NILABATI BEHERA vs. STATE OF ORISSA

ARTICLE 32 AND 226 OF CONSTITUTION

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INTRODUCTION:

This piece of work is pertaining to one of the significant issues of constitution which is concerning power of Supreme court and High court under article 32 and 226 respectively. Article 32 and 226 both enumerates five writ that can be issued against the state by the said courts respectively in case of infringement of fundamental rights. It is noteworthy to mention that power of High court under 226 is more than power of Supreme court under 32 which is discussed further.

Present blog will not cover the five writs as the same has been discussed in writ jurisdiction under article 32 and 226. (read more)

Article 32 and 226

ARTICLE 32 AND 226 OF CONSTITUTION:

32. Remedies for enforcement of rights conferred by this Part:

  1. The right to move the Supreme Court by appropriate proceedings for the    enforcement of the rights conferred by this Part is guaranteed.
  2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
  3. Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction ill or any of the powers exercisable by the Supreme Court under clause (2).
  4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

REQUISITES OF ARTICLE 32:

  1. Appropriate proceedings;
  2. Enforcement of fundamental rights part III of constitution;
  3. Power of Supreme court to pass writ, order or direction;
  4. Power of parliament to empower other to confer power of Supreme court;
  5. Suspension of fundamental rights
Analysis of Article 32:

This is most crucial right among all the fundamental rights guaranteed under part III of the constitution. It confers original and exclusive jurisdiction of the Supreme court, thereby declaring the apex court as custodian of the fundamental rights, additionally this court has no more important function then to preserve the fundamental rights.

Article 32 is itself a fundamental right, which entails that any person can approach supreme court with “appropriate proceeding” for the enforcement of Fundamental rights against the state. Any person whose fundamental right has been invaded has a guaranteed rights/remedy under article 32 to seek the relief directly before the apex court. However, there is no liberty to approach under article 32 otherwise then with appropriate proceedings. The key word of this provision is that rights guaranteed under part 3 are enforceable “against the state”.

The term state has been defined under Article 12 of the constitution as under:

In this part, unless the context otherwise requires, “the State” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

Article 32 part of basic structure:

As stated above Article 32 is itself a fundamental right, it is an integral part of the constitution and moreover it is part of basic structure. It is such a vital right reason being it imbibe duty and power of Supreme court to safeguard fundamental rights.

Fertilizer Corporation Kamgar Union & ors. vs. Union of India & ors.: (1981) 1 SCC 568: Constitution bench of supreme court evaluated as under:

  1. Article 32 is an important and integral part of the basic structure of the Constitution because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated;
  2. violation of a fundamental right is the sine qua non of the exercise of the right conferred by Article 32;
  3. right guaranteed under article 32 is for the enforcement of fundamental rights and under article 226 is for the enforcement of fundamental rights and for any other purpose;

ARTICLE 226 :

  1. Notwithstanding anything in article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories’ directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrantor and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
  2. The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
  3. Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—
    • furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
    • giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.
  4. The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.

REQUISITES OF SECTION 226:

  1. Power of high court to issue order, direction & writ;
  2. Issue to any person, authority or government;
  3. Enforcement of fundamental rights;
  4. Any other purpose;
  5. Where cause of action arises wholly or in part;
Analysis of article 226:

Article 226 confers power on all the High court to issue writ, order or direction in case of violation of rights established under part III of the constitution and also for any other purpose. The term “any other purpose” distinguish the power of the High court from that of Supreme court, this makes the remedy under 226 wider than article 32.

The division bench of Apex Court lately in Central Council for research in Ayurvedic Science & Anr. vs. Bikarant Das & Ors. 2023 SCC online SC 996: Court expounded two-cardinal principle of law to govern the exercise of power under article 226: (para 51):

  1. First principle:
    • High court does not exercise power of appellate court;
    • High court does not review the evidence on which determination of inferior court is based;
    • It set aside the order that is erroneous and passed without any jurisdiction;
    • Certiorari writ should be issued when there is error on the face of record.
  2. Second principle is that power of high court is discretionary and it is    completely open to the writ court to exercise power and issue writ in public interest and equity.

POWER TO ISSUE WRIT:

Hari Vishnu Kamnath vs. Syed Ahmed Ishaque AIR 1955 SC 233: Constitution bench established 3 fundamental rules to issue writ of certiorari:

  1. Certiorari will be issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it.
  2. Certiorari will also be issued when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice.
  3. The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. 

Radhey Shyam vs. Chhabi Nath & ors. 2015) 3 SCC 67: In the said case court ascertained that power under article 226 is extraordinary power and court should not issue writ against final order of inferior court as the same could be assailed in appellate jurisdiction. Court further viewed that article 227 envisage the supervisory power of the high court and order of the civil court could be assailed here under article 227 and not under article 226 when party is pleading to issue writ of certiorari against the final order of civil court. (Read case brief for more details)

ALTERNATIVE REMEDY AND WRIT JURISDICTION:

We often come across the situations where the writ has been dismissed on the ground that law furnish an alternative remedy. The Supreme court has dealt with similarly issue in an appeal assailing an order of the high court wherein writ was dismissed for the reason that alternative remedy is existing. Court has observed circumstances where court will exercise the power under article 226 moreover court affirmed certain exceptions to the rule of alternative remedy.

Radha Krishan Industries vs. State of Himachal Pradesh & Ors. (2021) 6 SCC 771:  (para 27)

  1. Power under 226 is not only for the enforcement of fundamental rights but also for any other purpose;
  2. High court has the discretion not to entertain the writ petition, one of the restrictions is alternative remedy;
  3. Exception to the rule of alternative remedy:
    • Writ is for the protection of fundamental rights;
    • Violation of principle of natural justice;Order or proceeding is without jurisdiction;
    • Legislation is under challenge.
  4. Alternate remedy does not divest power of high court under 226 however such power under 226 should not be invoked when efficacious alternative remedy is available;
  5. Statute provides remedy for rights and liabilities before invoking discretionary remedy under 226;
  6. When there is disputed question of facts court may decline to issue writ issued under 226

PHR Invent Educational Society vs. UCO Bank & Ors. (2024) SCC Online SC 528: In this recent judgment 3 judges bench inferred that “High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance.” Further Hon’ble court ascertained the exception to the rule of alternative remedy as under:

  1. where the statutory authority has not acted in accordance with the provisions of the enactment in question;
  2. it has acted in defiance of the fundamental principles of judicial procedure;
  3. it has resorted to invoke the provisions which are repealed; and
  4. when an order has been passed in total violation of the principles of natural justice.

Godrej Sara Lee Ltd. v. Excise and Taxation Officer-cum-Assessing Authority: 2023 scc online sc 95:

In the said case court evaluated that the rule of alternative remedy is a self-imposed restriction which evolved through judicial precedents. This rule set up a question on the maintainability of writ petition in case of availability of alternative efficacious remedy. However, court has identified the subtle difference between the “maintainability and entertainability”. The question of entertainability is with in the realm of discretion of the High court and where the objection raised goes within the roots of the matter it will render the court incapable of adjudication of issue and writ as the writ is not maintainable.  

RES JUDICATA:

This is a Latin term which means “matter judged”. In accordance with this principle a case or matter should not be re-adjudicated or re-decided which is once decide by the competent court. Similarly, once the writ has been decided whether allowed or dismissed as the case may whether a second writ should or should not be entertained concerning the same lis. For instance, a writ has been deiced under article 226 by the high court whether the aggrieved person can approach hon’ble supreme court under article 32 based in the same facts whether the latter will be maintainable or bared by principle of re judicata.

Daryao & Ors. vs. State of U.P. & ors. AIR 1961 SC 1457: Hon’ble court in paragraph no 26 made the following observation with regard to the applicability of res judicata on writ petition:

  1. writ filed under 226 and decided on merits: Judgment will continue to bind parties unless the same has been modified in appeal before the apex court. It is not open to move to court under article 32 based on the same facts;
  2.  Writ under 226 dismissed because of laches or alternative remedy: where a writ has not been decided on merits and dismissed based on the laches on part of the filing party or writ has been dismissed that alternative remedy is available under the law then res judicata will not bar subsequent petition under article 32 before Supreme court;
  3. writ under 226 is dismissed in limine and without speaking order: such a dismissal will not create any bar of res judicata for filing further petition under article 32. As without speaking order it is not possible to ascertain the factors whether same is decided on merits or not.
  4. Writ dismissed as withdrawn: when a writ has been dismissed as withdrawn, res judicata is not attracted as the same has not been decided on merits by court.

REMEDY IN CASE OF DISMISSAL OF WRIT:

  1. Letters patent appeal (LPA): The aggrieved party can move to the division bench of the same high court with letters patent appeal though there is a condition attached that case involves the substantial question of law affecting the rights and liabilities of the parties or there has been wrong interpretation of constitution.
  2. Appeal: When the writ has been decided on merits or the LPA has also been decided the order can been assailed by filing the appeal before the supreme court and not by writ petition under article 32 as the same will be barred by the rule of res judicata.

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