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Article 32 and 226
Article 32 and 226
(1) The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have the power to issue directions or orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari, whichever may be appropriate, for the enforcement
of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses
(1) and (2), Parliament may by law empower any other court to exercise
within the local limits of its jurisdiction all or any of the powers exercisable
by the Supreme Court under clause (2).
(4) The right guaranteed by this Article shall not be suspended except as
otherwise provided for by this Constitution.
Types of Writs
There are five types of Writs as provided under Article 32 of the Constitution:
Habeas Corpus:
4- The court then examines the grounds on which the individual has been
detained.
5- If the detention has no legal justification, the detained person is set free.
6- It is to be noted that the writ cannot be issued in the cases where (a) the
detention is lawful (b) the proceeding is for contempt of a legislature or a court
(c) an individual is detained by a competent court, and (d) the detention falls
outside the jurisdiction of a particular High Court.
8- An individual can seek compensation from the state against the arbitrary
detention.
9- The petition under this writ can be filed by the detainee, prisoner or by any
person on behalf of the detainee/prisoner.
10- The writ of Habeas Corpus cannot be suspended even during the
emergency under Article 359.
Certiorari:
3- It can be issued under the following grounds (a) to correct errors of the
jurisdiction (excess or lack of jurisdiction) (b) in case of error of law.
5- This writ is unavailable against the equal or higher court and is only
available against the lower courts.
Mandamus:
5- This writ cannot be issued against the President of India or the State
Governors; Chief Justice of a High Court acting in a judicial capacity.
6- This writ can also be issued by the High Courts for violation of ordinary
rights.
7- It can also be issued to direct a public official not to implement a law
which is unconstitutional.
Quo-Warranto:
2- It is issued by the court against the person who usurps a public office.
4- The grounds on which this writ is issued (a) public office created by a
statute or by the Constitution of India (b) person to be appointed by a statute.
Prohibition:
Articles 32 and Article 226 provide the Supreme Court and the High Courts the
authority to bring a lawsuit against a government entity if any citizen’s rights
and freedoms are violated. The High Court has broad powers to issue orders
and writs to any person or authority under Article 226 of the Indian
Constitution. Before a writ or an order may be issued, the party who is
petitioning the court must prove that he has a right that is being violated or
endangered illegally. If the cause of action partly arises within its jurisdiction,
the High Court can issue writs and directives to any Government, authority, or
person even if they are located beyond its jurisdiction.
In general, the High Court does not use its power under Article 226 when it
comes to problems of fact. Similarly, when the petitioner has an alternative
remedy, the Courts will not hear Article 226 petitions. In addition, if there is an
excessive delay in contacting the court, the court may refuse to provide relief
under this article.
Similar powers are available to the Supreme Court under Article 32 of the
Constitution. The underlying reason for granting the High Court powers under
Article 226 is to ensure that the rule of law is upheld in society. When the
executive authorities overstep their authority and infringe on citizens’ rights,
they must be held accountable and article 226 ensures it.
Article 226(2) empowers the High Courts with the authority to issue orders,
instructions, and writs to any government authority or any individual, outside
their own local jurisdiction in circumstances when the cause of action is
completely or partially within their local jurisdiction despite the fact that such
government or authority’s seat or the individual’s domicile is not within the
territory.
1. providing the respondent with a copy of the petition and any relevant
evidence; and
2. providing the respondent with an opportunity to be heard.
The High Court shall decide on the application within two weeks of receiving
the application or within two weeks of the date on which the other party
received the application, whichever is later. If the application is not so disposed
of, the interim order shall be vacated on the expiry of that period, or, if the High
Court is closed on the last day of that period, before the expiry of the next day
on which the High Court is open, the interim order shall be vacated.
According to Article 226(4), the jurisdiction granted to the High Courts under
Article 226 does not preclude the Supreme Court from using its powers under
Article 32(2).
Habeas Corpus:
4- The court then examines the grounds on which the individual has been
detained.
5- If the detention has no legal justification, the detained person is set free.
6- It is to be noted that the writ cannot be issued in the cases where (a) the
detention is lawful (b) the proceeding is for contempt of a legislature or a court
(c) an individual is detained by a competent court, and (d) the detention falls
outside the jurisdiction of a particular High Court.
8- An individual can seek compensation from the state against the arbitrary
detention.
9- The petition under this writ can be filed by the detainee, prisoner or by any
person on behalf of the detainee/prisoner.
10- The writ of Habeas Corpus cannot be suspended even during the
emergency under Article 359.
Certiorari:
3- It can be issued under the following grounds (a) to correct errors of the
jurisdiction (excess or lack of jurisdiction) (b) in case of error of law.
5- This writ is unavailable against the equal or higher court and is only
available against the lower courts.
Mandamus:
1- Literal meaning: 'we command'.
5- This writ cannot be issued against the President of India or the State
Governors; Chief Justice of a High Court acting in a judicial capacity.
6- This writ can also be issued by the High Courts for violation of ordinary
rights.
Quo-Warranto:
2- It is issued by the court against the person who usurps a public office.
4- The grounds on which this writ is issued (a) public office created by a
statute or by the Constitution of India (b) person to be appointed by a statute.
Prohibition:
It includes Fundamental
1. It includes Constitutional Rights.
Rights.