Writ of Certiorari & Writ of Prohibition

Writ of Certiorari & Writ of Prohibition

WRIT OF CERTIORARI

Introduction

  • Certiorari means “To Certify”. Certiorari is granted by the Supreme Court to some inferior court or tribunal to move the issue to it or to some other unrivaled authority for legitimate thought or for suppressing the order previously passed by an inferior court.
  • The main purpose of this writ is to keep the inferior courts, judicial and quasi-judicial authorities within their limits of jurisdiction, and if the act in access of their jurisdiction their decision will be subdued by the High Court and Supreme Court by granting a writ of certiorari.

Nature of Writ of Certiorari

  • It is a corrective writ by which the superior court may exercise supervisory power on inferior courts and judicial or quasi-judicial tribunals. By exercising such power, their records and proceedings are brought under review and the sole object becomes to forestall the misuse of the law.
  • This writ is of privileged nature and is issued against administrative authorities that penetrate the rights of individuals. It is of preventive and healing nature.
  • Prior, Writ of Certiorari was utilized as a writ of error. It was conjured distinctly in criminal matters and later on was likewise utilized in civil cases.

Grounds for Issuance of the Writ of Certiorari

  • When  an inferior court or tribunal act in the abundance of jurisdiction or act without jurisdiction or neglects to act
  • To put aside any decision given infringing to of the principle of natural justice
  • When there is either a clear ignorance of the law or the provisions of the law are wrongly interpreted.
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Against whom Writ of Certiorari can’t be issued

Writ of certiorari may not be issued against:

  1. An individual
  2. Company
  3. Private authority
  4. An association or tribunals having no judicial or quasi-judicial powers.
  5. For making the declaration that an act or statute is ultra-virus or unconstitutional.

Case Laws

Province of Bombay vs. Kusaldas Advani [AIR 1950 SC 22][1]

In this case, it was held that whenever anybody of the person having legal authority to determine questions influencing the privileges of subjects and having the obligation to act judicially acts in the overabundance of their legal authority, a writ of certiorari will lies. It doesn’t deceive eliminate only ministerial acts or to eliminate or drop executive administrative acts. Writ lies on judicial bodies one of the fundamental principles in regard to the issuing of a writ of certiorari is that the writ can be availed of only to eliminate or to meditate upon the validity of judicial acts.

Hari Vishnu vs. Syed Ahmed Ishaque [AIR 1955 SC 223][2]

The Supreme Court held that no mistake could be supposed to be a blunder on the substance of record on the off chance that it was not undeniable and it required an assessment and contention to establish it. A blunder of law which is apparent on the essence of the record can be rectified by a writ of certiorari but not an error of fact, howsoever grave it may appear to be. The reason for the rule is that the court issuing a writ of certiorari acts in a supervisory jurisdiction and not appellate jurisdiction. Appropriately, it can’t substitute its own choice on the benefits of the case or provide guidance to be conformed to by the inferior court or tribunal.

Rafiq Khan v State of U.P. [AIR 1954 All 3][3]

As per Section 85 of Uttar Pradesh Panchayat Raj Act, 1947 a sub-divisional Magistrate does not have the power to modify the order or sentence of Panchayati Adalat. Though, he can either suppress the order or drop the jurisdiction Panchayati Adalat. In this case, the sub-Division Magistrate has modified the order by maintaining the conviction of the accused in one of the offenses and subdued his conviction in respect of the different offenses, thus, the order issued by the Panchayati Adalat has been altered by the sub-Division Magistrate.

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Allahabad High Court held that the order of the sub-Divisional Magistrate is contrary to the provision of section 85 and quashed the same order by issuing a writ of certiorari.

WRIT OF PROHIBITION

Introduction

Writ of prohibition intends to forbid or to stop and it is famously known as ‘Stay Order‘. Writ of Prohibition is issued to lower courts to prevent them from exercising powers beyond their jurisdiction. The Writ of prohibition is granted by any High Court or the Supreme Court to any inferior court, restricting the last to continue proceedings in a specific case, where it has no lawful jurisdiction of trial.

Writ of prohibition is, hence, not accessible against a public officer not vested with judicial or quasi-judicial powers. The Supreme Court can grant this writ only where a fundamental right is influenced. In this way, the writ is granted in both cases where there is an abundance of jurisdiction and where there is the nonappearance of purview.

Nature of Writ of Prohibition

It is an extraordinary writ of preventive nature. It forestalls courts, councils, quasi-judicial bodies, and other officers from practicing their authority past their jurisdiction or practicing those authorities which are not vested in them.

Purpose of Writ of prohibition 

Writ of prohibition is issued to the court or any tribunal to bar them from doing something that they are about to do. This bar is applied whenever a subordinate court or tribunal hears the issue past their jurisdiction or on issues on which they have no purview.

Grounds for Issuance of the Writ of Prohibition

  • When there is an absence of jurisdiction or total lack of jurisdiction.
  • When the principle of natural justice has not been observed or if observed there is a violation of those principles. For example, if the opposite party has not been presented with the notification and not been heard. Then the writ of prohibition can be issued.
  • Whenever any tribunal or court proceedings to act under the law which is ultra vires or unconstitutional, a writ of prohibition can be issued against the proceedings.
  • When the impugned action is infringing any fundamental right of the petitioner then the writ of prohibition can be issued.
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Case Laws

East India Commercial Co. Ltd vs. Collector of Customs [AIR 1957 CAL 606][4]

In this case, observation is given by the Supreme Court that writ of prohibition is an order directing inferior courts and tribunals to stop from proceeding therein on the ground that the proceeding is occurring with abundance jurisdiction or absence of jurisdiction.

Govind Menon vs. Union of India [AIR 1967 SC 1274][5]

In this case, the Supreme Court has clarified the jurisdiction of the court for an award of a writ of prohibition. It says that the capacity to grant the writ of prohibition is principally supervisory and the principle objective behind the writ of prohibition is to limit inferior courts or tribunals from exceeding their jurisdictional limits.

It is well-settled law derived from decided cases that writ of prohibition lies not only in case of excess of jurisdiction or for abuse of judicial power but writ lies also in cases of where the actions are taken in contravention to the rules of Natural Justice.

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Difference between Writ of Certiorari & Prohibition

Writ of Prohibition is issued to the inferior court when such court acted without any jurisdiction, then the person against the proceedings are taking place can move to the superior court, whereas Writ of Certiorari court has to hear the matter and gives a decision on that and the aggrieved party can move to the superior court of issuance of the writ. Further, the order may be passed for quashing the decision on the ground of want of jurisdiction.

In cases, where an inferior court might have granted the order yet the equivalent doesn’t totally discard the case, so it very well may be important to apply both the writs – Certiorari for subduing the decided matters and Prohibition for excepting further proceedings for continuing the case and deciding left issues.

[1]. https://indiankanoon.org/doc/1954356/

[2]. https://indiankanoon.org/doc/1450722/

[3]. https://indiankanoon.org/doc/1527791/

[4]. https://www.legitquest.com/case/east-india-commercial-co-ltd-v-collector-of-customs/E3FA1#

[5]. https://indiankanoon.org/doc/1345052/

Author: Ayush Patria,
Sangam University, Bhilwara (Rajasthan); 3rd Year; Law Student

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