In this blog we will discuss most significant article of the constitution that is article 32 and 226. Power of supreme court and high court to invoke writ jurisdiction under article 32 and 226 respectively along with landmark judgments.
During the constituent assembly debate Dr. B. R. Ambedkar highlight that one particular article of the constitution without which constitution will be nugatory is “Article 32″ “which is very soul and heart of constitution”.
Article 32 and 226:
Article 32 and 226 of the constitution is referring to writ jurisdiction of Supreme court and high court respectively. A writ petition can either be filed under 226 before the high court or one can directly approach to Supreme court under article 32.
Supreme court is the custodian or guarantor of fundamental rights that why power of supreme court is so crucial under article 32. Dr. Ambedkar also mentioned that there are no rights without remedy. An aggrieved person can directly knock the door of supreme court under article 32 only when there is violation of fundamental rights as in Part III of constitution. Most noteworthy point is that article 32 itself is a fundamental right if that is not so, enforcement of fundamental right will be impracticable.
These fundamental rights guaranteed under part III of constitution remain suspended during emergency including article 32 that is right to approach supreme court. However, article 20 & 21 will not be suspended.
Types of writs:
- Habeas Corpus: it is a Latin word which means “you should have the body”
This is most profound and valuable writ as it protects the liberty of an individual against government authority or state abuse. It precludes the state from illegally detaining any person. Article 32 empowers the court to check upon the state and ensure review of any illegal detention and security of individual liberty. This is a remedial measure to access the apex court in order pled the release from illegal detention or confinement. The court have power to call upon the detaining authority and to direct to produce the detained person to shelter liberty and freedom.
Case: Addl. District Magistrate, Jabalpur vs. Shivkant Shulka (Habeas corpus case): (1976) 2 SCC 521:
This is a milestone judgment which was pertaining to suspension of fundamental rights including article 21 during emergency resultantly no one can approach the court in case of illegal detention during emergency. Due to the suspension of fundamental rights no one could access the court even under article 32 of constitution.
The 44th amendment of constitution articulated that article 21 will not be suspended during emergency.
Case: Rudal Shah vs. State of Bihar: (1983) 4 SCC 141:
This is a landmark judgment wherein court dealt with a petition where a person was detained for 14 years even after his acquittal. Therefore, aggrieved person filed a habeas corpus petition under article 32. The noteworthy point in the said case is that petitioner also claimed compensation for illegal detention. The issue before the court is that whether under article 32 any one can avail compensation as article 32 is only to safeguard the fundamental rights and the said power is not exercised when alternative remedy is existing. This is the first case wherein court awarded compensation for the violation of fundamental rights and this extended the scope of writ jurisdiction. Hon’ble court expounded that refusal of compensation will do no justice and it will only be lip-service to protect the fundamental rights which the state has grossly violated.
Case: Sunil Batra vs. Delhi Administration: (1980) 3 SCC 488:
This is landmark case wherein court bring light on the rights of the prisoners. The apex court ascertained rights of the convicted person should also be protected under article 21 of the constitution. Court further held that a person should not be deprived from his right to life and personal liberty except by the procedure established by the law.
- Mandamus: it is Latin word which means “we command”.
By the said writ court direct the authority, public servant, or government authority to fulfill the duty which they have failed to fulfill and which they are legally obliged to perform. This is a vital measure to maintain rule of law and it ensure accountability of the government authorities for their action.
Case: S.P. Gupta vs. Union of India: (First judges transfer case): AIR (1982) SC 149:
There is one principle which runs through entire constitution it is “rule of law” and judiciary is entrusted to keep every organ of state within the limits of law. This case is crucial on the point of independence of judiciary, wherein 7 judges scrutinized the issue concerning the transfer and the appointment of judges. In this case for the first time Justice P. N. Bhagwati set forth and affirmed the concept of collegium system as amenable method of appointment of judges. It was prayed before this court to issue a writ of mandamus to government concerning non-appointment and short term transfer of the judges.
Case: Binny Ltd. & Anr. vs. V. Sadasivan AIR 2005 SC 3202:
In the said case court analyzed the scope of mandamus writ and concluded that mandamus is not applicable against private wrong. Moreover, mandamus writ is issued only when there is wrong on the part of public authority or refuse to perform its duty in compliance of law.
- Prohibition: “means to forbid, or to prevent”
This writ is issued to direct lower court, quasi-judicial body from proceeding against law or exceeding its jurisdiction. It is sort of stay order passed by the higher court against lower court when lower court is exceeding its jurisdiction. The purpose behind this writ is to forbid the lower courts to act against its jurisdiction and also against principle of natural justice.
- Certiorari: “means to be certified or to be informed”
This writ is issued when lower court act outside its jurisdiction, the higher court will either quash the order or transfer the case to itself. This writ can be issued against judicial, quasi-judicial and even administrative body.
Difference between prohibition and certiorari:
Case: Hari Vishnu Kamath vs. Syed Ahmed Ishaque & ors. AIR 1995 SC 233:
5 judges’ bench of apex court construed the distinction between writ of prohibition and certiorari.
……. distinction between a writ of prohibition and a writ of certiorari. A writ of prohibition will lie when the proceedings are to any extent pending and a writ of certiorari for quashing will lie after the proceedings have terminated in a final decision. If a writ of prohibition could be issued only if there are proceedings pending in a court, it must follow that it is incapable of being granted when the court has ceased to exist, because there could be then no proceeding on which it could operate. But it is otherwise with a writ of certiorari to quash, because it is directed against a decision which has been rendered by a Court or tribunal, and the continued existence of that court or tribunal is not a condition of its decision being annulled.
Case: Radhey Shyam & Anr. Vs. Chhabi Nath & ors. (2015) 3 SCC 67:
In the said case court looked into the correctness of the law laid down in Surya devi vs. Ram Chander Rai (2003) 6 SCC 675. The apex court held that higher court do not issue writ against the order of civil court on the ground of violation of fundamental rights. High court will not issue writ under article 226 against the order of civil court, the remedy is available and should be sought under article 227 of the constitution which is a supervisory power of high court. (read case brief)
- Quo warranto: “means by what authority or warrant”:
This is a legal remedy that is to resolve any lis which raise the objection whether any specific person have legal right to hold the public issue. The condition stipulated with this writ is that petitioner has to establish that his personal interest is being affected as a result of unlawful occupancy.
Case: Bharti Reddy vs. State of Karnataka: (2018) 6 SCC 162:
Hon’ble 3 judges bench observed that writ of quo warranto is even issued when appointment is in contravention to statute.
Writ under 32 &226:
All the writ of both the courts are same, high court also have power to issue same 5 writs, however there is slight difference in power of high court under 226 & power of supreme court under article 32 which will be discussed in next blog.