The Comparative Study of Articles 32 and 226 of the Constitution of India

Vishal Singh1

Introduction

The Constitution of India is the fundamental law of the land. It was drafted to be read and
understood by layman and lawman alike, however after the seven decades from the day we
got independence the scared articles of Constitution of India become so difficult that if today
a layman would certainly be lost if he is to go by the bare text of Constitution. And the
reason is that there is a broad difference between the bare text and what is being followed
courtesy several judgements by Hon’ble Courts of law be it Supreme Court, apex court of law
in India or be it High Court.

Today, world’s largest democracy is stood tall and doing great is because it has been now and
then supported by its judicial pillar where several have been martyred during this holy
struggle. India has been under British rule for over two hundred years straight. Britishers
though introduced formal courts of law in India but they didn’t allow much discretion to
judges to exercise as they codified the laws here. Therefore, when we adopted Constitution in
1950 the courts of law were not conscious enough to venture far from the meaning of the
words of laws in force. However, after the emergency of 1975 judiciary began its
transformation from judiciary of police state to that of a welfare state in true sense. From here
now, courts of law started to adopt purposive interpretation, golden rule of interpretation to
the provisions of law in order to do complete justice.

Statement of Problem:
The central issue the researcher will attempt to address through the project the role of
judiciary by the interpretation of the jurisdiction of writs under Articles 32 and 226 under the
Constitution of India which provide constitutional remedy on violation of fundamental rights.
In the light of this, research work will discuss the inter-relation and difference between the
power of High Courts and Supreme Court. Further, discuss will concentrate on how the court
interpreter the Articles for providing complete justice to the citizen of India and according to

1
Vishal Singh, BALLB(hons) Aligarh Muslim University, LLM- West Bengal National University Of Juridical
Science.

1
the needs of the society. After aforesaid discussion, the researcher will move to make a
comparative study on new dimension which is taken by the Supreme Court in relation to writ
jurisdiction under Article 32 of the Constitution of India.

Aim and objective

The aim of this research work is to understand the comparative jurisdiction of the High
Courts and the Supreme Court over the infringement of fundamental rights under Articles 32
and 226 of the Constitution of India. The researcher would clarify the differences between the
power of High courts and Supreme Court in relation to issue of writs under the Constitution
of India. The main objective is to study and understand the new dimension of writ
Jurisdiction of Supreme Court and High Court under Art. 32 and 226 which is adopted by the
Courts in recent years and to understand the unique features of the Constitution of India.

Scope and Limitations

The scope of the research paper is restricted to the power of Supreme Court and High Courts
under Articles 32 and 226 respectively on violation of Fundamental Rights only. The
researcher has also analysed the issue relating to the inter-relation of Jurisdiction of High
Courts and Supreme Court under Articles 226 and 32. The researcher also limits the research
paper while dealing with the new dimension of writ Jurisdiction of Supreme Court and High
Court under Articles 32 and 226 in recent years to the extent of certain relevant sections of
the Constitution.

Research Questions
The researcher deals with the following question in the research paper:
1. What is the role played by the Courts for the protection of fundamental rights?
2. How the Court interpret the Articles of the Constitution for providing complete justice to
the citizens?

Research Methodology
The researcher has adopted a purely doctrinal method of legal research in doing the project.
The researcher has used different tools of research like books, journals, online resources, the
texts of Constitution of India and other necessary tools as per requirement. The sources of

2
data are primary e.g. Constitution, Supreme Court’s judgments, as well as secondary e.g.
articles, journals, books etc. The researcher has also adopted an analytical approach for
interpretation and drawing the conclusion. The researcher has used a uniform mode of
citation throughout the course of this research paper.

Chapter-1

Jurisdiction of Supreme Court and High Court under Article 32 and 226
The fundamental principle of Common law and Indian law system is based on the well
known maxim Ubi Jus Ibi Remedium which means that wherever there is right there is
remedy. In simple sense, there cannot be any wrong without a remedy. The main object of
Article 32 is the enforcement of Fundamental Rights guaranteed under part III of the
Constitution of India. On the basis of this, the Supreme Court under Art. 32 only deals the
cases where Fundamental Rights is violate. According to the provisions of Article 32, without
violation of Fundamental Right, we cannot approach the Supreme Court.2 On the other side
Article 226 which gives the power to the High Courts of the all the States for enforcement of
fundamental right as well as the other constitutional rights.3 This means that the power of a
High Court under Art. 226 are wider than the power of the Supreme Court. And the other
thing is that if an administrative action does not affect a Fundamental Right, then it can be
challenged only in the High Court under Article 226, and not in the Supreme Court under Art.
32. The power of High Court under Article 226 are discretionary. It will be exercise only in
furtherance of interest of justice. The phrase "for any other purpose" under Article 226 which
is not given in Article 32 give the power to High Court to take action of any matter even if no
Fundamental Right is violated. But irrespective of the limited power of the Supreme Court,
there is also some exception in which the Supreme Court has entertained writ petitions under
Article 32 where no question of Fundamental Right was involved.4 The reason behind this is
that, these cases involved questions of great constitutional significance and there was no
forum except the Supreme Court where these questions could be authoritatively decided, and
there was no other mechanism, except Article 32, to bring such matters within the cognisance

2
Andhra Industrial works v. chief controller of imports AIR 1974 SC 1539
3
MP Jain, Indian Constitutional Law, LexisNexis Butterworths Wadhwa, Nagpur, Sixth Edition, 2012, p.1431.
4
D.D. Basu, Constitutional Remedy and Writs, Kamal Law House, Kolkata, Third Edition, 2009, p. 70.

3
of the Supreme Court. These matters are: (1) misuse of the ordinance-making power by the
State of Bihar5; (2) appointment of the Judges of the High Courts and the Supreme Court6; (3)
issues related with the procedure to remove a Supreme Court Judge.7

Against whom application under Article 32 lies-

As the scope of the Article 32 is limited to the enforcement of fundamental rights, so the
petition under this only lies when the opposite party is state or authority within the definition
enshrine in Article 128. However, the concept of state or authority under Article 12 has been
much liberalised by the Supreme Court in many cases such as, Rajasthan Electricity Board V.
Mohanlal,9 International Airport Authority Case,10 Ajay Hasia V. Khalid Muji,11 and the
interpretation of word “other authorities” under Art. 12 include all these instrumentalities
with the definition of State. So, the writ is also lies against these authorities not only by Art
226 but also by the Art 32 of the Constitution of India. The question is arises whether the writ
is lie against the private person or company for the violation of fundamental rights? In
relation to Article 226 there is no problem, the High Court has power to issue writs also
against the private person or company. But in relation to Art 32 there is no such guideline,
and there is no any type or restriction under this Article. So, on basis of the point we can say
that Supreme Court under Article 32 also issue writs against the individual or company if
they violates fundamental rights under Articles 17, 23 and 24.

Liberalization of locus standi-

Locus Standi of the applicant or petitioner is a sine qua non or condition precedent for the
exercise of the power or jurisdiction by the court.12 Articles 32 and 226 does not describe the
persons who are entitled to enforce the fundamental right by filing a writ petition before the
supreme court or High Court13 . On the absence of this, the court might apply the English
certiorari concept of a “person aggrieved” and make general rule, the person whose right is
violate has right to file writs before the Supreme Court or High Court. Overruling the
common notion that a stranger cannot move the writ, it has been held that a stranger is a
person aggrieved and has locus standi to move a court for a right common with general

5
DC Wadhwa v. State of Bihar AIR 1987 SC 579
6
Supreme Court Advocate on Record Ass. V. Union of India
7
Sarojini Ramaswamy v. UOI, AIR 1992 SC 2219
8
Sarabjit V. Union of India AIR 1975 SC 1329 (CB)
9
AIR 1967 SC 1857
10
AIR 1979 SC 1628
11
AIR 1981 SC 487
12
V.G. Ramachandran, Law of Writs, Eastern Book Company, Volume 1, Sixth Edition, 2002, p. 52.
13
Cal. Gas Co. v. State of W.B. AIR 1962 SC 1044

4
public.14 Now it is liberalized as much that the court considers a letter send to it complaining
about the violation fundamental rights as a writ petition. This innovative strategy has been
evolved by the Supreme Court for providing easy access to justice to the weaker section of
the community and a powerful tool in the hands of public spirited individuals and social
action groups, for combating exploitation, injustice and securing for under privileged
segments of the society their social, economic entitlement. This is considered as a highly
effective weapon in the armoury of law for reaching social justice to the common man.15

Delay and Laches-

The fundamental principle for administration of justice is that the courts will help those who
are vigilant about their rights and not whom which will sleep on their rights. In relation to
delay and laches, there is no hard and fast rule under the constitution for filing writs under
Article 32. The general rule is that the writ will be file within a reasonable time. But the
reasonable time is not prescribe either in the Limitation Act or in the Constitution itself for
filing of writ petition under Article 32 for the enforcement of fundamental rights. The Court
in the case of Express Publications (Madurai) Ltd. V. Union of India16 in relation to delay
and laches the decision depends from case to case and on the discretion of the Court. General
view is that if delay, whatever may be the time or years are justified then it would be ignored.
Otherwise, the writ petition may be rejected only on the ground of delay.

Alternative Remedy-
On violation of a Fundamental Right, the petitioner has right to file a petition directly to the
supreme court by the virtue of article 32 and article 32 is itself a fundamental right then no
question of alternative remedy is raised.17 Once the petitioner proved that there is violation of
fundamental right then the supreme court has duty to entertain the case irrespective of that the
petitioner has another remedy or not. When the petitioner establishes infringement of
fundamental right, the court has no discretion but to issue an appropriate writ in his favour.18

14
Seethalakshmi Ammal v. State of T.N. AIR 1993 Mad 1 (FB).
15
State of AP v. Parent of a student of Medical College AIR 1985 SC 910.
16
AIR 2004 SC 211
17
Supra n. 2, p. 1436.
18
Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457

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 Chapter-2

New dimension of writ Jurisdiction of Supreme Court and High Court

under Article 32 and 226 -in Recent Years
Under Article 32 of the Constitution, the jurisdiction of the Supreme Court is confined to the
enforcement of the fundamental rights. However, in recent cases, the Supreme Court has
expanded this jurisdiction so much so that it seems to assume the initiation or supervision of
administrative action which traditionally belongs to the jurisdiction of the executive.

Interpretation of Article 21 by the Supreme Court through writ jurisdiction

The Supreme Court has very much liberalised and expanded the lists of fundamental rights
falling under Art. 21 by modifying the original interpretation for right to life and personal
liberty and held that right to life includes:-

i. Right to privacy. in R. Rajagopal V. UOI19 popularly known as Auto

Shankar case the supreme court expressly held that the right to privacy or right
to be let alone is guaranteed by Article 21 of the constitution. Another
important case is PUCL V. UOI20 which is popularly known as “phone
tapping case” in which the Supreme Court held that right to life under article
21 includes right to privacy. But in a conflict between right to privacy of one
and right to health life of another, only that right would prevail which
advances public interest and morality.
ii. Right to free compulsory primary education. In Mohini jain v. state of
Karnataka,21 Unni Krishnan V. State of A.P.,22 TMA Pai Foundation V. State
of Karnataka,23 the supreme court held that Article 21 includes Right to free
compulsory primary education. After the 86th amendment of the constitution
of India, the right to free compulsory primary education for the children below
the age of 14 years, separately inserted in Article 21-A of the constitution.
iii. Right to pollution free environment. In Subhas kumar v. State of Bihar24 the
supreme court held that Article 21 which define right to life and personal
liberty also include right to fresh air and environment.

19
AIR 1994 SCC 632
20
AIR 1997 SC 568
21
AIR 1992 SC 1858
22
AIR 1993 SC 2178
23
AIR 1995 SC 193
24
AIR 1991 SC 420

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 iv. Right to live with human dignity. In Francis Coralie v. U.T. of Delhi25 the
supreme court while referring the American case Moon V. Illinois26 held that
right to life means right to live with human dignity and something more that as
mere animal existence.
v. Right to livelihood – in the leading case of Olga tallish v. Bombay
Corporation27 the Supreme Court held that right to livelihood is one of the
essential condition precedents for the assistance of right to life. A man cannot
live without their livelihood.

Interpretation of Articles of Directive Principles of the State Policy

The Supreme Court has evolved the positive duties and obligation under each of the Directive
Principles in Part IV and read them into fundamental rights treating the directions of the state
Policy and “the fundamental rights as supplementary and complementary to each other.”28
Even though the right to education is in part IV of the constitution, the Supreme Court held
that the right to education is a concomitant to the fundamental rights enshrined under part III
of the Constitution and the Directive Principles of the State Policy which being fundamental
in the governance of our country cannot be isolated from the fundamental rights guaranteed
under the Part III. Consequently, these principles have to be read into the fundamental rights
as both are supplemental to each other. In Unni krishnan v State of AP29 the Supreme Court
has observed that in order to treat a right a fundamental right, it is not necessary that it should
be expressly stated as one in part III of the Constitution, that the provisions of part III and
Part IV are supplementary and complementary to each other and fundamental rights are but a
means to achieve the goal indicated in Part IV and must be construed in the light of Directive
Principles. Some of the Directive Principle of State Policy principles which the Supreme
Court held as also the part of the fundamental rights as enshrine in Part III of the constitution
of India. These ares-

i. Maintenance and improvement of public health- In the case of Vincent v.

UOI30 the Supreme Court held that maintenance and improvement of public health

25
1981 SCR (2) 516
26
(1876) 94 U.S. 113
27
AIR 1985 SCC (3) 545
28
Charan v. State of Punjab (1997)1 SCC 151
29
AIR 1993 SC 863
30
AIR 1987 SC 990

7
 is the responsibility of the State not only by the reason of Directive Principle of
State Policy but also by the reason of Fundamental Rights and by the obligation of
Universal Declaration of Human Rights.
ii. Rehabilitation of bonded labour- which is given under Article 42 of the
Directive Principle of State Policy was held by the Supreme Court as part of
fundamental Rights in the case of Bandhua Mukti Morcha V. UOI31 by the virtue
of Articles 23 and 21 of the Constitution of India.
iii. Equal pay for equal work- Originally, Equal pay for equal work for both men
and women are given under Article 39(d) of the Constitution of India which
comes under the Directive Principle of State Policy. The doctrine of equal pay for
equal work postulates equal pay for equal work for those who are equally placed
32
in all respect. In the case of Randhir Singh V UOI33 the Court held that by the
virtue of Articles 14, 19 and 21 ‘equal pay for equal work’ is also a fundamental
right.
iv. Damages for causing pollution and environment degradation. Duty under Art
48-A can be enforced through a letter, based on article 21. It was said by the
Supreme Court in MC Mehta V. Kamal Nath34 and the Articles 14, 21, and 51(g)
are to be read together with Article 48-A35
v. Right to free legal aid- Article 39(a) which comes under Part IV Directive
principle of state policy define Equal justice and free legal aid. In Hussainara
Khatoon V. State of Bihar36 the Supreme Court held that if the parties are not
competent to defend himself in the proceeding then the State are bound to provide
it, free legal aid by the virtue of Articles 14, 21 of the Constitution of India and
legal aid may be treated as a part of right created under Article 21.

PIL and Judicial Activism

The Supreme Court has also made a very liberal use of public interest litigation for the
purpose of achieving this new goal as a result of which it not only plays a negative role but its
role now positive as well. It not only act as restraint upon the executive but issues appropriate
directions and guidance which has now brought into our constitutional arena, a new concept

31
AIR 1984 SC 802
32
Uttar Pradesh Sugar Corp. Ltd. v. Sant Raj Singh, AIR 2006 SC2296
33
AIR 1992 SC 879
34
AIR 2000 SC1997
35
Subhas Kumar v. State of Bihar AIR 1991 SC 420
36
AIR 1979 SC 1369.

8
of judicial activism.37 Some of the outstanding decision given by the Supreme Court through
PIL is discussed below.

i. Protection against inhuman treatment- In Sunil Batra V. Delhi Administration38

the Court held that the conviction for a crime does not reduce the person into a
non- person or to non- human , whose rights are subject to the whim of the prison
administration. Prisoners have all rights as are available to the free citizens except
those lost necessary as an incident of confinement.
ii. Ban on smoking in public places- In Murli S. Deora V. U.T. of Delhi39 the
Supreme Court held that Fundamental right guaranteed under Article 21 of
Constitution of India, provides that no person shall be deprived from his life or
personal liberty except the procedure established by law. No doubt, smoking is
injurious to health and may affect the health of smokers but there is no reason that
health of passive smokers should also be injuriously affected. In any condition,
there is no reason to compel non-smokers to be helpless victims of air pollution.
So the Court orders to Ban on smoking in public places.
iii. Enactment of Public Insurance Liability Act, 1991- The Act was enacted after
the PIL was filed by the environment activist on the ground of liability of
hazardous industries in India. Then the court makes the rule of Absolute Liability
in cases of hazardous industries which are also called no fault liability. Public
Liability Insurance Act, 1991. Therefore, this is the clear expression of the rule of
the absolute liability laid down in MC Mehta V. UOI40
iv. People in jail cannot contest election- The Court also said that the person who
are convicted for more than 2 years cannot contest election as in the case of Ravri
Devi in Bihar. It is also inserted in Section 8 (3) of R. P. Act, 1951, if a person is
convicted of any offence and sentenced to an imprisonment of 2 years or more,
this will be disqualification to contest elections.

The Supreme Court under Article 32 of the Constitution in order to enforce the
fundamental rights has jurisdiction not only to issue writ in the nature of habeas corpus,
mandamus, prohibition, certiorari and quo warranto but has made liberal use of the

37
MR Mallick, Writs Law and Practice, Eastern Law House, Kolkata, p.86
38
AIR 1980 SC 1579
39
1987 SCR (1) 819
40
AIR 2003 SC 3469

9
 orders and directions which the Supreme Court is also empowered to issue in terms of
Article 32(2) of the Constitution.

Award of Compensation for Infringement of Fundamental Rights

The general rule is that the Supreme Court under Article 32 has no right to grant award or
grant compensation in case of violation of Fundamental Rights. Reversing its earlier view
that no compensation or monetary relief can be awarded by the Supreme Court in a petition
under Article 32 of the Constitution, the Supreme Court has now in a series of decisions held
that the Supreme Court can in appropriate cases award compensation to a victim of the
infringement of fundamental right.

In M.C. Mehta V. Union of India41, the Supreme Court held that the scope of Art. 32 are wide
enough to include the power to grant compensation for violation of fundamental rights. The
power of the Court under Article 32 is not merely preventing the infringement of fundamental
rights, but also to grant compensation.

Bhim Singh V. State of J&K42 the petitioner grant compensation of Rs. 50,000 for the
violation of his constitutional right. The Supreme Court of India in Rudul Sah v. State of
Bihar43 opined entirely new jurisprudence under the garb of human rights protection by
inventing new doctrine of compensatory jurisprudence. In this case the Supreme Court
ordered the State of Bihar to give compensation to the victim for the sheer ignorance of State
for illegal detention of victim for over 14 years even after his acquittal of murder charges.
Before this decision in this case, the Supreme Court was not very much straight forward in
awarding the compensation in this type of cases. Considering the grand history of the
Supreme Court of India in protecting our democracy awarding compensation is not out of the
line. It was rightly expected from this court to come forward and do the right thing.44

41
AIR 2003 SC 3469
42
AIR 1986 SC 494
43
(1983) 4 SCC 141
44
Supra n. 2, p. 1442

10
Conclusion

To conclude the project I wanted to say that the maker of the Constitution knows that the
rights which are given under Part III in reality must be enforceable by the Courts, otherwise
they are sure to remain as mere paper rights. The mere declaration of rights is not enough
unless there is effective remedy for their enforcement. The Judiciary has played very well
role for the protection of fundamental rights. By the virtue of Article 32 it is consider as the
Guardian of the Constitution of India.

Article 32 has a unique provision in our Constitution and in realty there is no any country in
which such type of provision is given. Despite the role played by the judiciary, the reality is
that after Six decades of independence we have failed to establish either social justice or
economic justice. The concurrent jurisdiction of the High Courts and the Supreme Court over
violation of fundamental rights has earned high regard of the Supreme Court and the High
Court’s because of its status, approach and recommendations which make most effective use
of the nation’s resources.

As the researcher has discussed in the research paper, the Supreme Court has liberalize the
jurisdiction of the Court under Articles 32 and 226 for providing justice to the citizens
according to the needs of the people. As we know that the fundamental principle of law is
that where there is right there is remedy because a right without remedy is a rope of sand. In
this sense, the provision for the enforcement of fundamental rights is a most novel feature of
our Constitution. But the constitutional mechanism is not enough, because all there remains a
big gap between lip and the cup.

11
Bibliography

1. Constitution of India 1950

2. MR Mallick, Writs Law and Practice, Eastern Law House, Kolkata, Second Edition,
2009.
3. V.G. Ramachandran, Law of Writs, Eastern Book Company, Volume 1, Sixth Edition,
2002.
4. MP Jain, Indian Constitutional Law, LexisNexis Butterworths Wadhwa, Nagpur,
Sixth Edition, 2012.
5. D.D. Basu, Constitutional Remedy and Writs, Kamal Law House, Kolkata, Third
Edition, 2009.
6. Justice P.S. Narayana, Law of Writs Asia Law House, Fifth Edition, 2008.

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