The Writ Jurisdiction: Article 32 and Article 226
Chapter Ten
Syllabus topic 1, "General Laws on Environmental Concern"
Pages 37 to 40 of 913
In one line
Every environmental case in this book was brought by asking a court for a writ, and there are two courts that can give one.
In the wording a student can write in an examination: Article 32 confers on every person the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III, and empowers that Court to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari; Article 226 confers on every High Court the power to issue the same writs, and any orders, throughout the territories in relation to which it exercises jurisdiction, for the enforcement of a right conferred by Part III and for any other purpose.
Why the wider jurisdiction is the High Court's
The four words at the end of Article 226(1), and for any other purpose, are the whole difference and they are constantly missed.
Article 32 is itself a fundamental right, and the Supreme Court's jurisdiction under it extends only to the enforcement of the rights in Part III. A petitioner there must show a violation of a fundamental right, which in an environmental case means Article 21, sometimes with Article 14.
Article 226 is a power, not a right, and it extends to the enforcement of a fundamental right and to any other purpose, which includes the enforcement of an ordinary statutory duty. So a High Court may compel a Pollution Control Board to decide an application, or a municipality to lift refuse, without any fundamental right being in issue at all.
That is why the great majority of Indian environmental litigation is brought in a High Court, and why an answer that mentions only Article 32 has described the smaller half of the jurisdiction.
The five writs, and what each is for in this subject
Mandamus, we command. An order to a public authority to perform a public duty. This is the environmental writ. It is what is issued to a Board that has not acted on a complaint, to a municipality that has not built a drain, to a State that has not prepared a coastal zone management plan.
Certiorari, to be certified. An order quashing a decision of an authority acting judicially where it has acted without jurisdiction, in breach of natural justice, or with an error apparent on the face of the record. This is the writ against an environmental clearance, a consent order or a penalty.
Prohibition. An order forbidding an authority from proceeding further where it lacks jurisdiction. It is the twin of certiorari, before the decision instead of after.
Quo warranto, by what authority. An order calling on a person holding a public office to show his title to it. It is used against an irregularly constituted Expert Appraisal Committee or Board.
The Writ Jurisdiction: Article 32 and Article 226
Habeas corpus. Production of a person detained. It has no environmental use, and a student should say so rather than force it into an answer.
The provisions
Article 32(1). The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
Article 32(2). 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 rights conferred by this Part.
Article 226(1). 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 any of the rights conferred by Part III and for any other purpose.
Note the words directions or orders or writs in both. They are what allow a court to make an order that is not one of the five classical writs at all, which is where continuing mandamus and the appointment of committees come from.
Worked example
A cement plant near Chandrapur has been operating for two years with an environmental clearance that was granted without the public hearing the notification of 2006 requires. Villagers want it stopped.
Which court? The High Court of Bombay at its Nagpur bench. Article 226 is available, the record is local, and the relief sought includes the quashing of an administrative decision, which is a certiorari matter.
Which writ? Certiorari to quash the clearance, and mandamus to the State Pollution Control Board to take action on the operation without a valid clearance.
Is Article 32 available instead? Only if a fundamental right is engaged. The villagers can plead Article 21, and the Supreme Court has entertained such petitions. But the High Court is the proper forum, has the wider jurisdiction, and can take evidence more easily.
Is there a better forum still? Very possibly the National Green Tribunal, which has appellate jurisdiction over an environmental clearance under section 16 of its Act, a specialist bench, and a six-month limitation. The choice between a writ court and the Tribunal is a real one and is dealt with in the Tribunal chapters.
What the court will not do. It will not decide for itself whether the plant is environmentally acceptable. It will decide whether the decision was lawfully made, and if it was not it will send the question back to the authority that ought to have decided it.
The Writ Jurisdiction: Article 32 and Article 226
Distinctions
| Article 32 | Article 226 | |
|---|---|---|
| Nature | A fundamental right in itself | A power of the High Court |
| Scope | Enforcement of Part III rights only | Part III rights and any other purpose |
| Court | Supreme Court | Every High Court |
| Territory | The whole of India | The territories of that High Court, plus where the cause of action arises |
| Can it be suspended | Only under Article 359 in an emergency | Not by Article 359 |
| Typical environmental use | A national problem, a matter of principle | Almost everything else |
What it does NOT mean
It does not mean a writ court decides the environmental merits. Judicial review examines the legality of a decision, not its wisdom. Where a court has strayed into the merits, as it sometimes has, that is the criticism made of it and not a description of the jurisdiction.
It does not mean the writ jurisdiction is a substitute for a statutory remedy. Where an Act provides an appeal, as sections 5A, 15D and 16 of the environmental statutes do, a court will usually require it to be used. The rule is one of discretion, not of jurisdiction.
It does not mean delay is irrelevant. There is no period of limitation for a writ petition, but laches will defeat one. A challenge to a clearance brought after the project is built is met with the answer given in the coastal cases: the court will look at what remains to be prevented.
Limits and criticism
Two criticisms are standard and both are answerable.
That the jurisdiction is discretionary and therefore uncertain. True, and it is the price of a remedy that can be shaped to the facts. A statutory appeal is certain and narrow; a writ is uncertain and wide.
That it has displaced the regulator. This is the serious one. Where a court supervises a river for thirty years, the Board whose statutory duty it was learns that somebody else will do its work. The answer given by the courts is that they intervened because the Board was not acting, which is true, and does not entirely dispose of the objection.
Quick revision
- Article 32 enforces Part III rights in the Supreme Court and is itself a fundamental right.
- Article 226 gives every High Court the same writs for Part III rights and for any other purpose, which is wider.
- Mandamus is the environmental writ; certiorari quashes a clearance or a consent; habeas corpus has no use here.
- Both articles allow directions or orders as well as writs, which is where continuing mandamus comes from.
- A writ court reviews legality, not merits, and will usually insist on a statutory appeal where one exists.
The Writ Jurisdiction: Article 32 and Article 226
Test yourself
1. Why is Article 226 wider than Article 32? Because Article 32 extends only to the enforcement of the rights conferred by Part III, while Article 226 extends to the enforcement of those rights and, in its own words, for any other purpose. A High Court can therefore enforce an ordinary statutory duty, such as a Board's duty to decide an application or a municipality's duty to remove refuse, without any fundamental right being in issue.
2. Which writ would you seek against a Pollution Control Board that has sat on a complaint for two years, and which against a clearance granted without a public hearing? Mandamus against the Board, because the complaint discloses a public duty that has not been performed. Certiorari against the clearance, because it is a decision of an authority that has failed to follow a mandatory procedure, together with mandamus to compel a fresh and lawful decision.
3. A petitioner asks the High Court to hold that a proposed dam is environmentally unsound. What will the court say? That the question is not for it. Judicial review examines whether the decision was made by the right authority, on relevant material, after the required procedure, and without arbitrariness. Whether the dam is a good idea is for the expert body and ultimately for the executive. If the appraisal was defective the court will quash the clearance and require the question to be decided again properly, which is not the same as deciding it itself.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.