Scope of Article 32 and Article 226

The author in this article discusses the scope of Article 32 and 226 of the Constitution of India and how Justice and equality are the two wheels of the same wagon, if one ceases the other curbs its motion. Hence, for the attainment of the utmost justice, absolute equality amongst everyone is a must.

Introduction

India is an ancient land with a Justice delivery system that dates back to the mythological ages. All the rulers who have set foot in this divine land or who have ruled here have got to their credit a number of things (like article 32 and article 226) in which delivering justice to the needy was perhaps the foremost.

Right from King Rama who was hailed by all as one of the most dutiful son and a compassionate ruler to King Akbar who never discriminated while delivering justice to his subjects, it can be said that the crux of the spirit of India lies in ensuring equality and providing justice to everyone.

Article 14 of the Constitution of India is a fundamental right which ensures equality in front of the law to every individual who is legally qualified to call himself an Indian. The Indian Judiciary System as any other Judiciary System in the world, functions to interpret the law and apply it in the name of the State as well as providing a resolution to various conflicts brought under its notice. India is the only country where people from different backgrounds, cultures and religions co-exist in such a great number, the onus of ensuring them peace and justice completely lies on the Government and the Judiciary. Sometimes there are some problems which require judicial attention and are unable to get it because they are not reported anywhere. To get better off with such situations, Articles 32 and 226 were added to the Constitution of India.

The Supreme Court of India under section 32 of the Indian Constitution[1] is empowered to issue orders and writs to any person or authority and in some cases even the government if someone approaches it with a claim of the violation of a Fundamental Right. This Article is also known as the Right to Constitutional Remedy.

Similarly, the High Courts of India under article 226 of the Indian Constitution[2] are empowered to issue orders and writs to any person or authority and in some cases even the government pertaining to the matters which fall under its jurisdiction.

The word “writ” is a gift to this world by the British Monarchs who used it to refer to the authority letters issued by them under the Monarchy’s seal. “Writs” were taken very seriously even then as they were seen to be as the direct orders issued by the Monarchy i.

In the medieval England, the local courts worked at mercy of the local barons as they were the administrators of these courts because the courts were being run in their estates. Right above these courts in terms of Jurisdiction was the Royal Courts which derived it authority and was administered by the King. In order to be present in the King’s court for trial, a person needed a ‘writ’ or a royal formal order which commanded him to be present before the King’s Court on a specified date and time to get Justice. Since these writs were normally dealing with issues of common grievances, it came to be called as “Writs of Course”.

Writs in India are one of the many blessings of the people who came to India as traders but eventually left after ruling it for more than 250 years. The Royal Charter of Britain was the first document which brought writs to India in the year 1774. The East India Company was persistent on developing a parliamentary control over India citing the problems within the Indian princely states as a reason to do so. The British took full advantage of it and established The Supreme Court of Calcutta as per the Charter and gave it full rights to issue writs as in England. The British, now wanting to expand its control over India, established two more Supreme Courts at Madras and Bombay presidencies in the years 1800 and 1823 respectively.

The term Supreme Court was replaced by High Courts in all the Presidencies under the Indian High Courts Act of 1861 and more High Courts were established all along the country. Even though a lot of other High Courts mushroomed in the country, the writ jurisdiction which was very selective was only conferred to the three erstwhile Supreme Courts at Calcutta, Madras and Bombay. No other High Court created under the act cited above was allowed to issue writs. Slowly, the authority to issue writs was curtailed and taken away in the matters pertaining to Habeas Corpus and Mandamus from the Three Senior most Courts in India as well. This situation persisted till the British left India and a new Constitution was adopted by the Indians in the year 1950.

With the coming of the Constitution of India, writ jurisdiction was restored back to the Supreme Court under article 32 and to all the other High Courts under article 226. This was mainly done to ensure that the basic Human and Fundamental Rights of all the people of this newly independent company are duly protected and safe guarded.

Kinds of Writs

The constitution of India also gives a mention to the various kinds of writs under article 32 and article 226 which are permissible and can be issued by the Courts. They are as follows:-

Writ of Habeas Corpus

Habeas Corpus is a term which is used to question the legality of a person’s detention. It can be seen as a last resort and is only available when all the other legal remedies have been exhausted.

Writ of Prohibition

The writ of Prohibition is issued by a Superior Court to a lower court, ordering it not to overstep its Jurisdiction in matters cited in front of the court. On getting the writ of prohibition, the lower court ceases to try the case and it gets transferred to the court having the requisite jurisdiction.

Writ of Quo Warranto

This writ is to challenge any illegal occupation of a public office by any person. If the person fails to prove that he has legally occupied the office, he will be ordered to relinquish his office.

Writ of Certiorari

This writ is used to verify any judgment given by a lower court by a higher court. This is a supervisory power and not an appellate one.

Writ of Mandamus

This writ which is issued by a court compelling any person or governmental entity to follow law and carry our statutory duty as required.

Landmark Cases

India is one of those countries in the world, which has an old yet robust Justice Delivery system. Indian Judiciary can rightly be said to have an iron fist with a velvet glove.  More often than not the Justice delivered by India has got praised all over the world and have been cited by many irrespective of which country they belong to.

Writ jurisdiction given to the Indian Courts under Article(s) 32 and 226 of the Constitution of India is a power which has enabled it to help sustain this great country a lot many times. There have been several instances where the Indian Courts have taken an extra mile and given historic judgments Some of these cases are:-

ADM Jabalpur v. Shivkant Shukla[3]

Popularly known as the Habeas Corpus case, this case has been one of the most historic  cases in the history of Indian Judiciary. In this case, the Court was approached with a contention that whether the right of a person to approach the respective High Court gets quashed during a state of emergency when the fundamental rights are suspended. The case was duly heard by a constitutional bench of the Supreme Court and the court pronounced the judgment in which a Presidential Order was cited and it was confirmed that no individual has got any locus standi to move any writ petition to any High Court under article 226 of the Indian Constitution during an Emergency.

Vishnu Kamath v. Ahmad Ishaque[4]

This case was pertaining to an Election Petition in which the Court intervened and held that the High court has the power under Article 226 of the Indian Constitution to quash any order passed by a subordinate court (in this case the Election Tribunal) in which the court feels has passed an order outside its jurisdiction by applying the writ of Certiorari.

University of Mysore v. Govinda Rao[5]

In this case, the University of Mysore advertised some posts for professors and readers. The respondent approached the High Court under Article 226 challenging the appointment of a person and to show under what authority was he holding the office of a reader in English by applying the writ of mandamus. The High Court set aside the appointment as it was held that the person appointed did not fulfill the requisitions which were annexed with the advertisements.

Satyanarayan Sinha v. Lal & Co.[6]

In this case, the petitioner filed a case challenging the grant of a lease of mining to the respondent. The court observed that since the petitioner had no personal interest or locus standi in the lease and was not there in person in the Court. The Court had no jurisdiction under Article 32 or 226 of the Constitution of India to entertain the matter under its writ jurisdiction and the case was not maintainable.

Conclusion

In conclusion, it is important to lay stress on the fact that India has been a land of Justice and ensuring it to the masses has been something which has been flowing in our blood since forever. The techniques of the Indian Judiciary might be a little old in comparison to other systems globally but it still is perhaps one of the best and the number of people it has given justice to, is more than the population of a lot of the so called “First world” countries of today.

“Justice and equality are the two wheels of the same wagon, if one ceases the other curbs its motion. Hence, for the attainment of the utmost justice, absolute equality amongst everyone is a must.”

Also read Legitimacy of Police Discretion in Criminal Justice Administration Vis-À-Vis the Rule of Law


[1] INDIA CONST., art 14.

[2] INDIA CONST., art 226.

[3](1976) 2 SCC 521; AIR 1976 SC 1207.

[4]AIR 1955 SC 233.

[5] 1965 AIR  491, 1964 SCR  (4) 576.
[6] 1973 AIR 2720.