Judicial Dictionary

Certiorari

The principles upon which the superior courts in England interfere by issuing writs of ‘certiorari’ are fairly well known and they have generally formed the basis of decisions in our Indian courts. It is true that there is lack of uniformity even in the pronouncements of English Judges, with regard to the grounds upon which a writ, or as it is now said, an order of ‘certiorari’, could issue, but such differences of opinion are unavoidable in judge-made law which has developed through a long course of years.

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 and Tribunals. The writ of ‘certiorari’ is so named because in its original form it required that the King should be ‘“certified or” 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, vide – ‘Ryots of Garabandho vs. Zemindar of Parlakimedi’, AIR 1943 PC 164 , These principles were transplanted to other parts of the King’s dominions.

In India during the British days, the three chartered High Courts of Calcutta, Bombay and Madras, were alone competent to issue writs and that too within specified limits and the power was not exercisable by the other High Courts as all “In that situation” as this court observed in – ‘Election Commission, India vs. Saka Venkata Rao’, AIR 1953 SC 210 .

“the makers of the Constitution having decided to provide for certain basic safeguards for the people in the new set up which they called fundamental rights, evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and finding that the prerogative writs which the Courts in England had developed and used whenever urgent necessity demanded immediate and decisive interposition, were peculiarly suited for the purpose, they conferred in the States’ sphere, new and wide powers on the High Courts of issuing directions, orders or writs primarily for the enforcement of fundamental rights, the power to issue such directions, ‘for any other purpose’ being also included with a view apparently to place all the High Courts in this country in somewhat the same position as the Court of King’s Bench in England”.

One of the fundamental principles in regard to the issuing of a writ of ‘certiorari’, is that the writ can be avalled of only to remove or adjudicate on the validity of judicial acts. The expression “judicial acts” includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons, obliged to exercise such functions and is used in contract with what are purely ministerial acts. Atkin L. J. thus summed up the law on this point in – Rex vs. Electricity Commissioners’, 1924 – KB 171 .

“Whenever any body 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 these writs”.

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 by 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 reweigh 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. The offending order of proceeding so to say is put out of the way as one which should not be used to the detriment of any person, vide per Lord Cairns in – ‘Walsall’s Overseers vs. L. and N. W. Rly. Co.’ (1879) 4 AC 30 .

The supervision of the superior court exercised through writs of ‘certiorari’ goes on two points, as has been expressed by Lord Summer in – ‘King vs. Nat Bell Liquors Ltd. ‘ (1922) 2 AC 128 . One is the area of inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of law in the course of its exercise. These two heads normally cover all the grounds on which a writ of ‘certiorari’ could be demanded. In fact there is little difficulty in the enunciation of the principles; the difficulty really arises in applying the principles to the facts of a particular case.

‘Certiorari’ may and is generally granted when a court has acted without or in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the subject matter of the proceeding or from the absence of some preliminary proceedings or the court itself may not be legally constituted or suffer from certain disability by reason of extraneous circumstances, vide ‘Halsbury, 2nd edition, Vol. IX, page 880. When the jurisdiction of the courts depends upon the existence of some collateral fact, it is well settled that the court cannot by a wrong decision of the fact give it jurisdiction which it would not otherwise possess, vide – ‘Bundbury vs. Fuller’, (1854) 9 Ex 111 (F):R. vs. Income Tax Special Purposes Commissioners”, (189) 21 QBD 313 (G).

A tribunal may be competent to enter upon an enquiry but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. A writ of ‘certiorari’ may be available in such cases. An error in the decision or determination itself may also be amenable to a writ of ‘certiorari’ but it must be a manifest error appearent on the face of the proceedings, e. g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by ‘certiorari’ but not a mere wrong decision.

The essential features of the remedy by way of ‘certiorari’ have been stated with remarkable brevity and clearness by Morris L. J. in the recent case of – ‘Rex vs. Northumberland Compensation Appellate Tribunal’, 1952-1 KB 338 . The Lord Justice says:

It is plain that ‘certiorari’ will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for re-hearing of the issue raised in the proceedings. It exists to correct error of law when revealed on the face of an order or decision or irregularity or absence of or excess of jurisdiction when shown”.

 


Ref: T. C. Basappa -AIR 1954 SC 440 : (1955) 1 SCR 250

Categories: Judicial Dictionary