Article 32 and Article 226 Compared

In one line

Article 32 gives a right to move the Supreme Court for the enforcement of the fundamental rights and is itself a fundamental right; article 226 gives every High Court the same powers and for any other purpose, which is wider.

The two provisions

Article 32(1) guarantees the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III. 32(2) empowers the Court to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. 32(3) permits Parliament to empower another court. 32(4) provides that the right shall not be suspended except as the Constitution provides.

Article 226(1): 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, directions, orders or writs, including the same five writs, for the enforcement of any of the rights conferred by Part III and for any other purpose.

226(2): the power may be exercised by a High Court in relation to territories within which the cause of action, wholly or in part, arises, notwithstanding that the seat of the Government or authority is not within those territories.

226(3): where an interim order is made ex parte against a party, that party may apply for vacation and the application shall be disposed of within two weeks, failing which the interim order stands vacated.

The five differences

Subject matter. Article 32 is confined to the fundamental rights. Article 226 extends to them and for any other purpose, so a statutory right, a rule, an order or a legitimate expectation can be enforced under it and cannot be enforced under article 32.

Status. Article 32 is itself a fundamental right in Part III. Article 226 is a constitutional provision in Part V. The practical consequence is that the Supreme Court cannot refuse to entertain an article 32 petition on the ground that another remedy exists, whereas a High Court may decline under article 226 in the exercise of discretion.

Territory. Article 32 runs throughout India. Article 226 runs within a High Court's jurisdiction, extended by 226(2) to where the cause of action arises.

Discretion. Both are discretionary in the sense that the writ is not issued as of course, but the alternative remedy objection operates differently, as above.

And proximity. The High Court is in the State, the Supreme Court is not. For a disadvantaged litigant the difference is decisive, and it is why the overwhelming majority of Indian human rights litigation is conducted under article 226.