JURISDICTION UNDER ARTICLE 32 A COMPARISON WITH ARTICLE 226 Right to Constitutional Remedies INTRODUCTION In Daryao y, State of UP, (AIR 1961 SC 1457), the SC observed: “The Fundamental Rights are intended not only to protect individual’s rights, but they are based on high public policy liberty of the individual and protection of Fundamental Rights are the very essence of the democratic way of life adopted by the Constitution and it is the privilege and duty of the court to uphold those rights. This court would naturalh refuse to circumscribe them or to curtail them except as provided by Constitution itself.” However, a declaration of the Fundamental Right is meaningless unless there are effective judicial remedies for their enforcement. Article 32 is an important and integral part of the basic structure of the Constitution. A right without a remedy is a legal conundrum of a grotesque kind and this Article confers one of the highly cherished rights. It provides for the enforcement of the Fundamental Rights by means of the specified writ or writs of the same nature. The power conferred by this Article is the most potent weapon in the hand of our Supreme Court and that it is the duty of the Supreme Court to use it in a case properly coming under this Article. This Article empower the SC as a protector of fundamental rights and interference by the SC as the sentinel on the qué vive to protect substratum of fundamental rights, that is, polity based on the rule of law, and democracy which are necessary for fundamental rights as enumerated in Part III of the Constitution? Article 32 and 226 of the Constitution are meant to ensure observance of rule of law and prevent abuse ot misuse of power. They are designed to ensure that each and every authority in the State, including the Government, acts bona fide and within the * Kochunni v. State of Madras, AIR 1959 SC 725 (729) Rameshwar Prasad VI vs. Union of India (2006) 2 SCClimits of its power and its jurisdiction invoked, it is incumbent on the court to afford justice to the individual. > To appreciate the provisions of Article 32, it is necessary to know about Article 13. ‘These two Articles find place in the same Part III where Fundamental Rights have been guaranteed. Article 13 is applicable in Article 32 as well as Article 226. The jurisdiction enjoyed by court is very wide and while considering a petition for the enforcement of fundamental right, it can declare an Act to be ultra vires or beyond competence of the legislature. To invoke jurisdiction under this Article, it is not necessary that the person who is the victim of violation of fundamental right should personally approach the court as this court itself can take cognizance of the matter and proceed suo moto or on a petition of any public spirited individual. When violators or abettors of the violators are those who have been entrusted by law with a duty to protect these rights, the task becomes difficult and also requires urgent intervention by the Court, so that the rule of law is preserved and people may not lose faith in it, finding violation at the hands of supposed implementers. ‘The following are the fundamental considerations for invoking power under Article 32 by the SC:- i. To apply under Article 32, the presence of overt act and threatened act by the State is not essential. The enactment may immediately on its coming into force take away or abridge the Fundamental Rights by its very terms even without any further act being done. It is not necessary for the applicant to wait till there be some overt act. ii, Existence of adequate alternative remedy is not a bar to maintainability of an application under Article 32. iii, The court can embark upon an enquiry under Article 32 even if the question is acomplicated question of fact. iv. A relief in the form of declaration accompanied with the relief of injunction can be given if it be considered to be an appropriate relief. y. Ifa statute is ultra vires, it can be so declared and the SC can prohibit the enforcement of ultra vires statute infringing fundamental rights. Pratap Singh v. State of Punjab, AIR 1964 SC 72 “A.K. Gopalan v, State of Madras, AIR 1950 SC27°vi. A petition under Article 32 cannot be refused merely on the ground that wrong with has been prayed for or alternative remedy is available or it involves complicated question of fact. vii. Article 32 of the Constitution does not give the SC the appellate jurisdiction as envisaged in Article 132 and 136 of the Constitution. Right of access to Supreme Court under Article 32 is a fundamental right.* However, there is no obligation on the part of the SC to give any particular kind of remedy to a petitioner. What should be the appropriate remedy to be given to the petitioner for enforcement of his fundamental right sought to be vindicated by him is a matter for the court to decide under Article 32(2). It may be stated in brief that these remedies consist of what are now called in England ‘prerogative orders’, namely: Mandamus Prohibition Quo Warranto Certiorari Habeas Corpus In Chiranjit Lal Chowdhary v. Union of India (AIR 1951 SC 41), the SC observed: “Thus anybody who complains of infraction of any of the fundamental rights guaranteed by the Constitution, is at liberty to move the SC for the enforcement of such writ and this court has been given power to make orders or issue directions or writs similar to in the nature of prerogative writs in English Law as might be considered appropriate in particular cases. The phrase, “writ in the nature of habeas corpus, or mandamus, or certiorari” means that it is not strictly according to the English Law of Writs, but must be similar in nature.” The powers of the SC under Article 32 are plenary powers and are not fettered by any legal constraints. The Court's power is not only to issue appropriate writs, it can make any order including declaratory order or to give any direction as it may appear to be necessary to give proper relief to the aggrieved person. It can award compensation. When the court is satisfied that there is an abuse or misuse of power, the court can enquire into the truth of the allegations and grant appropriate relief to the aggrieved party. PRS TP * common Cause, a Registered Society v. UO! AIR 1996 SC 922ARTICLE 226 The Constitution of India, under Chapter V part 6, constituted High Courts as the apex court in the concerned State for the protection and safeguard of the fundamental as well as the legal rights of a person irrespective of the citizenship of the person. Article 226 of the Constitution empowers the Hon’ble High Courts to exercise power through issuance of writs — habeas corpus, mandamus, quo warranto, prohibition and certiorari or any appropriate writ. However, Article 323-A and 323-B of the Constitution has excluded the jurisdiction of the Hon’ble High Court with regard to the enlisted subject matters. Therefore. The exercise of the jurisdiction is discretionary in nature and subject to the availability and exhaustion of the alternative remedy by the Petitioner. ‘The Apex Court in Radha Krishan Industries v. State of Himachal Pradesh (2021 SCC OnLine SC 334), on placing reliance of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai [(1998) 8 SCC 1] has observed in the judgment as: “27. The principles of law which emerge are that: i. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. ii, The High Court ha the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective remedy is available to the aggrieved person. iii. Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution (b) there has been a violation of the principles of natural justice (c) the order or proceedings are wholly without jurisdiction (d) the vires of a legislation is challenged. iv. An alternate remedy by itself does not divest the High Court of its power under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law. v When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedyunder Article 226 of the Constitution. This rule of exhaustion of statutory remedy is a rule of policy, convenience and discretion; and vi, In cases where there are disputed questions of fact, the High Court may decide jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.” The aforesaid principles have been upheld by the Hon’ble Supreme Court in Seth Chand Ratan y. Pandit Durga Prasad (2003) 5 SCC 399], Babubhai Muljibhai Patel y, Nandlal Khodidas Barot {(1974) 2 SCC 706] and Rajasthan SEB v. Union of India ((2008) 5 SCC 632]. Therefore, the jurisdiction of the Hon’ ble High Courts are not completely ousted by the insertion of Article 323-A and 323-B of the Constitution of India, The jurisdiction of Hon’ble High Court as stated under clause (2) of Article 226, reads as: “(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.” Article 226 (1) of the Constitution of India, on the other hand says, “Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise 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 II and for any other purpose.” It is held in the case of Bandhua Mukti Morcha v. Union of India’ that the scope of Article 226 is much wider than Article 32 as it confers power to the High Court to issue orders, directions, and writs not only for the enforcement of fundamental rights but also for the enforcement of legal rights which are conferred to the disadvantaged by way of certain statutes and are as important as the fundamental right © 1984 AIR 802, 1984 SCR (2) 67Power U/A 226 itations to A. 32: There are certain circumstances during which ing citizens do not get the privileges which they ought to under Article 2; Therefore, the situations when the fundamental rights may be | ehied to the citizens but the constitutional remedies will not be | available ie. Article 32 will not be applicable: | Under Article 33, the Parliament is empowered to make changes | | in the application of Fundamental Rights to armed forces and | 27 [I] the police are empowered with the duty to ensure proper pnstititional = = redles: During the Operation of Martial Law in any area, any person may bee indemnified by the Parliament, if such person isin service of state or contral governiment for the acts of maintenance or restoration of law and order under Article 34, Under Article 352 of the Constitution when an emergency is proclaimed, the guaranteed Fundamental Rights of the citizen remains suspended. Also, Fundamental Rights guaranteed under Article 19 is restricted by the Parliament under Article 358 during pendency of an emergency Atticle 359 confers the power to the President to suspend Article 32 of the Constitution. The order is to be submitted to the Parliament and the Parliament may disapprove President's order. tcl 226 ||| Concept and Purpose: Enshrined under Part V of the Constitution of ||| india, Article 226 confers power to the High Courts to issue order, lirections and writs in the nature of Habeas Corpus, Mandamus, | | Gertiorari, Prohibition and Quo Warranto. s|per| Article 226(1), every High Court within the territory of India has Ing pdwer. to issue order, directions and writs to any individual or rutho; ‘ity including the Government for the enforcement of tek ental rights as well as other legal rights under its own local isdiction. fp 2 ATES i rticle 226(2) confers power to the High Courts to issue orders, directions and writs outside their local jurisdiction in the cases where it | |ie Jurisdiction under Article 32 in Comparison with High Court’s Power U/A 226 | the cause of actions lies wholly or in part within their local jurisdiction, | Article 226(2) confers the power to the High Courts to issue orders, | directions, and writs outside their own local jurisdiction in the case} where the cause of actions lies wholly or in part within their local jurisdiction. Article 226(3) states that when an interim order has been panel under il Article 226 by way of Injunction or stay against the respondent without: 1) Providing the copy of the petition and evidential document to the respondent. 1 2) Giving an opportunity of being heard. ‘Then, if the respondent moves to the High Court to cancel the interim order and provides a copy of such petition to the petitioner, then, the ( High Court shall decide the application within a period of two weeks of receiving such application or within the period of two weeks from th date on which the other party received such application, whichever is later. T ' As per Article 226(4), the power conferred to the High Courts under Article 226 is not in derogation to the powers conferred to the Supreme Court under Article 32(2). | NATURE OF WRITS : | The nature of Writ Jurisdiction provided under this Article! ij discretionary. There are five important factors for guiding this discretion. Factors Guiding the Discretion | Meaning Lely 1, Locus Standi Right to bring an action orlto be] heard before a court 2. Alternative Relief Remedies sought in a lawsuit fi various or alternative forms 3. Res judicata ‘A case that has been decided 4. Questions of the Fact An issue that involves resolutioi of a factual dispute or controvens 5. Laches A defence to an equitable action that bars recovery by the plaintifiI ae | __ | Jurisdiction under Article 32 in Comparison with High Court’s i Power U/A 226 because of the plaintiff's undue _delay in seeking relief. ‘ypes of Writs Certiorari q Prohibition > 1 J I | i 1, Habeas Corpus aning:It is one of the important writs for personal liberty which says y ju have the Body". The main purpose of this writ is to seek relief from ih¢ unlawful detention of an individual. It is for the protection of the iipdividual from being harmed by the administrative system and it is for guarding the freedom of the individual against arbitrary state action ich | violates fundamental rights under articles 19, 21 & 22 of the ‘onstitution. This writ provides immediate relief in case of unlawful letention. | | { When issued: Writ of Habeas Corpus is issued if an individual is kept in jail or under a private care without any authority of law. A criminalay Jurisdiction under Article 32 in Comparison with High Court s Power U/A 226 | at} T has been wrongfully imprisoned and the conditions in which he who is convicted has the right to seek the assistance of the “hal b filing an application for "writ of Habeas Corpus" if he believes hy a been held falls below minimum legal standards for human treatmént. ‘The court issues an order against prison warden who is holding|an individual in custody in order to deliver that prisoner to the dour s| that a judge can decide whether or not the prisoner is lawfil imprisoned and if not then whether he should be released from custody. Important Judgements: ey ‘The first Habeas Corpus case of India was that in Kerala where it wa| filed by the victims' father as the victim P. Rajan who was a pollege student was arrested by the Kerala police and being unable to bear the torture he died in police custody. So, his father Mr T.V. Eachara ‘ artic filed a writ of Habeas Corpus and it was proved that he died in police custody. Then, in the case of ADM Jabalpur v. Shivakant Shukla (AIR 1976 u SC 1207] which is also known as the Habeas Corpus case, it was he that the writ of Habeas Corpus cannot be suspended even during th] emergency (Article 359). While deciding whether Habeas Corpus writs are civil or criminal ih nature, it was held in Narayan v. Ishwarlal [AIR 1965 SC 1818] thet the court would rely on the way of the procedures in which the local has been executed. ‘This writ has been extended to non-state authorities as well which is evident from two cases. One from the Queen Bench's case of 1898 off E Parte Daisy Hopkins in which the proctor of Cambridge University detained and arrested Hopkins without his jurisdiction and HoplinJurisdiction under Article 32 in Comparison with High Court’s Power U/A 226 ' réleased. And in the case of Somerset v. Stewart [1772 98 ER 9] wherein an African Slave whose master had moved to London was jreed by the action of the Writ. | 4 Quo Warranto | , Meaning: Writ of Quo Warranto implies thereby "By what means’, This | Writ is invoked in cases of public offices and it is issued to restrain | r sons from acting in public office to which he is not entitled to. Ithough the term ‘office' here is different from ‘seat’ in legislature but cif a writ of Quo Warranto can lie with respect to the post of Chief nister holding a office whereas a writ of quo warranto cannot be ed, against a Chief Minister, if the petitioner fails to show that the & hister is not properly appointed or that he is not qualified by law to old the office. H danhot be issued against an Administrator who is appointed by the government to manage Municipal Corporation, after its dissolution. Appointment to public office can be challenged by any person | irrespective of the fact whether his fundamental or any legal right has etn, iprnees or not. y Te issued: The court issues the Writ of Quo Warranto in the lowing cases: When the public office is in question and it is of a substantive nature, petition against a private corporation cannot be filed. |» ‘The office is created by the State or the Constitution. i \e The claim should be asserted on the office by the public servant i.e. respondent.Jurisdiction under Article 32 in Comparison with High Conrt’s Power U/A 226 Important Judgements: In the case of Ashok Pandey v. Mayawati [ADR 2007 SC 2259], the writ of Quo Warranto was refused against Ms — Mayawati (CM) and other ministers of her cabinet even though the, | if ‘then in the case of 6.D. Karkare v. T.L. Shevde (AIR 1952 Nay. 333}, the High Court of Nagpur observed that "In proceedings for a writ of qu | were Rajya Sabha members. warranto, the applicant does not seek to enforce any right of his as such nor does he complain of any non-performance of duty towards hi What is in question is the right of the non-applicant to hold the office | and an order that is passed is an order ousting him from that othe ‘The Writ of quo warranto was denied by the court in the dase df Jamalpur Arya Samaj v. Dr D. Ram [AIR 1954 Pat 297). the was denied on the ground that writ of quo warranto cannot lie against of substantive character. Whereas in the case of R.V. Speyer[1916 an office of a private nature. And also it is necessary that office must bj | | i ick | K.B 595] the word ‘substantive! was interpreted to mean a | independent to the title. Also in H.S. Verma v. T.N, Singh (1971 4) i SSC 616], the writ was refused as the appointment of a non-member of | Hl the state legislature as C.M. was found valid in view of Article 164(4) which allows such appointment for six months. 3. Mandamus Meaning: Writ of Mandamus means "We Command’ in Latin. This writ | is issued for the correct performance of mandatory and purel} ministerial duties and is issued by a superior court to a lower court or government officer. However, this writ cannot be issued against the President and the Governor. Its main purpose is to ensure that the |i, | \ | | Jurisdiction under Article 32 in Comparison with High Court's in aa] Power U/A 226 bo er$ or duties are not misused by the administration or the executive indi arte fulfilled duly. Also, it safeguards the public from the misuse of thority by the administrative bodies. The mandamus is "neither a writ of course nor @ writ of right but that it will be granted if the duty is in nature of public duty and it especially affects the right of an individual, provided there is no more appropriate remedy". fhe person applying for mandamus must be sure that he has the legal ight 4 compel the opponent to do or refrain from doing something. hen issued: There must rest a legal right of the applicant for the erformance of the legal duty. ‘he nature of the duty must be public the date of the petition, the right which is sought to be enforced must be subsisting. ‘he writ of Mandamus is not issued for anticipatory injury. When 'not issued: The courts are unwilling to issue writ of mandamus against high dignitaries like the President and the Governors. In the ase of S.P, Gupta v. Union of India (AIR 1982 SC 149}, judges were f the View that writ cannot be issued against the President of India for ing the number of judges in High Courts and filling vacancies. But in dvocates on Records Association v. Gujarat [(1993) 4 SCC 441], h¢ Supreme Court ruled that the judges’ issue is a justiciable issue and (propriate measures can be taken for that purpose including the suiarice of mandamus. But in C.@, Govindan v. State of Gujarat 1998) 7 SCC 625], it was refused by the court to issue the writ of indamus against the governor to approve the fixation of salaries of Ihe court staff by the Chief Justice of High Court under Article 229. Hence, it is submitted that the Governor or the President means theJurisdiction under Article 32 in Comparison with High Cot rts Power U/A 226 state or the Union and therefore issuance of mandamus cannot take ! place. | Important Judgements: | | In Rashid Ahmad v. Municipal Board [AIR 1952 Orissa 344i it wal held that in relation to Fundamental Rights the availability! df alternative remedy cannot be an absolute bar for the Issue of writ | though the fact may be taken into consideration. | ‘Then, in the case of Manjula Manjori v. \Director of Public | Instruction, the publisher of a book had applied for the writ) df mandamus against the Director of Public Instruction for the in¢lusiop of his book inthe list of books which were approved as. text-bookg in schools. But the writ was not allowed as the matter was completely | within the discretion of D.LP and he was not bound to approve the book. | | 4. Certiorari Meaning: Writ of Certiorari means to be certified. It is issued | ther is a wrongful exercise of the jurisdiction and the decision of the case ik | based on it. The writ can be moved to higher courts like the High Court or the Supreme Court by the affected parties. There are several ground Cc for the issue of Writ of Certiorari. Certiorari is not issued against, purely | administrative or ministerial orders and that it can only be jiss against judicial or quasi-judicial orders. When issued: It is issued to quasi-judicial or subordinate a act in the following ways: \ Either without any jurisdiction or in excess. | In violation of the principles of Natural Justice. || Jurisdiction under Article 32 in Comparison with High Court’s Power U/A 226 i In bppbsition to the procedure established by law. her¢ is an error in judgement on the face of it Writ of certiorari is issued after the passing of the order. | | Important Judgements: In Surya Dev Rai v. Ram Chander Rai & Ors., Appeal (civil) 1685 of 2004, the Court has explained the meaning, ambit and scope of the rit of Certiorari. Also, in this it was explained that Certiorari is always wailable against inferior courts and not against equal or higher court, , it cannot be issued by a High Court against any High Court or ehiches much less to the Supreme Court and any of its benches. then in the case of T.C. Basappa v. T. Nagappa & Anr. [1954 AIR (0}, it was held by the constitution bench that certiorari maybe and en¢rally granted when a court has acted ) without jurisdiction or (ii) in excess of its jurisdiction. in Hari Bishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233], the | Supreme Court said that "the court issuing certiorari to quash, | however, could not substitute its own decision on the merits or give tions to be complied with by the court or tribunal. Its work was lestructive, it simply wiped out the order passed without jurisdiction, indi left the matter there." | in Naresh S. Mirajkar v. State of Maharashtra [AIR 1967 SC 1}, it sdid that High Court's judicial orders are open to being corrected yy [certiorari and that writ is not available against the High Court.Jurisdiction under Article 32 in Comparison with High Court’s | Power U/A 226 | 5, Prohibition | Meaning: It is a writ directing a lower court to stop doing te in| which the law prohibits it from doing, Its main purpose is to prevent! aj inferior court from exceeding its jurisdiction or from acting contrary to! | the rules of Natural Justice. \ | i | When issued: It is issued to a lower or a subordinate court.by the | superior courts in order to refrain it from doing something whi¢h if i not supposed to do as per law, It is usually issued when the ale rts act in excess of their jurisdiction. Also, it can be issued if the court gets | outside its jurisdiction. And after the writ is issued, the lower bu i bound to stop its proceedings and should be issued before the lower | court passes an order. Prohibition is a writ of preventive nature. The | principle of this is ‘Prevention is better than cure’. Important Judgements: In case of East India Commercial Co. Ltd v. Collector of Customs (1962 AIR 1893), a writ of prohibition was passed directing an inferior ‘Tribunal prohibiting it from continuing with the proceeding on th ground that the proceeding is without or in excess of jurisdiction oF i contradiction with the laws of the land, statutes or otherwise. ‘Then in the case of Bengal Immunity Co. Ltd [AIR 1955 SC 661),the Supreme Court pointed out that where an inferior tribunal is shown t | have seized jurisdiction which does not belong to it than that |) consideration is irrelevant and the writ of Prohibition has to be isstiet as a right. lj tlComparison Between Article 32 & Article 226 [Basis of Difference | ———_—Article 32 E Article 226 It is a fundamental right It is onstitutional right It can suspended if an] It cannot be suspended even| emergency has been declared by the President at the time of an emergency) as laid down under the) Constitution It has a narrow scope as it is applicable only Violation ofa fundamental right. However, when it comes to} granting compensation to the| victim, the scope of the SC is| wider under Article 32 than that] of the HC under Article 226 as| in the case of Rudul Shah vs, State of Bihar [(1983) 4 SCO 141}, the SC invented new) doctrine called compensatory| jurisprudence under Article 32. in case of It has a wider scope as it is applicable not only in the! case of violation of fundamental right but also of a legal right. Discretion This empowers the SC to issue| writ all over India. Therefore the SC has a wider territorial} jurisdiction Election Commission v. Sakka Venkata Rao 1953 SCR 1144 This empowers the HC to issue a writ in its own} jurisdiction only. Therefore, this has a narrower} territorial jurisdiction. Khajoor Singh v. Union 9 India AIR 1971 SC 532 Since Article 32 is alArticle 226 confer fundamental right, it cannot be refused by the Supreme Court discretionary power to the) HC which means it as thel discretion of the HC to issue} _|awrit under Article 226*Article 32 has more power than Article 226 and can supersede the order passed by the HC under Article 226 of the Constitution. However, in Daryao and others v. State of Uttar Pradesh (supra), the court decided that the rule of res judicata was not a mere_technical_rule but was based _on sound policy, the binding character of judgments pronounced by courts of competent jurisdiction was itself an essential part which is the ultimate motive of the very existence of the constitution: * The SC 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 acts of the case.