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Judiciary plays a very important role in a democracy as it not only prevents the
government authorities from using their powers arbitrarily but it also safeguards
the rights of the citizens and the very Constitution of India. Thus, The
Constitution of India envisages a strong, independent, and well-organised
judiciary.

Article 32 and 226 empowers the Supreme Court and the High Courts
respectively, with the power to initiate an action against a government body in
case of violation of rights and liberties of the citizen. This article describes the
writ power that the Supreme Court and High Courts have under Article 32 and
226 and how these articles are different from each other.

Article 32
Referred to as the ‘heart and soul of the constitution’ by Dr Bhim Rao
Ambedkar, Article 32 is a fundamental right envisaged under Part III of
the Constitution of India. It is a ‘right to constitutional remedies’ which provides
a right to protect other fundamental rights from violation. In other words, if any
fundamental right is violated by the government, then Article 32 empowers the
person whose fundamental right has been violated to approach the Supreme
Court for the enforcement of his/her fundamental rights.

Article 32(1) confers the right to approach the Supreme Court for claiming or
enforcing the fundamental rights provided under Part III of the Constitution of
India.

Article 32(2) confers power to the Supreme Court to issue directions, orders, or
writs, namely Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo
Warranto for enforcing those fundamental rights.
Article 32(3) empowers the parliament to confer the power to issue orders,
directions, and writs to any other court within the local jurisdictional limits of
India.

Article 32(4) states that unless provided by the constitution, the right to
constitutional remedy conferred under this Article cannot be suspended.

Important Judgements

Article 32: A basic structure

In the case of Fertilizer Corporation Kamgar (Union) v. Union of India, it was
held that the power conferred to the Supreme Court under Article 32 is an
integral part of the constitution and thus, belongs to the basic structure of the
Constitution of India.

Applicability of Article 32
In the case of Ramdas Athawale v. Union of India, it was held that Article 32 is
applicable in cases where there is a question of enforcement of fundamental
rights. If the question of enforcement of fundamental rights does not arise then
Article 32 will not be applicable.

Scope of Article 32
As held in the case of Nain Sukh Das v. State of Uttar Pradesh, the scope of
Article 32 is quite narrow as it can be enforced only in cases of violation of
fundamental rights conferred under Part III of the constitution.

Enforceability against private individuals

As per the decision of the apex court in the case of PUDR v. Union of India,
Article 32 is enforceable against private individuals as well.
Article 226
Enshrined under Part V of the Constitution of India, Article 226 confers power to
the High Courts to issue orders, directions, and writs in the nature of Habeas
corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto.

As per Article 226(1), every High Court within the territory of India has the
power to issue orders, directions, and writs to any individual or authority
including the Government for the enforcement of fundamental rights as well as
other legal rights under its own local jurisdiction.

Article 226(2) confers the power to the High Courts to issue orders, directions,
and writs outside their own local jurisdiction in the cases where the cause of
actions lies wholly or in part within their local jurisdiction.

Article 226(3) states that when an interim order has been passed under Article
226 by way of injunction or stay against the respondent without:

1. i) providing the copy of the petition and evidential document to the

respondent;
2. ii) giving an opportunity of being heard.
then, if the respondent moves to the High Court to cancel the interim order and
provides a copy of such petition to the petitioner, then, the High Court shall
decide the application within a period of two weeks of receiving such application
or within the period of two weeks from the date on which the other party
received such application, whichever is later.

As per Article 226(4), the power conferred to the High Courts under Article 226
is not in derogation to the powers conferred to the Supreme Court under Article
32(2).

Scope of Article 226

As held in the case of Bandhua Mukti Morcha v. Union of India, the scope of
Article 226 is much wider than Article 32 as it confers power to the High Courts
to issue orders, directions, and writs not only for the enforcement of
fundamental rights but also for the enforcement of legal rights which are
conferred to the disadvantaged by way of certain statutes and are as important
as the fundamental rights.
Writs
As defined under Article 32 and Article 226, there are 5 writs, namely Habeas
Corpus, Mandamus, Certiorari, Prohibition, and Quo warranto.

Habeas Corpus
Habeas Corpus is a Latin term which means “produce the body”. It is a writ that
is issued for releasing an illegally detained person. It is issued to an individual
or an authority to bring the person who has been illegally detained before the
court. This is done to know the grounds for detention. The court decides the
validity of the detention and in case of no legal justification of detention, the
person so detained is set free.

Article 22 of the Constitution of India mandates it for the police to present a

detained person before the magistrate within 24 hours of his arrest (excluding
the travelling time), failure of which would lead to the release of the detained
person.

Important Judgements

1. ADM Jabalpur v. Shivakant Shukla

This case is also known as the ‘Habeas Corpus case’. It is a landmark
judgement in which it was held that writ of Habeas Corpus cannot be suspended
even at the time of an emergency.

1. Sheela Barse v. State of Maharashtra

In this case, the court held that if any detained person is incapable of praying
for the writ of habeas corpus for himself, then somebody else may pray for the
same on his behalf. The court further emphasized upon the importance of legal
assistance and how legal aid to a poor person who is jailed is not only a
mandatory provision under Article 39A but also under Article 14 and 21 of the
Constitution of India.

1. Kanu Sanyal v. District Magistrate

In this case, the Supreme Court of India held that the court may decide upon
the legality of detention without having the detained person produced before it.
The court emphasized that the focus must be on the legality of the detention
which should be determined by looking into the facts and circumstances of the
case. The court further stated that the writ of habeas corpus is a procedural writ
and not a substantive writ.

1. Nilabati Behera v. State of Orissa

This is a case in which the petitioner was a mother whose son was taken away
by the police for interrogation, but later his dead body was found near a railway
track. During the investigation, it was revealed that the victim died because of
an injury caused by some blunt object like a lathi. The apex court held that
remedy under Article 32 is a public law and therefore, the principle of sovereign
immunity does not apply. Thus, the petitioner was awarded compensation of an
amount of Rs. 1,50,000 and directions were given to the State of Orissa to
initiate proceedings against the individuals involved in the death case.

Mandamus
Mandamus is a Latin term which means “we command”. The writ of mandamus
is issued by a higher court to an inferior court or any public authority,
commanding it to perform an official duty imposed by the law. This writ is used
to compel a public authority to discharge its legal obligations and perform its
legal duty effectively and efficiently.

Grounds for issuing a writ of mandamus

Writ of Mandamus can be issued against any public authority in certain cases:

1. misuse of discretionary power;

2. exceeding its scope of power;
3. ignoring relevant factors;
4. deciding on irrelevant factors;
5. acting with mala fide intentions.

Circumstances where the writ of mandamus cannot be issued:

1. Private body entrusted with public duty;
2. When the duty is discretionary in nature; and
 3. When the duty arises out of a contract.

Important Judgements

1. Barada Kanta v. State of West Bengal

In this case, the court held that the writ of mandamus cannot be issued against
any private individual because the main essence of the writ of mandamus is to
compel the authority to perform its public duty and private individuals are not
entrusted with public duty.

1. Hemendra Nath Pathak v. Gauhati University

In this case, the petitioner prayed for a writ of mandamus against the university
where he studied because the university failed the petitioner even after he
scored passing marks which were required as per the statutory rules of the
university. The writ of mandamus was issued and the university was directed to
declare him pass as per the university rules.

Certiorari
Certiorari means “to be certified”. Writ of certiorari is issued by the higher court
to an inferior court to quash any wrongful order. This writ is both curative as
well as preventive.

Grounds for Certiorari

Writ of certiorari can be issued by the Supreme Court and High Court against
any inferior court, tribunal, or quasi-judicial body on certain grounds:

1. exceeding the jurisdictional limit;

2. violating the principle of natural justice;
3. passing a wrongful order or judgement;
4. overlooking the procedure established by law.
Important Judgements

1. T. C. Basappa v. T. Nagappa & Anr.

In this case, it was held that writ of certiorari may be issued when a court has
either acted without its jurisdiction or has acted beyond its jurisdiction. The
court also laid down the parameters for deciding the question of exercise of
jurisdiction.

1. Surya Dev Rai v. Ram Chander Rai & Anr.

In this case, the apex court held that writ of certiorari can be issued against an
inferior court only and not against any higher court or court of the same
hierarchy.

Prohibition
Writ of prohibition is issued by a higher court to a lower court, or a tribunal or a
quasi-judicial body to stop it from proceeding in a case because it either does
not have jurisdiction or it exceeds the jurisdiction in deciding the case. It is
important to note that writ of prohibition is issued against a judicial body only,
and not against a legislative or an administrative body.

Difference between Certiorari and Prohibition

• Writ of certiorari is issued to quash an order wrongfully passed by an
inferior court whereas writ of prohibition is issued to stop the court
from proceeding in the case.
• Writ of prohibition is issued while the proceedings are pending whereas
writ of certiorari is issued when an order is passed.

Important Judgement

1. East India Company Commercial Ltd. v. Collector of Customs

In this case, the Supreme Court emphasized on the meaning of writ of
prohibition and stated that it is an order passed by a higher court directing a
lower/inferior court to stop the proceedings on the grounds that the court either
does not have a jurisdiction or the court is exceeding its jurisdiction in deciding
the case.

Quo Warranto
Writ of quo warranto means “by what authority”. This type of writ is issued by
the court against a person holding a public office over which he has no
authority.

Conditions for quo warranto

1. The office needs to be a public office created by a statute;
2. A private person should have occupied the office wrongfully;
3. The office must have a public duty to perform;
4. The person must be using the office.
Writ of quo warranto can also be issued against a person who was initially
qualified to occupy the office, and later on became disqualified but still holds the
office.

Important Judgement

1. Jamalpur Arya Samaj v. Dr. D Ram & Ors.

In this case, the Patna High Court held that writ of quo warranto can be issued
against a person holding a public office wrongfully only. It is not applicable in
the case of a private office. The decision was so given when a petition was filed
praying for a writ of quo warranto against the working committee of a private
body, Bihar Raj Arya Samaj Pratinidhi Sabha. The Court denied issuing the writ.

Major Difference between Article 32 and

Article 226
Basis of
Article 32 Article 226
difference
 Article 32 is a Article 226 is a
Right fundamental constitutional
right. right.

Article 32 can
be suspended Article 226
if an cannot be
Suspension emergency suspended even
has been at the time of
declared by emergency.
the President.

Article 226 has

Article 32 has
a broader scope
a narrow
as it is
scope as it is
applicable not
applicable
Scope only in the case
only in case of
of violation of a
violation of a
fundamental
fundamental
right but also of
right.
a legal right.

Article 226
Article 32 empowers the
empowers the High Court to
Supreme issue a writ in
Court to issue its own local
writ all over jurisdiction
India. only. Therefore,
Jurisdiction
Therefore, the High Courts
Supreme have narrower
Court has territorial
broader jurisdiction as
territorial compared to
jurisdiction. the Supreme
Court.
 Article 226
confers
Since, Article
Discretionary
32 is a
power to the
fundamental
High Court
right, the
Discretion which means it
same cannot
is at the
be refused by
discretion of the
the Supreme
High Court to
Court.
issue a writ or
not.

Conclusion
With the same power of enforcing fundamental rights, Article 226 has a much
broader scope than Article 32 because it can also be used to enforce other legal
rights conferred by the Constitution or any other statute.

However, it is Article 32 which is known as the heart and soul of the

Constitution and for the fact that it is a fundamental right in itself cannot be
refused. Whereas, Article 226 being a constitutional right gives discretionary
power to the High Courts. Further, it is the decision of the Supreme Court under
Article 32 which supersedes the decision of High Courts under Article 226. Thus,
with the difference in powers both articles ensure that the rights of the citizens
are protected and provisions of the constitution are upheld.