Comparison of the Writ Jurisdiction of the Supreme Court with that of High Courts (Under the Indian Constitution)

In this way, the scope of the provisions of Article 226 is wider than Article 32. Under Article 32, the Supreme Court may Issue writs, orders and directions for the enforcement of fundamental rights only. Under Article 226, the High Court may do so not only for the enforcement of fundamental rights but also for any other purposes, Le., for the enforcement of any other legal right.

To take up for example, under Article 265, as explained earlier, no tax can be levied without authority of law. When a tax Imposed without authority of law, infringes a fundamental right, relief can be had under Article 32, as also under Article 226. But when in such a case, there is no breach of a fundamental right, Article 32 cannot be invoked and relief can be had only under Article 226.

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For enforcement of the fundamental rights, a parallel writ jurisdiction has been conferred on the High Court under Article 226 and on the Supreme Court under Article 32. As regards the inter-relation between the two Articles, it appears that Supreme Court’s jurisdiction is independent of and is in no way curtailed or qualified by the jurisdiction of High Court.

A person complaining of an infraction of his fundamental right may come straight to the Supreme Court for relief and he is not bound to invoke the jurisdiction of the High Court first. The reason is that Article 32 is itself a fundamental right and provides a guaranteed remedy for the enforcement of the fundamental rights, and, therefore, the Supreme Court is bound to entertain petitions seeking protection against infraction of fundamental rights.

In Fertilizer Corporation Kamgar Union vs. Union of India, AIR 1981 S.C. 345, it has been held that the jurisdiction conferred on the Supreme Court by Article 32, is an important part of the “basic structure” of the Constitution because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement.

When they are violated, Parliament may empower the Supreme Court with such a power under Article 139. But the power of the High Court to issue writs cannot be in derogation of the Supreme Court under Article 226. In other words, an order under Article 32 will supersede the orders of the High Court previously passed.

A person complaining of an infringement of a fundamental right, may first approach the High Court for relief, and then, on his petition being dismissed there, may approach the Supreme Court under Article 32. Normally, such a person should go in appeal to the Supreme Court against the High Court’s judgment.

But this being a dilatory procedure, some may like to take recourse to quick procedure provided by Article 32. The Supreme Court, being the protector and guardian of the fundamental rights of the people, cannot possibly refuse to entertain petition tinder Article 32 even though a similar petition has been refused by a High Court under Article 226 of the Constitution.

We therefore find that the scope of right of a High Court to issue writs to the people is wider under Article 226, than the right of the Supreme Court to issue writs under Article 32. The Supreme Court’s right to issue writs under Article 32 is limited to the cases of fundamental rights only.

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