Article 32 falls under Part III of the Indian Constitution which includes the Fundamental Rights of the Indian citizens. It allows all the Indian citizens to move to the country's Apex Court in case of violation of Fundamental Rights.
Article 32 of the Indian Constitution
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this Article shall not be suspended except as otherwise provided for by this Constitution.
Fundamental Rights Fundamental Rights are mentioned under Articles 12-35 of the Constitution of India and grant all the Indian citizens equality in all aspects irrespective of race, colour, caste, creed, and so on. The six fundamental rights are as follows: 1- Right to Equality (Articles 14-18)
2- Right to Freedom (Articles 19-22)
3- Right against Exploitation (Articles 23-24)
4- Right to Freedom of Religion (Articles 25-28)
5- Cultural and Educational Rights (Articles 29-30)
6- Right to Constitutional Remedies (Articles 32-35)
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Significance of Article 32:
1- Article 32 makes the Apex Court both the guarantor and defender of Fundamental Rights.
2- It entitles the Indian citizens to move to the Supreme Court for the remedy against the breach of Fundamental Rights.
The Father of the Indian Constitution, Dr B.R. Ambedkar had once said, "If I was asked to name any particular article in this Constitution as the most important — an article without which this Constitution would be a nullity — I could not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it.”
Article 226 of the Indian Constitution
226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
(3) 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 (1), without (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) 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 favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of 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 afterwards 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
(4) The power conferred on a High Court by this Article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32.
Constitutional Rights 1- Constitutional Rights are those rights which have been conferred to all the citizens of India and are enshrined in the Indian Constitution but are not listed under Part III of the Indian Constitution. 2- A Constitutional Right is a supreme right guaranteed by the Indian Constitution and if any contradicts with it, the law will be declared null and void. 3- Constitutional Rights are not basic rights and do not apply to all the Indian Citizens, unlike Fundamental Rights. For Example, Right to Vote. An Indian citizen must attain the age of 18 years to vote. |
Writs
Under Article 32 of the Indian Constitution, Apex Court has the power to issue directions, orders or writs for the enforcement of the Fundamental Rights while under Article 226 of the Indian Constitution, the High Courts have the power to issue directions, orders or writs for the enforcement of the Constitutional Rights. An Indian citizen can seek justice through five prerogative writs as provided by the Indian Constitution under Article 32 and Article 226. These are as follows:
1- Habeas Corpus
2- Certiorari
3- Mandamus
4- Quo-Warranto
5- Prohibition
Habeas Corpus:
1- Literal meaning: 'to have the body of'.
2- This writ protects an individual from unlawful detention.
3- Under this writ, an order is issued by the court to a public official to produce the detained person before the court.
4- The court then examines the grounds on which the individual has been detained.
5- If the detention has no legal justification, the detained person is set free.
6- It is to be noted that the writ cannot be issued in the cases where (a) the detention is lawful (b) the proceeding is for contempt of a legislature or a court (c) an individual is detained by a competent court, and (d) the detention falls outside the jurisdiction of a particular High Court.
7- This writ is ineffective if the detainee is produced before the judicial magistrate.
8- An individual can seek compensation from the state against the arbitrary detention.
9- The petition under this writ can be filed by the detainee, prisoner or by any person on behalf of the detainee/prisoner.
10- The writ of Habeas Corpus cannot be suspended even during the emergency under Article 359.
Certiorari:
1- Literal meaning: 'to be certified' or 'to be informed'.
2- It is issued by the Supreme Court and High Courts to a lower court, tribunal or Quasi-judicial body usually to overrule the judgement of the latter.
3- It can be issued under the following grounds (a) to correct errors of the jurisdiction (excess or lack of jurisdiction) (b) in case of error of law.
4- It can also be issued against administrative authorities affecting the rights of individuals.
5- This writ is unavailable against the equal or higher court and is only available against the lower courts.
6- It is also unavailable against legislative bodies and private individuals or bodies.
7- The writ is both preventive and curative in nature.
Mandamus:
1- Literal meaning: 'we command'.
2- It is issued by a court commanding a lower court or public authority to perform his official duties correctly.
3- The writ of Mandamus can be issued against any public body, a corporation, an inferior court, a tribunal or government itself.
4- It cannot be issued against a private individual/ body and to enforce contractual obligation/departmental instruction that does not possess statutory force.
5- This writ cannot be issued against the President of India or the State Governors; Chief Justice of a High Court acting in a judicial capacity.
6- This writ can also be issued by the High Courts for violation of ordinary rights.
7- It can also be issued to direct a public official not to implement a law which is unconstitutional.
8- The writ is both ways: Positive as well as Negative.
9- It is to be noted that this writ is a discretionary remedy and the High Courts may refuse to grant it where some alternate remedy is available.
Quo-Warranto:
1- Literal meaning: 'by what authority or warrant'.
2- It is issued by the court against the person who usurps a public office.
3- It enquires the legality of usurpation of public office by a person.
4- The grounds on which this writ is issued (a) public office created by a statute or by the Constitution of India (b) person to be appointed by a statute.
5- The writ cannot be issued against a ministerial office or private office.
Prohibition:
1- Literal meaning: 'to forbid' or 'Stay order'.
2- It is issued by a higher court to a lower court to enforce inactivity in the jurisdiction (in case of excess or absence of jurisdiction).
3- It can only be issued against judicial and quasi-judicial authorities.
4- The writ is preventive in nature.
5- It is not available against administrative authorities, legislative bodies, and private individuals or bodies.
Do you know? An individual can file PILs under Article 32 of the Indian Constitution for the public benefit at large and not solely for the individual benefit or gain. The Apex Court has accepted the letters and postcards over the years as PILs. |
Difference between Article 32 and Article 226
The differences between them are as follows:
| S.No. | Article 32 | Article 226 |
| 1. | It includes Fundamental Rights. | It includes Constitutional Rights. |
| 2. | The rights of an individual can be suspended during the emergency. | The rights of an individual cannot be suspended during the emergency. |
| 3. | It has a limited scope and is only applicable in case of violation of fundamental rights. | It has a wider scope and is applicable in case of violation of fundamental as well as legal rights |
| 4. | It has jurisdiction all over India and empowers Supreme Court to issue writs pan India. | It has jurisdiction in the concerned State only and empowers High Courts to issue writs only in their own local jurisdiction. |
| 5. | The rights under Article 32 cannot be refused by the Supreme Court. | The rights under Article 226 are under the discretion of the High Courts. |
Article 32 of the Indian Constitution is known as 'the heart and soul of the Constitution' and provides the Fundamental Rights of an Indian citizen while Article 226 of the Indian Constitution gives discretionary power to the High Courts and provides the Constitutional Rights of an Indian citizen.
Thus, it can be said that Articles 32 and 226 are slightly different in terms of powers but both of them ensures that the rights of the Indian citizens are protected and provisions of the Constitution of India are upheld.
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