The Comparative Study of Articles 32 and 226 of The Constitution of India
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.
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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.
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
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
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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
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
5
Chapter-2
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.
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
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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
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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.
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.
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of judicial activism.37 Some of the outstanding decision given by the Supreme Court through
PIL is discussed below.
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
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orders and directions which the Supreme Court is also empowered to issue in terms of
Article 32(2) of the Constitution.
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
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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.
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Bibliography
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