Constitutional Remedies: Article 32 and 226

    Fundamental rights, enshrined under Part III of the Constitution, are essential for intellectual, moral and spiritual development of the citizens in India. They include:

    • Right to equality and equal protection of  law;
    • Right to freedom;
    • Right against exploitation;
    • Right to freedom of religion;
    • Cultural and Educational rights; and
    • Right to constitutional remedies

    In any case of denial of such fundamental rights, the citizens are provided with the constitutional remedies in the form of writs. This article focuses on the available constitutional remedies and discusses the five kinds of writs, for the protection of fundamental rights, under Articles 32 and 226 of the Constitution. 

    ARTICLE 32

    Article 32 provides for the right to constitutional remedies, referring to a person’s right to move to the Supreme Court for getting his fundamental rights protected in case of any violation thereof.

    In Malik Mazhar Sultan v. Uttar Pradesh Public Service Commission[1], the Supreme Court struck down Rule 5A of the Bihar Service Judicial Branch Recruitment Rules, 1995. According to this judgment, Article 32 is the heart and soul of the Indian Constitution. A person can move to the Supreme Court and High Court to get his fundamental rights protected. It is a defender and guarantor of the fundamental rights that comes under the Supreme Court’s original jurisdiction. An individual can directly approach the Supreme Court rather than appeal. 

    ARTICLE 226

    Article 226 is the second most crucial Article of the Constitution, which empowers High Courts to ensure implementation and protection of fundamental rights and other legal rights of India’s citizens. It provides that every High Court shall have power throughout its territory to which it exercises jurisdiction to issue any person or authority, including the appropriate cases, any Government, within those territories, direction, orders of writs, including writs in the nature of Habeas corpus, Mandamus, Prohibition, Quo-warranto and Certiorari, is for the enforcement or implementation of any of the fundamental rights guaranteed by Part III of the Constitution and for any other purposes. 

    The writs mentioned in Article 226 are known as prerogative writs because they had their origin in the prerogative power of superintendence over it’s officer and subordinate courts. These writs are among the great safeguards provided by British judicial system for upholding the rights and liberties of the people 

    COMPARATIVE ANALYSIS

    The powers which are vested under Article 32 in the Supreme Court, the same powers are also given under Article 226 to the High Courts, for protecting fundamental rights. Thus, these two articles give you the right to approach the country’s highest courts if your fundamental rights are violated. There is no rule that prescribes that the High Court must be approached before approaching the Supreme Court. Article 32 and 226 both provide for the issuance of Writs, but there are certain similarities and certain differences between both these articles:

    SIMILARITIES

    1. Both, Article 32 and 226, can be invoked for the enforcement of fundamental rights;
    2. Both, the Supreme court and High courts have the power to issue writs under Article 32 and Article 226 respectively.

    DIFFERENCES

    1. The Supreme Court can only issue writs for the enforcement of the fundamental rights, whereas High Courts can issue writs for enforcement of fundamental rights and other matters. Thus, the powers of the High Courts are vide.
    2. The Supreme Court issues a writ against any person or authority within the Indian territory, but the High Court issues writs only under its territorial jurisdiction.
    3. Article 32 is a fundamental right in itself whereas Article 226 is not a fundamental right.

    https://legalreadings.com/directive-principle/

    WRITS

    We have been provided with different rights, like the right to education, right to dignity, right to life etc. But like the above example, there is no meaning of rights until they are appropriately protected. In simple words, whenever we buy any jewelry, the first thing we think about is its safekeeping. Just like that,  for the protection of our fundamental rights and their safeguards, we have constitutional remedies. Protection of fundamental rights are provided mainly in these four Articles of the Constitution-

    • Article 13 that talks about Judicial Review;
    • Article 359, which says that fundamental rights cannot be curtailed except during emergency; and
    • Articles 32 and 226. 

    Since Part III of the Constitution talks about fundamental rights, it extends from Articles 12-35, thus, Article 32 is itself a fundamental right that mainly talks about two types of rights and powers:

    • It says that if an individual’s fundamental rights are being violated, then he can directly use Article 32 and approach the Supreme Court. 
    • Article 32 empowers the Supreme Court to issue 5 kinds of writs for the protection of fundamental rights. Because of this feature of Article 32, the Supreme Court is known as ” the Protector and Guarantor” of the fundamental rights.” Dr. B. R. Ambedkar has called this Article “the Heart and Soul of the Constitution.” 

    TYPES OF WRITS

    All five of them are Latin terms. “Writ” means a kind of a remedy. There are five types of writs, as mentioned below:

    WRIT OF HABEAS CORPUS

    It means to have a body or to produce a body. It is the most potent and most used writ. If the State illegally detains a person, then such an individual by himself or through his relatives or friends can use the writ of Habeas Corpus for the release of such person. When this Writ is used,  the Supreme Court or the High Court asks the detaining authority on what basis the person was detained. If the ground is found to be unreasonable, then the detention ends, and he is to be released with immediate effect. 

    In Rudal Shah v. State of Bihar[2], a person who had already completed his period of detention was still kept in prison for an extra 14 years. The Writ of Habeas Corpus was used, which led to his immediate release; additionally, he was given exemplary damages. Thus, Writ of Habeas Corpus is used to demand the production or the release of a person who is illegally detained. 

    WRIT OF MANDAMUS

    Mandamus means, ‘we command.’ We can use this Writ on any statutory, non-statutory, University, Tribunals, etc., to Command them to perform their public duty. That is through this Writ; we can command a public official to perform his Public Duty. In Gujarat State Financial Corporation vs.  Lotus Hotels[3],  the Financial Cooperation had an agreement with the Lotus Hotels that they will release the funds so that they can complete their construction work. Later,  they refused to release the funds. So, the Lotus Hotels approached the Gujarat High Court. Using the Writ of Mandamus, the court directed the authority to perform the public duty, which it promised to perform. There is one condition, prerequisite, for the application of Writ of Mandamus that there must be a public duty. 

    WRIT OF CERTIORARI

    It means ‘To be Certified’. Through this Writ, the Supreme Court and High Courts, can command the lower Courts to submit their records for their review. 

    When can lower courts’ judgment be subject to review?

    • Excess of jurisdiction 
    • Lack of jurisdiction 
    • Jurisdiction is unconstitutional 
    • Violation of principles of natural justice 

    If the lower court’s judgment is found to be illegal, then they are quashed. Gullapalli Nageswara Rao vs. APSRTC, [4] and A.k. Kraipak v. Union of India[5], both  these cases are related to the Writ of Certiorari. In both these cases,  the lower court’s judgments were held to be illegal and therefore quashed. 

    WRIT OF PROHIBITION

    Prohibition, and Certiorari are a little different. One must have heard of ‘Prevention is better than cure.’ The difference that is between ‘prevention’ and ‘cure’, the same difference exists between ‘Prohibition’ and ‘Certiorari’. If an illegal judgment is announced, they have to quash it, and if they need to cure the mistake, they have to use Certiorari. But in case if you want to prevent the mistake, then you use the Writ of Prohibition. Prohibition means to forbid, so prohibition is used until the lower court has pronounced the judgment, and if the lower court has pronounced an illegal judgment, we use Certiorari.

    WRIT OF QUO WARRANTO

    With the help of an example. Suppose for taking admission in a college; you must have cleared college entrance eligibility, whether it’s clearing the 12th Board or getting the minimum marks required for qualifying Entrance exam. You must have qualified in Colleges Entrance eligibility. If it is found out that you haven’t cleared the entrance eligibility, then you could be eliminated from the college. Precisely, in the same way, this principle is followed in the Writ of Quo Warranto,  which means ‘By what Authority.’ By using this Writ,  Courts can question any Public Officer that by what as an authority, have you assumed this Public Officer. If the Officers Title is defective, then he has to vacate the office. 

    RES JUDICATA

    Res judicata implies that no court shall try any suit or issue in which matter is same, parties are same, title is same, and it is already heard by a competent and decided by a competent court. So, if all these five aspects are satisfied, the case cannot be again heard by another court. Res Judicata is a rule of public policy that there should be finality and binding of decisions of courts and that parties to the litigation should not be vexed with the same litigation again. The principle is embodied in Section 11 of the Code of Civil Procedure. If a question has been once decided by the Supreme Court under Article 32 the same question cannot be reopened, again under Article 226.

    CONCLUSION

    The Constitution provides for legal remedies for the protection of the fundamental rights against their violation by the State or other institutions or individuals. It entitles the citizens of India to move to the Supreme Court or High Courts for the enforcement of these rights.  The State is forbidden from making any law that may be in conflict with the fundamental rights. Fundamental Rights are the basic rights of the people that include equality before law, freedom of speech and expression, religious and cultural freedom and peaceful assembly, freedom to practice religion, right to constitutional remedies for the protection of civil rights. Right to Constitutional Remedies is for the enforcement of the fundamental rights by way of writs.

    References

    [1] CIVIL APPEAL   NO(S).   1867/2006.

    [2] 1983 SCR (3) 508.

    [3] AIR 1983 SC 848.

    [4] AIR 308 1959.

    [5] AIR 1970 SC 150.

    [6]Bhavya Mudundi, “Right to Constitutional Remedies under Article 32 and 226“, https://advocatespedia.com/Right_to_Constitutional_Remedies_under_Article_32_and_226, (Last Visited on September 05, 2020).

    [7] Aparna Ramamoorthy, “Right to Constitutional Remedies Explained “, https://www.legalbites.in/right-to-constitutional-remedies/,  (Last Visited on September 05, 2020).


    BY SHANTI GUPTA | INDIAN INSTITITUTE OF LEGAL STUDIES

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