The Writs Of Prohibition And Certiorari : A Comparative Analysis

Ankur Mittal, Additional Advocate General Haryana
Punjab & Haryana High Court, Chandigarh
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Date : 12/08/2021 Location : House No. 894, Top Floor, Sector 38-A, Chandigarh
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The Writs Of Prohibition And Certiorari : A Comparative Analysis

The Constitution of India in order to secure and protect the fundamental rights of `we the people of India' in the form of Article 32 and Article 226 vested the Supreme Court and High Courts respectively with power to issue such directions, orders or writs which are necessary for safeguarding the rights. Five writs finds specific mention in the Constitution namely- Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition. While the purpose of most writs is clear, there has always been a certain amount of uncertainty when it comes to the writs of Prohibition and Certiorari.

In simple terms, a writ of Prohibition is issued by a superior court directing an inferior court to stop doing something that is prohibited in law. On the other hand, a writ of Certiorari is issued in instances where a judicial review of a decision of a lower court is sought to be reviewed by a higher court. Depending on the circumstances of each case, the lines between these two types of writs can blur quite often. Through this article an attempt has been made to bring out the key features of each of these two writs and illustrate and compare the differences between them through help of judicial precedents.

Writ of Prohibition

The origin of the writ of Prohibition is perhaps as old as the origin of Common Law itself. Issued by a court to an inferior court, it is used to prevent lower courts from overstepping its jurisdiction or authority. This is done in situations where the lower court has yet not rendered its judgement. Many also term it as a `stay order'. The scope of this writ is very narrow as it applies to only very specific cases and only against judicial bodies, and not administrative authorities. It could also be seen as the polar opposite of the writ of mandamus. A writ of mandamus compels some action while the writ of Prohibition mandates certain inactivity. This can be better understood with the help of case laws.

In the case of S. Govinda Menon v. Union of India (AIR 1967 SC 1274), the court held that "the jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of that writ is to restrain courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine courts or tribunals of inferior or limited jurisdiction within their bounds."

Hence, there are three situation where writ of Prohibition can be issued:

1. Overstepping of jurisdiction

2. Lack of jurisdiction

3. Deviation from the rules of natural justice

The importance of this writ is simple- it prevents any sort of arbitrary action by a court that lacks jurisdiction to adjudicate on a particular matter. It also ensures that the sanctity of the constitutional hierarchy of the courts is maintained. Every court cannot decide on every petition that is presented before it- the writ of prohibition ensures the same is followed. So in every case where there is an absence, or excess or jurisdiction or plainly, a deviation from the rules of natural justice, the writ of prohibition is employed.

The writ of prohibition is issued during the pendency of proceedings and hence is different from various other writs which are issued after the conclusion of court proceedings.

Writ of Certiorari

Literally, the term `Certiorari' is Latin for "to be made certain/certified". This writ is used by a superior court (the High Courts and the Supreme Court in India) to quash an order passed by an inferior court or a quasi-judicial body. In the olden times, this writ was mainly used for rectifying errors in a judicial decision and has been derived from various ancient and defunct writs, like the writs of pone, recordari facias, and praecipe.

In the present time, however, and especially in India, the scope of the writ of certiorari is much different from its historical position as its scope has been widened. The writ of certiorari lies against any "judicial act," committed by anyone. It does not, however, lie against purely executive or ministerial acts. When the Court is of the opinion that a lower court or a tribunal has passed an order which is beyond its powers or committed an error of law then, through the writ of certiorari, it may transfer the case to itself or quash the order passed by the lower court or tribunal.

In the landmark case of Hari Vishnu Kamath v. Syed Ahmad Ishaque, the court laid down the factors to be considered while issuing a writ of Certiorari. These are as follows:

1. There is an error in jurisdiction. This can happen in any one of the following ways- an inferior court acts on a matter without jurisdiction, it acts in excess of its jurisdiction or it simply fails to exercise its jurisdiction.

2. A writ of certiorari will also be issued when any principles of natural justice are violated.

3. There is a prima facie error of law in the judgement.

At this point, it becomes necessary to point out that the writ of Certiorari is not an appeal. Instead, in this situation, the court acts in a supervisory position. The superior court cannot overreach a decision by an inferior court no matter how erroneous it may be. This is based on the simple premise that a court which has the jurisdiction to hear a matter, has the right to decide both wrong and right. If a superior court re-adjudicates the matter, it will be in violation of the constitutional hierarchy of courts. In the words of Morris, L.J., "It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring order or decision for rehearing of the issue raised in the proceedings. It exists to correct an error of law, where, revealed on the face of an order or decision or irregularity, or absence of, or excess of, the jurisdiction where shown". So when a writ of certiorari is issued, the idea is not to overturn a judgement passed by a lower court but rather to correct the errors in such judgment without stepping on an inferior court's authority to adjudicate on a matter.

Difference between the Writs of Prohibition & Certiorari

Now that we have discussed both the writs of Prohibition and Certiorari, let us look at the differences between the two. Through an analysis of the features of the two writs, it can be seen that, both, the writs of prohibition and certiorari have the same object- to restrain inferior courts from exceeding their jurisdiction, and they could be issued not merely to courts but to all authorities exercising judicial or quasi-judicial functions.

However, there is one major difference between these two types of writs and this is, that these are issued at different stages of proceedings in a court. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition, and on that, an order will be issued, forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears that cause or matter and gives a decision, the party aggrieved would have to move the superior court for a writ of certiorari, and on that, an order will be made quashing the decision on the ground for want of jurisdiction. Therefore, a writ of Prohibition is issued during the pendency of court proceedings while a writ of Certiorari is issued once an order has been passed by a court.

There might be a third situation as well. In certain cases, it might happen that in a proceeding before the inferior court a decision might have been passed, which does not completely dispose of the matter, in which case it might be necessary to apply both for certiorari and prohibition-certiorari for quashing what had been decided, and prohibition for arresting the further continuance of the proceeding. Thus, it needs to be analysed at what stage do the proceedings of a case lie to understand which writ should be employed and for what purpose to seek the ends of justice.

This view has been upheld in the case of Hari Vishnu Kamath v. Syed Ahmad Ishaque And Others (AIR 1955 SC 233). The court concluded that a writ of Certiorari should be issued only when a decision has been passed while a writ of Prohibition should be issued in situations where the judgement is still awaited.

In the past, courts have relied on the judgments upheld in Parry & Co v. Commercial Employees' Association, Veerappa Pillai v. Raman and Raman Ltd, Ebrahim Aboobaker v. Custodian General, and T.C. Basappa v. T. Nagappa to draw the distinction between the writs of prohibition and certiorari.

The scope of Art. 226 of the Constitution is, firstly, that it confers on the High Courts power to issue writs and directions and secondly it defines the limits of that power. This it does by enumerating the powers and limits of the courts and how it should be exercised over any person or authority within the territories in relation to which it exercises its jurisdiction. The emphasis is on the words "within the territory", and their significance is that the jurisdiction to issue writs is coextensive with the territorial jurisdiction of the court. The reference is not to the nature and composition of the court or tribunal but to the area within which the power could be exercised.

There is one fundamental distinction between a writ of prohibition and a writ of certiorari. A writ of prohibition to a court will lie when the proceedings are to any extent pending and a writ of certiorari for quashing will lie after the proceedings have terminated in a final decision. If a writ of prohibition could be issued only if there are proceedings pending in a court, it must follow that it is incapable of being granted when the court has ceased to exist, because there could be then no proceeding on which it could operate. But it is otherwise with a writ of certiorari to quash, because it is directed against a decision which has been rendered by a Court or tribunal, and the continued existence of that court or tribunal is not a condition of its decision being annulled.

In the case of Bengal Immunity Co. v. State of Bihar, the Supreme Court has also deliberated on the nature of these writs as remedies. It was observed that the existence of an alternative remedy, that is adequate and equally effective remedy may be a matter that can be taken into consideration by the High Court in granting the writ. It is a writ of right not a discretionary writ and the nature of writ of prohibition is much of corrective one rather than preventive. Presence of an alternate remedy does not impose an absolute bar on issuing writ of prohibition. But the presence of an alternate remedy will be more relevant in the context of certiorari.

Therefore, it can be seen that a writ of prohibition is issued to prevent an inferior court or tribunal from adjudicating on a matter in which it has assumed excess of jurisdiction while a writ of certiorari is issued to quash the order passed by an inferior court or tribunal in excess of jurisdiction. The writ of prohibition is nugatory in nature. It prevents or prohibits the inferior court from exercising assuming jurisdiction which is not vested in it by law. Writ of prohibition lies for both excess and absence of jurisdiction. However, both are an important part of the writ jurisdictions of the Supreme Court and the High Courts under Articles 32 and 226 of the Constitution of India, respectively.

Thus, it can be seen that the object of the writ of prohibition is prevention rather than cure, while certiorari is used as a cure.

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