ARTICLE 226 UNDER INDIAN CONSTITUTION

This Article is written by kavya Lakshmi, Intern under Legal Vidhiya.

INTRODUCTION:

The Indian constitution guarantees some basic human rights to the people, which are called as fundamental rights. These rights are enshrined in part three of the Indian constitution, from Articles 12 to 35 and this is described Magna Carta of India. There is a duty entrusted to the State to protect the basic fundamental rights of the citizens.  When there is a violation of any basic fundamental rights of the citizen then that person has a right to approach the Supreme Court under Article 32 or the High Court under Article 226   for the enforcement of his right.

Article 226:

Article 226 is enshrined under Part V of the Indian constitution. The main objective of the article 226 is to provide an inexpensive and quick remedy to an aggrieved person. It empowers the High Court to enforce any basic fundamental rights.  If a person’s fundamental rights are infringed then, he can approach to High Court under Article 226 for enforcement of his rights by issuing writs or orders. The power under Art.226 cannot be curtailed by legislation . The power conferred under Art.226 on the high court is wider than the power conferred on  the supreme court. Because when the administrative action is declared as final by a statute, it can still be challenged under Article 226.

Article 226(1) of the Indian Constitution states that every High Court shall have powers to issue orders or writs including habeas corpus, mandamus, prohibition, quo warranto, and certiorari, to any person or any government for the enforcement of fundamental rights and for other purpose.

The word “for other purpose” in the above context means the jurisdiction conferred on the High Court is not only limited to protecting fundamental rights but also any other legal rights.

Article 226(2) states that the High Court has the power to issue writs or orders to any person,  or government , or authority

1. Located within its jurisdiction or
2. Outside its local jurisdiction if the circumstances of the cause of action arises either wholly or partly within its territorial jurisdiction.

Here, the word cause of action mean the right to sue. It means the set of facts or circumstances that give rise to legal claim. The court in Oil and Natural Gas Commission vs Utpal Kumar Basu and ors. held that the question of whether the court has a territorial jurisdiction to grant a writ petition must be based on the allegations presented in the petition.

Article 226(3) states that when an interim order is passed by a High Court by way of injunction, stay, or by other means against a party, without

1. Furnishing copies of such a petition and documents related to that plea and
2. Giving an opportunity to be heard

Then that party may apply to the court for the vacation of such an order and such an application should be disposed of by the court within the period of two weeks from the date on which application was received, or, if the High Court is closed on the last day of that period, before the expiration of the next day on which the High Court is open, the interim order shall be vacated.

Article 226(4) says that the power granted by this article to a high court should not diminish the authority granted to the Supreme Court by Clause (2) of Article 32.

Nature of writ jurisdiction:

The substantive aspect of the Indian constitution is the writ jurisdiction of the High Court. A writ can be described as a formal written order issued by the competent judicial authority. It is a legal document issued by the court to do or cease performing a specific act. Writs are be issued by the Supreme Court (Article 32) or High Court (Article 226). But Article 226 is wider in its scope than Article 32 because the supreme court under Article 32 can only issue writs for the enforcement of fundamental rights, whereas the High Court under article 226 enforces not only a fundamental rights, but also other legal rights. Writs serve as a great remedy for an aggrieved person whose fundamental rights are infringed. A writ is a discretionary remedy and the High Court can refuse it on the grounds of consent, delay, availability of an alternative remedy, or no benefit to the party.

Article 226(1) clearly states that the high court is empowered to issue writs, including habeas corpus,  mandamus, certiorari, quo warranto, and prohibition. From this, it can be observed that writs issued by courts are of five types.

1. Writ of Habeas Corpus: The word habeas corpus is a Latin term, means to have the body. This writ helps the person who is unlawfully detained. If a person is detained unlawfully or without legal justification, such a person can file an application under Article 226 to the High Court or under Article 32 to the Supreme Court. Detention should not contravene Art. 22; for example, a person is entitled to be released if he is not produced before a magistrate within 24 hours of his detention. The significant aspect of this writ is that it enables the immediate determination of a person’s right to freedom. The writ of habeas corpus is such a device that it tests whether the detention is  illegal with the utmost promptitude. As it protects the right guaranteed under Article 21, it is called freedom writ.
2. Who can apply for a writ of Habeas corpus

Generally, the person who has been detained can apply for this writ. However, in certain cases, the application can also be made by friends or relatives on behalf of the detained person. But a person who is a complete stranger cannot file for this writ. The applicant is required to show a prima facie case of illegal detention. In Sunil Batra II vs Delhi Admn. (AIR 1980 SC 1579), a letter written by a convict to one of the judges of the Supreme Court was treated as a writ petition.

 Under article 21 a person has the right to complain about being deprived of his personal liberty not in conformity with the law but instead by malicious or mala fide acts.

Case law:

In Rudul shah vs State of Bihar (AIR 1983 SC 1806)  the writ of habeas corpus was issued to release the person who had already served 14 years of  wrongful imprisonment. The court freed him from jail with exemplary damages of  ₹ 35000/- to that person.

Inder Singh vs State of Punjab and ors. 1994 is a case where Punjab police abducted seven persons. A habeas corpus petition was filed and the court ordered a CBI inquiry. After the inquiry, the director of CBI concluded that seven people had been liquidated by the Punjab police. The court held the police act illegal and expressed its disapprobation as the police failed to discharge its primary duty to uphold the law and order by protecting the citizens. It was also directed to pay ₹ 1.50L to each of the seven persons to his legal representatives.

In Anwar vs State of Jammu Kashmir  AIR 1971 SC 337, it was held that the detention of a foreigner who entered India secretly will not be illegal if he is expelled and he cannot claim freedom of movement.

• Writ of Mandamus:  The word Mandamus is a Latin word that means “we command”.  Mandamus is a judicial command issued to all public authorities to perform public duty. It is issued in form of a command to executive authority, asking it to carry out the duty or abstain from doing a particular act, against the law. This writ is also known as writ of Justice. It helps in executing the responsibility that is required by the law or by the position held by an individual. The object of mandamus is to prevent disorder from a failure of justice.

In order to seek remedy under Article 226 of the Constitution, it is essential that

• an individual holds a specific legal right under the statute that enforces it’s performance and that must be legally protected.
• And the legal right must have been violated by the authority or person, or entity, including subordinate courts or tribunals
• Who are charged with public or statutory duty
• and are obligated to perform it, refrain from doing the act.

Who can apply: Generally, the person whose right is violated can apply for this writ but the Supreme Court adopted a view that a public spirited citizen can also make an application on people’s behalf under this writ.

This writ does not lie against the president or governor, a legislative body or a subordinate ministerial officer, bound to obey his superior according to the law, or private individual or a private company.

In Asif Ahmed vs State of Jammu Kashmir AIR 1989 SC 1899 it was held that Mandamus cannot be issued to the legislature to enact a particular legislation.

Case laws:

In State of Kerala v. K.P.W.S.W.L.C. Co-operative Society Ltd AIR 2001 ker. 60 the court held that In a contract the payment of an amount to the contract is non statutory and cannot be enforced under article 226. And petitioners have to approach the civil court for contractual obligations. It was also held that Mandamus is a discretionary remedy and the High Court has full discretion to refuse to issue the writ in unsuitable cases.

In Gujarat State Financial Corporation vs Lotus Hotels (P) Ltd., AIR 1983 SC 848 the facts was that the corporate entered with Lotus hotels into an agreement for the  financial assistance for the construction of hotels. However, the funds were not released as per the agreement. Then the Gujarat High Court issued the right of Mandamus to release the funds as agreed.

• Writ of certiorari: The Latin word certiorari means to certify or inform. This writ is corrective in nature. It means it corrects an error that is obvious in the records. It is a command or order issued by the Superior Court to the inferior court. It is issued when the inferior courts violates the principles of natural justice. The Superior Court can quash the order given by the inferior court, if it finds any error. The jurisdiction to issue certioraris a supervisory jurisdiction and the High Court exercising it is not entitled to

act as an appellate Court.

The grounds for the issue of certiorari: In Sayed Yakoob v K.S. Radhakrishnan the supreme court stated the grounds to issue writ of certiorari. They are as follows:

1.     where they exceed their jurisdiction or 

2.     fail to exercise it or exercise it illegally or improperly 

3.     where the procedure adopted violates the principles of natural justice.

• Where there is an error of law obvious on the face of record.

To whom it can be issued against:

• The writ of Certiorari is issued against judicial and quasi-judicial authorities
• And can be issued even if the Lis is between two private parties (Rajeev Jhunjhunwala vs State of West Bengal & Ors).

Case law:

In A.K. Kripak vs Union of India AIR 1970 SC 150 the court issued a writ of certiorari to quash the selection list of the Indian Forest Service on the basis that one of the chosen candidates was an ex-officio member of the selection committee.

In Hari vishnu vs Syed Ahmed AIR 1955 SC 233  the Supreme Court quashed the decision of the election tribunal on the ground that it ignored certain rules.

• Writ of Quo warranto: The term Quo warranto means “ by what authority”. It is issued against a private person by what authority he is holding the office on which he has no right. It lies only in respect of a public office of a substantive character.  For example, as a college is not a public office, it cannot question the appointment of the college principal. By this writ, the court can control the public official appointment, which is against the law and protect a citizen from being deprived of a public office to which he may be entitled.

Who can file: There is no bar on the person who can apply for the writ of quo warranto., it can be filed by person whose fundamental or other legal rights are infringed. And also by the person who acts in a public interest. But the application made should be in a good faith.

Case law:

In Y.S Rajashekar Reddy vs Nara Chandrababu Naidu, the court is not supposed to issue the Quo warranto writ for dismissing a chief minister of a state on the ground that he did not perform his constitutional duty.

Shivakant Shukla vs. Harish Chandra (1975) it was held that quo warranto can be issued only against a public official holding the office illegally.

• Writ of prohibition: It simply means to stop. This writ is issue against the inferior court (i.e., subordinate courts, tribunals, quasi judicial bodies) by the Superior Court. This writ is issued with an object to abstaining them from violating the law. It is issued when the proceedings of the inferior courts is excess or abuse of their jurisdiction or in violation of the principles of natural justice, etc. The writ of prohibition in India is issued to  safeguard individuals from frivolous administrative actions.

A writ of prohibition and writ of certiorari are almost common in their nature I.e., issued by Superior Court to the inferior court, however, writ of prohibition is issued to prevent the decision or administrative action in the process, so that it cannot be proceeded further while the certiorari is issued to quash the decision which is pronounced already.  

The purpose of prohibition is focused on prevention rather than cure. For example, the High Court can issue prohibition to restrain a tribunal from acting under unconstitutional law. But if the tribunal has already given its decision then certiorari is the proper remedy in such a situation.

Case law:

In U.P., Warehousing Corp. v. Vijay Narain, AIR 1980 SC 840 it was held tha Certiorari or prohibition  s directed towards a body that have an obligation to act fairly or according to natural justice and it fails to do so.

In S. Govinda Menon vs Union of India AIR 1967 SC 1274 it was held that writ of prohibition is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction.

Is Article 226 is a fundamental right

Article 32 is a fundamental right whereas Article 226 is a constitutional right because this right cannot be suspended during emergencies. Constitutional rights are the supreme rights that are guaranteed by our Constitution. The fundamental rights are the basic rights whereas constitutional rights are not the basic rights. Article 226 empowers the high court to issue writs and enforce fundamental  rights of citizens.

 CONCLUSION:

From the above article it can be observed that the Article 226 had a wider scope than the Article 32 because it is not only limited to the fundamental rights but it is extended to other legal rights conferred by the statuses or Indian Constitution.  Article 226 gives  discretionary power to the High Courts.

References:

https://indiankanoon.org/doc/484719/

https://blog.ipleaders.in/all-you-need-to-know-about-article-226-of-the-indian-constitution/

The constitution law of India by J N Pandey tenth edition

Indian constitutional law by M P JAIN