Certiorari and prohibition are mirror-image writs. Certiorari quashes a decision already made by an inferior tribunal or authority that has exceeded its jurisdiction or violated the law. Prohibition prevents an inferior tribunal from proceeding further with a matter it has no jurisdiction to decide. The distinction is temporal: certiorari after the decision; prohibition before it.
Legal Framework
| Provision | Scope |
|---|---|
| Art. 32, Constitution of India | Supreme Court: certiorari and prohibition to enforce fundamental rights |
| Art. 226, Constitution of India | High Courts: certiorari and prohibition against any public authority or inferior tribunal |
Certiorari
Meaning: To be certified; to be informed. The superior court calls up the record of a proceeding from an inferior tribunal to examine its legality.
Purpose: Quash an unlawful decision that has already been made.
Grounds for Certiorari
| Ground | Meaning |
|---|---|
| Jurisdictional error | The tribunal acted beyond its jurisdiction |
| Error of law on the face of the record | A legal error apparent from the tribunal s own record without looking beyond it |
| Violation of natural justice | No notice or hearing; biased decision-maker |
| Mala fides | Decision taken in bad faith |
Hari Vishnu Kamath v Ahmad Ishaque (1955): Certiorari is not a substitute for appeal; it corrects jurisdictional and legal errors, not factual errors or errors of judgment within jurisdiction.
Prohibition
Meaning: A prohibiting order. The superior court prevents an inferior tribunal from proceeding with a matter it has no jurisdiction to decide or is about to decide unlawfully.
Purpose: Prevent an unlawful proceeding before it results in a decision.
Key Difference from Certiorari
| Feature | Certiorari | Prohibition |
|---|---|---|
| Timing | After a decision has been made | Before a decision is made (during proceedings) |
| Purpose | Quashes the decision | Stops the proceedings |
| What it corrects | Completed unlawful action | Threatened unlawful action |
| Can both apply? | Yes: if proceedings began unlawfully AND a decision has been made, both writs may issue together |
Key Cases
R v Electricity Commissioners (1924) R-v-Electricity-Commissioners-1924 Issue: Whether certiorari lay against a body that was making a scheme (quasi-legislative) rather than adjudicating. Rule: Certiorari lies against any body that has a duty to act judicially and affects the rights of subjects; the body need not be a formal court. Held: Extended certiorari beyond courts to all bodies with judicial or quasi-judicial functions.
Hari Vishnu Kamath v Ahmad Ishaque (1955) Hari-Vishnu-Kamath-v-Ahmad-Ishaque-1955 Issue: Scope of certiorari to correct errors of law on the face of the record. Rule: Certiorari lies to correct error of law apparent on the record without looking behind the record; it is not a general right of appeal against findings of fact within jurisdiction. Held: Affirmed that certiorari corrects jurisdictional and legal errors, not substituting the court s view for factual findings within the tribunal s jurisdiction.
Illustrations
1. Certiorari: error of law on face of record: An Industrial Tribunal awards reinstatement in a dispute, citing a provision of the Industrial Disputes Act that was repealed two years earlier. The error is visible from the order itself: wrong legal provision, not in force. Certiorari lies: error of law on the face of the record.
2. Prohibition: before the decision: A Revenue Tribunal begins hearing a land boundary dispute. The dispute involves a question of title that falls exclusively within the jurisdiction of the civil court under the Transfer of Property Act. A party applies for prohibition before the Tribunal delivers its order. Prohibition lies: the Tribunal is about to exceed its jurisdiction.
3. Both writs together: A Rent Control Tribunal hears an eviction petition and passes an eviction order. The petitioner subsequently discovers the Tribunal had no jurisdiction over commercial premises under the applicable Rent Act. Certiorari quashes the eviction order (decision already made). If the Tribunal proposes to issue a fresh order on the same matter, prohibition can also be applied for.
Recall Check
- What is the temporal distinction between certiorari and prohibition?
- On what grounds does certiorari lie?
- Can both certiorari and prohibition issue in the same matter? In what circumstances?
Distinctions
| Feature | Certiorari | Prohibition |
|---|---|---|
| Stage | After decision | During proceedings, before decision |
| Effect | Quashes the decision | Stops the proceedings |
| Grounds | Jurisdictional error, error of law, natural justice violation, mala fides | Lack of jurisdiction, about to exceed jurisdiction |
| On facts | Does not correct factual errors within jurisdiction | Does not prevent tribunal from deciding facts within jurisdiction |
Flashcards
Q: What does certiorari do? A: Calls up the record of a lower tribunal and quashes its decision for jurisdictional error, error of law on the face of the record, violation of natural justice, or mala fides.
Q: What does prohibition do? A: Prevents an inferior tribunal from proceeding further with a matter it lacks jurisdiction to decide or is about to decide unlawfully.
Q: What is the key temporal distinction between certiorari and prohibition? A: Certiorari lies after a decision has been made; prohibition lies before the decision, during the proceedings.
Q: Does certiorari lie to correct factual errors? A: No. Certiorari corrects jurisdictional and legal errors; it does not correct errors of fact made within the tribunal s jurisdiction.
Q: What did R v Electricity Commissioners extend certiorari to cover? A: Bodies with a duty to act judicially that affect rights of subjects; not limited to formal courts.
Exam Scenario
Problem: A Consumer Disputes Redressal Forum (CDRF) begins hearing a complaint against a bank for deficiency in service. The bank argues the dispute involves a complex question of cheque dishonour governed exclusively by the Negotiable Instruments Act, which vests jurisdiction in the criminal court. The CDRF is midway through the proceedings. What writs are available?
Identify: The CDRF may be about to exceed its jurisdiction. The bank seeks to stop the proceedings (prohibition) or, if an order is passed, to quash it (certiorari).
Rule: Prohibition lies where an inferior tribunal is proceeding in a matter outside its jurisdiction. Certiorari lies to quash any order already made.
Apply: If no order yet: prohibition. If an order has been passed: certiorari. Both writs may issue together if the proceedings began unlawfully and have already produced an order.
Conclusion: The bank should file a writ petition under Art. 226 seeking prohibition (if proceedings continue) or certiorari (if an order has been passed). The High Court will determine whether the CDRF has jurisdiction and grant the appropriate writ.