Professional Documents
Culture Documents
Wa0001.
Wa0001.
• HomeIntroduction
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
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.
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:
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).
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.
Important Judgements
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.
Important Judgements
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.
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.
Important Judgement
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.
Important Judgement
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
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.