This article is written by Michael Shriney from the Sathyabama Institute of Science and Technology. This article explains the writ of prohibition, its grounds, the method of issuing it, as well as other countries’ prohibition writs, the difference between certiorari and prohibition writs and relevant case laws.
This article has been published by Sneha Mahawar.
Table of Contents
Introduction
The Constitution of India has given inherent fundamental rights to all the Indian citizens mentioned under Article 12-35 of the Indian Constitution. If any Indian citizen’s fundamental rights are violated by the State or by a private body, they can receive remedies by filing writ petitions to the High Court or Supreme Court under Articles 226 and 32 of the Indian Constitution.
This article covers the writ of prohibition, sometimes known as the ‘Stay Order.’ The purpose of the writ of prohibition is to prevent or forbid an act. It is a writ that stops lower courts or tribunal courts from issuing orders or from carrying out an act ordered by the higher courts. In the following article, the reasons for issuing this writ, the distinction between certiorari and prohibition writs, case law, and writ of prohibition in various nations are briefly discussed.
A brief introduction to writs
Writs are written orders issued by the Supreme Court or a High Court that direct constitutional remedies for Indian citizens who have been violated of their fundamental rights. It is also a formal written order or command from one of the courts mentioned in the Indian Constitution. Writs are issued by the Supreme Court or the High Court under Articles 32 and 226 of the Indian Constitution. It is issued when citizens of India violate their fundamental rights. There are five kinds of writs: Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari.
Habeas Corpus: Habeas Corpus is a Latin term, which means ‘to produce the body.’ For example, if a person is wrongfully held in jail, the court issues a writ of habeas corpus ordering the corpse to be produced within 24 hours to allow the detained person to prove his innocence. He should be released if he is judged to be innocent. Otherwise, he will be imprisoned.
Mandamus: Mandamus is a Latin word that means ‘command.’ It cannot be granted against a private person or company. The higher courts issue writs of mandamus to check on public officials to see if they are carrying out their obligations properly. If they do not, they are requested to execute their task or to refrain from performing some conduct. It is issued against a public authority, company, tribunal, or lower court.
Prohibition: Prohibition is a legal term that implies ‘to prohibit, restrain, prevent, or forbid.’ A higher court issues a writ of prohibition against the lower court to prevent it from exceeding its authority or going beyond its required jurisdiction. It cannot be enforced against administrative agencies, statutory authorities, or private persons or enterprises. It is exclusively applicable to judicial and quasi-judicial bodies.
Quo-Warranto: The precise meaning of quo- warranto is “by what authority or warrant.” This writ grants the right to obtain a remedy to anybody other than the offended party. It cannot be issued against the ministerial office. This writ is used to settle a dispute over a public office, whether he or she has the legal right to hold that position.
Certiorari: Certiorari is a Latin word that means ‘certified.’ This writ will be issued by the High Court or Supreme Court against a lower court or tribunal in order to switch the matter to another superior body for proper thought. In other words, it is an appeal from the lower court or a review of the decision of the lower court.
Grounds on which the writ of Prohibition can be issued
A writ of prohibition is issued under particular conditions when the lower or subordinate court or tribunal-
- Acts without its jurisdiction or exceeds its jurisdiction, i.e., jurisdictional error;
- Goes against its powers, i.e., acted as invalid law;
- Violates natural justice standards, i.e., failure of natural justice which is equity and equality;
- Acts ultra vires or unconstitutionally;
- Acts in violation of basic rights;
- Behaves as an error on the basis of the record;
- Truthful judgments are not supported by evidence.
How is the writ of Prohibition issued
Any High Court or the Supreme Court of India dealing with Articles 226 or 32 of the Indian Constitution respectively issues a prohibition writ. It is issued against lower courts, tribunals, inferior courts, or quasi-judicial bodies to restrict or prevent these courts from acting against jurisdiction or from exercising powers that violate basic rights. This form of writ is issued when these Courts’ jurisdictions are exceeded or their powers are breached. It can only be issued against judicial and quasi-judicial bodies, not against private individuals or entities and administrative bodies. It is also known as a ‘Stay Order.’ This writ limits or prevents them from doing an act from happening.
Case laws regarding the writ of Prohibition
Brij Khandelwal v. India (1975)
The Delhi High Court refused to issue a prohibition against the Central Government from engaging in a boundary dispute agreement with Sri Lanka. The judgment was founded on the basis that there is no bar against the government performing executive or administrative duties. With the idea of natural justice and the growth of the concept of fairness, there is no longer a tolerable view, even in administrative tasks. The stiffness about certiorari or prohibition writ has also been softened. If any of the grounds on which the writ of prohibition is issued is present, the writ can now be issued to anybody, regardless of the nature of the duty fulfilled by it. Prohibition is currently considered as a broad remedy for judicial control of impacting quasi-judicial as well as administrative actions.
S. Govind Menon v. Union of India (1967)
A writ of prohibition can be issued in both circumstances of excess jurisdiction and absence of jurisdiction. Writ of prohibition was issued by a higher court, namely the Kerala High Court, to a lower court in order to take over jurisdiction that was not initially vested, or in other words, to compel lower courts to retain their jurisdictional limitations. The writ can be issued when there is an excess of jurisdiction as well as when there is an absence of jurisdiction.
Hari Vishnu v. Syed Ahmed Ishaque (1955)
The case dealt with distinctions between writs of prohibition and certiorari. The verdict, in this case, distinguished between certiorari and prohibition writs and said that when the lower court issues a decision, the petitioner must file a certiorari petition since prohibition writs can only be submitted when judgment has not yet been given.
Prudential Capital Markets Ltd v. The State of A.P. and others, (2000)
In this case, it was questionable whether the prohibition writ could be issued against the district forum/state commission which had already passed judgments in the depositors’ consumer cases. The Court held that after the execution of the order, the writ of prohibition cannot be issued, the judgment can neither be prevented nor stopped.
Writ of Prohibition in other countries
Writ of Prohibition in Australia:
The writ of prohibition is a discretionary remedy used as a judicial review in administrative action available in the original jurisdiction of the High Court under Section 75 (v) of the Constitution in the Federal Court and under Section 39B (1) of the Judiciary Act 1903 and, to a lesser extent, in some state courts in Australia and the United Kingdom. It prevents a public entity from exceeding its authority or exceeding jurisdiction that it does not have. It prevents the decision-maker and others who rely on the decision from doing whatever they are about to do or from continuing a course of action they have already begun, such as taking steps in proceedings.
Writ of prohibition in Philippines:
In the Philippines, the writ of prohibition has its own jurisdiction, which cannot be used in place of quo warranto. It is not only permitted in the Philippines against courts and tribunals to restrict their own jurisdictions and prevent them from intruding on the jurisdiction of other tribunals, but also in proper instances against an official or person whose actions are without or beyond his authority.
Writ of prohibition in United States:
An appellate court has issued a written ruling prohibiting a lower court from operating because it lacks jurisdiction. It stops the proceedings of any tribunal, corporation, board, or individual where such proceedings are outside or beyond the authority of such tribunal, corporation, board, or individual. It may be given when a lower court is acting beyond the regular norms and processes in the assessment of a matter or is on the approach of destroying a legal right. It is the counterpart to the writ of mandamus.
Difference between writ of certiorari and prohibition
| Writ of Certiorari | Writ of Prohibition | |
| The writ of certiorari is issued by the higher Courts to reconsider lower Court decisions. | The writ of prohibition is issued by the higher Courts to prevent or stop lower Courts from exceeding their jurisdiction and acting against their powers. | |
| It is issued after the lower Courts have declared their judgments. | It is issued before the lower Courts have completed their proceedings. | |
| The writ of certiorari is employed more as a preventive measure, quashing a judgment previously rendered by the lower Court. | The writ of prohibition is intended to prevent rather than cure. | |
| It means ‘to be certified’. | It means ‘to forbid or to prevent’. | |
| It is both preventative and remedial. | It is only a preventive measure. | |
| It can prevent and also act as a cure to the judgment given. | It can prevent the lower authority from proceeding further. | |
| It is a later stage. | It is the starting stage. | |
| It is a review of a case tried in a lower court. | It prohibits the lower Court from issuing a decision. | |
| It is the quashing of judgment. | It prevents judgments. |
Conclusion
As a result, the prohibition writ serves as a preventive measure rather than a remedy. It will be issued when the reasons are met, most notably when there is an excess of authority or lack of jurisdiction created by the lower courts, and also when they act against their powers and natural justice. Under these circumstances, a writ will be issued either by the Supreme Court under Article 32 of the Indian Constitution or by the High Court under Article 226 of the Indian Constitution. The writ of prohibition and the writ of certiorari are identical with minor differences.
The prohibition writ is issued by the higher courts to the subordinate courts to prevent them from doing something or stopping them from giving judgments, whereas the certiorari writ is issued by the higher courts to quash the granted judgments. It is a quick and effective remedy for preventing the lower court from acting in a way that is contrary to jurisdiction or natural justice. It is also known as a ‘Stay Order,’ and it prevents the lower court from hearing which is a primary proceeding. It gives redress to both judicial and quasi-judicial bodies with the capacity to judge or rule on any issue.
References
- https://byjus.com/free-ias-prep/types-of-writs-in-india/
- https://definitions.uslegal.com/w/writ-of-prohibition/
- https://lawlibrary.chanrobles.com/index.php?option=com_content&view=article&id=10522:g-r-no-l-3474-december-7,-1949-nacionalista-party-v-vicente-de-vera-br-br-085-phil-126&catid=737&Itemid=566#:~:text=petition%20for%20prohibition.-,The%20writ%20of%20prohibition%20has%20been%20allowed%20in%20the%20Philippines,or%20person%20whose%20acts%20are
- https://uk.practicallaw.thomsonreuters.com/w-005-5197?originationContext=knowHow&transitionType=KnowHowItem&contextData=(sc.RelatedInfo)&firstPage=true#:~:text=The%20purpose%20of%20a%20writ,Building%20Industry%20Inspectorate%20%5B2016%5D%20HCA
- https://www.lawfinderlive.com/Articles-1/Article132.htm?AspxAutoDetectCookieSupport=1
- https://thefactfactor.com/tag/brij-khandelwal-v-india/
- https://thefactfactor.com/facts/law/civil_law/administrative-law/the-writ-of-prohibition/14004/
- https://www.lawinsider.in/columns/what-is-the-fundamental-right-to-get-legal-remedy
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