Externment and the Indian Constitution : a critical analysis considering the golden triangle of the Indian Constitution.
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This article is written by Samridhi Srivastava from Lloyd Law College, Greater Noida. This article deals with the differences present between the Writs of Prohibition and Certiorari. 

Introduction

The Constitution of India provides the inherent right to its citizens i.e., fundamental rights which cannot be taken away from anyone. And under Article 32 and Article 226 of the Indian Constitution, 1950, anyone’s fundamental rights are being infringed by the state or by any private body they can seek for a remedy in the Apex court of India.

Fundamental rights are being enshrined in Part-3 of the Constitution and the remedies for violation of these rights can be addressed by the court if a writ petition is being filed by the petitioner and anyone who is not even the party to the cause can also file a Public Interest Litigation (PIL). For instance, an incident happened in your locality where a friend of yours was not allowed to enter the temple because of his caste, you can approach the High Court which has the jurisdiction, by filing a writ petition and the court will provide a remedy in this situation.  

This article will discuss the types of writs that are available to us and how certiorari is different from the prohibition in its implication. 

What are writs

Every right which is being given to us comes with a remedy, so that, when someone’s right is infringed they can resort to the court of law for seeking a remedy. Likewise, in case of violation of fundamental rights, writs are a medium through which remedies are being provided either by enforcement of the right or by asking the defaulter to pay damages to the plaintiff.

Therefore, a legal written document that is issued by the court is known as writ. It can not be issued by the District Court but it can only be issued by the High court and the Supreme Court under Article 32 and Article 226 of the Indian Constitution, 1950. The reason behind the district court is not given the power to issue a writ because the plea for the writ petition has to be filed only when there is no remedy left and also to maintain the level of distinction between the lower courts and the higher courts. 

However, the high court has broader power for issuing a writ in comparison to the Supreme Court because writs can only be issued by the Supreme Court when there is an infringement of fundamental rights whereas, the High court can issue writs against the violation of any legal right also. 

Types of Writs

There are 5 types of writs that are available to us. They are as following: 

Habeas corpus

This writ is issued by the court when a person is held as a detainee in jail and there is a violation of the liberty of a person. The writ of habeas corpus means producing the body and when this complaint is issued against the authority, they have to present the person in the court for further investigation regarding the grounds under which he is detained. 

Case: In Additional District Magistrate vs S. S. Shukla Etc. case, the question of moving to court when a presidential order is passed for detaining a person is answered. The petitioner moved to the High Court for enforcement of the writ of habeas corpus during the period of emergency. Hence, the Court settled the matter by stating that the petitioner has no locus standi during an emergency situation and Article 14 i.e. the right to equality, Article 21 i.e., right to life and Article 22 i.e. protection against arrest and detention remains suspended. So, the writ of habeas corpus cannot be issued.   

Quo Warranto

The meaning of this legal maxim is by what warrant? and it can only be issued against government officials where his position in the matter of holding an office. For instance, if a government official extends the time period of holding his office when he is retired then in this situation anyone can visit the High Court or the Supreme court for questioning his extra stay by issuing a quo warranto writ. 

Case: In University of Mysore and anr. Vs C.D. Govindrao and anr. case, the court held that for issuing the writ of quo warranto it is mandatory to issue it against only legal authority.

Mandamus

This writ is issued by the court when any specific legal authority has failed to perform any duty so the court commands him to perform the duty. This issue is only granted in situations where such legal authority has the power to perform and by using the writ of mandamus he is obliged to act on such duties. This writ ensures that no one’s legal rights or fundamental rights are violated due to the misconduct of any government official. 

Case: In Supreme court Advocate on Record vs. Union of India case, the petitioner sought the Supreme court for the issue of the writ of mandamus for the purpose of fixation of judicial strength. But the petition was rejected on the grounds that the Union of India cannot be directed to fill up the vacancies in any court in India. The writ of mandamus is linked with Article 216 of the Indian Constitution. However, the writ of mandamus can be issued in a limited scope.

Prohibition

This writ is issued by the higher judicial body to lower authorities in order to restrict their use of power because they have extended their jurisdiction to act. This writ also ensures that any government official does not act unfairly. 

Case: In P.S. Subramaniam Chettiar vs Joint Commercial Tax Officer case, the court held that the issue of the writ of prohibition can only be done when the petitioner can prove that any government official has a duty towards him which falls under his jurisdiction but failed in deploying it. 

Certiorari

This writ comes into play when the question of constitutional validity arises and it is issued by the supreme court or by the high court to quash the decision of the district court.  

Case: In M. Ramayya vs. The State Of Madras case, it was held that the issue of writs falls under the original jurisdiction of the high court as per Article  226 of the Indian Constitution, 1950.   

Writ of Prohibition

The writ of prohibition is being issued to a lower court who does not have the authority or jurisdiction to decide in any matter and when an order of prohibition is passed by the higher judicial body then in this situation the lower has to immediately stop from proceeding in any given circumstances. This writ can only be used against the judicial body and Quasi-judicial body.

It is issued against the inferior courts when they are about to make a decision that does not fall under its judicial ambit. Therefore, it keeps in check the functioning of the judicial bodies, and the issue of this writ is done in unique cases only. The followings are the scope of this writ:

  1. When the subordinate court acts more, that is out of their sovereign or does not act as they should have. 
  2. When they disobey the clauses of natural justice.
  3. This writ will be issued when the court acts unlawfully and or beyond its authority. 
  4. When they violate fundamental rights. 

Writ of Certiorari

The writ of certiorari is issued by higher judicial bodies to lower courts for quashing the decision in any matter. And when this order is issued the matter is then handled by higher courts i.e., it is transferred. This writ empowers the high court or the Supreme Court who can correct the decision which is given by the lower court. 

However, this writ has supervisory jurisdiction and it corrects any procedural or law error that is being misused or applied incorrectly. It cannot be issued against any government official. The following are the scope for issuing this writ:

  1. The writ of certiorari will be issued when any judicial body has acted beyond their jurisdiction which is vested upon them, acts without any authority, or is unable to act properly. 
  2. It is also issued when judicial authority acts in violation of the natural justice clauses, the decision is given by violating the right to be heard, and while practising judiciary they acted unethically. 
  3. It has supervisory jurisdiction which means that errors related to the law can only be corrected but errors related to subordinated court findings cannot be corrected when the writ of certiorari is issued.       

What is the difference between them? 

The writ of prohibition and the writ of certiorari is issued against those who have the authority to act as a judge. It controls and keeps check of the court proceedings by the judicial or quasi-judicial body. These writs do not provide a remedy against any private body but only against any statutory body.

The main difference between the two writs is that the writ of prohibition is issued when a subordinate court takes up a matter which is out of their hegemony, so in this case, when this writ is issued the court has to stop its proceedings i.e., when a case is still pending in the court, whereas, the writ of certiorari is issued when a subordinate court has delivered a decision which is out of their judicial power i.e. when a case has been already decided, so on its issue, the court has to hand over the files and all other related documents of the case to the higher court. In some situations, the petition for both of the writs can also be filed.

For instance, a subordinate court has received a matter which is out of their judicial power so in this case if they receive an order of prohibition from the high court they have to immediately stop but if the petitioner fails to visit the court for issue of the writ of prohibition then they are still left with the writ of certiorari where even if the decision is being delivered this writ will revoke the subordinate court’s verdict and the matter will be then shifted to the high court or the supreme court.   

Important Case Laws

Udit Narain Singh Malpaharia vs. Additional Member

In this case, the judges answered the questions related to the scope and nature of the writ of certiorari, and what is the importance of this writ? And Lord Atkin’s principles were applied for defining the usage of the writ of certiorari. 

Syed Yakoob vs. K.S. Radhakrishnan & Others

In this case, the judges described the situations under which the writ of certiorari is issued. The following are the points that were given:

  • The jurisdiction of the writ of certiorari is supervisory in nature. 
  • Errors related to only law can be omitted and not facts of the case can be alternated even if the facts are wrong. 
  • It can be issued in a situation where the subordinate court has accepted any evidence which is not relevant to the case and on that basis the court has passed the wrong judgment. 

Lady Dinbai Petit vs. M.S. Noronha

The issue of the writ of prohibition by the High Court was in question and the judges gave a conclusion. In this case, it was decided that the High Court has no jurisdiction to issue the writ of prohibition.

Radhey Shyam & Anr vs. Chhabi Nath & Ors

This case further defined the jurisdiction of the writ of prohibition and the judges increased the power of the High Court for the issue of the writ by over-ruling the judgment in Surya Dev Rai vs Ram Chander Rai & Ors case where before the High Court does not have right to issue the writ of prohibition because before only states which were known as presidency states they only had the power to issue the writ of prohibition, certiorari, and mandamus and states which are not counted under presidency states had jurisdiction over the writ of habeas corpus and quo warranto. 

The role of the High Court extended under Article 226 of the Indian Constitution, 1950. 

Conclusion

The writ of prohibition and the writ of certiorari is used by higher judicial bodies i.e., the High Court and the Supreme Court. They provide relief against any judicial or quasi-judicial body that has the power to judge or decide in any matter. They both are similar in their nature and scope but the main difference between them lies only in the procedure of the case. Therefore, anyone whose right is being infringed can sort relief in the High Court  or Supreme Court by the way of writs. 


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