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Remedies Under Art.32 and Art.226 of Constitution

Introduction

Right to Constitutional Remedies provided under Art.32 and Art.226 of the Indian constitution. It empowers the citizen of the country to move to a court of law in case of any infringement of the fundamental rights by the state or other institutions/individuals. It gives power to the resident of India to move the Supreme court or High Court for the implementation of these rights. It forbid the state not to make any law that may conflict with fundamental rights.

The coúrt save or shield the resident's fundamental rights should be possible in different manners. The court can give different sorts of writs to securing the privileges of a resident. These writs are:

  • Habeas corpus
  • Mandamus
  • Writs of prohibition
  • Quo warranto
  • Certiorari

These writs empower a citizen to move to the court if they believe that the state has violated their fundamental rights.

Remedies Under the Indian Constitution

Indian Constitution provides remedies under Art. 32 and Art.226. In case of infringement of fundamental rights Art.32, it empowers the resident of India to move to the Supreme Court and Art.226 it empowers resident of Indian to move to Hight Court of India.

Article 32

Part III of the constitution of India guaranteed “The Constitutional Remedies” under Art.32 of the constitution of India. The Constitutional Remedies can’t be denied as provision itself has been included in the fundamental rights. Dr. B.R Ambedkar described that without the art.32 constitution reduce to a nullity. Dr. B.R Ambedkar also referred to Art.32 as the heart and soul of the constitution.

In case Romesh Thappar vs The State of Madras the court held that “Art.32 provided a “guaranteed” remedy for enforcement of a fundamental right, as Art.32 comes under Part III of the constitution so itself made a fundamental right. Supreme Court has thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights”

Art.32(1) gives the right to the Supreme Court if any fundamental rights are violated by the government of India under Part III of the constitution. 

Art.32(2) gives power to the Supreme Court to issue direction or order or writs, whenever may be appropriate for the enforcement of fundamental rights guaranteed under Part III of the constitution.

Art.32(3) stated that parliament may by law empower any other court within the local limit of its jurisdiction to issue direction or writs or order within under Art.32(2).

Art.32(4) stated that the right guaranteed under Part III shall not be suspended except as otherwise provided for by this constitution.

The Scope of Art.32

Art. 32 have limited scope in comparison to Art.226. No one can approach the Supreme Court for enforcement of other rights that are not provided under Part III of the constitution. In case Charanjitlal vs UOI Supreme Court held that the person can move the court just when he claims that his fundamental rights have been encroached up.in the same case, it is also held that “Under Art. 32 the Supreme Court has very wide discretion in the matter of framing writs to suit the exigencies of particular cases and an application under the article cannot be thrown out simply on the ground that the proper writ or direction has not been prayed for”

Along these lines, when individuals look for the insurance of any fundamental rights by Art.32, the court's principal obligation is to deliberately hear the appeal.

As in the case, Ramesh Tapper vs State of Madras court held that “Court is thus constituted the protector and guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights”

According to Dr. B.R Ambedkar Art. 32 is most significant out of 395 articles of the constitution; Art. 32 gave for ensured solution for violation of any of rights.

Article 226

Article 226 of the Constitution of India (“Constitution”) confers upon the High Courts of India expansive powers to issue writs. This power can be invoked not only for the enforcement of Fundamental Rights but also for any other purpose.

Art.226(1) state that every high court have the power to issue to any person or authority, any government, within those territories direction, order, or writs. The writ in the form of habeas corpus, mandamus, prohibition, certiorari, quo warranto.

Art.226(2) state that any high court may exercise the power conferred under art.226(1) to issue direction, order or writ to any authority or person to the territories within which cause of action arises, it’s doesn’t matter that against whom is action arise belong within those territories or not.

Art.226 (3) state that 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 Art.226(1), without

  1. furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
  2. 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 favor such order has been made or the counsel of such party, the High Court shall dispose of the application within 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 afterward 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 aid next day, stand vacated

Art. 226 (4) states that the power conferred on a high court under this article shall not be an exemption from the power conferred on the supreme court by Art. 32 (4).

Scope of Art.226

Art.226 is a wider scope than Art.32.As in case Anandi Mukta Sadguru and ors. Vs V.R Rudani and ors. Court held that Art.226 confers power on the High Court to issue writs for enforcement of the fundamental rights as well as non-fundamental rights.

The incredible favorable position of Art.226 is that its degree can’t be reduced or shaved by legislation. The jurisdiction of the high court under art.226 can’t be removed b any enactment. Even if legislation barred the ordinary jurisdiction of the court, a high court is yet qualified for practice its writs jurisdiction which stays unaffected by legalization.

In Keshvanand Bharti case court held that under art.226 high court extremely wide power and this power can’t be taken away even by amendment of the constitution.

Minerva Mill's case court has characterized the power of judicial review conferred by Art.226 as part of the basic structure of the constitution. Hence to the extent the presence of force is concerned, it can’t be questioned and intensity of the court under art 226 of the constitution can’t be shortened, annulled, or weakened even by the amendment of the constitution.

Writs Under Art.32 and Art.226 

Habeas Corpus

Habeas Corpus is a Latin term which means “you should have the body”. This writ is utilized to implement the fundamental rights of individual freedom against unlawful detainment. Through Habeas Corpus, Supreme Court/ High Court order one individual who detained other individuals to bring the body before the court while the supreme court can give the writs of habeas corpus just against the state in the event of an infringement of fundamental rights through the high court can give it additionally against private people unlawfully or self assertively confining some other individual.

In Kanu Sangal vs Dist. Magistrate the court held that the court may inspect the lawfulness of the detainment without requiring the individual kept to be created before it.

In Sunil Bhatra vs Delhi Administration case held that the writs of habeas corpus can be given not just for delivering an individual from unlawful detainment yet additionally for shielding detainees from brutal and boorish treatment. The dynamic job of legal cures import to habeas corpus write a flexible essentialness and operational utility as a bastion of freedom even inside prison.

Mandamus

Mandamus could be a Latin word, which means "We Command". The judicial writ is associate order from a superior court to a lower court or tribunal or public authority to perform an act, that falls inside its duty. It is issued to steady the overall performance of public obligations and to implement private rights withheld with the aid of using the overall public authorities. Simply, it's an instrument issued to a public official to try and do a factor that could be a part of his official duty, but, which, he has didn't do, so far. This instrument can't be claimed as a matter of right. the first purpose of this instrument is to create the govt machinery work properly. Associate order of judicial writ could be a command directed to any individual, corporation, or associate inferior court, requiring them to try to some specific factor that pertains to their/his workplace and which is within the nature of public duty. the general public servants are accountable to the public for the quality of their public duties and their actions thereunder. 

In Anandi Mukta Sadguru…vs V.R. Rudani case court held that no mandamus an issue if the right is pure of a private character.

In Pargatool Corporation vs Shri Imunul and ors. Case court held mandamus can be issued to the private body if they are discharging government duty.

In Natho Mal vs State of U.P and Anr. Case court held that a writ of mandamus can’t be issued against the president of India or Governor of state.

Prohibition

A writ of prohibition is explained as being a judicial writ or process issue out of a court of superior jurisdiction, directed to associate lower court for the aim of preventing the inferior court from usurping a jurisdiction with that it’s not de jure invested with or to compel court entrusted with judicial duties to stay among the boundaries of their jurisdiction.it is well settled that writs of prohibition lie not for the absence of jurisdiction however the writs also lies in a departure from the principle of natural justice.

In S. Govinda Menon vs UOI court held that the writs do not delude correct the course, apply or procedure of an inferior court, or the wrong call on the merits of proceeding, the court also held that it was settled writs of prohibition can’t be issued to a court ao an inferior judicature for a mistake of law unless the errors make it go outside it jurisdiction. 

Certiorari

Certiorari is a Latin term which means “to be certified”. This writ is issued by superior court to inferior or tribunals leading them to transmit the matter to the court of record proceedings unfinished before them. This judicial writ provides power to the Supreme court or high court to see the validity or lawfulness of matter disposed of by the lower courts or tribunals.

In Hari Vishnu Kamnath vs Syed Ahmed Ishaque court held that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record.

In Syed Yakoob vs K.S Radha Krishnan court held that a writ can equally be issued wherever in the exercise of jurisdiction bestowed on that, the Court or tribunal acts illicitly or improperly, as let's say, it decides a matter while not giving a chance to be detected to the party suffering from the order, or wherever the procedure adopted in managing the dispute is critical principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is superior and therefore the Court exertion it's not entitled to act as an appeals court.

In Prabodh Verma and other vs State of U.P court held that a writ of certiorari or a writ like certiorari cannot be issued for declaring an Act or an Ordinance as unconstitutional or void.

Quo Warranto

Quo Warranto is a Latin term, which means “by what authority”. This writ is used by the Supreme court and high court to refrain the person holding public office which is not entitled to him. If a person is not able to prove by what authority he has occupied the sit, then this writs issued to him to oust from office.

In The University of Mysore v. C.D. Govinda Rao and another case court Broadly stated, “the quo warranto proceeding affords a judicial inquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognized in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue a writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the inquiry as to whether the appointment of the said alleged usurper has been made following the law or not.”

Conclusion

Art. 32 and 226 of the Indian constitution provide constitutional remedies for infringement of fundamental rights provided under PartIII of the constitution. Art.32 empower the citizen of India to move to Supreme Court and Art.226 empower citizen of India to move to High Court. Under Art.32 and 226, the Supreme court and High court issue different orders or directions or writs. The writs in form of Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo Warranto. The Scope Art.226 is much wider than Art.32 of the constitution.

References

  • The Constitution of India1950
  • 1950 SCR 594
  • 1950 SCR 869
  • 1989 AIR 1607
  • AIR 1973 SC 1461
  • 1980 AIR 1789
  • 1974 AIR 510
  • 1980 SCR (2) 557
  • 1969 AIR 1306
  • 1994 CriJ 1919
  • 1967 AIR 1274
  • 1967 AIR 233
  • 1985 SCR (1) 216
  • 1965 AIR 491

 

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Vikas Chaudhary Online
on 04 September 2020
Published in Constitutional Law
Views : 852
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