Article 226 Compared with Article 32
Chapter Twenty-Nine
Syllabus topic 3, "Jurisdiction"
Pages 88 to 90 of 430
In one line
Article 32 is stronger and Article 226 is wider, and almost every difference between them follows from those two words.
In the wording a student can write in an exam: Article 32 is itself a fundamental right and is confined to the enforcement of fundamental rights; Article 226 is a constitutional power of the High Courts, not a fundamental right, but is available both for fundamental rights and for any other purpose, and is exercisable against any person or authority within the territory or where the cause of action arises.
The comparison, row by row
| Article 32 | Article 226 | |
|---|---|---|
| Which court | The Supreme Court | Every High Court |
| Nature | A fundamental right in Part III | A constitutional power, not a fundamental right |
| Purpose | Enforcement of Part III rights only | Part III rights and any other purpose |
| Territory | The whole of India | The territories of the High Court, and where the cause of action arises under clause (2) |
| Against whom | The State and bodies within Article 12 | Any person or authority, including any Government, on a public duty |
| Discretion | The Court is bound to entertain where a fundamental right is infringed | Discretionary throughout |
| Alternative remedy | Not a bar in law: Kochuni | An important ground for refusing relief: Whirlpool |
| Suspension | May be suspended under Article 359, subject to Articles 20 and 21 | Not suspended by Article 359, because it is not a right conferred by Part III |
| Can it be excluded | No: it is a fundamental right and part of the basic structure | No: L. Chandra Kumar |
The three differences that decide cases
One, the purpose. This is the practical difference. Nine out of ten administrative law disputes involve no fundamental right at all: a licence refused contrary to a rule, a tender awarded against the terms of the notice, a pension miscalculated. Those go to a High Court under Article 226. The words "and for any other purpose" are the reason India has a working administrative law rather than a chapter of constitutional law.
Two, the strength of the guarantee. Under Article 32 the Court is the protector and guarantor and cannot decline merely because another remedy exists, which is Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080, and Romesh Thappar v. State of Madras, AIR 1950 SC 124. Under Article 226 the jurisdiction is discretionary from beginning to end.
Three, suspension. Article 359 suspends the right to move any court for the enforcement of Part III rights. Article 226, so far as it is used for a purpose other than a fundamental right, is untouched by such an order, which is a point of some importance and was one of the arguments in the Emergency litigation.
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