The Comparative Study of Articles 32 and 226 of the Constitution of India

The Comparative Study of Articles 32 and 226 of the Constitution of India

Vishal Singh^[1]

Introduction

The Constitution of India is the fundamental law of the land. It was drafted to be read and understood by layman and lawman alike, however after the seven decades from the day we got independence the scared articles of Constitution of India become so difficult that if today a layman would certainly be lost if he is to go by the bare text of Constitution.  And the reason is that there is a broad difference between the bare text and what is being followed courtesy several judgements by Hon’ble Courts of law be it Supreme Court, apex court of law in India or be it High Court.

Today, world’s largest democracy is stood tall and doing great is because it has been now and then supported by its judicial pillar where several have been martyred during this holy struggle. India has been under British rule for over two hundred years straight. Britishers though introduced formal courts of law in India but they didn’t allow much discretion to judges to exercise as they codified the laws here. Therefore, when we adopted Constitution in 1950 the courts of law were not conscious enough to venture far from the meaning of the words of laws in force. However, after the emergency of 1975 judiciary began its transformation from judiciary of police state to that of a welfare state in true sense. From here now, courts of law started to adopt purposive interpretation, golden rule of interpretation to the provisions of law in order to do complete justice.

Statement of Problem:

The central issue the researcher will attempt to address through the project the role of judiciary by the interpretation of the jurisdiction of writs under Articles 32 and 226 under the Constitution of India which provide constitutional remedy on violation of fundamental rights. In the light of this, research work will discuss the inter-relation and difference between the power of High Courts and Supreme Court. Further, discuss will concentrate on how the court interpreter the Articles for providing complete justice to the citizen of India and according to the needs of the society. After aforesaid discussion, the researcher will move to make a comparative study on new dimension which is taken by the Supreme Court in relation to writ jurisdiction under Article 32 of the Constitution of India.

Aim and objective      

The aim of this research work is to understand the comparative jurisdiction of the High Courts and the Supreme Court over the infringement of fundamental rights under Articles 32 and 226 of the Constitution of India. The researcher would clarify the differences between the power of High courts and Supreme Court in relation to issue of writs under the Constitution of India. The main objective is to study and understand the new dimension of writ Jurisdiction of Supreme Court and High Court under Art. 32 and 226 which is adopted by the Courts in recent years and to understand the unique features of the Constitution of India.

Scope and Limitations

The scope of the research paper is restricted to the power of Supreme Court and High Courts under Articles 32 and 226 respectively on violation of Fundamental Rights only. The researcher has also analysed the issue relating to the inter-relation of Jurisdiction of High Courts and Supreme Court under Articles 226 and 32. The researcher also limits the research paper while dealing with the new dimension of writ Jurisdiction of Supreme Court and High Court under Articles 32 and 226 in recent years to the extent of certain relevant sections of the Constitution.

Research Questions        

The researcher deals with the following question in the research paper:
1. What is the role played by the Courts for the protection of  fundamental rights?
2. How the Court interpret the Articles of the Constitution for providing complete justice to the citizens?

Research Methodology

The researcher has adopted a purely doctrinal method of legal research in doing the project. The researcher has used different tools of research like books, journals, online resources, the texts of Constitution of India and other necessary tools as per requirement. The sources of data are primary e.g. Constitution, Supreme Court’s judgments, as well as secondary e.g. articles, journals, books etc. The researcher has also adopted an analytical approach for interpretation and drawing the conclusion. The researcher has used a uniform mode of citation throughout the course of this research paper.

Chapter-1

Jurisdiction of Supreme Court and High Court under Article 32 and 226

The fundamental principle of Common law and Indian law system is based on the well known maxim Ubi Jus Ibi Remedium which means that wherever there is right there is remedy. In simple sense, there cannot be any wrong without a remedy. The main object of Article 32 is the enforcement of Fundamental Rights guaranteed under part III of the Constitution of India. On the basis of this, the Supreme Court under Art. 32 only deals the cases where Fundamental Rights is violate. According to the provisions of Article 32, without violation of Fundamental Right, we cannot approach the Supreme Court.^[2]  On the other side Article 226 which gives the power to the High Courts of the all the States for enforcement of fundamental right as well as the other constitutional rights.^[3] This means that the power of a High Court under Art. 226 are wider than the power of the Supreme Court. And the other thing is that if an administrative action does not affect a Fundamental Right, then it can be challenged only in the High Court under Article 226, and not in the Supreme Court under Art. 32. The power of High Court under Article 226 are discretionary. It will be exercise only in furtherance of interest of justice. The phrase "for any other purpose" under Article 226 which is not given in Article 32 give the power to High Court to take action of any matter even if no Fundamental Right is violated. But irrespective of the limited power of the Supreme Court, there is also some exception in which the Supreme Court has entertained writ petitions under Article 32 where no question of Fundamental Right was involved.^[4] The reason behind this is that, these cases involved questions of great constitutional significance and there was no forum except the Supreme Court where these questions could be authoritatively decided, and there was no other mechanism, except Article 32, to bring such matters within the cognisance of the Supreme Court. These matters are: (1) misuse of the ordinance-making power by the State of Bihar^[5]; (2) appointment of the Judges of the High Courts and the Supreme Court^[6]; (3) issues related with the procedure to remove a Supreme Court Judge.^[7]