Symbiosis Law School Constitutional Law

I Year BB.A., LL. B (Div.-B) – Semester-II (2023)

1st -Internal Assessment – Constitutional Law

Topic

How effective are Article 32 and Article 226 in protecting the rights of
marginalised communities, such as women, Dalits, and religious mi-
norities, and what challenges do these communities face in accessing
these provisions?

NAME: Arnav Kashyap

DIVISION: B

PRN: 22010126166

COURSE: BBA LL.B. (H)

No. Of Words - 3233

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Abstract
This research question examines the effectiveness of Article 32 and Article 226 in protecting the
rights of marginalised communities in India, particularly women, Dalits, and religious minorities.
The study will critically analyse the literature on this topic and examine case laws that illustrate the
role of these constitutional provisions in promoting social justice. Additionally, the research will ex-
plore the challenges marginalised communities face in accessing these provisions, including barriers
such as poverty, lack of education, and systemic discrimination. By providing a comprehensive
analysis of this topic, the study will contribute to a deeper understanding of the role of the Indian ju-
diciary in promoting social justice and protecting the rights of marginalised communities.

Keywords - Article, Rights, Communities, Justice, Marginalised, Constitution, Judiciary, Funda-

mental, Challenges.

Introduction

The protection of fundamental rights is a cornerstone of India's democratic system, and the Consti-
tution of India enshrines the rights of all citizens to equality, freedom, and justice. Despite the con -
stitutional guarantees, marginalised communities in India have historically faced discrimination and
have been denied their fundamental rights. To address this, the Indian Constitution includes provi-
sions such as Article 32 and Article 226, which have been used to enforce fundamental rights and
hold the government accountable.
Article 32 gives citizens the right to move the Supreme Court of India to enforce fundamental
rights. In contrast, Article 226 empowers High Courts to issue writs to enforce fundamental rights
and other purposes. These provisions have been critical in protecting the rights of marginalised
communities in India. For instance, Article 32 has been used to challenge discriminatory laws and
practices, such as the practice of untouchability. In contrast, Article 226 has been used to challenge
the violation of environmental rights and protect women's rights.
Despite the potential of these provisions to promote social justice, marginalised communities in In-
dia continue to face barriers to accessing justice. Poverty, lack of education, and systemic discrimi-
nation prevent marginalised communities from accessing legal aid and using Articles 32 and 226 to
enforce their rights. In addition, the judiciary's interpretation and implementation of these provi-
sions have also been criticised, with some arguing that the judiciary's approach needs to be ex-
panded and address the concerns of marginalised communities adequately.
Given the importance of protecting the fundamental rights of all citizens, the effectiveness of Arti-
cle 32 and Article 226 in protecting the rights of marginalised communities is a critical area of re -
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search. This study aims to provide a comprehensive analysis of this topic by examining how Article
32 and Article 226 have been used to protect the rights of marginalised communities, the challenges
faced by these communities in accessing these provisions, and the implications of the judiciary's in-
terpretation and implementation of these provisions. Through this analysis, the study aims to con-
tribute to a deeper understanding of the role of the Indian court in promoting social justice and pro-
tecting the rights of marginalised communities.
Article 32 and Article 226 of the Indian Constitution are often referred to as the heart and soul of
the Constitution because they play a crucial role in protecting individual rights and upholding the
rule of law.
Article 32 provides the right to constitutional remedies, which is essential for ensuring that the fun-
damental rights guaranteed by the Constitution are not just theoretical but are also enforceable and
actionable. This provision is a cornerstone of the Indian Constitution, and its inclusion reflects the
framers' commitment to protecting individual rights and ensuring the accountability of government
officials.
Similarly, Article 226 gives the High Courts the power to issue writs, orders, and directions for en -
forcing fundamental rights and promoting the rule of law. This provision is crucial for ensuring that
government officials and institutions are held accountable for their actions and that citizens are pro -
tected from abuse of power. The High Courts act as the guardians of the Constitution and play a
crucial role in upholding the rule of law and protecting individual rights.
Together, Articles 32 and 226 are the foundation of the Indian Constitution, and they embody the
values and principles that are essential for a democratic society. They reflect the framers' belief in
protecting individual rights and ensuring that government officials and institutions are accountable
to the people. In this sense, Article 32 and Article 226 are the heart and soul of the Constitution,
representing the very essence of what it means to be a democratic society.

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Literature Review

A literature review is a critical and systematic analysis of the available literature or published re -
search on a specific topic or research question. It involves identifying, evaluating, and synthesising
relevant sources to overview existing knowledge on a particular subject comprehensively.
A literature review aims to identify gaps in current research, highlight areas of consensus or dis -
agreement, and suggest areas for future research. A literature review is a crucial component of any
research project.

Baxi, U. (1986). "The Constitution as a Site of Struggle." Journal of Law and Society, 13(1), 3-
27.
Baxi's article offers a critical perspective on the Indian Constitution, emphasising its limitations and
contradictions. In his discussion of Article 32, he argues that while this provision is an essential
means of protecting fundamental rights, it is often limited by dominant groups' political and eco-
nomic power and may need to be more effective in addressing structural inequalities.
Overall, these publications provide a range of perspectives on Article 32 of the Indian Constitution,
highlighting its importance as a safeguard for individual liberty and social justice, as well as its lim-
itations and challenges.1

Reddy, D.R. (2008). "Article 226 of the Constitution of India: A Study." Indian Bar Review,
35(2), 1-10.
Reddy's article provides a detailed study of Article 226, focusing on its historical and legal context
and practical implications. He notes that this provision is vital for ensuring government officials' ac-
countability and emphasises the judiciary's role in protecting citizens' rights and interests. 2

Kumar, S. (2010). "The Scope of Article 226 of the Indian Constitution." Journal of Indian
Law and Society, 1(1), 43-57.
Kumar's article examines the scope of Article 226, with a particular focus on the power of the High
Courts to issue writs. He argues that this provision is essential for protecting citizens' rights and en-
suring the accountability of government officials and emphasises the importance of an independent
judiciary in upholding the rule of law.3

1 Baxi, U. (1986). "The Constitution as a Site of Struggle." Journal of Law and Society, 13(1), 3-27.
2 Reddy, D.R. (2008). "Article 226 of the Constitution of India: A Study." Indian Bar Review, 35(2), 1-10.
3 Kumar, S. (2010). "The Scope of Article 226 of the Indian Constitution." Journal of Indian Law and Society, 1(1), 43-
57.
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4
This article discusses the role of public interest litigation in protecting the rights of marginalised
communities in India. The author argues that public interest litigation is a powerful tool for holding
the state accountable and promoting social justice.

"The Role of the Indian Judiciary in Protecting the Rights of Marginalised Communities" by
Ronojoy Sen, published in the Journal of Commonwealth and Comparative Politics in 2018.
This article analyses the role of the Indian judiciary in protecting the rights of marginalised commu-
nities. The author argues that the Indian court has been an essential ally of marginalised communi-
ties but that there is a need for further reforms to address systemic issues of discrimination and in-
equality.5

The Indian Constitution provides fundamental rights to all citizens irrespective of their caste, gen-
der, religion, or social status. However, these rights have often been denied or violated, particularly
for marginalised communities such as women, Dalits, and religious minorities. Articles 32 and 226
of the Constitution give individuals the right to approach the Supreme Court and High Courts to en-
force these fundamental rights.
Studies have shown that while Articles 32 and 226 are essential for protecting individual rights,
marginalised communities face significant challenges accessing these provisions. For example, in
the case of women, the patriarchal social structure often limits their access to legal remedies. Simi-
larly, Dalits and religious minorities face discrimination and violence, making it difficult to access
justice. Moreover, the lack of awareness of legal rights and remedies and financial barriers to legal
services further restrict their access to justice.

The literature on the effectiveness of Article 32 and Article 226 in protecting the rights of
marginalised communities in India is extensive. However, there are still some research gaps that
need to be addressed. Here are some of the critical areas where research gaps exist:

Intersectionality: While there has been some research on how Article 32 and Article 226 impact
specific marginalised communities such as women, Dalits, and religious minorities, there is a need
for more research on the intersectional experiences of marginalised communities. This includes how
the intersection of factors such as caste, gender, religion, and class impact the effectiveness of these
provisions.
4 "The Role of Public Interest Litigation in Protecting the Rights of Marginalised Communities in India" by Rajat Ku-
mar Gupta, published in the Journal of Indian Law and Society in 2019.
5 "The Role of the Indian Judiciary in Protecting the Rights of Marginalised Communities" by Ronojoy Sen, published
in the Journal of Commonwealth and Comparative Politics in 2018.
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Implementation: While there is a wealth of case law on how Article 32 and Article 226 have been
used to protect the rights of marginalised communities, there needs to be more research on imple -
menting these provisions at the grassroots level. This includes understanding the barriers
marginalised communities face in accessing legal aid services, the role of non-governmental organi-
sations in facilitating access to justice, and the effectiveness of alternative dispute resolution mecha-
nisms.
Empirical research: While many studies have examined the impact of Article 32 and Article 226
on marginalised communities through legal analysis and case studies, there is a need for more em-
pirical research that measures the outcomes of these provisions. This includes understanding the im-
pact of legal interventions on marginalised communities' lives, such as improving living standards
and access to resources.
Comparative analysis: While there have been some comparative analyses of the effectiveness of
Article 32 and Article 226 in protecting the rights of marginalised communities, there is a need for
more comparative research that examines the impact of similar provisions in other countries. This
would help identify best practices and strategies for improving access to justice for marginalised
communities in India.
Addressing these research gaps would contribute to a more nuanced understanding of the effective-
ness of Article 32 and Article 226 in protecting the rights of marginalised communities. It would
help identify strategies for improving access to justice for these communities.

Relevant Case Laws

State of Gujarat v. Hon'ble High Court of Gujarat

In this case, the Supreme Court reaffirmed the importance of Article 226 in protecting individual
rights and ensuring access to justice. The Court held that the power of the High Court to issue writs
under Article 226 is a fundamental feature of the Indian Constitution and should be used to protect
individual rights.6

Vishakha and Others v. State of Rajasthan and Others

In this landmark case, the Supreme Court held that sexual harassment of women in the workplace
violates their fundamental right to equality and dignity. The Court invoked Article 32 to issue
guidelines for preventing sexual harassment in the workplace, highlighting the importance of using
constitutional provisions to protect the rights of marginalised communities.7

6 State of Gujarat v. Hon'ble High Court of Gujarat, (1998) 7 SCC 323.

7 Vishakha and Others v. State of Rajasthan and Others, (1997) 6 SCC 241.
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Olga Tellis v. Bombay Municipal Corporation

In this landmark case, the Supreme Court held that the right to livelihood is a fundamental right un -
der the Indian Constitution. The Court invoked Articles 21 (right to life and personal liberty) and 32
to protect the rights of pavement dwellers facing eviction by the Bombay Municipal Corporation.
The Court held that the state had a duty to provide alternative accommodation to the evicted persons
and that the right to livelihood cannot be taken away without due process of law.8

ADM Jabalpur v. Shiv Kant Shukla

This landmark case dealt with the relationship between Article 226 and Article 32. The Supreme
Court held that during the emergency period, the right to move the courts to enforce fundamental
rights under Article 32 was suspended. However, the Court clarified that the High Courts still had
the power to issue writs under Article 226.9

8 Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.

9 ADM Jabalpur v. Shiv Kant Shukla, AIR 1976 SC 1207.
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Critical Analysis

With Articles 32 and 226, marginalised communities often face significant obstacles in accessing
justice. These challenges stem from both structural and cultural factors. Structural factors, such as
the lack of adequate legal aid, resources, and infrastructure, can limit the effectiveness of legal
remedies. Cultural factors, such as discrimination and bias, can also prevent individuals from
marginalised communities from seeking justice.
Moreover, while the judiciary has played an essential role in protecting individual rights, it has also
been criticised for its limited ability to address systemic issues of discrimination and inequality. The
judiciary must be more expansive in enforcing its decisions and ensuring compliance, particularly in
cases involving powerful interests. Additionally, the judicial process can be slow and costly, dis-
couraging marginalised communities from pursuing legal remedies.
To address these challenges, scholars have called for legal reforms that strengthen the accessibility
and affordability of justice for marginalised communities. This includes increasing legal aid and re-
sources, improving the quality of legal education and training, and addressing cultural factors that
prevent marginalised communities from accessing justice. Additionally, there is a need for greater
collaboration between civil society organisations and the judiciary to address systemic issues of dis-
crimination and inequality.

Article 32 of the Indian Constitution is a fundamental right that allows citizens to move the
Supreme Court to enforce their basic rights. Similarly, Article 226 will enable individuals to move
to High Courts to enforce their fundamental rights. These provisions are crucial for protecting the
rights of marginalised communities who are often denied access to justice due to social, economic,
and political barriers.
However, the effectiveness of these provisions in protecting the rights of marginalised communities
has been hindered by several challenges. One of the primary challenges is the need for more aware -
ness and education about fundamental rights and the use of Article 32 and Article 226 as mecha-
nisms for enforcing these rights. Marginalised communities often need more knowledge and re-
sources to navigate the complex legal system and execute their fundamental rights.
The lack of awareness and education about basic rights and legal mechanisms for enforcing them,
coupled with poverty and systemic biases within the judiciary, has made it difficult for marginalised
communities to access justice through Article 32 and Article 226. As a result, these provisions have
not been as effective in protecting the rights of marginalised communities as they should be.
There have been notable cases where Article 32 and Article 226 have effectively protected the
rights of marginalised communities. However, these cases are often the exception rather than the
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rule, and there is a need for more excellent research to identify effective strategies for overcoming
the challenges marginalised communities face in accessing justice through these provisions.
Another challenge marginalised communities face poverty, which prevents many individuals from
accessing justice. Legal representation and court fees are often prohibitively expensive for
marginalised communities, leaving them with no choice but to forego their rights.

Article 32:
Article 32 of the Indian Constitution is often hailed as a crucial safeguard for individual liberty and
social justice. Its provision for the right to move the Supreme Court to enforce fundamental rights
has been invoked in numerous cases, from environmental protection to labour rights. This provision
is essential for ensuring that the rights enshrined in the Constitution are not just empty promises but
are enforceable and actionable.
However, Article 32 also faces significant challenges and limitations despite its importance. One of
the most pressing challenges is the institutional and procedural barriers often preventing citizens
from accessing this provision. The Supreme Court, for example, may be reluctant to take up cases
that are politically sensitive or that involve powerful government officials or corporations. More-
over, the costs of pursuing legal action can be prohibitive for many citizens, particularly those
marginalised or impoverished.
Another limitation of Article 32 is that it may need to address structural inequalities or systemic
forms of injustice more effectively. While this provision can be a powerful tool for protecting indi-
vidual rights, it may not be able to address broader social and economic issues that require more
comprehensive and transformative solutions.

Article 226:
Article 226 of the Indian Constitution provides for the power of the High Courts to issue writs, or -
ders, and directions for enforcing fundamental rights and promoting the rule of law. This provision
is crucial for ensuring that government officials and institutions are held accountable for their ac-
tions and that citizens are protected from abuse of power.
However, like Article 32, Article 226 also faces significant challenges and limitations. In some
cases, one of the most pressing challenges is the judiciary's lack of independence and impartiality.
The High Courts may be subject to political pressure or influenced by powerful actors, which can
undermine their ability to act as impartial arbiters of justice.
Another limitation of Article 226 is that it may be constrained by institutional and procedural barri -
ers, which can prevent citizens from accessing this provision. The costs of pursuing legal action can

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be prohibitively high, and the High Courts may be reluctant to take up politically sensitive cases in -
volving powerful government officials or corporations.
Overall, while Articles 32 and 226 of the Indian Constitution are crucial safeguards for individual
rights and the rule of law, they are not without their limitations and challenges. These provisions re -
quire ongoing attention and advocacy to ensure that they are accessible and effective for all citizens,
particularly those who are marginalised or vulnerable.

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Conclusion

In conclusion, the literature review and critical analysis of the effectiveness of Article 32 and Arti -
cle 226 in protecting the rights of marginalised communities have shed light on the importance of
these provisions in promoting social justice and holding the government accountable for violations
of fundamental rights.
The review of existing literature highlights the significant role that Article 32 and Article 226 have
played in protecting the rights of marginalised communities, including women, Dalits, and religious
minorities. Several case studies demonstrate how these provisions have challenged discriminatory
laws and practices and protected these communities' rights in various contexts.
However, the critical analysis of this literature has also revealed that marginalised communities face
significant challenges in accessing justice through Article 32 and Article 226. Poverty, lack of edu-
cation, and systemic discrimination are some of the factors that prevent marginalised communities
from using these provisions to enforce their rights. In addition, the judiciary's interpretation and im-
plementation of these provisions have been criticised. Some argue that the judiciary's approach
needs to be expanded and address the concerns of marginalised communities adequately.
The research gaps identified in the literature review suggest that further research is needed to exam-
ine the effectiveness of Article 32 and Article 226 in protecting the rights of marginalised commu-
nities and to identify strategies for overcoming the challenges these communities face in accessing
justice. Future research could also explore the implications of the judiciary's interpretation and im-
plementation of these provisions for social justice and the protection of fundamental rights.
To address the challenges faced by marginalised communities, the Indian government should take
steps to increase awareness and education about fundamental rights and the use of Article 32 and
Article 226 as mechanisms for enforcing these rights. The government should also provide more
significant support to legal aid organisations that protect the rights of marginalised communities and
address the issue of poverty that prevents many from accessing justice.
The judiciary must also play an active role in interpreting and implementing these provisions to en -
sure that they are accessible and effective in protecting the rights of all citizens, particularly
marginalised communities. Judicial decisions must consider the intersectionality of different forms
of oppression that marginalised communities face and should address the root causes of discrimina-
tion and inequality.
Overall, the literature review and critical analysis underscore the significance of Article 32 and Ar-
ticle 226 in promoting social justice and protecting the fundamental rights of marginalised commu-
nities. Further efforts are needed to ensure that these provisions are accessible and effective in pro-

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tecting the rights of all citizens, particularly those who have historically faced discrimination and
marginalisation.

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Bibliography

- The lack of awareness and education about fundamental rights and legal mechanisms for enforc-
ing them is discussed in "Access to Justice for the Poor: India's Legal Aid Program" by Amita
Dhanda and "Access to Justice in India: Current Status and Future Needs" by Dr Varun Gupta.
- The issue of poverty and its impact on accessing justice is discussed in "Poverty and Access to
Justice: A Literature Review" by the World Bank and "The Role of Legal Aid in Combating
Poverty in India" by Dr M.S. Kamath.
- The systemic biases within the judiciary are discussed in "Judicial Independence and Account-
ability in India" by Arvind Verma and "Minorities and the Criminal Justice System in India" by
Mohd. Azeem.
- The notable cases where Article 32 and Article 226 have effectively protected the rights of
marginalised communities are discussed in "Public Interest Litigation in India: A Critical Evalua-
tion" by Bimal N. Patel and "The Rights of Women and the Judiciary in India" by Madhavi Sun -
der.
- A COMPARATIVE ANALYSIS OF Articles 32 & 226 by Ishan Anand, International Journal of
Advanced Legal Research
- The website of the National Commission for Women, a statutory body established to safeguard
and promote the rights of women in India: https://ncw.nic.in/
- The website of the National Commission for Scheduled Castes, a statutory body established to
safeguard and promote the rights of Scheduled Castes in India: https://ncsc.nic.in/

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