Article 226 empowers the Constitution with the power to initiate an action against a government body in case of violation of the rights and liberties of the citizens.
Introduction
A very significant aspect of the Indian Constitution is the jurisdiction it confers on the High Court to issue writs. The writs have been our safeguards since the British rule for upholding the rights and liberties of the people. The power of issuing writs conferred to the High Court can be used not only for the enforcement of fundamental rights but also to enforce legal rights.
Article 226 empowers the Constitution with the power to initiate an action against a government body in case of violation of the rights and liberties of the citizens.
Article 226 of the Indian Constitution
Article 226 enshrined under Part V of the Constitution confers power to High Courts to issue orders, directions, and writs like Habeas corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto.
As per Article 226(1), every High Court within the territory of India has the power to issue orders, directions, and writs to any individual or authority including the government for enforcement of fundamental rights as well as other legal rights under its local jurisdiction.
Article 226(2), confers the High Court to issue directions, orders, or writs to any government, authority, or person about territories within which the cause of action, wholly or in part, arises for the exercise of such power.
Article 226(3), states that when an interim order is passed by way of injunction or stay or in any other manner against a respondent without:
- Providing all documents in support of the plea for such interim order to the respondent
- Giving opportunity of being heard
then, if the respondent moves to the High Court to cancel the interim order and provides a copy of such petition to the petitioner, the High Court shall decide the application within two weeks of receiving such application or within two weeks from the date on which the other party received such application, whichever is later.
As per Article 226(4), the power conferred to the High Courts under Article 226 is not in derogation to the powers conferred to the Supreme Court under Article 32(2).
Scope of Article 226
As held in the case of Bandhua Mukti Morcha v. Union of India, the scope of Article 226 is much wider than Article 32 as it confers power to the High Courts to issue orders, directions, and writs not only for the enforcement of fundamental rights but also for the enforcement of legal rights which are conferred to the disadvantaged by way of certain statutes and are as important as the fundamental rights.
Article 226 cannot be suspended even at the time of emergency. Article 226 has a broader scope as it is applicable not only in the case of violation of a fundamental right but also of a legal right. Article 226 empowers the High Court to issue a writ in its local jurisdiction only. Therefore, High Courts have narrower territorial jurisdiction as compared to the Supreme Court. Article 226 confers Discretionary power to the High Court which means it is at the discretion of the High Court to issue a writ or not.
In Common Cause V. Union of India it was observed by the Supreme court that “Under Article 226 of the Constitution, the High Court has been given the power and jurisdiction to issue appropriate writs like mandamus, certiorari, prohibition, quo Warranto and habeas corpus for the enforcement of fundamental rights or any other purposes. Thus, the High Court has jurisdiction not only to grant relief for the enforcement of fundamental rights but also for “any other purpose” which would include the enforcement of public duties by public bodies
In Surya Dev Ravi v Ram Chander Rai & Ors, the court said that there is no manner of doubt that the orders and proceedings of a judicial court subordinate to the High Court are amenable to writ jurisdiction of the High Court under Article 226 of the Constitution.
In Lt. Col. Khajoor Singh v The Union of India, the court said that a High Courts jurisdiction to issue an appropriate writ depends on the co-existence of two conditions, namely, (i) the cause of action has accrued within the territories about which it has jurisdiction, and (ii) the said authority is “within” the said territories.
Conclusion
The Constitution of India has given wide powers under Article 226 to the public in general for enforcement of fundamental rights and legal rights. Article 226 is a Constitutional right and cannot be suspended even at the time of emergency.
