Article 32 and Article 226: How the Two Writ Jurisdictions Differ

Article 32 lets a person move the Supreme Court directly for enforcement of fundamental rights, and that right to move the Court is itself a fundamental right. Article 226 empowers every High Court to issue writs for enforcement of fundamental rights "and for any other purpose", so its reach is wider in subject matter but limited to the High Court's territorial jurisdiction and exercised with more discretion. Most writ litigation in India therefore begins in the High Court, even though Article 32 sits at the centre of constitutional theory.

What is the basic difference between Article 32 and Article 226?

Article 32 is a guaranteed remedy for fundamental rights alone, while Article 226 is a broad constitutional power of the High Courts that covers fundamental rights and every other legal right or public duty.

The text makes the difference plain. Article 32 begins: "The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed." Article 226 begins with "Notwithstanding anything in article 32" and allows a High Court to issue directions, orders or writs "to any person or authority, including in appropriate cases, any Government" for the enforcement of Part III rights "and for any other purpose."

Why is Article 32 itself a fundamental right?

Because it sits in Part III, and clause (1) guarantees the right to approach the Supreme Court; a rule or order that obstructs access to the Court therefore violates Part III itself.

Two early cases settled this. In Romesh Thappar v. State of Madras, decided on 26 May 1950, the Madras Government had banned the entry and circulation of the weekly Cross Roads. The Advocate General objected that the editor should first have gone to the High Court. The Court rejected the objection, holding that Article 32 provides a guaranteed remedy and that the Court, as protector and guarantor of fundamental rights, cannot refuse to entertain such petitions because the High Court was not approached first.

In Prem Chand Garg v. Excise Commissioner, U.P., decided in 1962, the Court struck down Rule 12 of Order XXXV of the Supreme Court Rules so far as it required a petitioner under Article 32 to deposit security for the respondent's costs before the rule nisi issued. A rule that obstructs the assertion of the right, whatever its good intentions, contravenes Article 32. The same judgment held that the Court's power under Article 142 cannot be used to pass orders inconsistent with fundamental rights.

Clause (4) completes the picture: the right under Article 32 "shall not be suspended except as otherwise provided for by this Constitution". The provision that matters here is Article 359, and since the 44th Amendment even an Article 359 order cannot suspend enforcement of Articles 20 and 21.

How is Article 226 wider than Article 32?

It is wider in three ways: it covers rights outside Part III, it runs against "any person or authority", and the cause of action rule in clause (2) lets more than one High Court entertain a case.

The words "for any other purpose" allow a High Court to enforce statutory rights, public duties and service rules, quash an arbitrary tender decision, or correct a jurisdictional error by a tribunal, even where no fundamental right is involved. Article 32 does not reach these. E.P. Royappa (1973) is a good illustration: the Court held that a mere breach of the IAS Pay Rules is not a breach of a fundamental right remediable under Article 32.

The words "any person or authority" matter when the respondent is not the State under Article 12. In Zee Telefilms Ltd. v. Union of India, decided by five judges in 2005, the majority held that the Board of Control for Cricket in India is not "State" under Article 12, so an Article 32 petition against it was not maintainable. The same majority said that a person aggrieved by the Board's exercise of public duties may approach the High Court under Article 226, which is wider than Article 32.

Article 226 also supports public law compensation. In Chairman, Railway Board v. Chandrima Das (2000) the Supreme Court upheld compensation of Rs. 10 lakh awarded by the Calcutta High Court under Article 226 to a Bangladeshi national raped in a railway building, holding that a public law remedy was available even though a suit for damages could also have been filed.

Which writs can the courts issue, and when is each used?

Both Articles name the same five writs, and both allow "directions, orders or writs" beyond them, which is the textual basis for continuing mandamus and detailed guidelines.

Prohibition and certiorari are a favourite pair in prelims. Prohibition stops a proceeding that has not yet ended; certiorari corrects one that has. Mandamus does not lie against the President or a Governor personally, because Article 361 protects them, but it lies against the Government acting through its officers.

Must a petitioner go to the High Court before the Supreme Court?

As a matter of right, no, because Romesh Thappar holds that Article 32 is a guaranteed remedy; in practice the Supreme Court often sends petitioners to the High Court where facts need examination or an effective remedy exists there.

Several related rules shape the choice of forum.

1. Alternative remedy. A High Court may decline to exercise Article 226 jurisdiction where a statute provides an effective remedy, but this is a rule of discretion, not of jurisdiction. In Whirlpool Corporation v. Registrar of Trade Marks (1998), the Supreme Court said the bar does not operate where the petition seeks enforcement of a fundamental right, where natural justice has been violated, where the order is wholly without jurisdiction, or where the vires of an Act is challenged. Bengal Immunity Co. v. State of Bihar (1955) applied a similar idea: a notice under an Act alleged to be ultra vires could be challenged at once.
2. Res judicata. In Daryao v. State of U.P. (1961), the Court held that if a writ petition under Article 226 is dismissed on merits after contest, the same petitioner cannot file a fresh petition under Article 32 on the same facts. A dismissal on the ground of delay or alternative remedy does not have that effect.
3. Appeal route. A High Court's decision under Article 226 reaches the Supreme Court through a special leave petition under Article 136, not through a fresh Article 32 petition.
4. Delay. There is no fixed limitation period for writs, but unexplained delay and laches can defeat a petition, especially where third party rights have arisen.

Suppose a State university cancels a student's degree without a hearing. The student could file under Article 32, alleging violation of Articles 14 and 21. But the decision turns on university statutes, the facts are disputed, and the High Court can decide quickly under Article 226 because the cancellation also breaches natural justice. Most lawyers would file in the High Court, and the Supreme Court would likely ask the student to do so if the petition came to it first.

Can Parliament take away the writ jurisdiction of the courts?

No. The power of judicial review under Articles 32 and 226 is part of the basic structure, so Parliament can create tribunals but cannot shut out the High Courts and the Supreme Court altogether.

S.P. Sampath Kumar (1986) upheld the Administrative Tribunals Act, 1985, which excluded High Court jurisdiction in service matters, on the condition that the tribunal was an equally effective substitute. L. Chandra Kumar v. Union of India (1997), a seven-judge decision, went further and held that the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 cannot be excluded. Tribunals can act as courts of first instance, but their decisions remain subject to the High Court's writ jurisdiction.

In State of West Bengal v. Committee for Protection of Democratic Rights, a Constitution Bench held on 17 February 2010 that judicial review under Articles 32 and 226 is part of the basic structure, and that a High Court may direct the CBI to investigate a cognizable offence within a State without the State's consent. The consent requirement in section 6 of the Delhi Special Police Establishment Act binds the executive, not the constitutional courts, though the power must be used sparingly.

Kihoto Hollohan (1992) offers a related lesson. Paragraph 7 of the Tenth Schedule, which barred courts from the anti-defection field, was held to affect the operation of Articles 136, 226 and 227, and was struck down for want of ratification by the States.

How have the courts used both Articles for PIL and compensation?

The phrase "appropriate proceedings" in Article 32 and the open words of Article 226 let the courts relax standing, act on letters and award money compensation for violation of fundamental rights.

In Bandhua Mukti Morcha v. Union of India, decided in December 1983, a letter alleging bonded labour in Faridabad stone quarries was treated as a writ petition. The Court held that Article 32 does not restrict who may move the Court or how, and appointed commissioners to investigate. Subhash Kumar v. State of Bihar (1991) is the counterweight: a petition filed in the garb of public interest to pursue a business grudge was dismissed with costs.

On compensation, Nilabati Behera v. State of Orissa held in 1993 that compensation under Article 32 or 226 for violation of fundamental rights is a public law remedy based on strict liability, to which sovereign immunity is no defence. The State was ordered to pay for a custodial death. D.K. Basu (1996) built on this with its arrest guidelines.

How are Articles 32 and 226 tested in exams?

Prelims questions test the text and the leading cases, while mains questions ask you to compare the two jurisdictions or advise a client on the right forum.

Points that recur:

• Dr. Ambedkar's description of Article 32 as the heart and soul of the Constitution, and Romesh Thappar's statement that the Court cannot refuse an Article 32 petition merely because the High Court was not approached.
• The words "for any other purpose" in Article 226 and what they add.
• The time limit in Article 226(3): two weeks for deciding an application to vacate an ex parte interim order.
• Article 139, under which Parliament may confer on the Supreme Court power to issue writs for purposes other than enforcement of Part III rights.
• Zee Telefilms on BCCI, and Pradeep Kumar Biswas (2002) on the test for "State" under Article 12.

Common mistakes include saying that Article 226 is "subordinate" to Article 32 (clause (4) only says that Article 226 does not derogate from the Supreme Court's power), forgetting that habeas corpus can issue against a private person, and assuming that every Article 32 petition will be heard on merits despite the Court's practice of directing parties to the High Court.

Writ petitions are supported by affidavits, and the guide to when an affidavit is needed and its format is a practical primer for a junior preparing one. For a member of the public who needs to file a writ, the directory of law firms is a reasonable place to look for counsel who practise before the High Court. This is general information; a lawyer should be consulted for a specific case.

Key points to remember

• Article 32 enforces only Part III rights, and the right to move the Supreme Court is itself guaranteed.
• Article 226 covers Part III rights "and any other purpose", and runs against "any person or authority".
• The five writs are habeas corpus, mandamus, prohibition, certiorari and quo warranto; both Articles also allow directions and orders.
• Alternative remedy is a rule of discretion under Article 226, with the Whirlpool exceptions.
• Daryao (1961) applies res judicata between a dismissed Article 226 petition and a later Article 32 petition on the same facts.
• Writ jurisdiction is part of the basic structure (L. Chandra Kumar, CPDR 2010).
• Public law compensation is available under both Articles (Nilabati Behera, Chandrima Das).

Where to go next

Read the bare text of both Articles linked above, then practise application questions on the public interest litigation mock tests and the administrative law mock tests, where writs and their grounds are tested together.