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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
ARTICLE 32&226

SUBJECT
CONSTITUTIONAL LAW

NAME OF THE FACULTY

NAGESWAR RAO SIR

SUBMITTED BY;
G.B IDA GRACE
2015040
SEMESTER 5th, SECTION ‘B’
ACKNOWLEDGE:

I would like to put forward my heartfelt appreciation to our respected professor,


NAGESWAR RAO SIR. For giving me a chance to take up this task in regards to. I have
attempted my best to gather data about the undertaking in different conceivable approaches to
I would like to humbly present this project with the grace of the almighty to Mr. Nageswar
Rao. I am thankful for being given the honour of doing this research paper on “Article 32-
226”. I am thankful to the library staff and committee members for all the conveniences
which played a major role in the completion of this paper.
Last but by far the most important, I would like to thank God for keeping me in good health
and senses to complete this project. I present this project with a humble heart.
CHAPTERIZATION

 Abstract………………………………………………………………….. 5
 Synopsis…………………………………………………………………. 6-7

 Introduction…………………………………………………………….. 8-9

 Search and Rescue Response……………………………………………… 9-10

 Responsible Agencies…………………………………………………….. 10

 Emergency Position- Indicating Radio Beacon…………………………… 11

 Automatic Hydrostatic Release Unit……………………………………….. 11-12

 Personal Locator Beacons (Plbs) For Individuals in Distress…………….. 12

 Registration………………………………………………………………… 13

 Luts (Local User Terminals)………………………………………………. 13

 SASAR (Satellite Aided Search And Rescue)………………………………. 14

 406 MhzEmergency Locator Beacons ……………………………………. 14

 Conclusion………………………………………………………………… 17
ARTICLE 32& 226

ABSTRACT

The Constitution of India assured greater protection of individuals rights and afforded
larger freedom to the court to look into executive failures. The judiciary has provided
various measures in preserving the liberty and freedom of the people of the country Each
citizen of India has inherent right to challenge the constitutionality of any executive
enactment restrains him from enjoying his fundamental rights. By judicial interpretations
the fundamental rights, distribution of executive powers and other constitutional
restrictions and limitations were provided a new meaning. The fundamental object of
judicial review is to infuse life in the dry and abstract postulates of the constitution
enabling it to be a living organism so as to satisfy the needs of the time.

Articles 32 and 226 of the Indian Constitution makes provisions for writs in the
country. Under clause (2) of Article 32 the Supreme Court is empowered to issue
appropriate direction, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition , quo warranto and certiorari for the enforcement of any
fundamental rights guaranteed by Art III of the constitution. By this article the Supreme
Court has been constituted as a protector and guarantor of the fundamental rights and
once a citizen has shown that there is infringement of his fundamental right the court
cannot refuse to entertain petitions seeking enforcement of fundamental rights. Article
226(1) empowers every High Court, notwithstanding anything in Article 32,
throughout the territories in relation to which it exercises jurisdiction to issue any
person or authority, including appropriate cases any government, within those
territories directions, orders or writs including writs in the nature of habeas corpus,
mandamus, quo warranto, prohibition and certiorari for the enforcement of
Fundamental Rights or for any other purpose.

The Supreme Court is made the protector and guarantor of the Fundamental Rights. It is not
obligatory for the court to follow adversary system on cases related to this Article and
'appropriate proceedings' are sufficient. The remedy sought must be correlated to one of the
fundamental rights sought to be enforced. Locus standi: Open for those whose fundamental
rights are infringed. This was later relaxed to allow Public Interest Litigation cases thus
allowing any 'public spirited citizen' to file the case.
SYNOPSIS

TITLE OF THE PROJECT:

ARTICLE 32&226

BACKGROUND:

Under Article 32, the parliament can also entrust any other court to exercise the power of the
Supreme Court, provided that it is within its Jurisdiction. And unless there is some
Constitutional amendment, the rights guaranteed by this Article cannot be suspended.
Therefore, we can say that an assured right is guaranteed to individuals for enforcement of
fundamental rights by this article as the law provides the right to an individual to directly
approach the Supreme Court without following a lengthier process of moving to the lower
courts first as the main purpose of Writ Jurisdiction under Article 32 is the enforcement of
Fundamental Rights.

Dr Ambedkar stated that:

“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. It is the very soul of the Constitution and the very heart of it and I am
glad that the House has realized its importance.”

REVIEW OF LITERATURE:

From MANUPATRA- ANALYSIS OF WRIT OF MANDAMUS BY- Kriti Prashar

Hence the writ of mandamus is to protect the interest of the public from the powers given to
them to affect the rights and liabilities of the people. This writ makes sure that the power or
the duties are not misused by the executive or administration and are duly fulfilled. It
safeguards the public from the misuse of authority by the administrative bodies.

Although there are certain conditions also which were discussed in the project like all the
alternative remedies should be exhausted and it should be a statutory duty and not
discretionary in nature. Hence it forms one of basic tool in the hands of the common people
against the administrative bodies if they do not fulfil the duties which by statutes they are
bound to perform.

OBJECT OF THE PROJECT:

The object of the study is to know about the functioning of the constitutional remedies, and
their uses to the people living in the country India

RESEARCH QUESTIONS:

 Why is article 32 read along with article 226?


 What are different types of writs?

RESEARCH METHODOLOGY:

The examination include more relative in nature. It incorporates both essential sources. The
essential sources incorporate working of article32 andarticle226, and so on. The optional
sources incorporate books, article, and web sources.
INTRODUCTION:-

Article 32 provides the right to Constitutional remedies which means that a person has right to
move to Supreme Court (and high courts also) for getting his fundamental rights protected. While
Supreme Court has power to issue writs under article 32, High Courts have been given same
powers under article 32, High Courts have been given same powers under article 226. Further, the
power to issue writs can also be extended to any other courts (including local courts) by
Parliament via making a law for local limits of jurisdiction of such courts.

Article 226 of Constitution of India

(1) Notwithstanding anything in article 32 every High Court shall have power, 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, prohibition, 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.

2[(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 said next day, stand vacated.

1[(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.

TYPES OF WRITS:-

There are five types of Writs as provided under Article 32 of the Constitution:

1. HABEAS CORPUS

 Meaning

It is one of the important writs for personal liberty which says “You have the Body”. The main
purpose of this writ is to seek relief from the unlawful detention of an individual. It is for the
protection of the individual from being harmed by the administrative system and it is for safeguarding
the freedom of the individual against arbitrary state action which violates fundamental rights under
articles 19, 21 & 22 of the Constitution. The expression “Habeas Corpus” is a Latin term which means
‘to have the body’. If a person is detained unlawfully, his relatives or friends or any person can move
the Court by filing an application under Article 226 in High Court or under Article 32 in Supreme
Court for the writ of Habeas Corpus.

The main objective of this writ is to provide immediate remedy to person unlawfully detained,
whether in prison or private custody. The detention becomes unlawful if a person who is arrested is
not produced before the magistrate within 24 hours of his arrest. Also the law under which the person
is detained must be lawful, if the law itself is unlawful then the detention is also unlawful.

The scope of the writ of habeas corpus has considerably increased by virtue of the decision of the
Supreme Court in Maneka Gandhi v. Union of India[1] and also by the adoption of forty-fourth
amendment to the Constitution. Since the judicial interpretation of Article 21 has extended the
magnitude of the concept of the personal liberty and the Court introduced the element -of fairness and
justness in the ‘procedure established by law’, now a writ of habeas corpus would lie if the law
depriving a person of his personal liberty is not fair, just and equitable.
mediate relief in case of unlawful detention.

 When Issued?
Writ of Habeas Corpus is issued if an individual is kept in jail or under a private care without
any authority of law. A criminal who is convicted has the right to seek the assistance of the
court by filing an application for “writ of Habeas Corpus” if he believes that he has been
wrongfully imprisoned and the conditions in which he has been held falls below minimum
legal standards for human treatment. The court issues an order against prison warden who is
holding an individual in custody in order to deliver that prisoner to the court so that a judge
can decide whether or not the prisoner is lawfully imprisoned and if not then whether he
should be released from custody.

2. QUO WARRANTO

 What does the writ of Quo Warranto mean?

Writ of Quo Warranto implies thereby “By what means”. This writ is invoked in cases of
public offices and it is issued to restrain persons from acting in public office to which he is
not entitled to. Although the term ‘office’ here is different from ‘seat’ in legislature but still a
writ of Quo Warranto can lie with respect to the post of Chief Minister holding a office
whereas a writ of quo warranto cannot be issued against a Chief Minister, if the petitioner
fails to show that the minister is not properly appointed or that he is not qualified by law to
hold the office. It cannot be issued against an Administrator who is appointed by the
government to manage Municipal Corporation, after its dissolution. Appointment to public
office can be challenged by any person irrespective of the fact whether his fundamental or
any legal right has been infringed or not.

 The court issues the Writ of Quo Warranto in the following cases:

1. When the public office is in question and it is of a substantive nature. A petition


against a private corporation cannot be filed.
2. The office is created by the State or the Constitution.
3. The claim should be asserted on the office by the public servant i.e. respondent.

3. MANDAMUS

 Writ of Mandamus
Writ of Mandamus means “We Command” in Latin. This writ is issued for the correct
performance of mandatory and purely ministerial duties and is issued by a superior court to a
lower court or government officer. However, this writ cannot be issued against the President
and the Governor. Its main purpose is to ensure that the powers or duties are not misused by
the administration or the executive and are fulfilled duly. Also, it safeguards the public from
the misuse of authority by the administrative bodies. The mandamus is “neither a writ of
course nor a writ of right but that it will be granted if the duty is in nature of public duty and
it especially affects the right of an individual, provided there is no more appropriate remedy”
[8]. The person applying for mandamus must be sure that he has the legal right to compel the
opponent to do or refrain from doing something.

 Conditions for issue of Mandamus

1. There must rest a legal right of the applicant for the performance of the legal duty.
2. The nature of the duty must be public.
3. On the date of the petition, the right which is sought to be enforced must be
subsisting.
4. The writ of Mandamus is not issued for anticipatory injury.

4. CERTIORARI

 What does Writ of Certiorari mean?

Writ of Certiorari means to be certified. It is issued when there is a wrongful exercise of the
jurisdiction and the decision of the case is based on it. The writ can be moved to higher courts
like the High Court or the Supreme Court by the affected parties.

There are several grounds for the issue of Writ of Certiorari. Certiorari is not issued against
purely administrative or ministerial orders and that it can only be issued against judicial or
quasi-judicial orders.

 When is a writ of Certiorari issued?

It is issued to quasi-judicial or subordinate courts if they act in the following ways:


1. Either without any jurisdiction or in excess.
2. In violation of the principles of Natural Justice.
3. In opposition to the procedure established by law.
4. If there is an error in judgement on the face of it.

Writ of certiorari is issued after the passing of the order.

5. PROHIBITION

 What does Writ of Prohibition mean?

The expression ‘prohibition’ literally means ‘to prohibit’. The Writ of Prohibition is a
Judicial order issued by the Supreme Court or a High Court to an inferior Court or quasi-
judicial body forbidding the latter to continue proceedings therein in excess of its jurisdiction
or to usurp a jurisdiction with which it is not legally vested. Thus, object of the writ is to
compel inferior courts to keep themselves within the limits of their jurisdiction.

It is a writ directing a lower court to stop doing something which the law prohibits it from
doing. Its main purpose is to prevent an inferior court from exceeding its jurisdiction or from
acting contrary to the rules of Natural Justice.

 When is the writ of Prohibition issued?

It is issued to a lower or a subordinate court by the superior courts in order to refrain it from
doing something which it is not supposed to do as per law. It is usually issued when the lower
courts act in excess of their jurisdiction. Also, it can be issued if the court acts outside its
jurisdiction. And after the writ is issued, the lower court is bound to stop its proceedings and
should be issued before the lower court passes an order. Prohibition is a writ of preventive
nature. The principle of this is ‘Prevention is better than cure’.

Scope of Article 32
Article 32 provides a quick and immediate remedy for the enforcement of Fundamental
Rights. Any person may for the violation of any of his Fundamental Rights by an
administrative action can go straight to the Supreme Court, without being required to
undergo the dilatory proceedings from the lower to a higher court as one has to do
in any ordinary litigation.

The Supreme Court has thus been constituted, as the protector and guarantor of
Fundamental Rights. Article 32 is itself of a Fundamental Rights and cannot therefore ,
be diluted or whittled down by legislation, and can be invoked over when a law
declares a particular administrative action as final.

Scope of Article 226 and 227


Writs under Article 226 have to be issued in grave cases where the subordinate tribunal or
bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the
principles of natural justice or refuse to exercise a jurisdiction vested in them, or there is an
error apparent on the face of the record and such act, omission, error, or excess has resulted in
manifest injustice. The High Court in its Writ jurisdiction cannot act as a Court of Appeal
against the orders of the State Governments or Union or other authorities.

DIFFRENCE BETWEEN ARTICLE 32 AND ATRICLE 226

Article 226

1. Article 226 empowers every High Court to issue the writs.

2. Article 32 is itself a fundamental right. Article 226 is not a fundamental right.

3. The President of India cannot suspend Article 226 during the period of Emergency

4. Article 226 is not a right as that of Article 32. The High Court may issue writs according to
its discretionary power.

5. Article 226 enables the High Court to issue orders to writs in the nature of habeas corpus,
mandamus, prohibition, certiorari, quo-warranto, to protect aggrieved and any other purpose.

Article 32

1. Article 32 empowers the Supreme Court to issue writs.


2. Article 32 is a fundamental right, and it is included in Part –III of the Constitution. Article
32 is a basic feature of the Constitution. Article 226 is a fundamental right.

3. During the period of emergency, the fundamental rights (Excepts the articles 21 and 22)
can be suspended. Therefore, Article 32 can also be suspended during emergency Period.

4. The applicant can approach the Supreme Court as a right, being it is fundamental right.

5. Article 32 empowers the Supreme Court to issue the writs only when the Fundamental
Rights are violated or threatened.

REMEDY OF COMPENSATION UNDER ARTICLE 32


Compensation to victims is a perceived guideline of law being upheld through the
conventional common courts. Under the law of torts the casualties can guarantee
remuneration for the damage to the individual or property endured by them. It is taking a very
long time for the casualties to get a declaration for harms or pay through common courts,
which is bringing about such a great amount of hardship to them. The development of
compensatory statute in the light of human rights theory is a constructive flag demonstrating
that the judiciary has undertaken the task of protecting the right to life and individual freedom
of all the number of individuals irrespective of the absence of any express constitutional
provision and of legal points of reference are taken from constitution of india.

The renaissance of the precept of natural rights as human rights over the globe is an awesome
advancement in the jurisprudential field in the contemporary time. A large group of
worldwide pledges on human rights and the concern for effective usage of them are radical
and progressive advances towards the certification of self-determination, balance and justice.
In spite of the fact that the idea is new, the substance isn't and these rights have been
perceived since ages and have moved toward becoming piece of the constitutional element of
a few nations. India perceived these rights under Part III of the Constitution giving remedies
for enforcement of such rights.
When a crime is committed against a person or a person is infringed of his fundamental
rights, the victim loses a lot apart from incurring damages and injuries. The work of the
judiciary should not only be to punish the guilty but also to compensate the victim as even if
the accused is punished, the victim’s loss is not compensated. It is not like that the victims of
crime can never ask for the compensation as such a prayer is available under the civil laws,
but filing two different suits for the same offence in two different courts. This may lead to
further traumatisation in order to get rid of the to the victims who got effected in deeply .

The idea behind awarding monetary compensation to the victims of crime or the victims of
state lawlessness is both legal as well as humanitarian. If the state is unable to protect the
individual’s rights, then the state is under legal obligation to compensate him. Many times the
victim passes through many hardships, pain and many times the result is the permanent loss
of the source of income, which makes it sensible and logical for him to be compensated.

In the Indian culture of the 21st century, many individuals need their ladies to be
"unadulterated" or we may say pure virgins. A victim of rape in such cases not just loses out
the chance to wed into an otherwise decent family but on the other hand is segregated upon
for no blame of hers. It is frequently said that the most prized possession of a lady is her
dignity and respect. In the general public where individuals still have an old mentality, the
life of such a lady only degrades. It just bodes well to compensate such a victim well apart
from punishing the accused. Mental shock, loss of income and cost of litigation should be
taken into consideration when coming out with compensation and the Courts should hence
compensate the victims more frequently.

Amendments to Article 32

‘Anti-freedom’ clauses were included in Article 32 by the 42nd Amendment. Such an


amendment was made during the time of emergency when it was passed to reduce ‘both
directly and indirectly’ the jurisdiction of the Supreme Court and the High Courts to review
the application of fundamental rights. Then 43rd amendment of the Indian Constitution was
passed which repealed Article 32A immediately after the emergency was revoked. Following
the amendment, the Supreme Court again gained the power to quash the state laws. Also, the
High Court got the power to question the constitutional validity of central laws.
Limitations to Article 32

There are certain circumstances during which the citizens do not get the privileges which they
ought to under Article 32. Therefore, the situations when the fundamental rights may be
denied to the citizens but the constitutional remedies will not be available i.e. Article 32 will
not be applicable are:

 Under Article 33, the Parliament is empowered to make changes in the application
of Fundamental Rights to armed forces and the police are empowered with the
duty to ensure proper discharge of their duties.
 During the operation of Martial law in any area, any person may be indemnified by
the Parliament, if such person is in service of the state or central government for
the acts of maintenance or restoration of law and order under Article 34.
 Under Article 352 of the Constitution when an emergency is proclaimed, the
guaranteed Fundamental Rights of the citizens remains suspended. Also,
Fundamental Rights guaranteed under Article 19 is restricted by the Parliament
under Article 358 during the pendency of an emergency.
 Article 359 confers the power to the President to suspend Article 32 of the
Constitution. The order is to be submitted to the Parliament and the Parliament
may disapprove President’s orders.

CASES:-

 Important judgments on Habeas Corpus

The first Habeas Corpus case of India was that in Kerala where it was filed by the victims’
father as the victim P. Rajan who was a college student was arrested by the Kerala police and
being unable to bear the torture he died in police custody. So, his father Mr T.V. Eachara
Warrier filed a writ of Habeas Corpus and it was proved that he died in police custody.

Then, in the case of ADM Jabalpur v. Shivakant Shukla which is also known as the Habeas
Corpus case, it was held that the writ of Habeas Corpus cannot be suspended even during the
emergency (Article 359).
While deciding whether Habeas Corpus writs are civil or criminal in nature, it was held
in Narayan v. Ishwarlal that the court would rely on the way of the procedures in which the
locale has been executed.

This writ has been extended to non-state authorities as well which is evident from two cases.
One from the Queen Bench’s case of 1898 of Ex Parte Daisy Hopkins in which the proctor
of Cambridge University detained and arrested Hopkins without his jurisdiction and Hopkins
was released. And in the case of Somerset v. Stewart wherein an African Slave whose master
had moved to London was freed by the action of the Writ.

 Important Case Laws under (QUO-WARRANTO)

In the case of Ashok Pandey v. Mayawati , the writ of Quo Warranto was refused against Ms
Mayawati (CM) and other ministers of her cabinet even though they were Rajya Sabha
members.

Then in the case of G.D. Karkare v. T.L. Shevde , the High Court of Nagpur observed that
“In proceedings for a writ of quo warranto, the applicant does not seek to enforce any right of
his as such nor does he complain of any non-performance of duty towards him. What is in
question is the right of the non-applicant to hold the office and an order that is passed is an
order ousting him from that office.”

The Writ of quo warranto was denied by the court in the case of Jamalpur Arya Samaj v. Dr
D. Ram . The writ was denied on the ground that writ of quo warranto cannot lie against an
office of a private nature. And also it is necessary that office must be of substantive character.
Whereas in the case of R.V. Speyer [6] the word ‘substantive’ was interpreted to mean an
‘office independent to the title’. Also in H.S. Verma v. T.N. Singh[7], the writ was refused as
the appointment of a non-member of the state legislature as C.M. was found valid in view of
Article 164(4) which allows such appointment for six months.
 Important Judgements ON MANDAMUS

In Rashid Ahmad v. Municipal Board [12], it was held that in relation to Fundamental
Rights the availability of alternative remedy cannot be an absolute bar for the issue of writ
though the fact may be taken into consideration.

Then, in the case of Manjula Manjori v. Director of Public Instruction, the publisher of a
book had applied for the writ of mandamus against the Director of Public Instruction for the
inclusion of his book in the list of books which were approved as text-books in schools. But
the writ was not allowed as the matter was completely within the discretion of D.I.P and he
was not bound to approve the book.

 Important Judgements on writ of Certiorari

In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has explained the
meaning, ambit and scope of the writ of Certiorari. Also, in this it was explained that
Certiorari is always available against inferior courts and not against equal or higher court, i.e.,
it cannot be issued by a High Court against any High Court or benches much less to the
Supreme Court and any of its benches.

Then in the case of T.C. Basappa v. T. Nagappa & Anr. [13], it was held by the constitution
bench that certiorari maybe and is generally granted when a court has acted (i) without
jurisdiction or (ii) in excess of its jurisdiction.

In Hari Bishnu Kamath v. Ahmad Ishaque [14], the Supreme Court said that “the court
issuing certiorari to quash, however, could not substitute its own decision on the merits or
give directions to be complied with by the court or tribunal. Its work was destructive, it
simply wiped out the order passed without jurisdiction, and left the matter there.”

In Naresh S. Mirajkar v. State of Maharashtra [15], it was said that High Court’s judicial
orders are open to being corrected by certiorari and that writ is not available against the High
Court.
 Important Case Laws (PROHIBITION)

In case of East India Commercial Co. Ltd v. Collector of Customs , a writ of prohibition was
passed directing an inferior Tribunal prohibiting it from continuing with the proceeding on
the ground that the proceeding is without or in excess of jurisdiction or in contradiction with
the laws of the land, statutes or otherwise.

Then in the case of Bengal Immunity Co. Ltd [17], the Supreme Court pointed out that where
an inferior tribunal is shown to have seized jurisdiction which does not belong to it then that
consideration is irrelevant and the writ of Prohibition has to be issued as a right.

 Limitations OF MANDAMUS

The courts are unwilling to issue writ of mandamus against high dignitaries like the President
and the Governors. In the case of S.P. Gupta v. Union of India [9], judges were of the view
that writ cannot be issued against the President of India for fixing the number of judges in
High Courts and filling vacancies.

But in Advocates on Records Association v. Gujarat [10], the Supreme Court ruled that the
judges’ issue is a justiciable issue and appropriate measures can be taken for that purpose
including the issuance of mandamus.

But in C.G. Govindan v. State of Gujarat [11], it was refused by the court to issue the writ of
mandamus against the governor to approve the fixation of salaries of the court staff by the
Chief Justice of High Court under Article 229. Hence, it is submitted that the Governor or the
President means the state or the Union and therefore issuance of mandamus cannot take
place.