CHANAKYA NATIONAL LAW UNIVERSITY

A PROJECT OF
LEGAL LANGUAGE AND COMMUNICATION SKILLS

ON

“WRIT OF CERTIORARI”

SUBMITTED TO: SUBMITTED BY:

Mr Pratyush Kaushik Shreya Sinha
Faculty of Legal Language Roll No. - 1648
And Communication Skills Semester – 1st
B.BA LL.B
Session – 2016-2021

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 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the BB.A. LL.B (Hons.) Project Report entitled
“THE WRIT OF CERTIORARI” submitted at Chanakya National Law University; Patna
is an authentic record of my work carried out under the supervision of DR. PRATYUSH
KAUSHIK. I have not submitted this work elsewhere for any other degree or diploma. I am
fully responsible for the contents of my Project Report.

(Signature of the Candidate)

SHREYA SINHA
Chanakya National Law University, Patna
18/10/2016

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 ACKNOWLEDGEMENT

“ IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER ”
A project is a joint endeavor which is to be accomplished with utmost compassion, diligence
and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered English
teacher Mr PRATYUSH KAUSHIK whose support and guidance was the driving force to
successfully complete this project. I express my heartfelt gratitude to him. Thanks are also
due to my parents, family, siblings, my dear friends and all those who helped me in this
project in any way. Last but not the least; I would like to express my sincere gratitude to our
English teacher for providing us with such a golden opportunity to showcase our talents. Also
this project was instrumental in making me know more about the writ mechanism available
for justice delivery. It gave me a special insight on the writ of certiorari and its pivotal role in
legal system and providing justice in Indian courts. It was truly an endeavour which enabled
me to embark on a journey which redefined my intelligentsia, induced my mind to discover
the intricacies involved in justice delivery mechanism.

Moreover, thanks to all those who helped me in any way be it words, presence,
Encouragement or blessings...

- Shreya Sinha
- 1st Semester
- B.BA

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 CONTENTS

Aims and Objectives ------------------------------------------------------------------------------ 5

Hypothesis ----------------------------------------------------------------------------------------- 5

Research Methodology -------------------------------------------------------------------------- 5

Sources of Data ---------------------------------------------------------------------------------- 6

Survey of Data ----------------------------------------------------------------------------------- 7

Limitations --------------------------------------------------------------------------------------- 7

1. Introduction ----------------------------------------------------------------------------- 8-10

2. Types of Writs -------------------------------------------------------------------------- 11-14

3. Writ of Certiorari ----------------------------------------------------------------------- 15-19

4. Implementation ------------------------------------------------------------------------- 20-23

5. Case Laws ------------------------------------------------------------------------------- 24

6. Conclusion ------------------------------------------------------------------------------- 25

Bibliography ------------------------------------------------------------------------------------- 26

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 AIMS AND OBJECTIVES
The researcher intends to find out the following:
1. Meaning and kinds of writs.
2. Importance and efficacy of writs in Indian legal system.
3. Issuing authority of writs in India.
4. Analyze the pivotal role played by writ of certiorari in delivering justice to people in India.

HYPOTHESIS
The researcher has formulated the following hypothesis, the validity of which was checked in
the course of completion of the project.
1. Writs have enabled the courts of law to rapidly process lawsuits.
2. Writs are unlike a petition.
3. In cases of writs, the burden of proof is on respondent, not on the petitioner.
4. Writ of quo certiorari must be accompanied with writ of mandamus to seek the support of
court to order the respondent to cease the office.
5. Writ of certiorari comes under prerogative writs.
6. Writs can be demanded by anyone who may or may not have a personal stake in the decision.
7. Writ of certiorari is the only judicial remedy for violations of the constitution by public
officials and agents.

RESEARCH METHODOLOGY
The researcher has used only Doctrinal Method for the accomplishment of this Project.

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 SOURCES OF DATA
 PRIMARY SOURCES
Part IIIrd of Indian constitution under article 32 and article 226.
 SECONDARY SOURCES:
 Books:
1. The constitution of India by professional book publishers, Delhi
2. The law lexicon by Dr. Shakil Ahmad Khan
3. Legal methods by G.P. Tripathi
4. Legal research methodology by Rattan Singh
5. Outlines of legal language in India by Dr. Anirudh Prasad
6. Francis Palgrave (1788-1861), Parliamentary Writs and Writs of Military Summons (2
volumes, 1827 and 1834)
7. "Glossary of Terms", Shelby County Criminal Court Clerk, s.v. "capias", retrieved on 30 Jun
2009
8. "Writ and Petition History System in Texas" page 9 In Quarles, Brandon D. and Cordon,
Matthew C. (2003) Legal Research for the Texas Practitioner  W.S. Hein, Buffalo, New
York, ISBN 978-0-8377-3626
9. "Legal Terms", Armstrong Lawyers, retrieved on 11 June 2009
10. "Glossary of Terms", Colorado State Courts, retrieved on 19 June 2009
11. "Gloss...Terms", Shelby (op. cit.), s.v. "Venire facias"
 Websites:
1. http://www.mcrhrdi.gov.in/splfc/week3/PCCI-Constitutional%20Remedies%20-
%20Dr.G.B.Reddy.pdf
2. http://www.nolo.com/legal-encyclopedia/appeals-writ-habeas-corpus-faq-29096-4.html
3. https://www.quora.com/What-are-the-conditions-for-filing-writ-petition-in-high-court-is-it-
necessary-to-exhaust-CAT-or-lower-courts-chennal
4. https://www.quora.com/What-are-different-kinds-of-writs-issued-by-the-Supreme-Court-of-
India-Please-explain-each-writ-with-examples
5.  http://www.lawnotes.in/DC_Jain_v_University_of_Jodhpur#ixzz3oNM7I0zO
6. http://www.lawnotes.in/Dr_Het_Ram_Kalia_v_Himachal_Pradesh_University
7. http://teamlaw.net/QuoWarranto.html

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 SURVEY OF DATA
The survey of data needed for completion of this research project was limited to the library of
Chanakya National Law University, Patna.

LIMITATIONS
The presented research is confined to a time limit of one month and this research contains
only doctrinal works which are limited to library sources.

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 INTRODUCTION

Writ is a form of written command in the name of a court or other legal authority to act, or
acting in a particular way. The constitution of India broadly provides for five kinds of
“prerogative” writs: habeas corpus, certiorari, mandamus, quo warranto and prohibition.
Under the Indian legal system, jurisdiction to issue “prerogative writs” is given to Supreme
Court, and to the High Courts of Judicature of all Indian States. The Supreme Court, the
highest in the country, may issue writs under Article 32 of the Constitution for the
enforcement of fundamental rights and under Article 139 for enforcement of rights other than
Fundamental Rights, while High Courts, the superior courts of the States, may issue writs
under Articles 226. The Constitution broadly provides for five kinds of "prerogative"
writs: habeas corpus, certiorari, mandamus, quo warranto and prohibition.

 The writ of prohibition is issued by a higher court to a lower court prohibiting it from

taking up a case because it falls outside the jurisdiction of the lower court. Thus, the
higher court transfers the case to it.
 The writ of habeas corpus is issued to a detaining authority, ordering the detainer to
produce the detained person in the issuing court, along with the cause of his or her
detention. If the detention is found to be illegal, the court issues an order to set the person
free.
 The writ of certiorari is issued to a lower court directing that the record of a case be
sent up for review, together with all supporting files, evidence and documents, usually
with the intention of overruling the judgement of the lower court. It is one of the
mechanisms by which the fundamental rights of the citizens are upheld.
 The writ of mandamus is issued to a subordinate court, an officer of government, or a
corporation or other institution commanding the performance of certain acts or duties.
 The writ of quo warranto is issued against a person who claims or usurps a public
office. Through this writ the court inquires 'by what authority' the person supports his or
her claim.

HISTORY
In English common law, a writ is a formal written order issued by a body with administrative
or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative

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writs and subpoenas are common types of writs but innumerable forms exist, as listed
in Palgrave's Parliamentary Writs (1827, 1834).1 In its earliest form a writ was simply a
written order made by the English monarch to a specified person to undertake a specified
action, for example in the feudal era a military summons by the king to one of his tenants-in-
chief to appear dressed for battle with retinue at a certain place and time. An early usage
survives in the United Kingdom in a writ of election which is a written order issued on behalf
of the monarch to High Sheriffs of every county to hold a general election. Writs were used
by the mediaeval English kings to summon persons to Parliament (then consisting of House
of Lords alone) whose advice was considered valuable or who were particularly influential,
who were thereby deemed to have been created "barons by writ".
The development of writs as a means of commencing a court action was a form of "off-the-
shelf" justice designed to enable the English law courts to rapidly process lawsuits by
allocating each form of complaint into a standard category which could be dealt with by
standard procedures. The complainant simply applied to the court for the writ most relevant
to his complaint to be sent to the wrongdoer, which ordered him under royal authority to
attend a royal court to answer for his actions. The development was part of the establishment
of a Court of Common Pleas, for dealing with commonly made complaints by subjects of the
crown, for example: "someone has damaged my property". The previous system of justice at
the royal court of Chancery was tailor-made to suit each case and was thus highly time-
consuming. Thus eventually the obtaining of a writ became necessary, in most cases, to have
a case heard in one of the Royal Courts, such as the King's Bench or Common Pleas. Some
franchise courts, especially in the Counties Palatine, had their own system of writs which
often reflected or anticipated the common law writs. The writ was "served" (delivered in
person to) on the wrongdoer and acted as a command that he should appear at a specified
time and date before the court specified in the writ, or it might command some other act on
the part of the recipient.
Where a plaintiff wished to have a case heard by a local court or by an Eyre if one happened
to be visiting the County, there would be no need to obtain a writ. Actions in local courts
could usually be started by an informal complaint. However, if a plaintiff wished to avail
himself of Royal — and by implication superior — justice in one of the King's courts, then he
would need a writ, a command of the King, to enable him to do this. Initially for common

1
 Francis Palgrave (1788-1861), Parliamentary Writs and Writs of Military Summons (2
volumes, 1827 and 1834)
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law, recourse to the King's courts was unusual, and something for which a plaintiff would
have to pay. For most Royal Courts, the writ would usually have been purchased from
the Chancery, although the court of the Exchequer, being in essence another government
department, was able to issue its own writs.2
While originally writs were exceptional or at least non-routine devices, Maitland suggests
that by the time of King Henry II (1154-1189), the use of writs had become a regular part of
the system of royal justice in England.
At first, new writs were drafted to fit each new situation, although in practice the clerks of the
Chancery would use wording from previously issued writs, with suitable adjustments, often
taken from reference books containing collections of forms of writ, much as in modern times
lawyers frequently use fixed precedents or boilerplate, rather than re-inventing the wording of
a new legal document. The problem with this approach was that a plaintiff's rights and
available forms of action at his disposal, would be defined, and in most cases limited, by the
limited variety of writs available to him. Thus the power to create new writs was akin to the
power to create new rights, a form of extra-parliamentary legislation. Moreover, a writ, if one
could be found fitting the plaintiff's case, provided the legal means to remove the dispute
from the jurisdiction of the local court, often controlled by a lesser noble, and instead have it
heard by the King's judges. The nobility thus saw the creation of new writs as an erosion of
their influence.
Over time, opposition to the creation of new writs by the Chancery increased. For example, in
1256 a court was asked to quash a writ as "novel, unheard of, and against reason" (Abbot of
Lilleshall v Harcourt (1256) 96 SS xxix 44). Ultimately in 1258 the King was forced to
accept the Provisions of Oxford, which among other things, prohibited the creation of new
forms of writ without the sanction of the King's council. New writs were created after that
time only by the express sanction of Parliament and the forms of writ remained essentially
static, each writ defining a particular form of action. It was the role and expertise of
a solicitor to select on his client's behalf the appropriate writ for the proposed legal action.
These were purchased from the court by payment of a fee. A barrister would then be hired by
the solicitor to speak for his client in court.

2
"Writ and Petition History System in Texas" page 9 In Quarles, Brandon D. and Cordon, Matthew C.
(2003) Legal Research for the Texas Practitioner  W.S. Hein, Buffalo, New York, ISBN 978-0-8377-3626

10 | P a g e
With the abolition of the Forms of Action in 1832 and 1833, a profusion of writs was no
longer needed, and one uniform writ came into use. After 1852 the need to state the name of
the form of action was also abolished. In 1875 the form of writ was altered so that it
conformed more to the subpoena used in the Chancery. A writ was a summons from the
Crown, to the parties to the action, with on its back the substance of the action set out,
together with a 'prayer' requesting a remedy from the court (for example damages). In 1980
the need for writs to be written in the name of the Crown was ended. From that time, a writ
simply required the parties to appear.3
Writs applied to claims that were to be heard in one of the courts which eventually formed
part of the High Court of Justice. The procedure in a County Court, which was established by
statute, was to issue a 'summons'.
In 1999 the Woolf Reforms unified most of the procedure of the Supreme Court and the
County Court in civil matters. These reforms brought in the Civil Procedure Rules. Under
these almost all civil actions, other than those connected with insolvency, are now
commenced by the completion of a 'Claim Form' as opposed to the obtaining of a 'Writ',
'Originating Application', or 'Summons'.

History of Writs in India

• First issued by the Supreme Court at Calcutta

• Later by SCs of Bombay and Madras
• Since 1861 – by High Courts
• Since-1937- Federal court of India

3
http://www.mcrhrdi.gov.in/splfc/week3/PCCI-Constitutional%20Remedies%20-%20Dr.G.B.Reddy.pdf

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 TYPES OF WRITS
 The "prerogative" writs are a subset of the class of writs, those that are to be heard ahead
of any other cases on a court's docket except other such writs. The most common of the
other such prerogative writs are habeas corpus, quo warranto,
prohibito, mandamus, procedendo, and certiorari.
 The due process for petitions for such writs is not simply civil or criminal, because they
incorporate the presumption of non-authority, so that the official who is the respondent
has the burden to prove his authority to do or not do something, failing which the court
has no discretion but to decide for the petitioner, who may be any person, not just an
interested party. In this they differ from a motion in a civil process in which the burden of
proof is on the movant, and in which there can be a question of standing.
 A writ of attachment permits the arrest of a person or the seizure of private property.
 A writ of audita querela inhibits the unconscionable use of a lawful judgment because of
matters arising subsequent to the judgment.
 A writ of capias directs an officer to take into custody the person named in the writ or
order4
 A writ of coram nobis corrects a previous error "of the most fundamental character" to
"achieve justice" where "no other remedy" is available, e.g., when a judgment was
rendered without full knowledge of the facts.
 A writ of elegit orders the seizure of a portion of a debtor's lands and all his goods (except
work animals) towards satisfying a creditor, until the debt is paid off.
 A writ of error is issued by an appellate court, and directs a lower court of record to
submit its record of the case laid for appeal.5
 A writ of exigent  commands a sheriff to summon a defendant indicted for a felony, who
had failed to appear in court, to deliver himself up upon pain of outlawry or forfeiture of
his goods.

4
 "Glossary of Terms", Shelby County Criminal Court Clerk, s.v. "capias", retrieved on 30
Jun 2009
5
 "Writ and Petition History System in Texas" page 9 In Quarles, Brandon D. and Cordon,
Matthew C. (2003) Legal Research for the Texas Practitioner  W.S. Hein, Buffalo, New
York, ISBN 978-0-8377-3626-6
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 A writ of fieri facias commands a sheriff to take and auction off enough property from a
losing party to pay the debt (plus interest and costs) owed by a judgment debtor.6
 A writ of mittimus orders either (1) a court to send its record to another or (2) a jailer
to receive the accused in his or her custody at any point during the investigative or trial
process.
 A writ of ne exeat restrains a defendant from fleeing the country or jurisdiction.
 A writ of praemunire instructs a sheriff to order someone to appear in court to answer
for any of a number of different crimes.
 A writ of scire facias revives a dormant judgment.
 A writ of supersedeas contains a command to stay the proceedings at law.7
 A writ of venire facias summons jurors to appear in court.8

Types of Writs Operational in India

1. Writ of Habeas Corpus

 Habeas Corpus means, “You may have the body.”

 A person, when arrested, can move to the court for the issue of Habeas Corpus. It is
an order by a Court to the detaining authority to produce the arrested person before it
so that it may examine whether the person has been detained lawfully or otherwise. If
the court is convinced that the person is illegally detained, it can issue orders for his
release.
 General rule is that an application can be made by a person who is illegally detained.
But in certain cases, an application of Habeas Corpus can be made by any person on
behalf of the prisoner, i.e., a friend or a relation.
 Purpose - To seek relief from the unlawful detention of him or herself, or of another
person, To protect the individual from harming him or herself, or from being harmed
by the Administrative system, for safeguarding of individual freedom against arbitrary

6
 "Legal Terms", Armstrong Lawyers, retrieved on 11 June 2009
7
"Glossary of Terms", Colorado State Courts, retrieved on 19 June 2009
8
"Gloss...Terms", Shelby (op. cit.), s.v. "Venire facias"
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 state action which violates fundamental rights under article 19,21 & 22 of
Constitution.
 Res judicata– Not applicable in this writ. It cannot be suspended even during
Emergency [Art.359]
 Related case- ADM Jabalpur v. Shivakant Shukla

2. Writ of Mandamus
 Mandamus is a Latin word, which means “we command.”
 Mandamus is an order from Supreme Court to a lower court or tribunal or public
authority to perform an act, which falls within its duty.
 Simply, it is a writ issued to a public official to do a thing which is a part of his
official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a
matter of right. It is the discretionary power of court to issue such writs.
 Conditions for issue of mandamus- The applicant must have a legal right to the
performance of a legal duty. The legal duty must be of a public nature. The right
sought to be enforced must be subsisting on the date of the petition. As a general rule,
mandamus is not issued in anticipation of injury.
 Purpose- To make sure that the power or the duties are not misused by the executive
or administration and are duly fulfilled. It safeguards the public from the misuse of
authority by the administrative bodies.

3. Writ of Prohibition
 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.
 It is a writ issued by a superior court to lower court or tribunal forbidding it to
perform an act outside its jurisdiction. After the issue of this writ, the proceedings in
the lower court etc. come to stop.
 Purpose - It used to prevent an inferior court from exceeding its jurisdiction or acting
contrary to the rules of natural justice.

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  Prohibition and certiorari lie only against judicial and quasi-judicial bodies. They do
not lie against public authority in an executive or administrative capacity or a
legislative body.9

4. Writ of Quo Warranto

 The word Quo Warranto literally means “on what authority one is holding the public
office.”
 It is a writ issued with a view to restrain a person from acting in a public office to
which he is not entitled.
 Purpose- Invoked in case of Public offices
 Related case- Ashok Pandey v. Mayawati (AIR 2007 SC 2259) writ of QW was
refused against Ms. Mayawati (CM) and other ministers of her cabinet even though
they were Rajya sabha members.

 CONDITIONS FOR WRIT OF QUO WARRANTO

a) The concerned office must be a government unit or public office which
performs public duties. Examples of such office members are advocate
general, university officials, members of a municipal board.
b) The public office must have a real existence. It should be permanent and
cannot be terminated.
c) A person against whom the writ of quo warranto is issued must have the real
possession of the public office.
d) The writ shall be issued only when the public office is held by a particular
person in an illegal manner.

5. Writ of Certiorari
 Literally, certiorari means to be certified.
 The writ of certiorari is issued by the Supreme Court to some inferior court or tribunal
to transfer the matter to it or to some superior authority for proper consideration.10
9
http://www.mcrhrdi.gov.in/splfc/week3/PCCI-Constitutional%20Remedies%20-
%20Dr.G.B.Reddy.pdf
10
http://teamlaw.net/Certiorari.html

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  Related Cases:
a.) State of U.P. v. Mohammed Noor (AIR 1958 SC 86)
b.) Hari Vishnu Kamath v. Ahmed Ishaq (AIR 1955 SC 233)
 Purpose
1. It is issued to correct the errors of Jurisdiction.

2. When court or tribunal acts illegal in its jurisdiction.

3. Order against principles of natural justice.

4. Court acts in exercise of its supervisory and not appellate Jurisdiction.

5. An error in the decision or determination itself may also be amenable to a writ of

Certiorari.

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 WRIT OF CERTIORARI
According to Corpus Juris Secundum certiorari is a writ issued from a superior court to an
inferior court or tribunal commanding the latter to send up the record of a particular case.
Certiorari is used to bring up into the High Court the decision of some inferior tribunal or
authority in order that it may be investigated. If the decision does not pass the test, it is
quashed that is to say, it is declared completely invalid, so that no one need respect it. The
underlying policy is that all inferior courts and authorities have only limited jurisdiction or
powers and must be kept within their legal bounds. This is the concern of the Crown, for the
sake of orderly administration of justice, but it is a private complaint which sets the Crown in
motion.

HISTORY

Historically, certiorari dates back to Roman law, the term used both to indicate a need or duty
to review a case, and the duty to inform other parties of a legal ruling. Primarily, the term as
used in Roman literature indicates that a case will be heard. Today, the term is most often
used when the U.S. Supreme Court decides to review a lower court’s decision for reversible
error.

Prior to the Judiciary Act of 1891, also known as the “Evarts Act,” the U.S. Supreme Court
heard all cases brought before it as a matter of right, which is to say it was bound to review
each case on its merits, hear oral argument, and issue a decision. As the country expanded
into the 20th century, the burden on the judicial system resulted in a backlog of the Supreme
Court that was several years long.11

The Evarts Act created nine new courts of appeal, each composed of one district judge and
two circuit judges that were given jurisdiction over direct appeals of lower court decisions.
Additional legislation, in the form of the Judiciary Act of 1925, and the Supreme Court Case
Selections Act of 1988, most cases may not be appealed directly to the U.S. Supreme Court.
If a party wishes the Supreme Court to review a decision made by a lower court, it must
submit a “Petition for Writ of Certiorari” to the court. This is a significant project, as the
Petition for Writ of Certiorari must be printed in a booklet form, following very specific

11
http://teamlaw.net/Certiorari.html

17 | P a g e
formatting guidelines, the original and 40 copies filed with at the Supreme Court clerk’s
office.

A Petition for Writ of Certiorari is a complex legal document, so there is no pre-printed Writ
of Certiorari form for laypeople to use. Individuals may find a Writ of Certiorari example to
view how the first pages of the petition are formatted.

Definition and Nature

Certiorari is a command or order to an inferior Court or tribunal to transmit the records of a

cause or matter pending before them to the superior Court to be dealt with there and if the
order of inferior Court is found to be without jurisdiction or against the principles of natural
justice, it is quashed:

“Certiorari is historically an extraordinary legal remedy and is corrective in nature. It is

issued in the form of an order by a superior Court to an inferior civil tribunal which deals
with the civil rights of persons and which is public authority to certify the records of any
proceeding of the latter to review the same for defects of jurisdiction, fundamental
irregularities of procedure and for errors of law apparent on the proceedings.”

The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the Court
is not entitled to act as a Court of appeal. That necessarily means that the findings of fact
arrived at by the inferior Court or tribunal are binding. An error of law apparent on the face
of the record could be corrected by a writ of certiorari, but not an error of fact; however grave
it may appear to be.12

Certiorari is thus said to be corrective remedy. This is, of course, its distinctive feature. The
very end of this writ is to correct the error apparent on the face of proceedings and to correct
the jurisdictional excesses. It also corrects the procedural omissions made by inferior courts
or tribunal. If any inferior court or tribunal has passed an order in violation of rules of natural
justice, or in want of jurisdiction, or there is an error apparent on the face of proceeding, the
proper remedy so through the writ of certiorari.

Certiorari is a Proceeding in Personam

12
http://teamlaw.net/Certiorari.html

18 | P a g e
Unlike the writ of habeas corpus the petition for certiorari should be by the person aggrieved,
not by any other person. The effect of the rule of personam is that if the person against whom
the writ of certiorari is issued does not obey it, he would be committed forthwith for
contempt of court.

Certiorari is an original proceeding in the superior Court. It has its origin in the court of issue
and therefore the petition in India is to be filed in the High Court under Article 226 or before
the Supreme Court under Article 32 of the Constitution.

Against Whom Certiorari Can Be Issued

As regards the question against whom the writ can be issued, it is well settled that the writ is
available against nay judicial or quasi-judicial authority, acting in a judicial manner. It is also
available to any other authority, which performs judicial function and acts in a judicial
manner. Any other authority may be Government itself. But the conditions allied with it are
that Government acts in a judicial manner and the issue is regarding the determination of
rights or title of a person. Previously the question was in doubt whether it was available
against Central and Local Governments. The majority of judgment is there, when the grant of
certiorari against the Government has been denied. The Madras High Court in 1929 and again
in 1940 in Chettiar v. Secretary to the Government of Madras, held that a writ of certiorari
would not lie against Madras Government.13

The Assam High Court has held that the writ of certiorari will be issued to an authority or
body of persons who are under a duty to act judicially. It will not be available against the
administrative order or against orders of non-statutory bodies.

Necessary Conditions for The Issue of Writ

When anybody persons: -

(a) Having legal authority.

(b) To determine questions affecting rights of subjects,

(c) Having duty to act judicially,

13
http://www.lawnotes.in/Dr_Het_Ram_Kalia_v_Himachal_Pradesh_University

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(d) Acts in excess of their legal authority, writ of certiorari may be issued. Unless all these
conditions are satisfied, mere inconvenience or absence of other remedy does not create a
right to certiorari.

Grounds of Writ of Certiorari

The writ of certiorari can be issued on the following grounds: -

1) Want of jurisdiction, which includes the following:

(a) Excess of jurisdiction.

(b) Abuse of jurisdiction

(c) Absence of jurisdiction.

2) Violation of Natural justice.

3) Fraud.

4) Error on the face of records.

1) Want of Jurisdiction:-

The Supreme Court has stated in Ebrahim Abu Bakar v. Custodian- General of Evacuee
Property that want of jurisdiction may arise from.

a) The nature of subject matter.

b) From the abuse of some essential preliminary, or

c) Upon the existence of some facts collateral to the actual matter, which the Court has to try,
and which is the conditions precedent to the assumption of jurisdiction by it.

It may be added that jurisdiction also depends on.

d) The character and constitution of the tribunal14

14
http://www.mcrhrdi.gov.in/splfc/week3/PCCI-Constitutional%20Remedies%20-
%20Dr.G.B.Reddy.pdf

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There have been a good number of cases in Indian Administrative Law where the use of
jurisdiction has been corrected through the writ of certiorari. Thus the orders of tribunals
which did not wait even for 15 minutes to hear a party and which resorted to its own theories
to assess the premises of people and acted under the influence of political considerations,
have been quashed.

The Court does not interfere in the cases where there is a pure exercise of discretion, and
which is not arbitrary if it is done in good faith. They do not ignore the legislative intention in
the statute which might give a wide aptitude of powers to the administrative authority or the
social needs, which demand the bestowal of some wider jurisdiction, or the historical
circumstances under which a certain tribunal got exclusive jurisdiction of a particular subject-
matter.

2) Violation of Natural Justice:-

The next ground for the issue of writ of certiorari is the violation of natural justice and has a
recognized place in Indian legal system as discussed in the earlier part of the reading
material.15

3) Fraud:-

There are no cases in India where certiorari has been asked on account of fraud. The cases are
found in British Administrative law where on the ground of fraud the Court has granted the
writ of certiorari. The superior Courts have an inherent jurisdiction to set aside orders of
convictions made by inferior tribunals if they have been procured by fraud or collusion a
jurisdiction that now exercised by the issue of certiorari to quash Where fraud is alleged, the
Court will decline to quash unless it is satisfied that the fraud was clear and manifest and was
instrumental in procuring the order impugned.

4) Error of Law Apparent on The Face of Record

“An error in decision or determination itself may also be amenable to a writ of certiorari but
it must be a manifest error apparent on the face of the proceeding e. g., when it is based on
15
http://www.mcrhrdi.gov.in/splfc/week3/PCCI-Constitutional%20Remedies%20-
%20Dr.G.B.Reddy.pdf

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clear ignorance or disregard of the provision of law.” In other words; it is a patent error,
which can be corrected by certiorari but not a mere wrong decision. It was for the first time
when the Supreme Court issued the writ of certiorari on the only ground that the decision of
the election tribunal clearly presented a case of error of law, which was apparent on the face
of the record. The error must be apparent on the face of the records

IMPLEMENTATION

Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme
Court to some inferior court or tribunal to transfer the matter to it or to some other superior
authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court

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or any High Court for quashing the order already passed by an inferior court. In other words,
while the prohibition is available at the earlier stage, Certiorari is available on similar
grounds at a later stage. It can also be said that the Writ of prohibition is available during the
tendency of proceedings before a sub-ordinate court, Certiorari can be resorted to only after
the order or decision has been announced.

In Province of Bombay v/s Khushaldas

In this case it was held that whenever anybody of person 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 will lies. It does not lie to remove merely ministerial
act or to remove or cancel executive administrative acts. 16

Writ lies on judicial bodies

One of the fundamental principles in regard to the issuing of a writ of certiorari is that the
writ can be availed of only to remove or to adjudicate upon the validity of judicial acts. The
expression judicial acts include the exercise of quasi-judicial functions by administrative
bodies or authorities or persons obliged to exercise such functions and are used in contrast
which are purely ministerial acts.

The Supreme Court has laid down two propositions for ascertaining whether an authority is to
act judicially—

1. If a statute empowers a authority to decide disputes arising out of claim made by one party
under the statute, which claim is opposed by another party, then prima facie and in the
absence of anything in the statute to the contrary is the duty of the authority to act judicially
and the decision of authority is a quasi-judicial act.

2. If a statutory authority has power to do any act which will prejudicially affect the subject
then although there are not two parties apart from the authority and the final determination of
authority will be a quasi-judicial act provided that the authority is required by the statue to act
judicially. 29 AIR 1950 SC 22 47

Grounds on which writ can be issued.

16
http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=005102391000

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The writ of certiorari can be issued to judicial and quasi-judicial body on the following
grounds

1. Where there is want or excess of jurisdiction

The writ of certiorari is issued to a body performing judicial or quasi-judicial function for
correcting errors of the jurisdiction, as when an inferior court or tribunal acts without
jurisdiction or in excess of it or fails to exercise it. The want of jurisdiction may arise from
the nature of subject matter so that the inferior court has no authority to enter on the inquiry
or upon some part of it. Want of jurisdiction may also arise from absence of some
preliminary proceeding or upon the existence of some particular facts which are necessary to
the exercise of the courts power and the court wrongly assume that the particular condition
exists.

2. For correcting error of law apparent on the face of record

The writ is also issued for correcting an error of law apparent on the face of record. it cannot
be issued to correct an error of fact. What is an error of law apparent on the face of record is
to be decided by the courts on the facts of each case.

In Hari Vishnu v/s Ahmed Ishaque

The Supreme Court held that no error could be said to be error on the face of record if it was
not self-evident and it required an examination and argument to establish it. An arror 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. the reason for rule is that the court issuing
a writ of certiorari acts in a supervisory jurisdiction and not appellate jurisdiction.
accordingly it cannot substitute its own decision on the merits of the case or give direction to
be complied with by the inferior court or tribunal. 30 AIR 1955 SC 223 48

3. Disregard of principle of natural justice

A writ of certiorari also lies against a court or tribunal when it acts in violation of the
principles of natural justice. Two principles of natural justice are generally accepted—

1. The court or tribunal should be free from bias and interest—the principles that the
adjudicator should not have an interest and bias in the case that no man shall be a judge in his
own case and justice should not be done but manifestly and undoubtedly seen to be done.

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2. Audi Alteram Partem ie, the parties must be heard before the decision is given.

When it will not lie

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 duties or functions and the writ petition is therefore not
maintainable against such a private society.

"The second essential feature of a writ of 'certiorari' is that the control which is exercised
through it over judicial or quasi-judicial tribunals or bodies is not in an appellate but
supervisory capacity. In granting a writ of 'certiorari', the superior court does not exercise the
powers of an appellate tribunal. It does not review or re-weigh the evidence upon which the
determination of the inferior tribunal purports to be based. It demolishes the order which it
considers to be without jurisdiction or palpably erroneous but does not substitute its own
views for those of the inferior tribunal."

It is a writ (order) of a higher court to a lower court to send all the documents in a case to it
so the higher court can review the lower court’s decision. Appellate review of a case that is
granted by the issuance of certiorari is sometimes called an appeal, although such review is at
the discretion of the appellate court. A party, the petitioner, files a petition for certiorari with
the appellate court after a judgment has been rendered against him in the inferior court.

However, unlike a writ of prohibition, superior courts issue writs of certiorari to review
decisions which inferior courts have already made. The writ of prohibition is the counterpart
of the writ to certiorari which too is issued against the action of an inferior court. The
difference between the two was explained by Justice Venkatarama Ayyar of the Supreme
Court in the following terms:

“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 issue forbidding the inferior court from continuing the
proceedings.

On the other hand, if the court hears the 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 of want of jurisdiction.”

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Certiorari in the State Court System

While some state courts of appeal use the term of certiorari, others use such terms as “writ of
review,” “certification for appeal,” and “leave to appeal,” to describe the state Supreme
Court’s consent to hear a case on appeal. In states that have no intermediate courts of appeal,
the state Supreme Court has a mandatory obligation to review decisions of lower courts.

Denial of Writ of Certiorari

While there is some confusion as to what effect a refusal to issue a Writ of Certiorari has, it
basically means the Supreme Court has decided to do nothing. Denial of certiorari does not
mean the court approves of the decision made by the lower court, it is simply the practical
result of the fact that the U.S. Supreme Court receives more than 5,000 Petitions for Writ of
Certiorari each year, of which it only agrees to hear about two percent. A denial of certiorari
often only means that the minimum of four justices did not feel the case should be heard.17

17
 http://www.lawnotes.in/DC_Jain_v_University_of_Jodhpur#ixzz3oNM7I0zO

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 CASE LAWS

 State of UP v. Mohammed Noor

Supreme Court said that certiorari is mainly issued to reform the mistakes related to
jurisdiction of subordinate courts or quasi-judicial bodies. In other words, it can be
said that the writ is issued when the subordinate court or tribunal acts in the absence
of jurisdiction or fails to use its jurisdiction.18

 Hari Vishnu Kamath v. Ahmed Ishaq

The writ is issued for correcting an error of law apparent on the face of records. It
cannot be issued to correct an error of fact.

 Radhey Shyam & Anr. v/s Chhabi Nath & Ors.

The Court observed, “Writ jurisdiction is constitutionally conferred on all High

Courts. Broad principles of writ jurisdiction followed in England are applicable to
India and a writ of certiorari lies against patently erroneous or without jurisdiction
orders of Tribunals or authorities or courts other than judicial courts. There are no
precedents in India for High Courts to issue writs to subordinate courts. Control of
working of subordinate courts in dealing with their judicial orders is exercised by way
of appellate or revisional powers or power of superintendence under Article 227.
Orders of Civil Court stand on different footing from the orders of authorities or
Tribunals or courts other than judicial/ civil courts. While appellate or revisional
jurisdiction is regulated by statutes, power of superintendence under Article 227 is
constitutional. The expression ‘inferior court’ is not referable to judicial courts.”

18
https://www.jstor.org/stable/2139490?seq=3#page_scan_tab_contents

27 | P a g e
 CONCLUSION

Writs are mostly invoked against State. These are powerful orders having immediate effect.
These are issued when PILs are filed. Major work of High Courts lies in exercising writ
jurisdiction.

Certiorari is an ancient prerogative writ which orders the removal of a suit from an inferior
court to a superior court. It may be used before a trial to prevent an excess or abuse of
jurisdiction and to remove the case for trial to a higher court. It is invoked also after trial to
quash an order which has seen without jurisdiction or in defiance of the rules of natural
justice.19

Speaking on the scope of the writ, the Supreme Court, in the State of Bombay vs. Advani
held:

(i) Whenever anybody of persons having legal authority to determine questions affecting the
right of subjects and having the duty to act judicially, act in excess of their legal authority, a
writ to certiorari lies. It does not lie to remove an order merely ministerial or to remove or
cancel executive or administrative acts,

(ii) For this purpose, the term judicial does not necessarily mean acts of a Judge or legal
tribunal sitting for the 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 d
circumstances, and imposing liability or affecting the rights of others."

Often a writ of certiorari is sought along with a writ of prohibition, so that not merely may an
invalid act be reviewed by a superior court (certiorari), but its operation may also be
restrained (prohibition). While prohibition and certiorari are so intimately related to each
other, Prohibition is the converse of mandamus. The former is invoked to prevent a court or
other authority from doing something which it has not the power to do, while the latter is
called in aid to require it to do something which it is bound to do.

19

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 BIBLIOGRAPHY

1. The constitution of India by professional book publishers, Delhi

2. The law lexicon by Dr. Shakil Ahmad Khan
3. Legal methods by G.P. Tripathi
4. Legal research methodology by Rattan Singh
5. Outlines of legal language in India by Dr. Anirudh Prasad
6. Francis Palgrave (1788-1861), Parliamentary Writs and Writs of Military Summons (2
volumes, 1827 and 1834)
7. "Glossary of Terms", Shelby County Criminal Court Clerk, s.v. "capias", retrieved on 30
Jun 2009
8. "Writ and Petition History System in Texas" page 9 In Quarles, Brandon D. and Cordon,
Matthew C. (2003) Legal Research for the Texas Practitioner  W.S. Hein, Buffalo, New
York, ISBN 978-0-8377-3626
9. "Legal Terms", Armstrong Lawyers, retrieved on 11 June 2009
10. "Glossary of Terms", Colorado State Courts, retrieved on 19 June 2009
11. "Gloss...Terms", Shelby (op. cit.), s.v. "Venire facias"
8. http://www.mcrhrdi.gov.in/splfc/week3/PCCI-Constitutional%20Remedies%20-
%20Dr.G.B.Reddy.pdf
9. http://www.nolo.com/legal-encyclopedia/appeals-writ-habeas-corpus-faq-29096-4.html
10. https://www.quora.com/What-are-the-conditions-for-filing-writ-petition-in-high-court-is-
it-necessary-to-exhaust-CAT-or-lower-courts-chennal
11. https://www.quora.com/What-are-different-kinds-of-writs-issued-by-the-Supreme-Court-
of-India-Please-explain-each-writ-with-examples
12.  http://www.lawnotes.in/DC_Jain_v_University_of_Jodhpur#ixzz3oNM7I0zO
13. http://www.lawnotes.in/Dr_Het_Ram_Kalia_v_Himachal_Pradesh_University
14. http://teamlaw.net/Certiorari.html
15. https://www.jstor.org/stable/2139490?seq=3#page_scan_tab_contents
16. http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=005102391000

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