QUESTION | | Examine the nature of the powers of the High Court under Article 226 of the Constitution of India and distinguish it from the powers of the Supreme Court under Article 32.
IMPORTANCE OF THIS QUESTION | This question was asked in 2019 UPSC Law Optional Mains
How to answer this question | This question sounds simple but many used to make a major mistake - Most of the aspirants will write a short note on Article 226 and then on 32.
What is required is
Firstly, put forward the nature of powers that HC can exercise under Article 226
Secondly, make a sharp distinction between 226 and 32.
Finally, give an apt conclusion.
ALL THE BEST !
Answers can be written till 02.09.2021
Solution will be posted on 02.09.2021
Your answer will be evaluated on 04.09.2021
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Step 1 : Write your answer in a sheet of paper and take a picture of it .
Step 2 : Use the "+" button in the comment section to post the same. FOR UPSC LAW OPTIONAL MAINS COURSES - CLICK HERE ANSWER | Nature of power of High Courts under Art 226
Article 226 of the Constitution empowers the High Courts to issue certain writs in the nature of
· habeas corpus – Produce the body
· mandamus – a command
· prohibition – forbid and stop
· quo warranto – by what authority
· certiorari – review action of lower court
or any of them.
But these powers must be exercised without affecting the powers conferred on the Supreme Court by Article 32(2) – power of Supreme Court to issue writ.
When 226 can be exercised ? When fundamental rights and any other purpose
Art 226 empowers High Court to exercise discretionary and equitable jurisdiction # IOB, Annasalai v Ganesan (2008 ) which implies such power must be exercised on recognized lines and cannot be arbitrary
Against whom 226 can be exercised ? High court can issue writ, direction or order against
· Any person
· Any authority
· Government
ART 226 NOT APPELLATE JURISDICTION | While exercising the power under Art.226 High Court cannot act as appellate court but can only decide on illegality, irrationality and procedural impropriety suffered # Dwarkar Prasad Agarwal v BD Agarwal(2003) . Simply because it is the original power of the High Court and not it’s appellate jurisdiction.
High Court can exercise this power outside their own local jurisdiction in the cases where the cause of actions lies wholly or in part within their local jurisdiction.
Further the power under Article 226 is broader as it can issue any direction apart from writs and also not only to secure fundamental rights but also for other purposes.
In the case of GRAN VASANT RESIDENTS WELFARE ASSOCIATION v DDA (2005 ) while exercising power under Art. 226, it was held that constitutional right of right to access the high court cannot be infringed by the court itself.
Therefore along with fundamental rights other rights could also be protected under Art. 226 if the court feels so that it comes under the terms “ other purpose” mentioned therein.
A High Court cannot issue writ to another High Court and also any bench of High Court cannot issue to its other bench.
Difference between Article 226 and Article 32
Few cases to support above points : In Bandhua Mukti Morcha v. Union of India, (1983) the apex court held that scope of Article 226 of the Constitution is wider than Article 32 as Article 266 empowers the High Court to issue directions or writs for enforcing fundamental rights as well as legal rights where as under Article 32 the Supreme Court can enforce only fundamental rights.
In the case of Romesh Thappar v. State of Madras, (1950), the Supreme Court observed that Article 32 provides a ‘guaranteed’ remedy for the enforcement of fundamental rights.
OWN CONCLUSION
