Law optional 2019 Paper I

Q2. (c) Examine the nature of the powers of the High Courts under Article 226 of the Constitution of India and distinguish it from the powers of the Supreme Court under Article 32.

Verified Answer
  1. Core Legal Answer & Context: Both Article 226 and Article 32 of the Indian Constitution empower the High Courts and the Supreme Court, respectively, to issue writs for the enforcement of rights. However, their nature, scope, and underlying principles differ significantly.

Powers of High Courts under Article 226: Article 226 grants High Courts the power to issue directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for two primary purposes: (a) for the enforcement of any of the Fundamental Rights, and (b) for 'any other purpose'. The phrase 'for any other purpose' makes the jurisdiction of High Courts under Article 226 much wider than that of the Supreme Court under Article 32. This 'other purpose' includes the enforcement of any legal right, whether statutory, common law, or even administrative. High Courts can intervene in cases of administrative excesses, statutory violations, or any other legal grievance. The power under Article 226 is discretionary; a High Court may refuse to exercise it if an alternative efficacious remedy is available, or if the petitioner has been guilty of laches. The territorial jurisdiction of a High Court under Article 226 is limited to its respective state or union territory.

Powers of Supreme Court under Article 32: Article 32 itself is a Fundamental Right (Right to Constitutional Remedies), guaranteeing every person the right to move the Supreme Court for the enforcement of their Fundamental Rights. The Supreme Court is empowered to issue directions, orders, or writs, including those mentioned in Article 226, but only for the enforcement of Fundamental Rights. It cannot be invoked for the enforcement of ordinary legal rights. Since Article 32 is a Fundamental Right, the Supreme Court cannot ordinarily refuse to entertain a petition if a Fundamental Right has been violated. Dr. B.R. Ambedkar famously described Article 32 as the 'heart and soul' of the Constitution. The Supreme Court's jurisdiction extends throughout the territory of India.

Distinction between Article 226 and Article 32:

  • Scope of Rights: Article 32 is restricted to the enforcement of Fundamental Rights only. Article 226 extends to the enforcement of Fundamental Rights as well as 'any other legal right' (statutory, common law, etc.). This makes Article 226 broader in scope.
  • Nature of Right to Approach: Article 32 is a Fundamental Right itself, meaning a person has a guaranteed right to approach the Supreme Court if their Fundamental Rights are violated. Article 226 is a discretionary power of the High Court; it is not a fundamental right to approach the High Court.
  • Territorial Jurisdiction: The Supreme Court's writ jurisdiction under Article 32 extends throughout India. A High Court's jurisdiction under Article 226 is confined to its territorial limits.
  • Hierarchy: While both are constitutional remedies, the Supreme Court is the apex court. A decision under Article 226 can be challenged before the Supreme Court under Article 136 (Special Leave Petition) or Article 32 (if a Fundamental Right is still violated).
  1. Relevant Statutes and Sections:
  • Article 226 of the Indian Constitution: Powers of High Courts to issue certain writs.
  • Article 32 of the Indian Constitution: Remedies for enforcement of rights conferred by Part III (Fundamental Rights).
  1. Important Landmark Cases:
  • Romesh Thappar v. State of Madras (1950): One of the earliest cases where the Supreme Court emphasized that Article 32 provides a guaranteed remedy for the enforcement of Fundamental Rights, and the Court cannot refuse to entertain such petitions.
  • D.A.V. College, Bhatinda v. State of Punjab (1971): Reiterated that Article 32 is available only for the enforcement of Fundamental Rights and not for ordinary legal rights.
  • State of U.P. v. Raj Narain (1975): Illustrated the wide scope of Article 226, allowing High Courts to intervene in various matters beyond just Fundamental Rights.
  • L. Chandra Kumar v. Union of India (1997): Reaffirmed the supervisory jurisdiction of High Courts under Article 226/227 over all tribunals, emphasizing that this power is part of the basic structure of the Constitution.
  1. Clear Conclusion: While both Article 226 and Article 32 are vital constitutional remedies for protecting rights, Article 226 grants High Courts a broader, discretionary power to enforce both fundamental and other legal rights within their territorial limits. In contrast, Article 32 is a fundamental right itself, providing a guaranteed, non-discretionary remedy from the Supreme Court exclusively for the enforcement of Fundamental Rights, underscoring its pivotal role as the ultimate protector of constitutional liberties.