The Comparative Study of Articles 32 and 226 of the Constitution of India

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Against whom application under Article 32 lies-

As the scope of the Article 32 is limited to the enforcement of fundamental rights, so the petition under this only lies when the opposite party is state or authority within the definition enshrine in Article 12[8]. However, the concept of state or authority under Article 12 has been much liberalised by the Supreme Court in many cases such as, Rajasthan Electricity Board V. Mohanlal,[9] International Airport Authority Case,[10] Ajay Hasia V. Khalid Muji,[11] and the interpretation of word “other authorities” under Art. 12 include all these instrumentalities with the definition of State. So, the writ is also lies against these authorities not only by Art 226 but also by the Art 32 of the Constitution of India. The question is arises whether the writ is lie against the private person or company for the violation of fundamental rights? In relation to Article 226 there is no problem, the High Court has power to issue writs also against the private person or company. But in relation to Art 32 there is no such guideline, and there is no any type or restriction under this Article. So, on basis of the point we can say that Supreme Court under Article 32 also issue writs against the individual or company if they violates fundamental rights under Articles 17, 23 and 24.

Liberalization of locus standi-

Locus Standi of the applicant or petitioner is a sine qua non or condition precedent for the exercise of the power or jurisdiction by the court.[12] Articles 32 and 226 does not describe the persons who are entitled to enforce the fundamental right by filing a writ petition before the supreme court or High Court[13] . On the absence of this, the court might apply the English certiorari concept of a “person aggrieved” and make general rule, the person whose right is violate has right to file writs before the Supreme Court or High Court. Overruling the common notion that a stranger cannot move the writ, it has been held that a stranger is a person aggrieved and has locus standi to move a court for a right common with general public.[14] Now it is liberalized as much that the court considers a letter send to it complaining about the violation fundamental rights as a writ petition. This innovative strategy has been evolved by the Supreme Court for providing easy access to justice to the weaker section of the community and a powerful tool in the hands of public spirited individuals and social action groups, for combating exploitation, injustice and securing for under privileged segments of the society their social, economic entitlement. This is considered as a highly effective weapon in the armoury of law for reaching social justice to the common man.[15]

Delay and Laches-

The fundamental principle for administration of justice is that the courts will help those who are vigilant about their rights and not whom which will sleep on their rights. In relation to delay and laches, there is no hard and fast rule under the constitution for filing writs under Article 32. The general rule is that the writ will be file within a reasonable time. But the reasonable time is not prescribe either in the Limitation Act or in the Constitution itself for filing of writ petition under Article 32 for the enforcement of fundamental rights. The Court in the case of Express Publications (Madurai) Ltd. V. Union of India[16] in relation to delay and laches the decision depends from case to case and on the discretion of the Court. General view is that if delay, whatever may be the time or years are justified then it would be ignored. Otherwise, the writ petition may be rejected only on the ground of delay.

Alternative Remedy-

On violation of a Fundamental Right, the petitioner has right to file a petition directly to the supreme court by the virtue of article 32 and article 32 is itself a fundamental right then no question of alternative remedy is raised.[17] Once the petitioner proved that there is violation of fundamental right then the supreme court has duty to entertain the case irrespective of that the petitioner has another remedy or not. When the petitioner establishes infringement of fundamental right, the court has no discretion but to issue an appropriate writ in his favour.[18]

Chapter-2

New dimension of writ Jurisdiction of Supreme Court and High Court under Article 32 and 226 -in Recent Years

Under Article 32 of the Constitution, the jurisdiction of the Supreme Court is confined to the enforcement of the fundamental rights. However, in recent cases, the Supreme Court has expanded this jurisdiction so much so that it seems to assume the initiation or supervision of administrative action which traditionally belongs to the jurisdiction of the executive.

Interpretation of Article 21 by the Supreme Court through writ jurisdiction

The Supreme Court has very much liberalised and expanded the lists of fundamental rights falling under Art. 21 by modifying the original interpretation for right to life and personal liberty and held that right to life includes:-

- Right to privacy. in R. Rajagopal V. UOI[19] popularly known as Auto Shankar case the supreme court expressly held that the right to privacy or right to be let alone is guaranteed by Article 21 of the constitution. Another important case is PUCL V. UOI[20] which is popularly known as “phone tapping case” in which the Supreme Court held that right to life under article 21 includes right to privacy. But in a conflict between right to privacy of one and right to health life of another, only that right would prevail which advances public interest and morality.

- Right to free compulsory primary education. In Mohini jain v. state of Karnataka,[21] Unni Krishnan V. State of A.P.,[22] TMA Pai Foundation V. State of Karnataka,[23] the supreme court held that Article 21 includes Right to free compulsory primary education. After the 86th amendment of the constitution of India, the right to free compulsory primary education for the children below the age of 14 years, separately inserted in Article 21-A of the constitution.

- Right to pollution free environment. In Subhas kumar v. State of Bihar[24] the supreme court held that Article 21 which define right to life and personal liberty also include right to fresh air and environment.

- Right to live with human dignity. In Francis Coralie v. U.T. of Delhi[25] the supreme court while referring the American case Moon V. Illinois[26] held that right to life means right to live with human dignity and something

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