Writ of certiorari- an Indian historical perspective

A writ of certiorari like the writ of prohibition is a judicial writ of antiquity and it is the ordinary process by which the Court of King’s Bench Division exercises control over the acts of bodies vested with inferior jurisdiction. The writ is intended to bring up before the High Court the records of proceedings or determinations of inferior tribunals and to quash them if the tribunals are found to have acted in excess of their jurisdiction.

A writ of certiorari lies against the Government of Bombay. Section 306, read with S. 176, Government of India Act, 1935, expressly preserves the right to sue in all cases where such a right could be exercised as against the East India Company. The learned Attorney General argued that the section was confined to suits and to actions and did not cover the case of writ of certiorari. It was said that there is no power to issue a command to the Sovereign. My simple answer is that the Provincial Government is not the sovereign and that the Government of India Act expressly says that there is a right to sue the Province. The expression “sue” means “the enforcement of a claim or a civil right by means of legal proceedings.” When a right is in jeopardy, then any proceedings that can be adopted to put it out of jeopardy fall within the expression “sue”. Any remedy that can be taken to vindicate the right is included within the expression. A writ of certiorari, therefore, falls within the expression “sue” used in S. 176, Government of India Act, 1935, and the remedy therefore is within the express terms of the statute. The immunity granted by S. 306 is to the Governor and not to the Province. It was argued that the word “Governor” in the section is synonymous with “Provincial Government” by reason of the definition of phrase “Provincial Government” given in S. 46 (3). General Clauses Act. In my opinion, this definition cannot affect the interpretation of the Government of India Act. In that Act the Provincial Government and the Governor have been used in two different senses and not in one sense. Immunity from suits is given to the Governor and not to the Provincial Government, though the Governor may be one of the important component parts of the Provincial Government. Reference in this connection was made to the East India Company Act, 1780 (21 Geo. III C. vii) and to various statutes which eventually culminated in Ss. 306 and 176, Government of India Act, 1935. On the basis of the Act of 1780, it was contended that the High Court had no jurisdiction to issue a writ against the Governor. That statute, however, did not prohibit the issue of a writ against the East India Company. On the other hand, there are cases which show that such writs were being issued against the East India Company. In my opinion, the matter has to be decided exclusively under the terms of the Government of India Act, 1935, and not on the terms of any repealed statute. Clauses (4) and (13) of the Charter of the Supreme Court gave, the power to issue a writ of certiorari to the High Court against the East India Company and the same jurisdiction has been kept alive by the Government of India Act, 1935. ‘Reference was made to a number of Madras cases but, in my opinion, those cases have not been correctly decided inasmuch as they have placed the Governor on the same footing as the Provincial Government by a process of reasoning which to my mind is not correct.

“The procedure of certiorari” as has been observed by Flatcher-Moulton L. J. in Rex vs. Woodhouse, (1906) 2 K. B. 501 at p. 535:(75 L. J. K. B. 745) “applies in many cases in which the body whose acts are exercised would not ordinarily be called a ‘Court’ nor would its acts be ordinarily termed judicial acts. The true view of the limitation would seem to be that the term ‘judicial act’ is used in contrast with purely ministerial acts. To these latter the process of certiorari does not apply, as for instance to the issue of a warrant to enforce a rate, even though the rate is one which could itself be questioned by certiorari. In short there must be the exercise of some right or duty to decide in order to provide scope for a writ of certiorari at common law.”

There can be no doubt that originally the writ of certiorari was issued only to inferior Courts using the word ‘Court’ in its ordinary sense. As bodies of various types and denominations exercising semi-judicial functions came to be introduced, the writ was extended to these bodies also. There is a long line of decide cases showing that the writ of certiorari has been issued to rating authorities, licencing Justices, Electricity Commissioners, the Board of Education, the General Medical Council, the Inns of Court, Assessment Committees, the Commission of Taxation and various other authorities who could be regard as performing some sort of judicial or semi-judicial function though they have no authority to try case, or pass judgments in the proper sense of the word:Vide Halsbury’s Laws of England (2nd Edn.) vol. 26 p. 284. It would be interesting to note that in King vs. Postmaster General, (1928) 1 K. B. 291:(96 L. J. K B. 347) a writ of certiorari was issued to quash a disablement certificate granted by the Chief Medical Officer of the Post Office on the ground that he was not the certifying surgeon under the Workmen’s Compensation Act 1925, and the granting of certificate was held to be a judicial act. In Rex vs. Boykott, (1939) 2 K. B. 651:(105 L.J. K. B. 657) one Russel Keanely moved on behalf of his infant son Stanley for an order of certiorari to remove and quash medical certificate granted by the respondent to the affect that Stanley was incapable by reason of mental defect of receiving benefit from in striation in special school under S. 56, Education Act, and two other connected documents. The Court was of opinion that as doubts did arise as to whether the boy was inducible, it was a proper case to be determined by the Board of Education under S. 31. It was held in these circumstances that the three documents which were parts and parcel of one and the same transaction constituted the determination of a quasi-judicial authority, and “exhibited all the mischief which a writ of certiorari was intended and well fitted to correct.” The result was that all the three documents were directed to brought up and quashed. Even a report made by a Chief Gas examiner has been removed and quashed by a writ of certiorari R. vs. London County Council, (1895) 11 T. L. R. 337.

In the words of Banks L. J. the course of development of law on the subject demonstrated what has been the boast of English Common Law that it will, whenever possible and where necessary, apply existing principles to new set of circumstances: Vide Rex vs. Electricity Commrs., (1924) 1 K. B. 171 at p. 192 and it was in very general terms that opinion was expressed in Rex vs. Inhabitants of Glamorganshire, 1 Ld. Raym. 580 that the Court would examine the proceeding of all jurisdictions erected by Acts of Parliament and if under pretence of such an Act they proceeded to encroach jurisdiction to themselves greater than the Act warrants, the Court would send a certiorari to them to have their proceedings returned to the Court to the end that the Court might see that they keep themselves within their jurisdiction, and if they exceed it, to restrain them. 59a. The whole law on the subject relating to issuing of writs of certiorari was thus summed up by Atkin L.J. in Rex vs. Electricity Commissioners, (1921) 1 K.B. 171 at p. 205:(93 L.J.K.B. 390):

“Whatever anybody or persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in there writs.”