WRIT OF CERTIORARI: AN ANALYSIS

A PROJECT SUBMITTED IN PARTIAL FULFILLMENT OF THE COURSE TITLED

ADMINISTRATIVE LAW FOR THE DEGREE B.B.A., LL.B.(Hons.)

SUBMITTED TO:

DR. FR. PETER LADIS

ASSISTANT PROFESSOR

CNLU, PATNA

SUBMITTED BY:

MUHAMMAD MAHATAB

ROLL NO. 1836

VITH SEMESTER

B.B.A., LL.B.(Hons.)

SESSION: 2017-22

March, 2020

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

NYAYA NAGAR, MITHAPUR, PATNA, PIN:800001

 CERTIFICATE

I do hereby submit that the following project work on “WRIT OF CERTIORARI: AN

ANALYSIS” is a bona fide work produced by me under the able guidance of Dr. Fr. Peter
Ladis, Assistant Professor, Chanakya National Law University and Faculty for
Administrative Law, and that no part of this work has been plagiarized without due credits
being given to the author(s) and appropriate citations being made.

Muhammad Mahatab
Roll No.1836
B.B.A, LL.B.(Hons.)
Class of 2017-22
 ACKNOWLEDGEMENTS

I would like to thank my faculties, Dr. Fr. Peter Ladis, and Prof. Dr. Ali Mohammed, whose
assignment of such an interesting and erudite topic made me work towards knowing the
subject with a greater interest and enthusiasm and moreover she guided me throughout the
project. I owe the present accomplishment of my project to my friends, who helped me
immensely with sources of research materials throughout the project and without whom I
couldn’t have completed it in the present way. I would also like to extend my gratitude to my
parents and all those unseen hands who helped me out at every stage of my project.
AIMS AND OBJECTIVES

The aim of the project is to present a detailed study on the writ of certiorari, analyse its
origins and significance in the Indian legal system.

SCOPE AND LIMITATIONS

Though this is such a topic that a book can be written on it, but because of restrictions and
limitations that abound, this project report deals with the issue in brevity.

HYPOTHESIS

The researcher believes it the writ of certiorari is necessary to check the undiluted powers of
the government and ensure that no citizen suffers injustice at the expense of the state
machinery.

SOURCES OF DATA

The following secondary sources of data have been used in the project:

1. Articles
2. Books
3. Websites

METHOD OF WRITING

The method of writing followed in the course of this research paper is primarily analytical.

RESEARCH METHODOLOGY

The research work of this project is based on doctrinal method.

MODE OF CITATION

The researcher has followed a uniform mode of citation throughout this project.
 INDEX

INTRODUCTION 6

WRIT OF CERTIORARI: ITS MEANING, SCOPE AND OBJECT 7

WRIT OF CERTIORARI IN INDIA 10

CONCLUSION 12

BIBLIOGRAPHY 13
 INTRODUCTION

India is a country which has distribution of power as provided by the Constitution of India.
The powers and functions are divided into Legislature, Executive and Judiciary. The
legislature enacts the law, the executive administers the law and the judiciary interprets the
law. But it cannot be said that the executive functions are solely performed by the Executive,
the judicial functions by the Judiciary and the legislative functions are solely performed by
the legislature, as was observed by the Hon’ble Supreme Court in Jayantilal Amratlal v F.N.
Rana.1 The question is that whether the functions that the executive authorities perform are
purely administrative, or quasi-judicial or quasi-legislative in character. Further it is to be
pondered upon that the issuance of the writs by the High Courts or the Supreme Court is
applicable over what kind of functions. The same is available for primarily judicial functions
only or for quasi-judicial functions as well is a question worth pondering. In India, the
jurisdiction to issue writs came when the Supreme Courts were established by the Regulating
Act of 1773. Further High courts were established which had the original jurisdiction over
their respective presidency towns. In Amir Khan Re 2 , it was held that the Supreme courts can
issue writs in the mofussil too and this power was inherited to the High Courts too. Further
this power to issue the writ outside the presidency town by the High Courts was taken away
from it by the Code of Criminal Procedure, 1872. Some other decisions again brought
ambiguity on issue of this by the High Courts but the final position came into the picture after
the enactment of the Constitution of India.

The meaning of the word ‘Certiorari’ can be traced back in the Latin, where it originated and
is the passive form of the word, ‘certiorare’ which means ‘to inform’ and occurred in the
original Latin words of the writ which translated read as follows: “We, being desirous for
certain reasons, that the said records should by you be certified to us.” 3This writ requires the
judges of any subordinate court of record to certify any matter’s record in that court with all
things touching the same and to send it to King’s Court to be examined. 4The Halsbury’s
Laws of England5 state that: “The order of Certiorari is an order issuing out of the High Court
and directed to the judge or officer of an inferior tribunal to bring proceedings in a cause or
1
AIR 1964 SC 648
2
(1870) 6 Beng. LR 459; see also Ryots of Garabandho v. Zamidar of Parlakrimedi, AIR 1943 PC 164
3
Praboth Verma v. State of U.P., (1984) 4 SCC 251
4
R. v. Northumberland Compensation Appellate Tribunal, (1952) 1 AIIER 122
5
11 HALSBURY’S LAWS OF ENGLAND, (4h ed.), 1521
matter pending before the tribunal into the High Court to be dealt in order to ensure that the
applicant for the order may have the more sure and speedy justice.”6

WRIT OF CERTIORARI: ITS MEANING, SCOPE AND OBJECT

6
2 JUSTICE C. K. THAKKAR & M.C. THAKKAR, V.G. RAMCHANDRAN’S LAW OF WRITS 1203 (6th
ed. EBC 2006) (2003)
Certiorari can be described as one of the most proficient and appreciated remedies that have
been derived from the Common Law. Under the Indian law, Certiorari is an order issued by
the Supreme Court and the High Court under Article 32 and 226 respectively to the inferior
courts, tribunals or authorities to convey the records of the pending proceedings in order to
certify and scrutinize them and decide upon the legitimacy and validity of the orders passed
by the courts during the procedure.

Certiorari is defined in Corpus Juris Scundrum 7 as follows, “Certiorari is a writ from a

superior court to an inferior court or tribunal commanding the latter to send up the record of a
particular case.”8 Therefore Certiorari can be defined as a writ issued by the Supreme Court
or a High Court to a court or tribunal that is inferior to it, while directing it to forward the
records of a specific case to the court that is issuing the writ. In a landmark case Hari Vishnu
Kant v Ahmad Ishaque9, Hon’ble Supreme Court has affirmed that, “According to the
common law of England, ‘Certiorari is a high prerogative writ issued by the Court of King’s
Bench or Chancery to inferior courts or tribunals in the exercise of supervisory jurisdiction
with a view to ensure that they acted within the bounds of their jurisdiction. To this end, they
were commanded to transmit the records of a cause or matter pending with them to the
superior court to deal with there, and if the order was found to be without jurisdiction, it was
quashed. The court issuing ‘certiorari’ to quash, however, could not substitute its own
decision on the merits, or give directions to be complied with by the court or the tribunal. Its
work was destructive; it simply wiped out the order passed without jurisdiction, and left the
matter there.”10

The remedy under the writ of Certiorari is an extra-ordinary remedy that requires a
subordinate court or a tribunal that is inferior that exercise judicial or quasi-judicial function
to forward it the reports and proceedings of some particular case or matter to a superior court
in order for it to examine and certify it. The Halsbury’s Laws of England 11 state that in cases
where the jurisdiction of judges is in question or disputed, the certiorari order is the suitable
remedy. The same is in cases where conviction or order has been obtained by conspiracy or
complicity or in the cases where there is an evident appearance of errors in the proceedings.
7
14 CORPUS JURIS SECUNDRUM, 121-22
8
supra note 4
9
AIR 1955 SC 233, 240
10
Id. at 240 (AIR)
11
1 HALSBURY’S LAWS OF ENGLAND, (4h ed.), 102-03
In the cases where there is non-compliance of certain procedural and statutory requirement
such as to ask a defendant to plead guilty or not, the issuance of writ of certiorari is
discretionary.

The purpose of writ of certiorari lies to remove with the intent of quashing the petitions of
any such inferior body that exercises judicial or quasi-judicial functions. The distinction
between a writ of certiorari and a writ that is in the nature of certiorari is not essential for the
purpose of this appeal. It is because of the fact that in both the cases the High Court directs a
sub-ordinate authority or an inferior tribunal to forward to itself the records of the pending
proceedings in order for it to scrutinise them and if essential, quash the same. 12 Hence, the
writ of certiorari makes the inferior court, tribunal or any other body exercising judicial or
quasi-judicial functions to present before it the records of the pending proceedings for the
purpose of validating the proceedings, errors corrected and if excess of jurisdiction occurred,
it may be restrained.

The fundamental object of the writ of certiorari is to ensure the working all the subordinate
courts and inferior tribunals within their jurisdictions and in cases of deviance, or excess of
jurisdiction the same may be corrected or quashed. The writ of certiorari cannot be said to be
a proceeding against a court, tribunal or the persons comprising but rather it works on the
cause or proceeding in the subordinate court. 13 One of the chief functions of this writ is to
decide if any lower court or subordinate tribunal has surpassed its jurisdiction and acted in
excess of the powers vested to it. Its paramount function is to provide the aggrieved party
with the relief where there has been abuse of powers or an action taken without authority by
any sub-ordinate court or any inferior tribunal. The fundamental rule is the fact that all
inferior courts and authorities have certain legal bounds and hence limited powers or
jurisdiction. The writ is a ‘great corrective writ’ by which the High Courts and the Supreme
Courts, being the superior courts exercise a supervisory jurisdiction over the inferior bodies
exercising judicial or quasi-judicial functions taking into account the sole object of correcting
the abuse of power and holding the inferior authorities within their jurisdiction and hence
preventing them from surpassing the powers deliberated upon them. The Hon’ble Supreme
Court in a leading case of Basappa v Nagappa 14, stated that, “As is well known, the issue of
the prerogative writs, within which ‘certiorari’ is included, had their origin in England in the
King’s prerogative power of superintendence over the due observance of law by his officials
12
Udit Narain Singh v. Board of Revenue, AIR 1963 SC 786, 790
13
Hari Vishnu Kamath v. Ahmad Ishaque , AIR 1955 SC 233
14
AIR 1954 SC 440
and Tribunals. The writ of ‘certiorari’ is so named because in its original form it required that
the King should be ‘certified’ of the proceedings to be investigated and the object was to
secure by the authority of a superior court, that the jurisdiction of the inferior tribunal should
be properly exercised.”15

The researcher can thus conclude that the writ of certiorari is a correctional writ that has its
jurisdiction over all the inferior bodies or authorities to ensure that they function within the
boundaries of their jurisdiction and the powers conferred upon them. It aims at correcting the
lacunae that may arise due to such acts of surpassing of the jurisdiction and powers by the
inferior bodies.

WRIT OF CERTIORARI IN INDIA

15
Id. at 165 (AIR)
The Supreme Court at Calcutta established by the Royal Charter 1774, under the Regulating
Act 1773, was the first court that had the power to issue prerogative writs in India. The
Charter of 1774 was the first legal instrument which empowers the SC in Calcutta to issue a
writ of Certiorari. Clause 3 of the Charter of 1800 and Clause 10 of the Charter of 1823
empowered the Supreme Courts of Bombay and Madras respectively. However, the
jurisdiction of the writ at that point and time was limited to the original jurisdiction of the
High Courts. This was recognized in Ryots of Garabandho v. Zamindar of Parlakimedy 16 .
Nevertheless, the High Court of Madras attempted to issue such writs even outside the
presidency towns.17 In one of the earliest cases of Bombay, Pirbhai Khimji v. Baroda and
Central India Rly Corp., a writ was granted to transfer a case from the small court to the High
Court.18

The limitation to the jurisdiction and the subject matter was removed by the
constitution.19Now under Article 226 writs could be issued throughout the territories over
which the respective High Courts exercise their jurisdiction. The supervision of the Supreme
Court and the High Court under Articles 32 and 226 respectively are distinct in two aspects,
a. Area of jurisdiction, qualifications and conditions of its exercise.

b. Observance of law in the course of that exercise.20

Judicial review in India, the question of ‘jurisdictional’ and ‘constitutional’ plays an

important role. It can be inferred that in the place of jurisdictional fact the judicial review is
indeed of significant importance. It provides a useful check on administrative excesses and
this can be brought about by providing an adequate review through a court of law. Justice
Brandeis had said, “The supremacy of law demands that there shall be opportunity to have
some court to decide whether an erroneous rule of law was applied, and whether the
proceedings in which facts were adjudicated were conducted regularly. To that extent the
person excessing a right, whatever its source should be entitled to the independent judgement
of a court on the ultimate question of constitutionality. 21 In a case, R v Minister of Transport,
a minister passed an order of revocation of licence, even though he was not empowered to do
16
AIR 1943 PC 164
17
Rathnamala Pattamahadevi v. Ryots of Mandasa Zamindari, AIR 1934 Mad. 231
18
Pirbhai Khimji v. Baroda and Central India Rly Corp, 1871 Bom. Cr 59
19
Penugonda Venkattarathanam v. Secretary of State, AIR 1930 Mad. 896
20
R v. Nat Bell Liquors Ltd., 1922 2 AC 128
21
St. Joseph Stockyard Co. v. U.S., 298 US 38
so. The order was quashed on the ground of lack of jurisdiction and being ultra vires. To
raise the question of jurisdiction Certiorari comes out to be an appropriate remedy. Questions
may arise where a quasi-judicial body attempts to usurp jurisdiction which it does not
possess. The object of the writ of certiorari is to keep the exercise of powers by these quasi-
judicial tribunals within the limit of their jurisdiction and not to act in excess of their
powers.22 In Ibrahim Aboobakar v Custodian General, Evaque Property23, the SC held that
once the court had jurisdiction, it had jurisdiction to decide rightly as well as wrongly. To
quash an order on the ground of jurisdiction, it must be shown that the authority had acted
without jurisdiction or in excess of it.

Want of jurisdiction may arise from the nature of the subject matter, or in the absence of
some preliminary fact. The court cannot, by a wrong decision on collateral fact, give itself
jurisdiction which it does not otherwise possess.If the authority itself is given the power to
decide the preliminary fact and decides it wrongly, a writ is no remedy. The only solution lies
in an appeal.24

The writ of certiorari can come into picture at the abuse of discretionary power. Many
authorities in India have been bestowed with discretionary powers. When the tribunals are
conferred with discretion by the Legislature, it is for the former to exercise such power. A
court can only interfere in cases where there is arbitrary exercise of power or the exercise is
unreasonable or unlawful. Hence, it can be concluded that the writ of Certiorari is a
correctional writ in India and can be issued to the sub-ordinate courts or inferior authorities
during the pendency of matters. It acts as a writ that ensures the authorities or courts to work
within their prescribed jurisdiction and not to go beyond the same and indulge into abuse of
power.

22
Bharat Bank Ltd. v. Employees, AIR 1915 SC 188
23
AIR 1952 SC 319
24
Raman and Raman Ltd v. State of Madras, AIR 1956 SC 463
 CONCLUSION

The Constitution of India guarantees the safeguard to the people in the form of writs. These
writs can be issued wherever there is some violation of right or an abuse of power. The writ
of certiorari is one such writ that has a wide implication and jurisdiction. In the earlier times
the writ required the subordinate court to certify the matter pending before it and forwarded
to the King’s Court for the purpose of examination. In the present day context, check over the
power is necessary and there is nothing like unhindered or unfettered power. The subordinate
courts and inferior tribunals are supposed to work within their jurisdiction and are
constrained by the powers conferred upon them. The Writ of Certiorari, hence proves as a
safeguard to those who may become sufferers of abuse of power. The Constitution of India
guarantees the safeguard to the people in the form of writs. It is also understood that it is not
only for judiciary to work within its ambit of powers or the defined jurisdiction but each
authority that has some judicial colour. The quasi-judicial functions are those functions that
have a judicial colour and are supposed to be within the boundaries of its jurisdiction and the
powers conferred. It is absolutely right to keep a check over every body that exercises some
or the other kind of power that is somehow judicial in nature. If such check is not kept and a
remedy such as certiorari is not available, there will be abuse of power and this may lead to
violation of the fundamental and the legal rights of the individuals. Hence the researcher
could conclude that the quasi-judicial functions have a judicial colour and are bound by the
powers conferred and the writ of certiorari applies to it similar to the way it applies to the
other judicial functions.

The researcher also opines that it is necessary to keep the checks and balances over the
authorities conferred with power because unregulated and autonomous power will lead to
grave violations and injustice. There will be abuse of power and the subjects to the authorities
will become the sole sufferers. The jurisdiction of certiorari over the quasi-judicial decisions
and functions is an apt and well-established measure of law in order to maintain the sanctity
of the powers conferred and keep the individuals exercising those powers within the limits of
their jurisdiction.
 BIBLIOGRAPHY

BOOKS

HALSBURY’S LAWS OF ENGLAND, (4th ed.)

JUSTICE C. K. THAKKAR & M.C. THAKKAR, V.G. RAMCHANDRAN’S LAW OF WRITS
1203 (6th ed. EBC 2006)

WEBSITES

www.penacclaims.com
www.ipleaders.in
www.indiankanoon.org