Law and You > Administrative Law > Writ of Certiorari
There are five major types of writs viz. habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Each of them has a different meaning and different implications. In this article, we shall discuss the writ of certiorari.
Anything that is issued under authority is a writ. Orders, warrants, directions etc. issued under authority are examples of writs. Any person whose fundamental rights are violated can move the High Court (under article 226 of Indian constitution) or the Supreme Court (under article 32) and the court can issue direction or orders or writs. Thus the power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen.
In addition to the above, the Constitution also provides for the Parliament to confer on the Supreme Court power to issue writs, for purposes other than those mentioned above. Similarly, High Courts in India are also empowered to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose.
In India, both the Supreme Court and the High Court have been empowered with Writ Jurisdiction. Further, Parliament by law can extend power to issue writs to any other courts (including local courts) for local limits of the jurisdiction of such courts.
Literally, Certiorari means to be certified. The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi-judicial authority. These writs are designed to prevent the excess of power by public authorities and as general remedies for the judicial control of both quasi-judicial and administrative decisions affecting rights. A writ of certiorari is corrective in nature.
The scope of the writ of certiorari has been given in the case of Hari Vishnu Kamath v. Ahmad Ishaque AIR 1955 SC 233 as follows:
- When there is an error of jurisdiction.
- When the court has not given the proper time for both parties to be heard or has violated principles of natural justice.
- This writ is supervisory in nature, and thus the High court cannot review the findings of the lower courts.If the error is evident.
Necessary Conditions for the issue of a writ of certiorari.
- There should be court, tribunal or an officer having the legal authority to determine the question with a duty to act judicially.
- Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or officer.
- The order could also be against the principles of natural justice or the order could contain an error of judgment in appreciating the facts of the case.
- A writ of certiorari can never be issued to call for the record or papers and proceedings of an Act or Ordinance and for quashing such an Act or Ordinance.
Case Laws for Writ of Certiorari:
In R. V. Northumberland Tribunal(1952) 1 M I E.R.122(128) C.A. case, The Court opined that ‘Certiorari’ comes from ‘certify’ (to inform). It was the writ by which” the king commanded the judges of any inferior court of record to certify the record of any matter in that court with all things touching the same and to send it to the kings court to be examined.
In the Province of Bombay v. Khushaldas, A.I.R. 1950 S.C. 22 case, the Court speaking on the scope of the writ held that whenever any body of persons, having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, acts in excess of their legal authority, a writ of certiorari lies. It does not lie to remove merely ministerial acts or to remove or cancel executive administrative acts. For this purpose the term “judicial” does not necessarily mean act of a judge or a legal tribunal sitting for determination of matters of law, but for the purpose of this question a judicial act seems to be an act done by competent authority, upon consideration of facts and circumstances imposing liability affecting the right of others.
It is a basic principle of administrative law that no body can act beyond its powers. This lies at the basis of judicial review on the ground of lack of jurisdiction. In Ebrahim Aboobaker v. Custodian General, A.I.R.1952 S.C.319 the Court held that no authority can exceed the power given to it, and any action taken by it in excess of its power is invalid.
In State of U.P. V. Mohd. Nooh, A.I.R.1958 S.C.86 explaining the scope of the writ, the Court opined that the writ of certiorari is issued to a body performing judicial or quasi-judicial functions for correcting errors of jurisdiction as when an inferior court or tribunal acts without jurisdiction or in excess of it or fails to exercise it.
In A.P.S.R.T Corpn. v. Satya Narayan Transports, A.I.R.1965 S.C.1303 case, the Court held that a writ of ‘ critiorari also lies against a court or tribunal when it acts in violation of the principles of natural justice are generally accepted are the court or tribunal should be free from bias and interest and audi alteram Partem, i.e.; the parties must be heard before the decision is given. The principle that the adjudicator should not have an interest or bias in the case is that no man shall be a judge in his own cause, justice should not be done but manifestly and undoubtedly seen to be done. The reason for this rule is to enable the tribunal to act independently and 2 impartially wxthout any bias towards one side or the other.
In Syed Yakoob v. Radhakrishnan A.I.R.1964 S.C. 477 the Court opined that an error of law which is apparent on the face of the record can be corrected by a writ of certiorari but not an error of fact, howsoever grave it may appear to be.
In A. Ranga Reddy v. General Manager Co-op. Electric Supply Society Ltd., A.I.R.1977 N.O.C. 232 (Andhra Pradesh) case, the Court held that the writ of certiorari cannot be issued against a private body. Co-operative Electricity Supply Society Limited incorporated under the Co-operative Societies Act, is a private body and not a public body discharging public function and the writ petition is, therefore, not maintainable against such a private society.
In G. Venkateshwara Rao v. Government of Andhra Pradesh AIR 1966, SC 828, the court held that a private person may file an application for a writ of Quo Warranto. It is not required that this person is personally affected or interested in the case.