[1979]1 MLJ 135 at p.

148 Pengarah Tanah dan Galian,WP v Sri Lembah Enterprise "U nfettered discretion is a contradiction in terms.....Every legal power must have legal limits,otherwise there is a dictatorship....The Courts are the only defen ce of the liberty of the subject against departmental aggression."This research on AL has been written with the following objectives :- -Generally,but not exhau stively,it covers an overall spectrum of Malaysian Administrative Law. Articles 32 and 226 are the provisions of the Constitution that together provide an effective guarantee that every person has a fundamental right of access to c ourts. Article 32 confers power on the Supreme Court to enforce the fundamental rights. It provides a guaranteed, quick and summary remedy for enforcing the Fun damental Rights because a person can go straight to the Supreme Court without ha ving to go undergo the dilatory process of proceeding from the lower to higher c ourt as he has to do in other ordinary litigation. The Supreme Court is thus con stitution the protector and guarantor of the fundamental rights. The High courts have a parallel power under Article 226 to enforce the fundament al rights. Article 226 differs from Article 32 in that whereas Article 32 can be invoked only for the enforcement of Fundamental Rights, Article 226 can be invo ked not only for the enforcement of Fundamental Rights but for any other purpose as we ll. This means that the Supreme Courts power under Article 32 is restricted as comp ared with the power of a High Court under Article 226, for, if an administrative action does not affect a Fundamental Right, then it can be challenged only in t he High Court under Article 226, and not in the Supreme Court under Article 32. Another corollary to this difference is that a PIL (Public Interest Litigation) writ petition can be filed in Supreme Court under Article 32 only if a question concerning the enforcement of a fundamental right is involved. Under Article 226 , a writ petition can be filed in a High court whether or not a Fundamental Righ t is involved. Constitutional Remedy under Articles 32 and 226 of the Constitution of India The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Co III of th nstitution for the violation of fundamental rights guaranteed under Part e Constitution. Any provision in any Constitution for Fundamental Rights is mean ingless unless there are adequate safeguards to ensure enforcement of such provi sions. Since the reality of such rights is tested only through the judiciary, th e safeguards assume even more importance. In addition, enforcement also depends upon the degree of independence of the Judiciary and the availability of relevan t instruments with the executive authority. Indian Constitution, like most of We stern Constitutions, lays down certain provisions to ensure the enforcement of F undamental Rights. These are as under: (a) The Fundamental Rights provided in the Indian Constitution are guaranteed ag ainst any executive and legislative actions. Any executive or legislative action , which infringes upon the Fundamental Rights of any person or any group of pers ons, can be declared as void by the Courts under Article 13 of the Constitution. (b) In addition, the Judiciary has the power to issue the prerogative writs. The se are the extra-ordinary remedies provided to the citizens to get their rights enforced against any authority in the State. These writs are - Habeas corpus, Ma ndamus, Prohibition, Certiorari and Quo-warranto. Both, High Courts as well as t he Supreme Court may issue the writs.(c) The Fundamental Rights provided to the citizens by the Constitution cannot be suspended by the State, except during the period of emergency, as laid down in Article 359 of the Constitution. A Fundame ntal Right may also be enforced by way of normal legal procedures including a de claratory suit or by way of defence to legal proceedings. However, Article 32 is referred to as the "Constitutional Remedy" for enforcemen t of Fundamental Rights. This provision itself has been included in the Fundamen tal Rights and hence it cannot be denied to any person. Dr. B.R.Ambedkar describ ed Article 32 as the most important one, without which the Constitution would be reduced to nullity. It is also referred to as the heart and soul of the Constit ution. By including Article 32 in the Fundamental Rights, the Supreme Court has been made the protector and guarantor of these Rights. An application made under Article 32 of the Constitution before the Supreme Court, cannot be refused on t echnical grounds. In addition to the prescribed five types of writs, the Supreme

Court may pass any other appropriate order. Moreover, only the questions pertai ning to the Fundamental Rights can be determined in proceedings against Article 32. Under Article 32, the Supreme Court may issue a Writ against any person or g overnment within the territory of India. Where the infringement of a Fundamental Right has been established, the Supreme Court cannot refuse relief on the groun d that the aggrieved person may have remedy before some other court or under the ordinary law.The relief can also not be denied on the ground that the disputed facts have to be investigated or some evidence has to be collected. Even if an a ggrieved person has not asked for a particular Writ, the Supreme Court, after co nsidering the facts and circumstances, may grant the appropriate Writ and may ev en modify it to suit the exigencies of the case. Normally, only the aggrieved pe rson is allowed to move the Court. But it has been held by the Supreme Court tha t in social or public interest matters, any one may move the Court. A Public Int erest Litigation can be filed before the Supreme Court under Article 32 of the C onstitution or before the High Court of a State under Article 226 of the Constit ution under their respective Writ Jurisdictions. There are mainly five types of Writs (i) Writ of Habeaus Corpus,(ii) Writ of Mandamus,(iii) Writ of Q uo-Warranto,(iv) Writ of Prohibition, and(v) Writ of Certiorari.(I) Writ of Habe as Corpus:It is the most valuable writ for personal liberty. Habeas Corpus means , "Let us have the body." A person, when arrested, can move the Court for the is sue of Habeas Corpus. It is an order by a Court to the detaining authority to pr oduce the arrested person before it so that it may examine whether the person ha s been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue orders for his release(II) The Writ of Mand amus:Mandamus is a Latin word, which means "We Command". Mandamus is an order fr om a superior court to a lower court or tribunal or public authority to perform an act, which falls within its duty. It is issued to secure the performance of p ublic duties and to enforce private rights withheld by the public authorities. S imply, it is a writ issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue such writs.(III) The Writ of Quo-Warranto:The word Quo-Warranto literally means "by what warrants?" It is a writ issued with a view to restraining a person fro m acting in a public office to which he is not entitled. The Writ of quo-warrant o is used to prevent illegal assumption of any public office or usurpation of an y public office by anybody. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the approp riate High Court has a right to issue a Writ of quo-warranto against the person and declare the office vacant.(IV) The Writ of Prohibition:Writ of prohibition m eans to forbid or to stop and it is popularly known as 'Stay Order'. This Writ i s issued when a lower court or a body tries to transgress the limits or powers v ested in it. It is a Writ issued by a superior court to lower court or a tribuna l forbidding it to perform an act outside its jurisdiction. After the issue of t his Writ proceedings in the lower court etc. come to a stop. The Writ of prohibi tion is issued by any High Court or the Supreme Court to any inferior court, pro hibiting the latter to continue proceedings in a particular case, where it has n o legal jurisdiction of trial. While the Writ of mandamus commands doing of part icular thing, the Writ of prohibition is essentially addressed to a subordinate court commanding inactivity. Writ of prohibition is, thus, not available against a public officer not vested with judicial or quasi-judicial powers. The Supreme Court can issue this Writ only where a fundamental right is affected.(V) The Wr it of Certiorari:Literally, Certiorari means to be certified. The Writ of Certio rari is issued by the Supreme Court to some inferior court or tribunal to transf er the matter to it or to some other superior authority for proper consideration . The Writ of Certiorari can be issued by the Supreme Court or any High Court fo r quashing the order already passed by an inferior court. In other words, while the prohibition is available at the earlier stage, Certiorari is available on si milar grounds at a later stage. It can also be said that the Writ of prohibition is available during the tendency of proceedings before a sub-ordinate court, Ce rtiorari can be resorted to only after the order or decision has been announced.

There are several conditions necessary for the issue of Writ of Certiorari, whi ch are as under:(a) There should be court, tribunal or an officer having legal a uthority to determine the question of deciding fundamental rights with a duty to act judicially.(b) Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or law. The order could also be against the principle o f natural justice or it could contain an error of judgment in appreciating the f acts of the case. Article 226 1. Article 226 empowers every High Court to issue the writs.2. Artic le 32 is itself a fundamental right. Article 226 is not a fundamental right.3. T he President of India cannot suspend Article 226 during the period of Emergency4 . Article 226 is not a right as that of Article 32. The High Court may issue wri ts according to its discretionary power.5. Article 226 enables the High Court to issue orders to writs in the nature of habeas corpus, mandamus, prohibition, ce rtiorari, quowarranto, to protect aggrieved and any other purpose. Article 32 1. Article 32 empowers the Supreme Court to issue writs.2. Article 32 is a fundamental right, and it is included in Part III of the Constitution. Articl e 32 is a basic feature of the Constitution. Article 226 is a fundamental right. 3. During the period of emergency, the fundamental rights (Excepts the articles 21 and 22) can be suspended. Therefore, Article 32 can also be suspended during emergency Period.4. The applicant can approach the Supreme Court as a right, bei ng it is fundamental right.5. Article 32 empowers the Supreme Court to issue the writs only when the Fundamental Rights are violated or threatened. The sole object of the Article 32 of the Constitution of India is the enforcemen t of the fundamental rights guaranteed under Part III of the Constitution of Ind ia. Article 32 and Article 226 both deal with enforcement of right of the citizen ag ainst the Government or Governmental Authorities. Article 32 is limited to the extent of enforcement of the fundamental rights sta ted in the Part III of the Constitution Article 226 of the Constitution is much wider than Article 32 of the Constitutio n. The High Court while exercising the Article 226 can give reliefs in case of quas i-Judicial Tribunals and authorities or other acts by such lower authorities eve n though the acts of such authorities do not infringe the fundamental rights. The Supreme Court is competent to give relief under Article 32 against any autho rity within the territory of India. The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Co III of th nstitution for the violation of fundamental rights guaranteed under Part e Constitution Article 32 is referred to as the "Constitutional Remedy" for enforcement of Fund amental Rights. By including Article 32 in the Fundamental Rights, the Supreme Court has been ma de the protector and guarantor of these Rights. Article 32 is a fundamental right, and it is included in Part III of the Constituti on. Article 32 is a basic feature of the Constitution The Supreme Court shall have power to issue directions or orders or writs, inclu ding writs in the nature of habeas corpus, mandamus, prohibition, quo warranto a nd certiorari, whichever may be appropriate, for the enforcement of any of the r ights conferred by Part III Article 226 in The Constitution Of India 1949 226. Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, t hroughout the territories in relation to which it exercise jurisdiction, to issu e to any person or authority, including in appropriate cases, any Government, wi thin those territories directions, orders or writs, including writs in the natur e of habeas corpus, mandamus, prohibitions, 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

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exer cising jurisdiction in relation to the territories within which the cause of act ion, wholly or in part, arises for the exercise of such power, notwithstanding t hat the seat of such Government or authority or the residence of such person is not within those territories (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without (a) furnishing to such party copies of such petition and all documents in suppor t of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such applicat ion to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two w eeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court i s closed on the last day of that period, before the expiry of the next day after wards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated (4) The power conferred on a High Court by this article shall not be in derogati on of the power conferred on the Supreme court by clause ( 2 ) of Article 32 Article 32(1) in The Constitution Of India 1949 (1) The right to move the Supreme Court by appropriate proceedings for the enfor cement of the rights conferred by this Part is guaranteed