RIGHT TO MOVE SUPREME COURT AND HIGH COURT : ARTICLE 32 AND ARTICLE 226

Article 32 and Article 226 is the most important article in this Constitution of India as we could not refer to any other Article except these. We can say that these two articles are the soul of the Constitution as a declaration of fundamental rights is not enough. There must be a remedy that makes the right real. Where there is no remedy there is no right at all. It was, therefore, our Constitution makers also provided for an effective remedy for the enforcement of these rights under Article 32 and Article 226 of the Constitution. 


RIGHT TO MOVE THE SUPREME COURT [ARTICLE 32] 


For the enforcement of fundamental rights conferred by Part lll of the Constitution, Article 32(1) guarantees the right to move the Supreme Court by "appropriate proceedings". Article 32(2) deals with power of the Supreme Court to issue appropriate directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari. According to Clause (3) of Article 32 Parliament may empower by law any other court to exercise within the local limits of its jurisdiction all or of the powers exercisable under clause (2) by the Supreme Court. Article 32(4) says except as otherwise provided, the right guaranteed by Article 32 shall not be suspended. Any person can move the Supreme Court for an appropriate remedy whenever there is a violation of a fundamental right. 

LOCUS STANDI 


Who can apply? The traditional rule is that the right under Article 226, that means, the right to move the High Court is only available to those whose constitutional or legal right is infringed. The rule of locus standi has now been considerably liberalised by the Supreme Court by permitting the public spirited persons to file a writ petition for the enforcement of Constitutional and statutory rights of any other person or a class who are unable to apply for the relief due to poverty or any social or economic disability. 

PUBLIC INTEREST LITIGATION 


The rule of locus standi under Article 32 has now been considerably relaxed by the Supreme Court by permitting public interest litigations or social interest litigations for the enforcement of Constitutional rights. 

In Judges Transfer Case, AIR 1982 SC 149, the Court held that if having "sufficient interest" any member of the public can approach the court for enforcing constitutional or legal rights of other persons. 

In Janata Dal v. H. S. Chowdhari, (1992) 4 SCC 305, the petitioner for political purposes tried to abuse the public interest litigation. The Supreme Court held that the petitioner had no locus standi and no public purpose in filing the petition.  

In Bihar Legal Support Society v. Chief Justice of India, (1986) 4 SCC 767, the Court made it clear that to bring justice within the reach of the poor and disadvantaged groups, the concept of public interest litigation has been evolved.

In M. C. Mehta v. Union of India, AIR 1987 SC 1087, the Supreme Court held that by writing a letter to any judge the poor in India can seek enforcement of fundamental rights from the Supreme Court.

POWER OF THE HIGH COURT TO ISSUE WRITS [Article 226] 


Article 226 confers the right to move the High Court available to those whose constitutional or legal right is infringed. So, whenever there is an infringement of constitutional rights, article 226 comes to the rescue. 

In a landmark judgement in L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, even by way of constitutional amendment the power of judiciary over legislative action vested in the High Court cannot be excluded as it is the basic feature of the Constitution. 

The right conferred by Article 32 can be exercised only for the enforcement of fundamental rights whereas the right guaranteed by Article 226 can be exercised also for "any other purpose". Thus, here we can say that the power of the High Court is wider than the power conferred by Article 32. But an order under Article 32 will supersede the orders of the High Court previously passed. Article 32 is itself a fundamental right.




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