. 330.

[13] AIR 1954 SC 440.

[14] 1984 AIR 802, 1984 SCR (2) 67.

[15] .K Tope, constitutional Law of India, (1982 Edn).

[16] AIR 1997 SC 1125.

[17] AIR 1955 SC 425.

[18] (1995) 1 SCC 189.

[19] AIR 1962 SC 1320

[20] Id at 19.

Note – The information contained in this post is for general

Interested to publish your article on our website? Click Here to

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