Law and You > Administrative Law > Writ of Prohibition
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 Prohibition.
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.
The Writ of prohibition means to forbid or to stop and it is popularly known as ‘Stay Order’. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi-judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try.
A writ of Prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice. After the issue of this writ, proceedings in the lower court, etc. come to a stop. A writ of prohibition is normally issued when inferior court or tribunal
- Proceeds to act without jurisdiction or in excess of jurisdiction or
- Proceeds to act in violation of rules of natural justice or
- Proceeds to act under a law which is itself ultra vires or unconstitutional or
- Proceeds to act in contravention of fundamental rights.
Writ of prohibition can be issued on the grounds on which the writ of certiorari can be issued except in case of error of law apparent on the face of the record.
In Brij Khandelwal v. India, A.I.R. 1975 Del.184 case, the Delhi High Court refused to issue prohibition to the Central Government to prevent it from entering into an agreement with Sri Lanka regarding a boundary dispute. The decision was based on the principle that prohibition does not lie against government discharging executive functions and that prohibition is intended to control quasi-judicial and not executive, functions.
But this view is no longer tenable with the expansion of the concept of natural justice, and the emergence of the concept of fairness even in administrative functions, the rigidity about prohibition has also been relaxed. The writ can now be issued to anybody, irrespective of the nature of the function discharged by it if any of the grounds on which the writ is issued is present. Prohibition is now regarded as general remedies for the judicial control of both quasi-judicial and administrative decisions affecting rights.
In Subhash Chandra v. India, A.I.R.1973 M.P. 191. Case, the Court held that a court-martial constituted under the Army Act has been held subject to prohibition.
In Mannusamappa & Sons V. Custodian Evacuee Property, A.I.R. 1962 S.C. 789 case, the custodian, after accepting the petitioners as tenants of the evacuee property and after accepting rent for five months, purported to proceed against them as if they were in permissive possession. Prohibition was issued to forbid him from proceeding further.
Difference between Prohibition and Certiorari:
- There is a fundamental distinction between writs of prohibition and certiorari. They are issued at different stages of proceedings.
- The writ of prohibition is available during the pendency of proceedings i.e. when an inferior court takes up a hearing for a matter over which it has no jurisdiction, the person against whom hearing is taken can move the superior court for writ of prohibition on which order would be issued forbidding the inferior court from continuing the proceedings.
- The writ of certiorari can be resorted to only after the order or decision has been announced i.e. if the court hears the matter and gives the decision, the party would need to move to superior court to quash the decision/order on the ground of want of jurisdiction.
- Both the writs are issued against legal bodies.
- Difference between Mandamus and Prohibition:
- While Mandamus directs activity, Prohibition directs inactivity.
While Mandamus can be issued against any public official, public body, corporation, inferior court, tribunal or government; prohibition can be issued only against judicial and quasi-judicial authorities and not against administrative authorities, legislative bodies
Conclusion:
Generally, prohibition is an efficacious and speedy remedy where a person does not desire any other relief except to stop the administrative agency. The conditions for the issue of prohibition are the same as those for the issue of certiorari, except as to the stage when the relief is available. It follows that the grounds on which prohibition will issue are the same on which certiorari will issue (if the Petitioner comes to court after the tribunal has already pronounced its decision). Thus, the prohibition will issue to prevent the tribunal from proceeding further, when the inferior court or tribunal proceeds to act without or in excess of jurisdiction and also when the inferior court or tribunal proceeds to act in violation of the rules of natural justice.