Articles 32 and 226: constitutional remedies, the writs and PIL - Constitutional Law I

Check the judgment before you rely on this. Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

A right without a remedy is no right. Dr Ambedkar called Article 32 the very soul of the Constitution and its very heart. That line belongs in the opening of any answer on this topic, because it states the reason the Article exists.

1. Article 32

32(1) — the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is itself guaranteed.
32(2) — the Supreme Court may issue directions, orders or writs, including habeas corpus, mandamus, prohibition, quo warranto and certiorari.
32(3) — Parliament may empower any other court to exercise the same jurisdiction.
32(4) — the right shall not be suspended except as provided by the Constitution.

Two consequences follow from clause (1) being a fundamental right in its own right. A petitioner cannot be turned away merely because an alternative remedy exists, though the Court often requires the High Court to be approached first. And Article 32 is itself part of the basic structure.

2. Article 32 compared with Article 226

This comparison is asked directly and often. The differences:

Purpose. Article 32 lies only for enforcement of fundamental rights. Article 226 lies for fundamental rights and for any other purpose — the enforcement of an ordinary legal right included. Article 226 is therefore wider in scope.
Nature. Article 32 is a fundamental right; the Supreme Court cannot refuse relief where a fundamental right is shown to be infringed. Article 226 is a constitutional but discretionary power of the High Court.
Territory. The Supreme Court's writ jurisdiction runs throughout India. A High Court's runs within its territorial jurisdiction, or where the cause of action arises wholly or in part within it.
Suspension. Article 32 may be suspended during an emergency under Article 359, though not in respect of Articles 20 and 21 since the Forty-fourth Amendment. Article 226 is not similarly suspended.

In L. Chandra Kumar v. Union of India, 1997 INSC 288, (1997) 3 SCC 261, a seven-judge Bench held that the power of judicial review under Articles 32 and 226 is part of the basic structure and cannot be excluded, even by constitutional amendment creating tribunals.

3. The five writs

Habeas corpus

“Let us have the body.” Lies against unlawful detention, whether by the State or by a private person, to produce the detained person and justify the detention. It is the writ that makes personal liberty enforceable, and the one whose denial in ADM Jabalpur v. Shivkant Shukla, 1976 INSC 129, (1976) 2 SCC 521, is now regarded as the low point of the Court's history, since overruled.

Mandamus

“We command.” Lies to compel a public authority to perform a public duty it has failed to perform. It does not lie against a private individual, nor to enforce a purely contractual obligation, nor against the President or a Governor, nor to compel the legislature to enact a law.

Prohibition

Lies to a judicial or quasi-judicial body to stop it exceeding its jurisdiction. It is preventive, issued while the proceedings are pending. It does not lie against administrative or legislative bodies.

Certiorari

Lies to a judicial or quasi-judicial body to quash an order already made, on grounds of want of jurisdiction, excess of jurisdiction, violation of natural justice, or an error of law apparent on the face of the record. Certiorari is curative where prohibition is preventive; the distinction between the two is a standard short note.

Quo warranto

“By what authority.” Lies to question a person's title to hold a public office of a substantive character created by statute or the Constitution. Notably, any person may apply; the petitioner need not be personally aggrieved.

4. Public interest litigation

PIL is not a separate jurisdiction but a relaxation of the rule of locus standi. Traditionally only a person whose own right was infringed could approach the court. That rule left the poor, the illiterate and the detained without a remedy, since they were least able to litigate.

The relaxation was stated in S.P. Gupta v. Union of India, 1981 INSC 209, AIR 1982 SC 149 — the Judges' Transfer case — where the Court held that where a legal wrong is caused to a person or class of persons who by reason of poverty, disability or a socially or economically disadvantaged position are unable to approach the court, any member of the public acting bona fide may move the court on their behalf.

Its application appears in People's Union for Democratic Rights v. Union of India, 1982 INSC 67, (1982) 3 SCC 235, brought on behalf of construction workers, and in Bandhua Mukti Morcha v. Union of India, 1983 INSC 203, (1984) 3 SCC 161, where an organisation's letter about bonded labourers in stone quarries was treated as a writ petition. Bandhua Mukti Morcha established that the Court may appoint commissioners to investigate facts, since a petitioner acting for the voiceless cannot be expected to produce evidence in the ordinary way. This is the origin of epistolary jurisdiction — a letter treated as a petition.

The criticisms

Worth a short paragraph, since good questions invite them: the risk of publicity interest litigation and frivolous petitions; the burden on judicial time; the difficulty of monitoring compliance with continuing directions; and the objection that courts assume functions properly belonging to the executive. Courts have responded by imposing costs on frivolous petitioners and requiring bona fides to be shown.

How this is examined

Constantly, and in every format. Short notes on individual writs — especially habeas corpus and quo warranto, and on the difference between prohibition and certiorari. Comparison questions on Article 32 against Article 226. Essays on PIL and its contribution.

For the writs, learn against whom each lies and when — that is what problems test. For the comparison, remember the counter-intuitive point: Article 226 is wider in scope, but Article 32 is stronger in nature because it is itself a fundamental right.

Now go and read the questions themselves: Constitutional Law I past question papers.