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Constitutional Remedies: Article 32 and 226

Constitutional Remedies: Article 32 and 226
Constitutional Remedies: Article 32 and 226


A right lacking a remedy is nothing but a hollow assertion. The true value of a right manifests when there exists a viable means to uphold it. Its essence is truly grasped only through judicial affirmations.

Dr. Ambedkar esteemed Article 32 as "the most crucial article of the Constitution, without which this Constitution would be meaningless.

It is the very spirit and essence of the Constitution." It embodies a substantive entitlement rather than a mere procedural formality.

Article 32(1) explicitly guarantees "the right to approach the Supreme Court through appropriate proceedings for the enforcement of the rights conferred by this Part."

Article 32(2) elaborates on the Supreme Court's authority to issue orders or writs for the protection of fundamental rights.

The jurisdiction vested in the Supreme Court by Article 32 constitutes a vital component of the Constitution's 'basic structure', for granting fundamental rights would be futile without an effective mechanism for their protection against violation.

Nevertheless, Parliament holds the authority to empower the Supreme Court with such jurisdiction under Article 139.

The right to approach the Supreme Court in cases of fundamental rights infringement is itself a fundamental right, constituting a constitutional remedy guaranteed by the Constitution.

Thus, Article 32 furnishes a swift and economical recourse for safeguarding fundamental rights against encroachment by legislative and executive actions.


Jurisdiction of High Courts under Article 226

Article 226 empowers the High Courts to issue writs for the enforcement of fundamental rights as well as other ordinary legal rights. Thus, Articles 32 and 226 together provide the avenue for constitutional remedies.

The authority of the High Court surpasses that conferred by Article 32 on the Supreme Court.

However, a petition under Article 32 may be filed to contest the validity of a law concerning a provision other than fundamental rights, as long as it inevitably curtails the enjoyment of fundamental rights.

It's noteworthy that the power of the High Court to issue writs cannot undermine the authority of the Supreme Court. In simpler terms, an order under Article 32 will override any previous orders passed by the High Court.

There's no requirement to resort to Article 226 before approaching the Supreme Court under Article 32. 

Hence, an individual may directly petition the Supreme Court. Concerning the enforcement of the Supreme Court's orders and directions,

Article 144 stipulates that

"All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court. If any of these authorities fail to comply with the orders of the Court, the Court can penalise them for contempt."

Procedural Considerations 

The Supreme Court must be approached through appropriate proceedings, signifying proceedings suitable given the nature of the order, direction, or writ sought by the petitioner (Daryao v State of U.P. AIR 1961 SC 1457).

The Court has exhibited remarkable leniency and favour towards petitioners seeking its intervention.

Especially concerning the enforcement of fundamental rights of the underprivileged, disabled, or uninformed, even a simple letter addressed to the Court can be deemed a valid proceeding.

The form of the letter is inconsequential; it need not be directed to the Court or the Chief Justice. Postcards addressed to any judge have been accepted as appropriate proceedings, leading to the emergence of what is termed as epistolary proceedings.

These appropriate proceedings need not be adversarial, aimed at or against a specific individual [Bandhua Mukti Morcha v UOI (1984) 3 SCC 161]. They may adopt an inquisitorial approach, wherein the Court conducts general inquiries to ascertain whether a fundamental right is being infringed upon.

The Supreme Court cannot decline relief under Article 32 on the grounds that the aggrieved person may seek redressal from another court, that the disputed facts require investigation before granting relief, or that the petitioner has not requested the appropriate writ applicable to their case. 

It is essential that the petitioner is presently impacted by the impugned order or similar circumstance, i.e., their fundamental rights are either under threat or violated. 

They need not wait until the actual threat materialises; however, their rights should be on the brink of being evaded.

The admissibility of a petition hinges on the facts as they stood on the date of filing the petition and not on subsequent events.


Timeliness in Seeking Relief

While the Limitation Act may not apply, the Supreme Court has emphasised that parties seeking relief from the Court must act with utmost despatch. Delayed petitions may be met with refusal, as stale claims are not entertained.

A fundamental tenet of the administration of justice is that courts assist those who vigilantly assert their rights and refrain from delaying action. Courts are disinclined to exercise jurisdiction in favour of parties who come forward after significant delay, displaying laches.

Therefore, seeking remedy under Article 32 typically requires prompt action, unless a convincing and acceptable explanation is provided for the delay.

Determining what constitutes laches or undue delay is contingent upon the specifics of each case (Tilokchand Motichand v H.B. Munshi AIR 1970 SC 898). In one instance, the petitioner filed a petition in the Supreme Court a decade after his petition under Article 226 was dismissed by the High Court. The Supreme Court rejected the writ petition due to the delay.

Chief Justice Hidayatullah acknowledged that no rigid rule could be applied in such matters, stating, "the question is one of discretion for this Court to follow from case to case.

In a suitable case, this Court may entertain such a petition even after a lapse of time. It will all depend on what the breach of the fundamental right and the remedy are and why the delay arose."

Similarly, in K. Prasad v UOI (AIR 1988 SC 535), it was underscored that there is no absolute rule mandating that the Court must refuse to entertain a petition in cases of delay. Each case is evaluated based on its unique facts and circumstances.

For instance, when petitioners challenged seniority rules after 16 years, the Court declined to grant relief due to the inordinate delay (Rabindra Nath v UOI AIR 1970 SC 470).

Evolving Dynamics of Locus Standi

The traditional doctrine of locus standi dictates that a petition under Article 32 can only be initiated by an individual whose fundamental rights are directly infringed.

However, the Supreme Court has significantly relaxed this rule in its recent judgments. It now allows for 'Social action litigation' or 'public interest litigation' (commonly known as pro bono publico litigation) to be filed by 'public-spirited citizens'.

This facilitates the enforcement of constitutional or legal rights of individuals or groups who, due to poverty, socio-economic disadvantages, or other factors such as being in custody, are unable to access the court for relief.

Public interest litigation focuses on scrutinising the content and conduct of government actions concerning the constitutional or statutory rights of various segments of society.

In certain instances, it also pertains to the examination of government policies. The doctrine of PIL encompasses cases involving public injury arising from:

  • Breach of any public duty,

  • Violation of provisions of the Constitution, or

  • Contravention of the law


Alternative Remedies

In the case of K.K. Kochuni v State of Madras (AIR 1959 SC 725), the Supreme Court established that while the presence of an adequate legal remedy was a factor to be considered in granting prerogative writs, it was not an absolute ground for refusing a writ under Article 32.

This was because the powers conferred upon the Supreme Court under Article 32 were broader and not limited solely to the issuance of prerogative writs.

Consequently, the availability of an alternative remedy does not serve as a valid reason for denying relief under Article 32. However, the Supreme Court typically requires that the petitioner exhaust the alternative remedy unless it proves futile (Y. Theclamma v UOI AIR 1987 SC 1210).

Furthermore, in S.A. Khan v State of Haryana (AIR 1993 SC 1152), the Court ruled that if a statutory alternative remedy existed for the petitioner against a suspension order, then a writ petition under Article 32 would not be maintainable.

Writs and Types of Writs

Writs, originating in Britain as the King's or Queen's prerogative writs, served as commands to judicial tribunals or other bodies to act or abstain from action.

In India, the authority to issue writs is vested in both the Supreme Court and the High Courts.

They represent a swift remedy, devoid of unnecessary technicalities, and are deployed in extraordinary circumstances.

The Supreme Court, under Article 32, and the High Courts, under Article 226, are empowered to issue writs such as habeas corpus, mandamus, prohibition, certiorari, and quo warranto.

While the Supreme Court issues habeas corpus primarily against the State for violations of fundamental rights, the High Court extends this power to private individuals involved in arbitrary detention.

Each writ serves a distinct purpose:

  • Habeas Corpus: Demands the production of a detained person before the Court to determine the legality of detention.

  • Mandamus: Commands lawful action or cessation of unlawful acts by individuals or authorities failing in their public duties.

  • Certiorari: Seeks judicial review of administrative actions for lack, excess, or abuse of jurisdiction, violation of natural justice, or errors of law.

  • Prohibition: Halts ongoing proceedings exceeding jurisdiction or violating principles of natural justice.

  • Quo Warranto: Questions the authority or warrant of a person holding public office.

These writs, governed by principles of justice and public interest, serve as powerful instruments in safeguarding individual rights and restraining governmental authority from encroachment.


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