ABSTARCT

Topic : Comparative Study of Articles 32 and 226 of the Constitution of India

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.

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 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.

In Romesh Thappar vs. the State of Madras the Court held:

"Article 32 provides a guaranteed remedy for the enforcement of the rights conferred by Part III
(of the Constitution) and this remedial right is itself made a fundamental right by being included
in Part III.

In Gupta's case where Upendra's case was referred to, the doctrine of public interest litigation
was formulated by a Bench of 7 Judges in a comprehensive form, to apply to any case of public
injury arising from – the breach of any public duty, or the violation of some provision of the
Constitution, or of the law

In A.K.Kraipak v. Union of India the Supreme Court accepted Lord Reid's interpretation and
held that distinction between quasi-judicial and administrative has become thin but it is not
completely obliterated for other purposes. Therefore, since Kraipak a new trend has emerged in
the expanding horizon of the writ of certiorari in India to control the administrative actions. It
applies not only to legal authority but also to any agency or instrumentality of the state who acts
arbitrarily in violation of law or Constitution.

The House of Lords in Anisminic Ltd. v. Foreign Compensation Commissioner, where the
Court (Lord Reid), brought all errors of law under the jurisdictional law. This position is now
confirmed after some controversy in the earlier stages after the decision in the Anisminic case. In
India, our courts are still hesitant in this regard. The ground of 'error of law apparent on the face'
is still being employed for certiorari. It is hoped that our courts will also follow the broad
principle of 'jurisdiction law' as laid down in Anisminic case.

In Hari Vishnu Kamath v. S. Ahmad Ishaque, the Supreme Court said: Both the writs of
prohibition and certiorari have for their object the restraining of inferior courts from exceeding
their jurisdiction and they could be issued not merely to court but to authorities exercising
judicial or quasi-judicial functions.
In State of M.P. v. Mandawara, the Supreme Court held that granting of Dearness Allowance is
discretionary for the Government and it cannot be compelled by mandamus to grant the same.
However, the court may issue a writ of mandamus where the public authority has failed to
exercise or has wrongfully exercised discretion conferred on it by a statute or has exercised such
discretion mala fide or on irrelevant considerations.

In Prabodh Verma v. State of U.P., the Supreme Court deprecated the slipshod drafting of a writ
petition asking for certiorari to quash a legislative measure. Proper pleading rules must be
followed since ill-drafted pleading results in wastage of precious time of the court.

By

Guru Charan Reddy .GT

Roll no:2019032

Section A