Writ Jurisdiction of the Supreme Court of India -Article 32 and High Court - Article 226 of Constitution of India

Article 32 of constitution of India provides for enforcement of the fundamental rights guaranteed by the constitution. As per Article 32(1) the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights is guaranteed. This means, in case of infringement of fundamental rights, the right to move the Supreme Court itself is a fundamental right. To enforce the fundamental rights guaranteed by the constitution is the duty of the Supreme Court. Where no fundamental right has been infringed, an application under Article 32 cannot lie. Article 32 does not give the Supreme Court an appellate Jurisdiction, but it provides the Supreme Court Original Jurisdiction. Article 32(2) provides that the Supreme Court shall have power to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any of the fundamental rights. In exercise of the power of judicial review the court cannot enter into political question.

Article 32, 136, 226 and 227 is part of the basic structure of the constitution and therefore it cannot be taken away by the statute.

When Supreme Court can refuse remedy under Article 32
In some circumstances the Supreme Court can refuse to grant the remedy under Article 32. Such conditions are:

Res Judicata
Except in the petition under Article 32, for habeas corpus, the principle of res judicata applies to petition under Article 32. In the absence of new circumstances arising since the dismissal of the petition filed in the Supreme Court under Article 32, a fresh petition under Article 32 on the same matter cannot be filed in the Supreme Court.

Delay
If there is no reasonable explanation for the delay, the court may refuse to grant relief. It is not a rule of law, but a rule of practice on the basis of court discretion and the discretion is to be exercised on the light of the circumstances of each case.
Malicious Petition

The Supreme Court may dismiss the petition filed under Article 32, if it is found to be malicious or ill-motivated.

Misrepresentation or Suppression of Material facts
If found that the petitioner made it clear misrepresentation as to the material facts or suppression of material facts, the Supreme Court may dismiss the petition at any stage.

Anfractuous Petition
If the petition filed under Article 32 is found to be fruitless, unfruitful or in fructuous, it may be dismissed by the Supreme Court for the writ of habeas corpus and the detainee has been released during tendency of the proceedings, the petition my be dismissed on the ground of its having become in fructuous.

Existence of Adequate Alternative Remedy
Even though existence of alternative remedy does not bar the Supreme Court to entertain a petition under Article 32, however the Supreme Court has held that in the case of adequate alternative remedy it may exercise its discretion to refuse to entertain a petition file under Article 32.

Writ Jurisdiction of High Court - Article 226 of Indian Constitution
As per Article 226 the High Court has the power to issue writs for the enforcement of fundamental Rights as well as for any other purposes. Provision of Article 226 says that 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 fundamental rights granted by part III the Constitution and for any other purpose. The High Court has the power to issue orders, writs or directions to any Government Authority or person under this Article by exercising jurisdiction.

Clause (4) of the Article 226 of Indian Constitution makes it clear that the power conferred on a High Court by Article 226 shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article 32. The petitioner should file the petition within reasonable time. The Court may refuse to grant relief under this Article where there is no reasonable explanation for the delay in presenting the petition.

Difference between Article 32 and Article 226 of Indian Constitution
Even though Article 32 and 226 is to protect the fundamental right of a citizen, there are some differences between Article 32 and Article 226. They are:

The right to move the Supreme Court under Article 32 by appropriate proceedings for the enforcement of Fundamental Rights is itself a Fundamental right and the Supreme Court cannot refuse to entertain application seeking protection against infringement of any of the Fundamental Rights guaranteed by Part III of the Constitution. But the right to move the High Court under Article 226 is not itself a Fundamental right. The remedy provided is discretionary and cannot be claimed as a right.

Article 226 empowers the High Court to issue directions, orders or writs for enforcement of the fundamental rights and also for the enforcement of any other purpose, but the remedy provided under Article 32 is available only for the enforcement of the Fundamental rights guaranteed by Part III of the Constitution.

The Territorial jurisdiction of High Court is limited unlike Supreme Court.
Subsequent petition under Article 32 against petition dismissed by Supreme Court is barred. If the petition under Article 226 is disposed of by the High Court on merit, the decision would operate as res judicata and therefore the petition on the same grounds to the Supreme Court would be barred.