This article is written by Neha Dahiya, a law student at Dr. B.R. Ambedkar National Law, University. This article explains the writ of certiorari, provisions for the writ in other countries, and the difference between certiorari and prohibition.
This article has been published by Sneha Mahawar.
The origin of the writ of certiorari can be traced to several years back when it was used as a means to review the judgments for the errors. The modern form of it is not any different. It has been continually used by the superior authorities to quash the judgments given by the lower ones having errors of law or having exceeded the limits of their jurisdiction. Under Indian law, Articles 32 and 226 of the Constitution contain the provisions for writ jurisdictions of the Supreme Court and the High Courts respectively.
A brief introduction of writs
A writ is basically a formal order issued by a legal authority having administrative or judicial powers. In the Indian context, the writ jurisdiction of the Supreme Court and the High Courts has been guaranteed by Article 32 and 226 respectively. Article 32 has been called the “heart and soul” of the Indian Constitution by the Chairman of the Drafting Committee, Dr. B. R. Ambedkar. This is because the fundamental rights mentioned in Part III forms the essence of the constitution. However, without any recourse to enforce them when violated, there is no purpose served by them. Thus, Article 32 provides us that protection. Article 32 is a fundamental right, albeit Article 226 is not. Article 226 is a constitutional provision and provides wide discretionary powers to the High courts.
Different types of writs as per Article 32(2)
Article 32(2) lists down various writs as follows-
It literally translates to “you may have the body”. It protects a person’s personal liberty and can be invoked whenever it has been breached illegally. It is usually issued by the courts in cases of illegal detention and presenting a prisoner before the court. Any such person held, can file the writ petition either himself or through another person.
It is a latin word for “We Command”. It is usually issued by a higher judicial court to a lower court, tribunal, or public authority to direct them to perform a particular task. It is invoked when a public authority fails to perform the action assigned to it. So when the authority fails, this writ can be issued to command them to do a particular thing as required by the law.
It is invoked by a higher court to stop a lower court or a body from transgressing the limits of its powers. It can be passed only during the pendency of the proceedings.
It literally means questioning “what is your authority”. It is invoked to restrain a person from taking charge of a public office to which he is not entitled. It is a safeguard against persons illegally holding offices they are not fit for.
Basically it means “to be certified”. It can be issued by the Supreme Court or the High Court to quash an order already passed by a lower court. It could also be used by the Supreme Court to transfer a particular matter to it or some other superior judicial authority for consideration.
The writ of Certiorari
Grounds for Certiorari and Persons against whom Certiorari can be constituted
Certiorari is basically a tool for judicial control and restraint. As mentioned above, it is issued by the Supreme Court or the High Court to quash an order passed by an inferior court, tribunal, or quasi-judicial authority, whenever the authority has acted in excess of its power, or without requisite jurisdiction, or has violated the principles of natural justice. It is corrective in nature and is aimed at preventing overstepping by the judicial authorities.
Essential conditions for the writ of Certiorari
For the issuance of the writ of certiorari, the following conditions must be fulfilled:
- The existence of an officer or a tribunal having the judicial authority as per the law to decide on the cases affecting the rights of people.
- Such an officer or the tribunal must have acted-
- in excess of judicial power, or
- without requisite jurisdiction, or
- in violation of the principles of natural justice.
- The honorable Supreme Court has clarified that this writ cannot be issued against purely administrative actions. This implies that it can be invoked only in those situations where it is the concerned authority’s duty to act judiciously, after hearing both the parties and without any extraneous considerations. However, in the subsequent decisions, this view has been rejected. So even if the authority is not required to hear both sides before coming to a decision, the principles of natural justice must be obeyed. Thus, the writ of certiorari can be issued even in the administrative cases.
- A body is said to have acted beyond its jurisdiction in the following cases:
- Where the court considering the matter has not been constituted properly as per the law, like the requirements of members, etc.
- Where the subject matter of inquiry lies beyond the scope of the body’s powers as per the law.
- When the jurisdiction has been based on a wrong assumption of facts.
- When there is a failure of justice due to violation of principles of natural justice or presence of elements like fraud, collusion, or corruption.
- Even though the body has acted well within the limits of its jurisdiction, a decision can be quashed if there is a blatant error prima facie. The error here means an error of law.
Thus, in all the above-mentioned cases, a writ of certiorari can be issued.
Procedure to file a writ of Certiorari
The procedure to file a writ for certiorari is similar to filing any writ petition. A writ petition can be filed either in the Supreme Court under Article 32 or in the High Court under Article 226, whenever a person’s fundamental rights have been violated. No specific time limit has been provided for the filing of the petition. However, there is room for reasonable delay. It should be filed within a reasonable time after the violation of a right.
To begin with, an aggrieved person has to first approach an advocate or an organization with all the required documents. This is followed by the drafting of the petition by the lawyer. The draft will include all the required particulars about the aggrieved and the facts about the breach of his rights. The petition is then filed in court. Then the court will prescribe a specific date for the hearing. Notice shall be sent by the court to the other party. Both parties shall then appear in the court and put forward their arguments. After hearing both sides, the judge shall pass the judgment. Just like any other writ, there is a proper prescribed format for the writ that is to be followed in the petition.
Cases law related to the writ of Certiorari
The following are some important case laws associated with the writ of certiorari:
Syed Yakoob v. K.S. Radhakrishnan & Ors. (1964)
The State Transport Authority had called for applications for the grant of two-stage carriage permits via a notification under the Motor Vehicles Act, 1939. After receiving a number of applications, the first permit was granted to one of the applicants while fresh applications were called for the second one. Following this, the appellant appealed to the State Transport Appellate Tribunal. The Tribunal in its decision confirmed the first permit and in the second it allowed the appellant’s appeal and held that it should be given to him. The respondent then moved to the High Court with a writ of certiorari. It contended that the Tribunal had overlooked several material considerations. When the previous order was affirmed, the appellant then moved the Supreme Court under a special leave petition.
Did the High Court exceed its jurisdiction by issuing the writ of certiorari?
It was held that the High Court did exceed its jurisdiction by issuing the writ of certiorari in the present case. It was observed that this writ is issued to correct instances where a court has exceeded its jurisdiction. Under the powers granted by the writ, the court cannot act as a court of appeal or check an error of fact. It can be employed in cases where there is an error of law, or when it can be shown that there has been a violation of the principles of natural justice. But not on the basis of an error of fact solely. However, whether there has been such an error or not is a matter of the court’s discretion.
Hari Vishnu Kamath v. Syed Ahmed Ishaque (1954)
In this case, both the appellant and respondent were two election candidates from the constituency of Hoshangabad for the election to the House of the People. When the result came out, the respondent secured more votes than the appellant and the Returning Officer declared the former as the winner. The appellant then filed a writ petition challenging the election and setting it aside as 301 ballot papers marked in favor of the respondent were not valid as they did not have the distinguishing marks as per Rule 28. The Election Tribunal dismissed the petition on the ground that the result was not affected by the wrong acceptance of votes. The appellant then moved to the High Court for a writ of certiorari to get the order passed by the Election Tribunal quashed on the grounds that it was invalid and the Tribunal had overstepped its jurisdiction.
Whether the High Court had the jurisdiction to issue a writ under Article 226 against the decision of the Election Tribunal?
It was held that the petition was maintainable and the decision of the Tribunal came under the writ jurisdiction of the High Court. The decision by the Election Tribunal was also quashed.
Also, it firmly established the following principles:
(i) The writ can be issued for correcting the errors of jurisdiction committed by the lower courts.
(ii) It is a part of the supervisory jurisdiction of the court and not the appellate jurisdiction. If the law does not allow an appeal in a particular case, then giving it a back-door entry via the writ of certiorari amounts to defeating the purpose of the law.
(iii) The aim here is not to re-hear the case and consider the facts once again. It can only be invoked in cases of error of law.
Radhey Shyam and anr. v. Chhabi Nath and Ors. (2015)
The respondent had filed a writ petition in the High Cout, during the pendency of trial, against an interim order passed by the civil court. The High Court vacated the interim order and passed in favor of the appellant. Then the appellant moved the Supreme Court under Special Leave Petition contending that the High Court had no jurisdiction to pass the order and no writ petition can lie against an interim order passed by civil court.
Can a writ be filed against the order of the civil court under Article 226 of the Indian Constitution?
The court differentiated the High Court’s jurisdiction under Articles 226 and 227. It was observed that Article 226 gives writ jurisdiction to the court, while on the other hand Article 227 gives supervisory jurisdiction. Both of them differ in their scope and nature of powers given to the court. As per Article 227, the court cannot only quash an order, but also substitute it with its own opinion or a decision. But the court cannot do the same under Article 226. Thus, it was held that judicial orders of civil courts are not amenable to a writ of certiorari.
Provisions for Certiorari in other countries
The writ of certiorari persists in similar forms across the nations in the following forms:
The writ of certiorari is often employed in the United States Supreme Court to review the judgments of lower courts. A party cannot appeal to the SC directly as a matter of right. Thus, it has to use certiorari to seek a review of the case from a lower court. In order to entertain a plea for certiorari, then at least four judges must agree to hear the review. This is called ‘granting certiorari’. ‘Denying certiorari’ is when the judges refuse to accept the review. Participating in the “cert pool” is a common practice in the US. In this practice, the law clerks of the judges are involved in collectively assigning the petitions for certiorari among themselves. They analyze them and prepare memoranda for the judges making recommendations whether the judges should or should not grant the certiorari. Rule 10 of the US SC Rules List contains the criteria for granting certiorari. It also declares that this is a discretionary power that rests with the SC. Denying the writ does not necessarily mean that the court agrees with the lower court’s judgment. In cases of factual errors or misapplication of law, the writ is rarely granted.
In the UK, the writ is used at judicial discretion, granted only when there is a jurisdictional error. It is available in the original jurisdiction of the High Court under Section 75(v) of the British Constitution. It is also available with the Federal Court as per Section 39B(1) of the Judiciary Act, 1903. It also lies with the state courts in a limited nature. A peculiar feature of the writ here is that it is always granted as ancillary relief. It can only be issued when there is another constitutional remedy that is established. A court may also grant an equitable remedy like an injunction or a declaration in the place of the writ.
The writ of certiorari can be issued by the Cour de cassation in the following cases:
(i) When the previous court did not have jurisdiction to give the judgment
(ii) When due process has not been followed
(iii) If the reasoning given is not pertinent
(iv) If the decision is not compatible with the legal framework
The court can reject a petition if it finds it to be meritless and record the reasons for doing the same.
Historically, the power of judicial review, previously called as inferior jurisdictions, came to Australia with the establishment of the first Supreme Courts in Van Dieman’s Land and New South Wales in 1824. Thus, certiorari which was a common law power was a power of jurisdiction created by courts through their decisions. In common law followed there, judicial review can be obtained by the means of various prerogative writs and certiorari is one of them. Certiorari sets aside a decision given contrary to the law. Along with this, Section 75(v) of the Constitution also provides an ‘entrenched minimum provision of judicial review. Additionally, Section 39B(1) of the Judiciary Act, 1903 extends the original jurisdiction of the High Court of Australia to the Federal Court.
Difference between Certiorari and Prohibition
Writ of Certiorari
As explained above, it is used by a superior court to quash the order passed by the lower judicial authority. It is issued in cases where there is a prima facie error of law in the judgment, the authority has given an order in excess of its powers, or when the principles of natural justice are violated.
Writ of Prohibition
Similar to the writ of certiorari, the writ of prohibition is also issued by a higher judicial authority to a lower one to prevent it from overstepping its jurisdiction. It is a kind of a ‘stay order’ where the higher authority ‘prohibits’ the lower one from carrying out the proceedings further. However, it can be passed only against judicial bodies and not administrative bodies. It is a safeguard against the breach of the judicial hierarchy and the separation of subject matters for efficiency. It can only be passed during the pendency of the proceedings.
Cases in which the writ of prohibition can be issued
The three main cases in which it can be issued are the following
- When an authority has overstepped its jurisdiction
- When there was no jurisdiction with the authority to deal with the matter
- There has been a breach of the principles of natural justice
Both the writs ensure that the judicial functions are being carried out as per the law without any violations of the established rules. Both of them ensure that the judicial authorities do not overstep their jurisdictions. However, they are not the same. The differences between them are as follows:
|The writ of certiorari is issued after the court has given its decision to quash the order. So if a person wants to file a writ against an order already passed by the court, it should be the writ of certiorari.||The writ of prohibition is issued when the proceedings are going on and the order has not been given yet. So if someone wants to file a writ during the pendency of the proceedings, it should be the writ of prohibition.|
|It is corrective in nature.||It is preventive in nature.|
|The presence of an alternative remedy may be more relevant in the case of certiorari as it would be preferable to quashing the entire order by an inferior court.||The presence of an alternative remedy is not an absolute bar on the writ of prohibition.|
The writ of certiorari has been used by the Supreme Court and the High Courts to quash the orders passed by the lower courts when they have overstepped their jurisdiction, violated the principles of natural justice, or have made an error of law. The courts have clarified the requirements in a plethora of judgments. The writ jurisdiction falls in Article 32 for the SC and Article 226 for the HC. The writ of certiorari can also be found in other countries, more or less in similar forms. Certiorari and prohibition run along very similar lines. However, both of them differ substantially in their essence.
- D.D. BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA (22nd ed. 2011).
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