Article 32 and Article 226 Compared: A Guaranteed Right and a Wider Discretionary Jurisdiction

Character

Itself a fundamental right

A constitutional power, not a fundamental right

Court

The Supreme Court

Every High Court

Purpose

Enforcement of fundamental rights only

Fundamental rights and any other purpose

Scope

Narrower in subject matter

Wider; reaches legal rights and statutory duties

Discretion to refuse

Limited; the Court cannot refuse where a fundamental right is violated

Full; delay, alternative remedy, conduct and futility may bar relief

Suspension

May be suspended during an emergency under Article 359, save for Articles 20 and 21

Not suspended by Article 359

Territorial reach

The whole of India

The territory over which the High Court exercises jurisdiction, and where the cause of action arises

Against whom

The State within Article 12

The State, and any person or authority in respect of public duties

Disputed questions of fact

Rarely entertained

Rarely entertained, but the High Court is closer to the record

Alternative remedy

Not a bar in the same way, though the High Court is ordinarily required to be approached first

A rule of discretion that ordinarily leads to relegation

Amendability

Part of the basic structure

Part of the basic structure

📖 Prem Chand Garg v. Excise Commissioner, U.P., AIR 1963 SC 996

Facts: A rule framed by the Supreme Court under Article 145 required a petitioner under Article 32, in certain cases, to furnish security for the costs of the respondent, and provided that on failure to do so the petition would be dismissed. A petitioner unable to furnish the security challenged the rule as an impermissible restriction on the right conferred by Article 32.

Held: A Constitution Bench struck down the rule. It held that the right to move the Supreme Court for the enforcement of fundamental rights is itself a fundamental right guaranteed by Article 32(1), and that the Court's rule-making power under Article 145, which is expressly subject to the provisions of the Constitution, cannot be exercised so as to impair or abridge that right. A rule which makes the very exercise of the guaranteed right dependent on the petitioner's ability to furnish security, and which visits failure with dismissal, imposes a condition the Constitution does not permit. The Court held that the fundamental right to a constitutional remedy stands on the same footing as the substantive rights it exists to enforce, and that no rule of procedure may be framed which defeats it.

Ratio: The right under Article 32 is itself a fundamental right which cannot be abridged by any rule of procedure, including one made by the Supreme Court under Article 145.

📖 Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621

Facts: A quasi-judicial authority acting under a valid taxing statute made an assessment which the assessee said was erroneous, in that the authority had misconstrued a notification and had taxed goods that were exempt. The assessee moved the Supreme Court directly under Article 32, contending that an illegal levy infringed the fundamental right to property and to carry on business.

Held: A Bench of seven Judges held the petition not maintainable. It held that where a statute is valid and the authority acts within its jurisdiction, an erroneous decision on a question of fact or of law does not amount to the violation of a fundamental right, and Article 32 is not available to correct it: the remedy lies in the appeal, revision or other procedure the statute provides, or under Article 226. The Court held that Article 32 is attracted where the law itself is unconstitutional, where the authority acts without jurisdiction, or where it acts in violation of the principles of natural justice or of a fundamental right, but not where the complaint is simply that the authority, competent to decide, decided wrongly. A wrong decision by a competent authority under a valid law is an error, not an infringement.

Ratio: Article 32 is not available to correct an erroneous decision of a quasi-judicial authority acting within jurisdiction under a valid law; the remedy lies in the statutory procedure or under Article 226.

A statute or rule violating a fundamental right

Either; Article 32 if the violation is direct and the facts are undisputed

Custodial violence or illegal detention

Either; Article 32 is frequently invoked

A matter of national importance affecting rights across States

Article 32

An administrative order without jurisdiction

Article 226

An order in breach of natural justice

Article 226, and Article 32 where a fundamental right is engaged

An erroneous decision by a competent authority under a valid law

Neither directly; the statutory remedy, then Article 226 (Ujjam Bai)

Enforcement of a statutory duty not involving a fundamental right

Article 226 only

A claim against a private body performing a public function

Article 226 only

A contractual grievance against the State

Article 226, in an appropriate case

⚠ The wider jurisdiction is the more easily refused

A petitioner choosing between the two is choosing between scope and entitlement, and the two run in opposite directions. Under Article 226 almost any public law grievance can be brought, and almost any of them can be refused: the High Court may decline for delay, for an available alternative remedy, for the petitioner's conduct, because third-party rights have intervened, or because relief would serve no purpose. Under Article 32 very much less can be brought, but what is brought within it cannot be turned away on the footing that the Court would rather not hear it, since the Article confers a right and not a favour. That is why so much argument in Article 32 petitions is about whether a fundamental right is genuinely engaged: establishing that converts a discretionary remedy into a guaranteed one.