Writ of Certiorari: History, Scope, Evolution, and Landmark Judgements
Writ of Certiorari | Overview Introduction History, Scope and Evolution Landmark judgements Conclusion The writ of certiorari has been translated in numerous ways—including “to be made certain,” “to search,” “to be more fully informed”—but, ultimately, it comes down to a superior court wanting to be apprised of a lower body’s actions. This article enquires into the history of… Read More »
Writ of Certiorari | Overview
The writ of certiorari has been translated in numerous ways—including “to be made certain,” “to search,” “to be more fully informed”—but, ultimately, it comes down to a superior court wanting to be apprised of a lower body’s actions.
This article enquires into the history of certiorari, the scope of the writ, the manner in which it evolved, and the landmark judgements surrounding it. It conducts an exposition on two landmark Supreme Court judgements in particular: Hari Vishnu Kamath and Nagendra Nath Bora.
I. Introduction
The writ of certiorari—Latin for “to be made certain”—is a prerogative writ typically issued by a superior court to a lower court for the re-examination of a judicial decision.[1] However, in India, it can be issued to all authorities exercising judicial or quasi-judicial functions.
As with all writs in India, it can only be issued by the Supreme Court and the various High Courts. The power to do this is vested in them by Article 32[2] and Article 226[3] of the Constitution of India respectively.
The writ of certiorari differs from prohibition in that a writ of certiorari is prayed for after the court has pronounced its verdict in a particular case.
II. History, Scope and Evolution
The writ of certiorari has been in use since approximately 1280. The writ of certiorari evolved from the older (and now defunct) writs of pone, recordari facias, and praecipe. These were used to transfer cases from the lower courts to the royal courts.[4]
In the 1200s, this writ was used largely for reviewing errors. Gradually, its scope widened to include quashing orders and criminal judgements. In England, proceedings of justices were generally brought to the King’s Bench—the highest court in the land—for review.[5]
In India, its scope is not considerably different from its historical version. The writ of certiorari lies against any “judicial act,” committed by anyone. It does not, however, lie against purely executive or ministerial acts.
The writ of certiorari must not be conflated with an appeal. A writ of certiorari will not overturn any findings of fact by the body against which the writ is issued; that, courts have ruled, would subvert the legislature’s purpose and policy. Certiorari is used to correct errors of jurisdiction or law.
III. Landmark judgements
There are several landmark judgements pertaining to the writ of certiorari such as Hari Vishnu Kamath v Syed Ahmad Ishaque, Parry & Co v Commercial Employees’ Association, Veerappa Pillai v Raman and Raman Ltd, Ibrahim Aboobaker v Custodian General, and T.C. Basappa v T. Nagappa. However, Hari Vishnu Kamath encapsulates the principles the previous judgements have affirmed and summarized them in a concise manner. Hence, this article will just probe into that verdict.
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Hari Vishnu Kamath v. Syed Ahmad Ishaque, 1954[6]
This was a case involving election to the House of the People (Lok Sabha). The appellant complained that voters were given the wrong ballot paper to use, and that, therefore, those ballots should be excluded.
In the course of the judgement, the court laid down the rules for issuing a writ of certiorari which have been discussed briefly above. This judgement encapsulates the court’s findings in Parry & Co v. Commercial Employees’ Association[7], Veerappa Pillai v. Raman and Raman Ltd[8], Ebrahim Aboobaker v. Custodian General[9], and T.C. Basappa v. T. Nagappa.[10]
On these authorities, the following propositions may be taken as established:
- Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise it.
- Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice.
- The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This is on the principle that a Court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right, and when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to re-hear the case on the evidence, and substitute its own findings in certiorari. These propositions are well settled and are not in dispute.
- The further question on which there has been some controversy is whether a writ can be issued when the decision of the inferior Court or Tribunal is erroneous in law …The position was thus summed up by Morris, L.J. “It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision or irregularity, or absence of, or excess of, the jurisdiction where shown”. (emphasis applied).
To summarise the case briefly, the Court held that certiorari can be issued when:
- A tribunal/court acts without jurisdiction, in excess of it, or fails to exercise it;
- The court does not allow the parties to be heard or violates the principles of natural justice;
- There is an error of law on the face of the judgement.
- Nagendra Nath Bora v. Commissioner of Hills, 1958[11]
The parameters for the exercise of the issuance of a writ of certiorari were affirmed by the Court in this case:
[T]he Common Law writ, now called the order of certiorari, which was also adopted by our Constitution, is not meant to take the place of an appeal where the statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extraordinary jurisdiction.
Here, the court categorically says that ‘mere formal or technical errors’ will not constitute sufficient grounds for a writ of certiorari.
IV. Conclusion
Indian courts have affirmed—in numerous judgements—that certiorari is an extraordinary writ and cannot be deployed for normal errors. There must be grave errors in law on the face of a judgement for a writ of certiorari to be issued.
Ordinarily, a writ of certiorari is issued for errors or irregularities in jurisdiction. This can take numerous forms as this article has shown above, ranging from the court not exercising its jurisdiction to acting in excess of it.
A writ of certiorari can also lie in the event of the court not hearing the sides or violating the principles of natural justice in any way.
[1] “Certiorari.” Encyclopaedia Britannica. Available here.
[2] INDIAN CONST. art 32.
[3] INDIAN CONST. art 226.
[4] “Origin of the Writ of Certiorari.” Columbia Law. Available here.
[5] Ibid.
[6] 1955 AIR 233.
[7] 1952 AIR 179.
[8] 1952 AIR 192.
[9] 1952 AIR 319.
[10] 1954 AIR 440.
[11] 1958 AIR 398.