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Neelkanth

WRIT JURISDICTION:
A COMPARATIVE STUDY

ENGLAND
HISTORY of Habeas Corpus: The history of Habeas Corpus is ancient. It appears to be
predominately of Anglo-Saxon common law origin. Clearly, the Writ precedes Magna Carta in
1215. Although the precise origin of Habeas Corpus is uncertain in light of it’s antiquity, its
principle effect was achieved in the middle ages by various Writs, the sum collection of which
gave a similar effect as the modern Writ. Although practice surrounding the Writ has evolved
over time, Habeas Corpus has since the earliest times been employed to compel the
appearance of a person who is in custody to be brought before a court.

And while Habeas Corpus originally was the prerogative Writ of the King and his courts, the
passage of hundreds of year’s time has permitted it to evolve into a prerogative Writ initiated
by the person restrained, or someone acting in his interest rather than by the King or his courts.

Magna Carta obliquely makes reference to Habeas Corpus through express reference to “the
law of the land”.

Article 39, Magna Carta states:

“no freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed…..
except by the lawful judgment of their peers or by the law of the land.”

The practice and right of Habeas Corpus was settled practice and law at the time of Magna
Carta and was thus a fundamental part of the unwritten common “law of the land” as was
expressly recognized by Magna Carta.

Habeas corpus derives from the English common law where the first recorded usage was in
1305, in the reign of King Edward I of England. The English common law practice and procedure
respecting Habeas Corpus was codified by Parliament enacting the Habeas Corpus Act, 1679.
This historic act of the English Parliament empowered English courts to issue Writs of Habeas
Corpus even during periods when the court was not in session and provided significant
penalties to the judge, personally, who disobeyed the statute. And while great hypocrisy
surrounded the practice of the Habeas Corpus Act in the late 17th century, Habeas Corpus was
nevertheless establishing itself as the primary means by which individual liberty was
empowered at the expense of the arbitrary exercise of power by the state.

During the 19th century the Writ of Habeas Corpus was further expanded to include those held
by a purely private process other than that of the state.

Habeas corpus is an important piece of legislation that should be available in every country.
International efforts to establish an international Habeas Corpus court are under way. Today,
many democratic countries have the right to petition for habeas corpus.

In a writ of Habeas Corpus, it’s a court petition which orders that a person being detained be
produced before a judge for a hearing to decide whether the detention is lawful. It does not
determine guilt or innocence, merely whether the person is legally imprisoned. It may also be
writ against a private individual detaining another. If the charge is considered to be valid, the
person must submit to trial but if not, the person is set free.

In Halsbury's Laws of England,1 it is provided that in any matter involving the liberty of the
subject the action of the Crown or its ministers or officials is subject to the supervision and
control of the judges on habeas corpus. The judges owe a duty to safeguard the liberty of the
subject not only to the subjects of the Crown, but also to all persons within the realm who are
under the protection of the Crown and entitled to resort to the courts to secure any rights which
they may have, and this whether they are alien friends or alien enemies.
It is this fact which means the prerogative writ of the highest constitutional importance, it being
a remedy available to the lowest subject against the most powerful.
The writ has frequently been used to test the validity of acts of the executive and, in particular,
to test the legality of detention under emergency legislation. No peer or lord of Parliament has
privilege of peerage or Parliament against being compelled to render obedience to a writ of
habeas corpus directed to him".

In Greene v. Secretary of State for Home Affairs,2 Lord Wright observed: "The inestimable value
of the proceedings is that it is the most efficient mode ever devised by any system of law to end
unlawful detainments and to secure a speedy release where the circumstances and the law so
required".

The Rights of Prisoners and Habeas Corpus:

1
4th Edn., Vol.11, para 1454, p.769
2
(1941) 3 All ER 388 : 1942 AC 284
In R v. Secretary of State for Home Affairs; ex parte O'Brien3, Scrutton, LJ observed thus: "The
law in the country has been very zealous of any infringement of personal liberty. This case is not
to be exercised less vigilantly, because the subject whose liberty is in question may not be
particularly meritorious. It is indeed one test of belief in principles if you apply them to cases
with which you have no sympathy at all. You really believe in freedom of speech, if you are
willing to allow it to men whose opinion seem to you wrong and even dangerous; and the
subject is entitled only to be deprived of his liberty by due process of law, although that due
process if taken will probably send him to prison. A man undoubtedly guilty of murder must yet
be released if due forms of law have not been followed in his conviction. It is quite possible,
even probable, that the subject in this case is guilty of high treason; he is still entitled only to be
deprived of his liberty by due process of law".

RES JUDICATA AND HABEAS CORPUS


In England habeas corpus petitions can be filed one after the other and the dismissal of one
habeas corpus petition is never held to preclude the making of a subsequent petition.4

In Cox v. Hakes,5 Lord Halsbury propounded: "For a period extending as far back as our legal
history, the writ of habeas corpus has been regarded as one of the most important safeguards
of the liberty of the subject. If upon the return to that writ it was adjudged that no legal ground
was made to appear justifying detention, the consequence was immediate release from custody.
If release was refused, a person detained might make a fresh application to every judge or every
Court in turn, and each Court or Judge was bound to consider the question independently and
not to be influenced by the previous decisions refusing discharge. If discharge followed, the
legality of that discharge could never be brought in question. No writ of error or demurrer was
allowed."

3
(1923) 2 KB 361 : 1923 AC 603 : 92 LJKB 797
4
See: Daryao v. State of U.P, AIR 1961 SC 1457
5
(1890) 15 AC 506 : 60 LJQB 89
THE UNITED STATES OF AMERICA
The American Constitution in Article I, Section 9 states that:

Limits on Congress : “The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Case of Rebellion or Invasion the public Safety may require it.”

It is important to note that the framers of the Constitution of the United States of America
chose to include in the body of the Constitution the Writ of Habeas Corpus while other
important individual rights, arguably as an afterthought, were included in the first ten
amendments which were popularly called the Bill of Rights. The “afterthought”, that is to say
the Bill of Rights, was not included even as amendments until James Madison single handedly,
but persistently and successfully, argued before congress for its adoption and passage on 15
December 1791, some two years after the constitution was ratified. This fact sheds light on the
importance of the Writ of Habeas Corpus as viewed by the framers of the American Constitution
at the time it was established.

A Writ of habeas corpus is a legal action against unlawful detainment that commands a law
enforcement agency or other body that has a person in custody to have a court inquire into the
legality of the detention. The court may order the person released if the reason for detention is
deemed insufficient or unjustifiable. The Constitution of America further provides that the
privilege of the Writ of habeas corpus may not be suspended "unless when in cases of rebellion
or invasion the public safety may require it."

The Rights of Prisoners and Habeas Corpus:


The Supreme Court in Prem Shankar Shukla v. Delhi Administration6 while emphasizing on the
American law on the point, stated that in India, as in the similar jurisdiction in America, the
broader horizons of habeas corpus spread out, beyond the orbit of release from illegal custody,
into every trauma and torture on persons in legal custody, if the cruelty is contrary to law,
degrades human dignity or defiles his personhood to a degree that violates Articles 21, 14 and
19 enlivened by the Preamble.

RES JUDICATA AND HABEAS CORPUS

6
AIR 1980 SC 1535
The law in America is, as provided in Sanders v. United States,7 which is a leading case on the
point, is that Conventional notions of finality of litigation have no place where life or
liberty is at stake and infringement of constitutional rights is alleged.

7
373 U.S. 1, 8 (1963).
In Australia, the habeas corpus writ originates from the English common law. Australia saw in
2005 some form of habeas corpus suspension when the Australian parliament passed a piece of
law called the Australian Anti-Terrorism Act of 2005 that limits the right of habeas corpus for
those who are suspected of terrorist activities and arrested on these charges.

Under Canadian law, Habeas Corpus is an "Extraordinary Remedy" which requires anyone
detaining a person to justify such detention to a superior court. While generally used in criminal
law proceedings, this ancient remedy also applies in a civil law context. In Canada, the habeas
corpus legal action is an English law inheritance.

Habeas corpus rights are part of the British legal tradition inherited by Canada. The rights exist
in the common law but have been enshrined in the Constitution Act 1982, under Section 10 of
the Charter of Rights and Freedoms. It states that:

"Everyone has the right on arrest or detention... (c) to have the validity of the detention
determined by way of habeas corpus and to be released if the detention is not lawful."

The writ is available where there is no other adquate remedy. However, a superior court always
has the discretion to grant the writ even in the face of an alternative remedy. 8 Under the
Criminal Code of Canada the writ is largely unavailable if a statutory right of appeal exists,
whether or not this right has been exercised. In Canada, everyone has the right to receive proof
for their arrest and contest the decision if evidence is not provided.

8
May v. Ferndale Institution, [2005] 3 S.C.R. 809.
INDIA
The Emergence of the Writ
The Historical Aspect of the Writ.

Habeas Corpus is an ancient common law prerogative Writ - a legal procedure to which you
have an undeniable right. It is an extraordinary remedy at law. Upon proper application, or
even on naked knowledge alone, a court is empowered, and is duty bound, to issue the
extraordinary Writ of Habeas Corpus commanding one who is restraining liberty to forthwith
produce before the court the person who is in custody and to show cause why the liberty of
that person is being restrained. Absent a sufficient showing for a proper restraint of liberty, the
court is duty bound to order the restraint eliminated and the person discharged. Habeas
Corpus is fundamental to all common law derivative systems of jurisprudence. It is the ultimate
lawful and peaceable remedy for adjudicating the providence of liberty’s restraint.

Since the history of Habeas Corpus is predominately English we must visit that history to gain
an understanding of the writ.

'Habeas corpus', Latin for "you [shall] have the body," is the name of a legal action or Writ by
means of which detainees can seek relief from unlawful imprisonment. The writ of Habeas
Corpus is essentially a procedural Writ. It deals with the machinery of justice, not the
substantive law. The object of the Writ is to secure release of a person who is illegally
restrained of his liberty9.

The celebrated writ of Habeas Corpus has been described as "a great constitutional privilege" or
"the first security of civil liberty". The writ provides a prompt and effective remedy against illegal
detention. Very recently, it has been held by the Hon’ble Supreme Court of India in the case of
State Of Maharashtra & Ors v. Bhaurao Punjabrao Gawande 10 that by this writ, the Court
directs the person or authority who has detained another person to bring the body of the
prisoner before the Court so as to enable the Court to decide the validity, jurisdiction or
justification for such detention. The principal aim of the writ is to ensure swift judicial review of
alleged unlawful detention on liberty or freedom of the prisoner or detenu.

9
Kanu Sanyal v. District Magistrate, Darjeeling AIR 1973 SC 2684, paras 3 and 4.
10
AIR 2008 SC 1705
The Rights of Prisoners and Habeas Corpus:
Harold J. Laski in his monumental work in “Liberty in the Modern State” observed that liberty
always demands a limitation on political authority. Power as such when uncontrolled is always
the natural enemy of freedom 11 . The guarantee of human dignity forms part of an
Constitutional culture of India and the positive provisions of Articles 14, 19 and 21 spring into
action to disshackle any man since to manacle man is more than to mortify him; it is to
dehumanize him and, therefore, to violate his very personhood, too often using the mask of
'dangerousness' and security. Even a prisoner is a person is not an animal, and an under-trial
prisoner is a fortiori so. Our nation’s founding document admits of no exception. Therefore, all
measures authorised by the law must be taken by the Court to keep the stream of prison justice
unsullied.12

The Supreme Court is the functional sentinel on the qui vive where "habeas" justice is in
jeopardy. If iron enters the soul of law and of the enforcing agents of law- rather, if it is credibly
alleged so-the Supreme Court must fling aside forms of procedure and defend the complaining
individual's personal liberty under Articles 14, 19 and 21 after due investigation. Access to
human justice is the essence of Article 32.13

In Prem Shankar Shukla v. Delhi Administration14 and in Philip John v. State Of Himachal
Pradesh15 it has been observed that the raw history of human bondage and the roots of the
habeas corpus writ enlighten the wise exercise of constitutional power in enlarging the person
of men in unlawful detention.

Taking a departure from the set principles under the prevalent laws under particularly
under the English Law, the court in these cases16 pointed out that no longer is this liberating
writ tramelled by the traditional limits of English vintage for, our founding fathers exceeded the
inspiration of the prerogative writs by phrasing the power in larger diction. That is why, in India,
the broader horizons of Habeas corpus spread out, beyond the orbit of release from illegal
custody, into every trauma and torture on persons in legal custody, if the cruelty is contrary to
law, degrades human dignity or defiles his personhood to a degree that violates Arts. 21, 14 and
l 9 enlivened by the Preamble.17

11
Siddharam Satlingappa Mhetre v. State Of Maharashtra, (2011) 1 SCC 694.
12
Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535 ; Sunil Batra v. Delhi Administration and ors. ,
[1978] 4 S.C.C. 494
13
Prem Shankar Shukla vs Delhi Administration, AIR 1980 SC 1535
14
AIR 1980 SC 1535
15
1985 CriLJ 397
16
Ibid.
17
Ibid.
Even where the legality of the petitioner's custody is not directly in issue but, though
circumscribed by the constraints of lawful detention, the indwelling essence and inalienable
attributes of man qua man are entitled to the great rights guranteed by the Constitution18.

RES JUDICATA AND HABEAS CORPUS


Res Judicata.-Res Judicata is a rule of public policy that there should be finality to binding
decisions of courts of competent jurisdiction and that partics to the litigation should not be
vexed with the same litigation again. The principle is embodied in Section 11 of the Code of Civil
Procedure, 1908. But there is an important exception to this rule of res judicata. In Gulam
Sarvar v. Union of India19, the Court held that the rule of res judicata is not applicable in the
writ of habeas Corpus and where the petitioner has been refused a writ from the High Court he
may file a petition for the same writ under Article 32.

In Nazul Ali Molla etc. v. State of West Bengal20 the petitioners had challenged their detention
under Section 3 (2) of the Preventive Detention Act by filing a writ petition under Article 226 of
the Constitution before the Calcutta High Court, but the petition was dismissed. Thereafter they
filed a writ petition under Article 32 of the Constitution in this Court. The objections raised by
the State regarding maintainability of the petition was repelled and it was held that a petition
under Article 32 of the Constitution for the issue of writ of habeas corpus would not be barred
on the principle of res judicata if a petition for a similar writ under Article 226 of the
Constitution before a High Court has been decided and no appeal is brought up to the Supreme
Court against that decision. Similar view has been taken in Niranjan Singh v. State ofMadhya
Pradesh.21 However, if a question has been once decided by the Supreme Court under Article
32 the same question cannot be re-opened, again under Article 226.

This rule of law has not been made applicable to other writ proceedings. The position,
therefore, is that when once a writ petition has been moved in a high court or Supreme Court,
and has been rejected there on merits, then a subsequent writ cannot be moved in the same
court on the same cause of action.22

If the petitioner seeks to urge some new grounds which he has failed to do before in the earlier
petition, the matter cannot be agitated in a subsequent petition because of 'constructive res
judicata'. In case, this rule is not applied to such proceedings, a party can go on filing one writ

18
Ibid.
19
AIR 1967 SC 1335
20
(1969) 3 SCC 698
21
(1972) (2) SCC 542.
22
M S M Sharma v. Shree Krishna Sinha, AIR 1960 SC 1186
petition after another urging one or two new grounds each time, thus causing hardship to the
opponent. What operates as 'res judicata' is the decision and not the reasons advanced by the
court in support of its decision.23

It, however, needs mention that 'constructive res judicata' applies to civil proceedings and not
to habeas corpus petitions.

A subsequent petition under this writ jurisdiction can be filed on fresh grounds not pleaded
earlier for the same relief.24 Even the Supreme Court can still entertain a petition under Article
32, whether or not new grounds are raised, in view of the importance of personal freedom. But,
when a writ petition is withdrawn by the petitioner conceding the futility of the case as a
ground for withdrawal and court allows it on the plea, a second petition will be barred by 'res
judicata'.25 A fresh petition is possible only if the court gives liberty for doing so.

23
AIR 1968 SC 1370
24
AIR 1982 SC 53
25
AIR 1975 Guj 183
MANDAMUS
UNITED KINGDOM:
In Mayor of Rochester v. Regina26, Mandamus is defined thus: “that court has power, by the
prerogative writ of mandamus, to amend all errors which tend to the oppression of the subject
or other misgovernment, and ought to be used when the law has provided no specific remedy,
and justice and good government require that there ought to be one for the execution of the
common law or the provisions of a statute”.

In Halsbury’s Laws of England,27 the purpose of an order of mandamus has been discussed, that
it ‘is to remedy defects of justice; and accordingly, it will issue, to the end that justice may be
done, in all cases where there is a specific legal right and no specific legal remedy for enforcing
that right; and it may issue in cases where, although there is an alternative legal remedy, yet
that mode of redress is less convenient, beneficial and effectual.’ Further, Halsbury’s Laws of
England,28 provides that the court will, as a general rule, and in the exercise of its discretion,
refuse the order of mandamus, when there is an alternative specific remedy at law which not
less convenient, beneficial and effective. This has been held, with approval in India, in the cases
of Commissioner of Police v. Gordhandas Bhanji29 and in Himmatlal Mehta v. State of Madhya
Pradesh.30

Again in Mayor of Rochester v. Regina 31 and in King v. Revising Barrister for the Borough of
Hanley32 it has been said that ‘Instead of being astute to discover reasons for not applying this
great constitutional remedy for error and misgovernment, we think it our duty to be vigilant
and apply it in every case to which, by any reasonable construction, it can be made applicable”.

26
[1858] EB and E 1024, pp 1034.
27
4th Edition, Vol I, para 89.
28 th
4 Edition, Vol I, p 135
29
AIR 1952 SC 16
30
AIR 1954 SC 403
31
[1858] EB and E 1024, pp 1034.
32
[1912] 3 KB 518
THE UNITED STATES OF AMERICA
The Black's Law Dictionary defines that a writ of mandamus, which means “we command” in
Latin, is the name of one of the prerogative writs in the common law, and is issued by a
superior court to compel a lower court or a government officer to perform mandatory or purely
ministerial duties correctly.

The Corpus Juris Secundum,33 states that the chief function of the writ of mandamus is to
compel the performance of public duties prescribed by statute and to keep the subordinate
tribunals and officers exercising public functions within the limits of their jurisdictions.

We may study a series of case law from America, may help us in determining the law on the
point; these principles of the writ of mandamus have also been quoted, with approval, in India
in the cases of Commissioner of Police v. Gordhandas Bhanji34 and Himmatlal Mehta v. State of
Madhya Pradesh35

Austin v. Crosby36 held that Mandamus may only be granted if there is a clear legal obligation to
perform a duty in a prescribed manner. It cannot be used to establish a legal right, but instead
applies to enforce a right already established.37

Corpus Juris Secundum38 further goes on to state that the writ of mandamus is not like a writ of
error or appeal, a remedy for erroneous decisions, and it will not be issued to correct error of
law in the discharge of functions essentially judicial or to compel a subordinate court or judicial
officer to reverse or change a conclusion reached or decision made on a question within its or
his jurisdiction. In some cases, however, mandamus has been employed to correct the errors of
inferior tribunals and a failure of justice or irreparable injury where there is clear right and
there is absence of adequate remedy. Mandamus lies to correct the acts in excess of the
court’s jurisdiction where there is no other adequate remedy.39

33
Vol 55, p 122-123.
34
AIR 1952 SC 16.
35
AIR 1954 SC 403
36
866 So. 2d 742, 743 (Fla. 5th D.C.A. 2004)
37
Ibid.
38
pp 124 and 125.
39
Ibid.
Again in Corpus Juris Secundum,40 Mandamus has been broadly defined as a writ issuing from a
court of competent jurisdiction, directed to a person, officer, corporation or inferior court
commanding the performance of a particular duty which results from the official station of the
one to whom it is directed or from operation of law, or as a writ commanding the performance
of an action which the law specially enjoins as a duty resulting from an office, trust or station. It
is a proceeding to compel someone to perform some duty which the law imposes on him, and
the writ may prohibit the doing of a thing, as well as command it to be done. 41

The position with respect to these rulings is the same in India; and these cases have been
quoted, with approval, in the cases of Commissioner of Police v. Gordhandas Bhanji42 and in
Himmatlal Mehta v. State of Madhya Pradesh.43

40
Vol 55, p 15.
41
Corpus Juris Secundum, Vol 55, p 41.
42
AIR 1952 SC 16
43
AIR 1954 SC 403
AUSTRALIA
Section 75(v) of the Commonwealth Constitution confers jurisdiction on the High Court of Australia
where "a writ of mandamus, […….] is sought against an officer of the Commonwealth". Mandamus
compelled the performance of a public duty

Unlike certiorari and prohibition, mandamus has never generally been regarded as limited to cases
where the respondent's powers can be classified as "judicial" or "quasi-judicial". Thus, it seems that
mandamus is available in respect of a magistrate's decision on whether to commit a defendant to stand
trial, even though that decision might be immune from certiorari or prohibition.

Mandamus consists of an order to do a positive act, rather than to desist from doing something (for
which prohibition would be appropriate). The relevant duty should not be of a continuing nature.
Mandamus has no quashing effect. Section 7 of the Administrative Decisions (Judicial Review) Act
(ADJR) act provides:

"Section 7. (1) : Where –

(a) a person has a duty to make a decision to which this Act applies;

(b) there is no law that prescribes a period within which the person is required to make that
decision; and

(c) the person has failed to make that decision,

a person who is aggrieved by the failure of the first-mentioned person to make the decision may apply
to the Court for an order of review in respect of the failure to make a decision on the ground that there
has been unreasonable delay in making the decision."

Section 3 (1) of the ADJR Act defines "failure" to include "a refusal to make a decision".
CANADA:
Under Canadian laws, Mandamus is defined as an "Extraordinary Remedy" used by a superior
court to require a court or tribunal of inferior jurisdiction to exercise a jurisdiction that it has.

Mandamus is a judicial remedy which is in the form of an order from a superior court to any
government, subordinate court, corporation or public authority to do or forbear from doing
some specific act which that body is obliged under law to do or refrain from doing, as the case
may be, and which is in the nature of public duty and in certain cases of a statutory duty. It
cannot be issued to compel an authority to do something against statutory provision

The applicant pleading for a writ of mandamus to be enforced must demonstrate that s/he has
a legal right to compel the respondent to do or refrain from doing the specific act. The duty
sought to be enforced must have two qualities:

1. It must be a duty of public nature; and

2. The duty must be imperative and should not be discretionary.

For the court to issue a writ a mandamus a number of conditions must be satisfied. Mr. Justice
Kelen writing in Dragan v. Canada (MCI)44 reviewed the criteria set down by the Federal Court
in Apotex Inc. v. Canada (Attorney General)45

1. There must be a public legal duty to act.

2. The duty must be owed to the applicant.

3. There is a clear right to the performance of that duty, in particular:

a) the applicant has satisfied all conditions precedent giving rise to the duty;

b) there was

i. a prior demand for performance of the duty;

ii. a reasonable time to comply with the demand unless refused


outright; and

iii. a subsequent refusal which can be either expressed or implied, e.g.


unreasonable delay.

4. No other adequate remedy is available to the applicant.

44
Bryan A Garner, Black's Law Dictionary, p. 980, 8th Ed., St. Paul , USA , 2004
45
1993 CanLII 3004 (F.C.A.)
5. The order sought will be of some practical value or effect.

6. The Court in the exercise of discretion finds no equitable bar to the relief sought.

7. On a “balance of convenience” an order in the nature of mandamus should issue.

Applicants must show that they have made a prior demand for the performance of that duty.
Thus, it is crucial to write to the office which is responsible for processing the application in
question and demand that the application be finalized within a certain period of time, failing
which an application for mandamus can be brought before the Federal Court.

In the vast majority of cases where mandamus is sought, the issue of whether to grant
mandamus effectively concerns the clear right to the performance of the duty, or more
accurately, the reasonableness of the delay during which no such performance has occurred.46
Although the Courts have not set down a definitive period as to what constitutes delay in
terms of time, the yardstick generally is one of reasonableness. In the often referred quote by
Mr. Justice Strayer : “…mandamus can issue to require that some decision be made. Normally
this would arise where there has been a specific refusal to make a decision, but it may also
happen where there has been a long delay in the making of a decision without adequate
explanation47.

Each application for mandamus turns upon its own facts. Therefore prior jurisprudence is not
particularly helpful except for the purpose of outlining the parameters within which the Court
has issued an order in the nature of mandamus where it has found an unusual delay, which has
not been reasonably explained48.

Unreasonable delay can only be determined in comparison to average processing times. In this
respect, the Courts have refused to accept departmental backlogs, or staff shortages as
reasonable explanations, nor do they tend to look to the system as a whole. Rather, each case
is assessed on its own facts. There is no basis upon which to find that the delay is systemic49.

46
Abdolkhaleghi v. Canada (M.C.I.), 2005 FC 729
47
Bhatnager v. Canada (M.E.I.) et al., [1985] 2 F.C. 315 (T.D.)
48
Mohamed v. Canada (M.C.I.), (2000) 195 F.T.R. 137
49
Mario D. Bellissimo, “Mandamus: A Compelling Remedy?”
INDIA
In India, Mandamus has been defined by the Hon’ble Supreme Court in Dir. Of Settlements, A.P.
& Ors v. M.R. Apparao & Anr.50 as: "Mandamus means a command. It differs from the writs of
prohibition or certiorari in its demand for some activity on the part of the body or person to
whom it is addressed. Mandamus is a command issued to direct any person, corporation,
inferior Courts or Government, requiring him or them to do some particular thing therein
specified which appertains to his or their office and is in the nature of a public duty. The duty
that may be enjoined by mandamus may be one imposed by the Constitution, a statute,
common law or by rules or orders having the force of law”51.

In Lekhraj Satramdas, Lalvani vs Deputy Custodlan-Cum-Managing Officer & Ors., 52 it has beed
held that Mandamus may be employed to require an inferior tribunal to exercise its judicial
powers and functions , perform its judicial duty, exercise its judgment or exercise its authority
when it is its duty to do so, in a matter within its jurisdiction. Ordinarily, however, a
subordinate tribunal may not be compelled by mandamus to exercise its judicial functions or
discharge its judicial duties in a particular manner. The writ may be used to set a court in
motion but not to control the result.53

In India, the sine qua non for mandamus is the existence of a statutory public duty incumbent
upon the person or body against whom the mandamus is sought. There must equally co-exist a
corresponding right in the petitioner entitling him to claim the enforcement of such public duty.
These two preconditions form the foundation for the issue of mandamus. The primary scope
and function of mandamus is to "command" and "execute" rather than to "enquire" and
"adjudicate". It cannot be issued to change the decision of a body so as to suit the petitioner.
Obligations which are not of statutory nature cannot be enforced by mandamus. The writ
petition is not maintainable when a remedy provided for under the Code of Civil Procedure,
1908 is available. For example, the High Court cannot entertain writ petitions for mandamus to
the Government who fails to deposit and pay in the requisite time an enhanced compensation
account as ordered by a lower Court. The petitioners in this case would be directed to approach
the executing Court for appropriate relief.54

The Supreme Court and High Courts are only empowered to exercise Writ Jurisdiction, under
Articles 32 and 226 of Constitution respectively. No other courts are empowered to issue writs.
In India, it has been held in a plethora of cases, that the court will not issue a writ in a matter

50
AIR 2002 SC 1598
51
Ibid.
52
AIR 1966 SC 334
53
Ibid.
54
Government of A.P. v. Puniparthi Narayana Rajiu, 2002 (1) ALD 622 ; 2002 (1) ALT 113
where the right claimed is a contractual one (assuming that no violation of fundamental right is
concerned.)55

55
See: L.I.C. V. Escorts Ltd., AIR 1986 SC 1370
PROHIBITION
UNITED KINGDOM
In Halsbury's Laws of England56, the effect of the numerous decisions on this aspect has been
set forth in a few terse and clear propositions of law. Though the writ of prohibition is not a
writ of course, it is a writ of right, and not merely discretionary in character. Where the defect
of jurisdiction is apparent on the face of the proceedings, and the application is made by a
party, the order goes as of right. The order, however, cannot be claimed as of right, unless the
defect of jurisdiction is clear. The writ lies both for excess of jurisdiction and absence of
jurisdiction. Where proceedings in an inferior court are partly within and partly without its
jurisdiction, prohibition will lie against that which is in excess of jurisdiction.57

In Halsbury,58 the position is thus stated: "The Court, in deciding, whether or not to grant a writ
of prohibition, will not be fettered by the fact that an alternative remedy exists to correct the
absence or excess of jurisdiction, or an appeal lies against such absence or excess. Similarly the
fact that an appeal on the merits of the case has already failed, or that the party applying for
prohibition has himself initiated the proceedings in the inferior Court, is not material to the
decision of the Court to grant or to refuse the writ."59 The decisions in England, as is evident
from this passage, have gone even to the length of helping a person aggrieved notwithstanding
the fact that he was the very person who first initiated the proceedings and invoked the
jurisdiction of the inferior Court.

Certain observations of great interest upon the history of this writ, will be found in passages in
Mayor and Aldermen of the City of London v. Cox,60: Apparently, at the close of the 17th
century, the writ was considered to be purely within the discretion of the court. In Burder v.
Valey, 61 the Judges held that if a court of inferior jurisdiction exceeded it, the writ was bound
to issue, though there was a possibility of later correction of the defect by appeal. But the writ
was not a writ of course, like a writ of summons in an ordinary action. Where an inferior court
proceeds into a cause properly within its jurisdiction, prohibition cannot be awarded, till the
pleadings raise some issue which the court was incompetent to try. But, if the foundation for
jurisdiction was itself defective, prohibition could be immediately applied for. In the Queen v.
Justice of Kent,62 Lord Coleridge C. J. Stated that "if justices have jurisdiction over the subject-

56
(Simonds Edn.) Vol. 11, at pages 115 and 116
57
Taj Mahal Transports (P) Ltd. V. Regional Transport Authority, AIR 1966 Mad 8
58
Vol. IX, page 822 (Hailsham edition)
59
Ibid.
60
(1867) LR 2 HL 239
61
(1840) 12 Ad and EI 233 (263)
62
(1890) 24 QBD 181 at 183
matter of the proceedings before them, a prohibition cannot be issued upon the ground that
they may make a mistake in law in exercising their jurisdiction". In R. v. Tottenham District Rent
Tribunal,63 : The learned Chief Justice Lord Goddard observed-- "It would not be at all desirable
to lay down any definite rule when a person should go to the Tribunal or when he should come
here for prohibition where the objection is that the tribunal has no jurisdiction.... For myself, I
should say that where there is a clear question of law not depending on particular facts......
there is no reason why the applicants should not come direct to this court for prohibition rather
than wait to see if the decision goes against them, in which case they would have to move for
certiorari."

Atkin, L.J. in Rex v. Electricity Com- missioners; London Electricity Joint Committee Co. (1920),
Exparte64 as establishing that there was no difference in law between a writ of prohibition and
a writ of certiorari held that both writs of prohibition and certiorari have for their object the
restraining of inferior courts from exceeding their jurisdiction, and they could be issued not
merely to courts but to all authorities exercising judicial or quasi-judicial functions. But there is
one fundamental distinction between the two writs, and that is what is material for the present
purpose. They are issued at different stages of the proceedings. 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
band, if the court hears that 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. It might happen that in a
proceeding before the inferior court a decision might have been passed, which does not
completely dispose of the matter, in which case it might be necessary to apply both for
certiorari and prohibition-certiorari for quashing what had been decided, and prohibition for
arresting the further continuance of the proceeding. Authorities have gone to this extent that
,in such cases when an application is made for a writ of prohibition and there is no prayer for
certiorari, it would be open to the Court to stop further proceedings which are consequential
on the decision. But if the proceedings have terminated, then it is too late to issue prohibition
and certiorari for quashing is the proper remedy to resort to. Broadly speaking, and apart from
the cases of the kind referred to above, a writ of prohibition will lie when the proceedings are
to any extent pending and a writ of certiorari for quashing after they have terminated in a final
decision. Now, if a writ of prohibition could be issued only if there are proceedings pending in a
court, it must follow that it is incapable of being granted when the court has ceased to exist,
because there could be then no proceeding on which it could operate. But it is otherwise with a

63
1956-2 All ER 863 at pp. 864 and 865
64
[1924] 1 K B. 171, 204, 205.
writ of certiorari to quash, because it is directed against a decision which has been rendered by
a court or tribunal, and the continued existence of that court or tribunal is not a condition of its
decision being annulled. In this context, the following passage from Juris Corpus Secundum,65
may be usefully quoted: "Although similar to prohibition in that it will lie for want or excess of
jurisdiction, certiorari is to be distinguished from prohibition by the fact that it........ is directed
to the cause or proceeding in the lower court and not to the court itself, while prohibition is a
pre- ventive remedy issuing to restrain future action and is directed to the court itself".

Halsbury's Laws of England66: The jurisdiction for grant of a writ of prohibition is primarily
supervisory and the object of that writ is to restrain courts or inferior tribunals from exercising
a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits
of their jurisdiction. In other words, the object is to confine courts or tribunals of inferior or
limited jurisdiction within their bounds. It is well-settled that the writ of prohibition lies not
only for excess of jurisdiction or for absence of jurisdiction but the writ also lies in a case of
departure from the rules of natural justice.67

It was held for instance by the Court of Appeal in The King v. North68 that as the order of the
judge of the consistory court was made without giving the vicar an opportunity of being heard
in his defence, the order was made in violation of the principles of natural justice and was
therefore an order made without jurisdiction and the writ of prohibition ought to issue. But the
writ does not lie to correct the course, practice or procedure of an inferior tribunal, or a wrong
decision on the merits of the proceedings. It is also well-established that a writ of prohibition
cannot be issued to a court or an inferior tribunal for an error of law unless the error makes it
go outside its jurisdiction.69 A clear distinction must therefore be maintained between want of
jurisdiction and the manner in which it is exercised. If there is want of jurisdiction then the
matter is coram non Judice and a writ of prohibition will lie to the court or inferior tribunal
forbidding it to continue, proceedings therein in excess of its jurisdiction.70

65
Volume 14, page 126
66
3rd Edn., Vol. II, p. 114
67
S. Govinda Menon v. The Union Of India, AIR 1967 SC 1274
68
[1927] 1 K.B. 41 1.
69
See Regina v. Comptroller-General of Patents and Designs, [1953] 2 W.L.R. 760,765
70
S. Govinda Menon v. The Union Of India, AIR 1967 SC 1274, para 5.
UNITED STATES OF AMERICA
America: State ex rel. Sarasota County v. Boyer71 and English v. McCrary72 : Unlike most forms
of appellate relief, the writ of prohibition is preventative, rather than corrective. Prohibition is a
very narrow writ that functions to empower a higher court to prevent an inferior court or
tribunal from improperly exercising jurisdiction over a controversy; however, it is not the
appropriate tool for revoking an order already entered73.

Minneapolis Star & Tribune Co. v. Schumacher,74 A writ of prohibition is appropriate in the
context where a court is ordering something that falls outside the scope of its jurisdiction or
authority. There are three requirements for a writ of prohibition to be granted:

1. An inferior court or tribunal must be about to exercise judicial or quasi-judicial power


2. The exercise of such power must be unauthorized by law, and
3. The exercise of such power must result in injury for which there is no adequate remedy.
The writ of prohibition is used as a preventative, not a corrective measure. In other words, the
higher court is preventing or prohibiting the lower court from doing something that it has no
authority to do. An example of when petitioning for a writ of prohibition may be appropriate is
if a judge is exceeding his/her authority by ordering a couple into mediation in a dissolution
proceeding when domestic violence has been found. Since the law clearly states that
mediation cannot be ordered for dissolution when the court has found probable cause that
domestic abuse has occurred75 and there is no available remedy to address the injury to a
battered woman caused by ordering her into mediation with her abuser, the court would be
exceeding its authority by ordering mediation.

71
360 So. 2d 388 (Fla. 1978)
72
348 So. 2d 293 (Fla. 1977).
73
Id. at 296-97.
74
392 N.W. 2d 197, 208 (Minn. 1986)
75
The General Rules of Practice for District Courts
AUSTRALIA
Section 75(v) of the Commonwealth Constitution confers jurisdiction on the High Court of Australia
where "a writ of prohibition, […….] is sought against an officer of the Commonwealth". For the issue of
the writ of prohibition the basis is jurisdictional error or error of law on the face of the record.

Prohibition, on the other hand has a largely negative aspect. It prohibits the impugned decision-maker
and those relying on the decision from doing something illegal which they are about to do, or from
continuing on an illegal course of action already commenced. Accordingly, the main difference between
certiorari and prohibition is in the timing of the application to the court.

It was explained by Hayne J in Re Refugee Review Tribunal; Ex parte Aala76 that Prohibition lies only for
actual or threatened excess of power, but is not available in respect of non- jurisdictional error of law on
the face of the record.

CANADA
Under Canadian laws, prohibition is defined as an "Extraordinary Remedy" used by a superior
court to prohibit a court or tribunal of inferior jurisdiction from exercising, or from continuing
to exercise, a jurisdiction it does not have.

Criminal Code of Canada provides in Section 784 (1) - Appeal in mandamus, etc. : “An appeal
lies to the court of appeal from a decision granting or refusing the relief sought in proceedings
by way of mandamus, certiorari or prohibition.”

76
(2000) 75 ALJR 52 (at para 159)
INDIA
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.
The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court,
or quasi judicial body prohibiting the latter from continuing the proceedings in a particular case,
where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court
etc. come to a stop.

Union of India and others v. Upendra Singh77: A writ of prohibition is issued only when patent
lack of jurisdiction is made out. It is true that a High Court acting under Article 226 is not bound
by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition
and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs
must be kept in view, as observed by this Court in T. C. Basappa v. T. Nagappa78 wherein it was
observed by Mukherjea, J. speaking for the Constitution Bench : "The language used in Articles
32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of
all the High Courts in India extend to issuing of orders, writs and directions including writs in the
nature of 'habeas corpus, mandamus, quo warranto, prohibition and certiorari' as may be
considered necessary for enforcement of the fundamental rights and in the case of the High
Courts, for other purposes as well. In view of the express provisions in our Constitution we need
not now look back to the early history or the procedural technicalities of these writs in English
law, nor feel oppressed by any difference or change of opinion expressed in particular cases by
English Judges. We can make an order or issue a writ …… in all appropriate cases and in
appropriate manner, so long as we keep to the broad and fundamental principles that regulate
the exercise of jurisdiction in the matter of granting such writs in English law." The above said
statement of law was expressly affirmed by a seven-Judge Bench in Ujjam Bai v. State of U.P.79
The reason for this dictum is self-evident. If we do not keep to the broad and fundamental
principles that regulate the exercise of jurisdiction in the matter of granting such writs in
English law, the exercise of jurisdiction becomes rudderless and unguided; it tends to become
arbitrary and capricious. There will be no uniformity of approach and there will be the danger
of the jurisdiction becoming personalised. The parameters of jurisdiction would vary from Judge
to Judge and from Court to Court.80

77
1994 (3) SCC 357
78
(1955) 1 SCR 250 : AIR 1954 SC 440
79
AIR 1962 SC 1621, 1625
80
Thirumala Tirupati Devasthanams v. Thallappaka Ananthacharyulu, Supreme Court, decided on 10 September,
2003
In Bengal Immunity Co. Ltd. v. State of Bihar,81 the Supreme Court observed that the existence
of an alternative remedy may be very material in the context of a writ of certiorari, but where
an inferior Tribunal is shown to have usurped jurisdiction which does not belong to it, that
consideration is irrelevant, and the writ of prohibition has to issue as of right. In Calcutta
Discount Co. Ltd. v. I.T. Officer,82 , their Lordships were again dealing with an argument that the
Tribunal or quasi-judicial Authority could itself dispose of the issue of jurisdiction : the
proposition was affirmed that the existence of an alternative remedy, in itself, was per se no
ground for declining to issue a writ of prohibition, where it is patent that the tribunal was
assuming a jurisdiction that it did not possess.

Sri Lakshmindra Theertha Swamier v. Commr. Hindu Religious Endowments, Madras83: It must
be remembered that we are dealing with a writ of prohibition and not certiorari. A writ of
prohibition lies to prevent an inferior tribunal from exceeding its jurisdiction or even from
assuming a jurisdiction which does not vest in it under law. It also lies if a provision of a statute
is contravened by the tribunal or even if any principles of law are contravened. In deciding the
question whether a writ of prohibition should issue or not, the existence of an alternative
remedy is, in our opinion, an irrelevant consideration when the complaint is that an inferior
tribunal is exceeding its jurisdiction or is assuming a jurisdiction not vested in it by law. If the
tribunal is permitted to exercise that jurisdiction which is objected to, if it exercises it wrongly,
the mischief would be done -before the alternative remedy is availed of. It is unnecessary to
insist upon a party complaining that he should first suffer and submit himself to the jurisdiction
which is being wrongly exercised or is wrongly exceeded and then take advantage of the
alternative remedy.

Major S. S. Khanna v. Brig. F.J. Dillon84 provides that the power given by S. 115 of the Code of
Civil Procedure, 1908 is clearly limited to the keeping of the subordinate courts within the
bounds of their jurisdiction It does not comprehend the power exercisable under the writs of
Prohibition or Mandamus. It is also not a full power of Certiorari in as much as it arises only in a
case of jurisdiction and not in a case of error.

Prohibition is an order directed to an inferior court which forbids that court to continue
proceedings which are in excess of jurisdiction or in breach of the laws of the land. 85

81
AIR 1955 SC 661
82
AIR 1961 SC 372
83
AIR 1952 Mad 613
84
AIR 1964 SC 497
85
East India Commercial Company v. Collector of Customs, AIR 1962 SC 1893
Prohibition and certiorari have the same object in view but it is issued only while the
proceeding are pending86.

A writ of prohibition is an order directed to the judge and parties of a suit in a lower court,
ordering the court not to exercise jurisdiction in a particular case. It arrests the proceedings of
any tribunal, corporation, board, or person, when such proceedings are without or in excess of
the jurisdiction of such tribunal, corporation, board, or person. The writ may be issued when an
inferior court is acting outside the normal rules and procedures in the examination of a case or
headed towards defeating a legal right.

86
Hare Vishnu Kamat v. Ahmad (1955) SCR 1104
QUO WARRANTO
UNITED KINGDOM
An English writ, formerly requiring a person to show by what authority he exercises a public
office, franchise, or liberty. A writ in quo warranto, which is Latin for "by what warrant," is an
extraordinary legal remedy. It challenges the wrongful exercise of powers or requires a person
to show by what authority the person holds an office. A common quo warranto claim is that a
government or corporate officer was not validly elected to office or is exercising powers in
excess of the authority of the office. A legal proceeding during which an individual's right to
hold an office or governmental privilege is challenged.

Jenks, in his Prerogative Writs in English Law87, provides that Quo warranto was originally a
prerogative writ, a writ of right belonging to the Crown. Later this was replaced by a criminal
proceeding on information which resulted in the imposition of fines and sentences of
imprisonment.88 The writ is unlike a petition or motion to show cause, because the burden of
proof is on the respondant, not on the demandant. By itself, the writ does not seek the support
of the court to order the respondant to cease the exercise or vacate the office. That would be
an accompanying writ of prohibito or a writ of mandamus. All such writs contemplate
enforcement by the people as militia, although that could include the sheriff or constable as
commander of militia. The right involved is that of the respondant to present his evidence.

Public office

"The duties of the office must be of a public nature. Thus, an information lay against a privy
councilor, because, membership of the Privy Council constitutes the holding of an office of a
public nature." 89 In Halsbury's Laws of England in the chapter entitled 'Crown Practice', it has
been observed that a private relator must have some interest in the election he impeaches. To
attack the possessor of an office in the corporation of a borough the relator need not be a
burgess. He has a sufficient interest if he is an inhabitant subject to the Government of the
corporation. Also, the owner of rated property in the town has sufficient interest in the election
of the corporation thereof to be a good relator, even though he is not qualified to vote.

In the ancient English case of In Re Miram's,90 Cave J., observed: "to make the Office a Public
Office the pay must come out of national and not out of local funds, - the Office must be public

87
Yale L. J. 523 (1923).
88
Commonwealth ex rel. Schermer v. Franek (1933) 311 Pa 341, 166 A 878, 879.
89
Simonds edition, Volume 11, pp. 146 and 147
90
(1891) IQB 594
in the strict sense of that term. It is not enough that the due discharge of the duties should be
for the public benefit in a secondary and remote sense."
UNITED STATES OF AMERICA
In the United States of America, it has been held in the cases of State v. Bradford91 and in
Cheshire v. People92 that Quo warranto is available to test whether persons have the right to
act as local governmental entities.

Further, in a number of other American cases, the writ of Quo warranto has been described as
"remedial", with the consequence that statutes authorizing the action are to be liberally
construed.

In India, the provisions of Corpus Juris Secundum (U.S.A.) have been adopted and been upheld
to be prevalent in India :

“Quo warranto is a writ that lies against a person who usurps any franchise, liberty or
office”93.

The Corpus Juris Secundum (U.S.A.), defines quo warranto thus:

"Quo warranto is a proceeding to determine the right to the exercise of a franchise or


office and to oust the holder if his claim is not well founded, or if he has forfeited his right.”94

A definition by Blackstone has been in practice in the United States of America. Quo warranto
as described by Blackstone is "a writ of right for the king, against him who claims or usurps any
office, franchise or liberty, to inquire by what authority he supports his claim in order to
determine the right." This definition is almost similar to the one prevailing in India, as has been
held in Pradeep v. Principal.95

PURPOSE — GENERALLY
In modern American practice the principal purposes of the action in quo warranto are six-fold:

a) to determine the title of persons claiming possession of public offices and to oust them
if they are found to be usurpers;

b) to oust public officers who have been guilty of acts or failures to act justifying forfeiture
of office under local law;

91
(1859) 32 Vt 50
92
(1886) 116 Ill 493
93
Pradeep v. Principal, [Gujarat High Court], decided on 11 April, 2012.
94
Ibid.
95
Gujarat High Court, decided on 11 April, 2012
c) to void actions of persons and associations claiming to be corporations without lawful
authority;

d) to oust domestic corporations when they have been guilty of acts justifying forfeiture;

e) to test the title of individuals claiming offices in domestic corporations; and

f) To question the authority of both individuals and corporations exercising franchises and
privileges without lawful authority.

Public Office
According to State ex rel. Eli Lilly and Co. v. Gaertner, Mo.App.96, the essential elements to
establish public position as "public office" are that position must be created by constitution,
legislature, or through authority conferred by legislature, portion of sovereign power of
government must be delegated to position, duties and powers must be defined, directly or
impliedly, by legislature or through legislative authority, duties must be performed
independently without control of superior power other than law, and position must have some
permanency and continuity.

According to Extraordinary Legal Remedies, by Ferris97 A public office is the right, authority and
duty created and conferred by law, by which an individual is vested with some portion of the
sovereign functions of the government to be exercised by him for the benefit of the public, for
the term and by the tenure prescribed by law. It implies a delegation of a portion of the
sovereign power. It is a trust conferred by public authority for a public purpose, embracing the
ideas of tenure, duration, emoluments and duties. The determining factor, the test, is whether
the office involves a delegation of some of the solemn functions of government, either
executive, legislative or judicial, to be exercised by the holder for the public benefit.

The most frequent use of quo warranto in America is in testing the right of claimants to public
office and ousting usurpers. It is often the exclusive procedure for trying title to public office. In
the case of elected public officials, quo warranto can, at times, determine the validity of the
election.98 The claims of public officers to particular powers can be tested in quo warranto.

In America, the Statute of 9 Anne c. 20 in 1710 authorized a proper officer of a court, with leave
of the court, to exhibit an information in the nature of quo warranto, at the "relation" of any
person desiring to prosecute the same — to be called the relator. Early American statutes were

96
619 S.W. 2D 761. 764.
97
72 CWN 64, Vol.72
98
Carroll Township School Board Vacancy Case (1962) 407 Pa 156, 180 A 16, 17; Code of Alabama § 6-6-598.
modeled after the Statute of Anne and, indeed, the statute has often been ruled to be part of
the common law it inherited from England.99

99
State ex inf. Hancock ex rel. Banks v. Elwell (1960) 156 Me 193, 163 A 2d 342, 344.
AUSTRALIA
In Australia, after the passing of the Judicial Review Act, 1991 the writ of quo warranto has
been abolished. Section 42 of the Act provides thus:

Section 42: Abolition of quo warranto

(1) Informations in the nature of quo warranto are abolished.


(2) If—
a. a person acts in an office in which the person is not entitled to act; and
b. an information in the nature of quo warranto would, but for subsection (1), lie
against the person;

the court may—

c. grant an injunction restraining the person from acting in the office; and
d. declare the office to be vacant.
(3) In an enactment in force immediately before the commencement of this Act, a
reference to an information in the nature of quo warranto is taken to be a reference to
an injunction of the kind that the court is empowered to grant under this section.
INDIA
The meaning of the term Quo Warranto is ‘by what authority or warrant’.

Quo Warranto is a remedy where by the writ court inquires into the legality of the claim of a
party to a public office where the petitioners grievances is that such party (respondent) is not
entitled to the office in question.

Quo warranto is a judicial remedy against an intruder or usurper of an independent substantive


public office or franchise or liberty. The usurper is asked 'by what authority' (quo warranto) he
is in such office, franchise or liberty. A writ of quo warranto thus poses a question to the holder
or occupier of a public office, and that question is : "Where is your warrant of appointment by
which you are holding this office ?" If the answer is not satisfactory, the usurper can be ousted
by this writ.

The meaning of the term Quo Warranto is ‘by what authority or warrant’.

Quo Warranto is a remedy where by the writ court inquires into the legality of the claim of a
party to a public office where the petitioners grievances is that such party (respondent) is not
entitled to the office in question.

Quo warranto is a judicial remedy against an intruder or usurper of an independent substantive


public office or franchise or liberty. The usurper is asked 'by what authority' (quo warranto) he
is in such office, franchise or liberty. A writ of quo warranto thus poses a question to the holder
or occupier of a public office, and that question is : "Where is your warrant of appointment by
which you are holding this office ?" If the answer is not satisfactory, the usurper can be ousted
by this writ.

In B.R. Kapoor v. State of T.N.100 , after referring to Halsbury's Laws of England , the Supreme
Court observed that a writ of quo warranto is a writ which lies against the person who is not
entitled to hold an office of public nature and is only a usurper of the office. Quo warranto is
directed to such person who is required to show by what authority he is entitled to hold the
office. The challenge can be made on various grounds, including the ground that the possessor
of the office does not fulfill the required qualifications or suffers from any disqualification,
which debars him to hold such office. It was further stated that on being called upon to
establish valid authority to hold a public office, it such person fails to do so, a writ of quo
warranto shall be directed against him. It shall be no defence by the holder of the office that
the appointment was made by the competent authority, who under the law is not answerable
to any court for anything done in performance of duties of his office. The question of fulfilling

100
(2001) 7 SCC 231
legal requirements and qualifications necessary to hold a public office would be considered in
the proceedings independent of the fact as to who made the appointment and the manner in
which the appointment was made101.

The writ of quo warranto is an ancient Common Law remedy of a prerogative nature. It was a
writ of right used by the Crown against a person claiming any office, franchise or liberty to
inquire by what authority he was in the office, franchise or liberty. In case his claim was not well
founded or there was non-use, neglect, misuse or abuse of the office, he was to be ousted102.

In the recent case of Pradeep v. Principal103, the Gujarat High Court (India) defined the writ of
quo warranto in the words of Blackstone thus : "The ancient writ of quo warranto was in the
nature of a writ of right for the King against any office, franchise or liberty of the Crown to
inquire by what authority he supported his claim, in order to determine the right.” 104 This
definition is almost similar to the one prevailing in America.

“Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person
holding an independent substantive public office, or franchise, or liberty, is called upon to show
by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that
the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him
from that office. In other words, the procedure of quo warranto confers jurisdiction and
authority on the judiciary to control executive action in the matter of making appointments to
public offices against the relevant statutory provisions; it also protects a citizen from being
deprived of public office to which he may have a right. It would thus be seen that if these
proceedings are adopted subject to the conditions recognised in that behalf, they tend to
protect the public from usurpers of public office; in some cases, persons not entitled to public
office may be allowed to occupy them and to continue to hold them as a result of the
connivance of the executive or with its active help, and in such cases, if the jurisdiction of the
courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the
person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a
writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public
office and is held by usurper without legal authority, and that necessarily leads to the enquiry
as to whether the appointment of the said alleged usurper has been made in accordance with
law or not.”105

101
Pradeep v. Principal, [Gujarat High Court], decided on 11 April, 2012.
102
Ibid.
103
Gujarat High Court, decided on 11 April, 2012
104
Ibid.
105
Pradeep v. Principal, [Gujarat High Court], decided on 11 April, 2012.
PUBLIC OFFICE
In India, the writ of quo warranto proceedings affords a judicial remedy by which any person
who holds independent substantive public office is called upon to show by what right he holds
the same so that his title to it may be duly determined and in the event it is found that the
holder has no title, he would be directed to be removed from the said office by a judicial order.
The proceedings not only give a weapon to control the executive from making appointments to
public office against law but also tend to protect the public from being deprived of public office
to which it has a right.106

In Pradeep v. Principal,107 the Hon’ble bench has cited certain definitions propounded by
Winfield. Those definitions may be summarized thus: A Public Officer can be described as every
one who is appointed to discharge a public duty, and receives a compensation in whatever
shape, whether from the Crown or otherwise. A public officer is an officer who discharges any
duty in the discharge of which the public are interested, more clearly so if he is paid out of a
fund provided by the public. The chief characteristics of a public office seem to be that it is a
post the occupation of which involves the discharge of duties towards the community or some
section of it and that usually those duties are connected with Government, whether central or
local. To make the office a public office, the pay must come out of national and not out of local
funds, and the office must be public in the strict sense of that term. It is not enough that the
due discharge of the duties of the office should be for the public benefit in a secondary and
remote sense.

Any person may challenge the validity of an appointment of a public office, whether any
fundamental or other legal right of his has been infringed or not. But the court must be satisfied
that the person so applying is bona fide and there is a necessity in public interest to declare
judicially that there is an usurpation of public office. If the application is not bona fide and the
applicant is a mere pawn or a man of straw in the hands of others, he cannot claim the remedy.
Though the applicant may not be an aspirant for the office nor has any interest in appointment,
he can apply as a private relator, or an ordinary citizen108.

In Haladhar Panda v. Nisakar Naik109, it was held that a writ of quo warranto is not issued as a
matter of right. It is a discretionary relief and the Court has always to ask itself whether under
the circumstances of each case the petitioner should be given the relief in the nature of quo
warranto, which he seeks.

106
Pradeep v. Principal, [Gujarat High Court], decided on 11 April, 2012.
107
Pradeep v. Principal, [Gujarat High Court], decided on 11 April, 2012.
108
Pradeep v. Principal, [Gujarat High Court], decided on 11 April, 2012.
109
AIR 1973 Ori 132
What can be deduced from the term "Public Office" as explained by various authors and the
authoritative pronouncements is that a public office is the right, authority and duty created and
conferred by law, by which an individual is vested with some portion of the sovereign functions
of the Government to be exercised by him for the benefit of the public, for the term and by the
tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust
conferred by public authority for a public purpose, embracing the ideas of tenure, duration,
emoluments and duties. A public officer is, thus, to be distinguished from a mere employment or
agency resting on contract, to which such powers and functions are not attached. The Common
Law Rule is that in order for the writ to lie, the office must be of a public nature. The
determining factor, the test, is whether the office involves a delegation of some of the solemn
functions of Government, either executive, legislative or judicial, to be exercised by the holder
for the public benefit. Unless his powers are of this nature, he is not a public officer.

Thus, from the above comparative analysis, we can conclude that, Quo warranto is a remedy or
procedure whereby the State inquires into the legality of the claim which a party asserts to an
office or franchise, and to oust him from its enjoyment if the claim be not well founded, or to
have the same declared forfeited and recover it, if, having once been rightfully possessed and
enjoyed; it has become forfeited for misuser or non-user.110

110
Pradeep v. Principal, [Gujarat High Court] decided on 11 April, 2012
CERTIORARI
UNITED KINGDOM
At the outset, as has been held in Hari Vishnu Kamath v. Ahmad Ishaque,111 it is necessary to
mention that in England certiorari is issued not only for quashing decisions but also for various
other purposes. It is issued to remove actions and indictment pending in an inferior court for
trial to the High Court; to transfer orders of civil courts and sentences of criminal courts for
execution to the superior court; to bring up depositions on an application for bail when the
prisoner has been committed to the High Court for trial; and to remove the record of an inferior
court when it is required for evidence in the High Court. These are set out in Halsbury's Laws of
England112. It is observed therein that the writ has become obsolete in respect of most of these
matters, as they are now regulated by statutes.

In 1700, in R. v. Glamorganshire Inhabitants113 and Groennevt v. Burwell114 it was held that the
Court of King's Bench would examine the proceedings of all jurisdictions erected by Act of
Parliament, and that, if under pretence of such an Act they proceeded to arrogate jurisdiction
to themselves greater than the Act warranted, the court would send a certiorari to them to
have their proceedings returned to the court, so that the court might restrain them from
exceeding that jurisdiction. If bodies exercising such jurisdiction did not perform their duty, the
King's Bench would grant a mandamus. Prohibition would issue if anything remained to
prohibit.

H.W.R. Wade & C.F. Forsyth Administrative Law115 defines the writ as : "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."

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

111
AIR 1955 SC 233
112
Volume IX, pp 840 to 851
113
(1700) 1 Ld Raym 580
114
(1700)1 Ld Raym 454.
115
Eighth Edition, page 591, Oxford University Press
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.116

The want of jurisdiction may arise from the nature of the subject-matter of the proceedings or
from the absence of some preliminary proceedings or the court itself may not have been legally
constituted or suffering from certain disability by reason of extraneous circumstances.
Certiorari may also be issued if the court or tribunal though competent has acted in flagrant
disregard of the rules or procedure or in violation of the principles of natural justice where no
particular procedure is prescribed. An error in the decision or determination itself may also be
amenable to a writ of certiorari subject to the following factors being available if the error is
manifest and apparent on the face of the proceedings such as when it is based on clear
ignorance or disregard of the provisions of law ; but a mere wrong decision is not amenable to a
writ of certiorari.117

As per Halsbury’s Laws of England118, Certiorari may lie 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
proceeding or the Court itself may not be legally constituted or suffer from certain disability by
reason of extraneous circumstances.

In the cases of Banbury v. Fuller119 and R. v. Income Tax Special Purposes Commissioners120, it
has been expressly laid down that “When the jurisdiction of the Court 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”. 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 apparent 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
case of Rex v. Northumberland Compensation Appellate Tribunal121. The Lord Justice held: It is

116
T.C. Basappa v. T. Nagappa & Anr., (1955) 1 SCR 250
117
Ibid.
118
2nd edition, Vol. IX, page 880.
119
9 Exch. III
120
21 Q,B.D. 313
121
[1952] 11 K.B. 338 at 357
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."

Principles of Natural Justice Violated, Writ of Certiorari Is Maintainable.


The house of Lords in Commissioner of Inland Revenue v. Hood Barrs 122, held that if
proceedings were quasi- judicial and if the section required a notice and notice was not given
there was a breach of the principles of natural justice and Certiorari lay to quash the order
made. Lord Reid observed: "I do not think it necessary in this case to decide what degree of
formality, if any, is required in proceedings before General Commissioners, for this at least is
clear: no tribunal, however informal, can be entitled to reach a decision against any person
without giving to him some proper opportunity to put forward his case. It may well be that
these Commissioners acted in good faith and with the best intentions, but that is not enough."

A similar view was also expressed by the Supreme Court of India in Sinha Govindji v. Deputy
Chief Controller of Imports & Exports123 and also in M. Chockalingam v. Commissioner of
Income-tax, Madras124 wherein it has been laid down that the authorities acting under the
Indian Income tax Act had to act judicially and one of the requirements of judicial action is to
give a fair hearing to a person before deciding against him. In King v. Postmaster General; Ex
parte Carmichael,125 a certiorari was issued although the aggrieved party had an alternative
remedy by way of appeal. It has been held that the superior court will readily issue a certiorari
in a case where there has been a denial of natural justice before a court of summary
jurisdiction.
It has been held by the King's Bench Division in the case of R. v. Architects Registration
Tribunal126 that if a person is to be deprived of his professional status, he must be heard and be
given effective opportunity of meeting any allegation made against him on the question of his
fitness to pursue his profession. If the tribunal constituted by the statute in question to decide
about the fitness of an individual to pursue that profession, decides against him without giving
him an opportunity of meeting any allegations against him bearing on his capacity or
qualification for the profefession to which he claims admission, it has been held that it was
improper for the tribunal acting in a quasi- judicial capacity to act to his prejudice upon
evidence or adverse report without his having an opportunity of meeting such relevant

122
(1961) 39 Tax Cas 683
123
(1962) 1 S. C. R. 540.
124
AIR 1963 SC 1456
125
[1928] 1 KB 291
126
[1945] 2 A.E.R. 131.
allegations made against him. In this case the King's Bench Division issued an order of certiorari
to, quash the tribunal's decision refusing an application forS registration as an architect.

The supervision of the superior Court exercised through writs of certiorari goes on two points,
as has been expressed by Lord Sumner in King v. Nat. Bell Liquors Limited127 . 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.

Whenever any person or body of persons having legal authority to determine questions
affecting the rights of citizens, having the duty to act judicially, acts in excess of his or its legal
authority, certiorari may issue to remove the proceeding from such person or body to the writ
court and to quash a decision that goes beyond jurisdiction.

127
[1922) 2 A.C. 128, 156
UNITED STATES OF AMERICA
From the following statement in Corpus Juris Secundum,128 the position in America appears to
be the same as in India and in England. : "At common law the writ of certiorari was used both
as a writ of review after final judgment and also to remove the entire cause at any stage of the
proceeding for hearing and determination in the superior court. In the United States it is now
the general rule that the writ will be refused where there has been no final determination and
the proceedings in the lower, tribunal are still pending".

In Corpus Juris Secundum129, the nature of a writ of certiorari for quashing is thus stated:
"It is not a proceeding against the tribunal or an individual composing it; it acts on the cause or
proceeding in the lower court, and removes it to the superior court for reinvestigation".
This above mentioned principle, as provided in Corpus Juris Secundum, has been quoted, with
approval by the Hon’ble Supreme Court of India in the case of Hari Vishnu Kamath v. Ahmad
Ishaque130

The writ for quashing is thus directed against a record, and as a record can be brought up only
through human agency, it is issued to the person or authority whose decision is to be reviewed.
If it is the record of the decision that has to be removed by certiorari, then the fact that the
tribunal has become functus officio subsequent to the decision could have no effect on the
jurisdiction of the court to remove the record. If it is a question of issuing directions, it is
conceivable that there should be in existence a person or authority to whom they could be
issued, and when a certiorari other than one to quash the decision is proposed to be issued, the
fact that the tribunal has ceased to exist might operate as a bar to its issue. But if the true scope
of certiorari to quash is that it merely demolishes the offending order, the presence of the
offender before the court, though proper, is not necessary for the exercise of the jurisdiction or
to render its determination effective.

Certiorari is clearly the most versatile writ. As the Florida Supreme Court in Broward County v.
G.B.V. Int’l Ltd.,131 explained: “The writ [of certiorari] functions as a safety net and gives the
upper court the prerogative to reach down and halt a miscarriage of justice where no other
remedy exists. . . . The writ is available to obtain review in such situations when no other
method of appeal is available.” A proverbial jack-of-all-trades, the writ of certiorari fulfills
distinct roles in different forums, and its scope changes depending upon the procedural
circumstances. On one hand, the writ offers a discretionary mechanism for reviewing a non-

128
Volume 14, at page 151
129
Volume 14 at page 123
130
AIR 1955 SC 233
131
787 So. 2d 838, 842 (Fla. 2001)
final order, yet it also provides a method for reviewing, as a matter of right, a final order issued
by an administrative agency or local government authority acting in a quasi-judicial capacity.

In dealing with the powers of the High Court under article 226 of the Constitution the Hon’ble
Supreme Court of India132 has expressed itself in almost similar terms and held "Such writs as
are referred to in article 226 are obviously intended to enable the High Court to issue them in
grave cases where the subordinate Tribunals or bodies or officers act wholly without
jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to
exercise a jurisdiction ,vested in them, or there is an error apparent on the face of the, record,
and such act, omission, error or excess has resulted in manifest injustice. However extensive the
jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to
convert itself into a Court of appeal and examine for itself the correctness of the decision
impugned and decide what is the proper view to be taken or the order to be made 133. These
passages indicate with sufficient fullness the general principles that govern the exercise of
jurisdiction in the matter of granting writs of certiorari under article 226 of the Constitution.

132
T.C. Basappa v. T. Nagappa & Anr., (1955) 1 SCR 250
133
Ibid.
AUSTRALIA
Certiorari is in essence a two part remedy. The first part is an order removing the official record of the
impugned decision-maker into the superior court issuing the certiorari order. The second part is an
order quashing the impugned decision, and the record thereof. That is, certiorari is used to wipe the
slate clean.

It was explained by Hayne J in Re Refugee Review Tribunal; Ex parte Aala that Certiorari lies for any
jurisdictional error, and also for non-jurisdictional errors of law appearing on the face of the record.

CANADA
Under the Canadian law, it is defined as an "Extraordinary Remedy" used by a superior court to
quash an order or decision made without jurisdiction by a court or tribunal of inferior
jurisdiction.
INDIA
It has been held by Viscount Simon, Lord Chancellor, in Ryots of Garabandho and other villages
v. Zamindar of Parlakimedi and Anr134 that the ancient writ of certiorari in England is an
original writ which may issue out of a superior Court requiring that the record of the
proceedings in some cause or matter pending before an inferior Court should be transmitted
into the superior Court to be there dealt with. The most useful instruments which the Court
found ready to hand were the prerogative writs. But not unnaturally the control exercised was
strictly legal, and no longer political. Certiorari would issue to call up the records of justices of
the peace and commissioners for examination in the King's Bench and for quashing if any legal
defect was found. At first there was much quashing for defects of form on the record, i.e. for
error on the face. Later, as the doctrine of ultra vires developed, that became the dominant
principle of control135.

According to the common law of England, certiorari is a high prerogative writ issued by the
Court of the 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 be dealt with there, and if the order was found to
be without juirsdiction, 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.136

Even prior to the Constitution of India being promulgated, superior courts constituted by the
Letters Patent Charter in India and other dominions of the Crown used to issue prerogative
writs to courts and tribunals subordinate to the Chartered High Courts save and except where
appellate or revisional remedies were created by statute. The writ of error, as called today by
the name of certiorari used to be issued to courts and tribunals and the origin of the said power
to issue prerogative writs could be traced to the theory that the king being the paramount
judicial authority and the judges being only the king's deputies, any exercise of unauthorized
jurisdiction by the Judges was considered as an usurpation of the royal prerogative. As it
developed, the writ of certiorari was the process by which the King's Bench Division in the
exercise of its superintending power over inferior jurisdictions, requires the Judges or officers
of such jurisdiction to certify or send proceedings before them into the King's Bench Division,
whether for the purposes of examining into the legality of such proceedings, or for giving fuller

134
AIR 1943 PC 164.
135
H.W.R. Wade & C.F. Forsyth, Administrative Law, Eighth Edition, page 592, Oxford University Press
136
Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233
or more satisfactory effect to them than could be done by the Court below. Recognizing
efficacious alternative remedies available and on the principle of comity, prerogative writs were
not issued where the error was capable of being rectified at an appellate or a revisional
jurisdiction.137

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 a Latin word, the passive
infinitive of the word ‘certiorare’ meaning ‘inform’, which was primarily used in the original
Latin phrase of the writ that translated ‘we, being desirous for certain reasons, that the said
record should, by you, be certified to us.’138 Certiorari was essentially a royal demand for
information; the King, wishing to be certified of some matter, orders that the necessary
information be provided for him.139

In the initial years, the Supreme Court of India was not inclined to depart from the traditional
role of certiorari jurisdiction and consistent with the historical background felt itself bound by
such procedural technicalities as were well-known to the English judges. In later years the
Supreme Court has relaxed the procedural and technical rigours, yet the broad and
fundamental principles governing the exercise of jurisdiction have not been given a go-by.140

Principles of Natural Justice Violated, Writ of Certiorari Is Maintainable.


In New Prakash Transport Co. Ltd v. New Suwarna Transport Co. Ltd.141 It has been provided
that rules of natural justice vary with the varying constitutions of statutory bodies and the rules
prescribed by the legislature under which they have to act, and the question whether in a
particular case they have been contravened must be judged not by any preconceived notion of
what they may be but in the light of the provisions of the relevant Act.

In Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors., 142
it has been held that the writ of certiorari 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 extra-ordinary

137
Colonel A.D.Nargolkar v. Union of India & Ors. (Delhi High Court) decided on 26 April, 2011.
138
Ibid.
139
Ibid.
140
Surya Dev Rai v. Ram Chander Rai AIR 2003 SC 3044
141
AIR 1957 SC 232
142
(1958) SCR 1240
jurisdiction. This principle has been reiterated by the Supreme Court in Surya Dev Rai v. Ram
Chander Rai143 as follows: “In the exercise of certiorari jurisdiction, the Supreme Court / High
Court proceeds on an assumption that a Court which has jurisdiction over a subject matter has
the jurisdiction to decide wrongly as well as rightly. The Supreme Court / High Court would not,
therefore, for the purpose of certiorari assign to itself the role of an Appellate Court and step
into re-appreciating or evaluating the evidence and substitute its own findings in place of those
arrived at by the inferior court.”

Where the errors cannot be said to be errors of law apparent on the face of the record, but
they are merely errors in appreciation of documentary evidence or affidavits, errors in drawing
inferences or omission to draw inference or in other words errors which a court sitting as a
court of appeal only, could have examined and, if necessary, corrected and the appellate
authority under a statute in question has unlimited jurisdiction to examine and appreciate the
evidence in the exercise of its appellate or revisional jurisdiction and it has not been shown that
in exercising its powers the appellate authority disregarded any mandatory provisions of the
law but what can be said at the most was that it had disregarded certain executive instructions
not having the force of law, it has been held in Nagendra Nath Bora & Anr. v. Commissioner of
Hills Division and Appeals, Assam & Ors. 144 that in these instances, there is not a case for the
exercise of the jurisdiction under Article 226."

A series of Constitutional Bench decisions of the Supreme Court of India in Province of Bombay
v. Khushaldas S. Advani (dead) by Lrs145 , Basappa v. T. Nagappa and Anr146., as also in
Dwarka Nath v. Income-tax Officer, Special Circle, D Ward, Kanpur and Anr147., which have held
in no uncertain terms, as the law has always been, that a writ of certiorari is issued against the
acts or proceedings of a judicial or quasi-judicial body conferred with power to determine
questions affecting the rights of subjects and obliged to act judicially. We are therefore of the
opinion that the writ of certiorari is directed against the act, order of proceedings of the
subordinate Court, it can issue even if the lis is between two private parties.

Veerappa Pillai v. Raman & Raman Ltd. and Others148, it was observed by Supreme Court that
under article 226 the writ should be issued "in grave cases where the subordinate tribunals or
bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the
principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an
error apparent on the face of the record".

143
AIR 2003 SC 3044
144
(1958) SCR 1240
145
1950 SCR 621,T.C
146
(1955) 1 SCR 250
147
(1965) 3 SCR 536
148
[1952] S.C.R. 583
Any authority or body of persons constituted by law or having legal authority to adjudicate
upon questions affecting the rights of a subject and enjoined with a duty to act judicially or
quasi-judicially is amenable to the certiorari jurisdiction of the High Court. The proceedings of
judicial courts subordinate to High Court can be subjected to certiorari.
CONCLUSION
The Supreme Court is thus constituted the protector and guarantor of fundamental rights, and
it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications
seeking protection against infringements of such rights. No similar provision is to be found in
the Constitution of the United States and we do not consider that the American decisions are in
point.

In S.P.Sampath Kumar v. Union of India149 Supreme Court held that the primary duty of the
judiciary is to interpret the Constitution and the laws and this would predominantly be a matter
fit to be decided by the judiciary, as judiciary alone would be possessed of expertise in this field
and secondly the constitutional and legal protection afforded to the citizen would become
illusory, if it were left to the executive to determine the legality of its own action. The
Constitution has, therefore, created an independent machinery i.e. judiciary to resolve
disputes, which is vested with the power of judicial review to determine the legality of the
legislative and executive actions and to ensure compliance with the requirements of law on the
part of the executive and other authorities. This function is discharged by the judiciary by
exercising the power of judicial review which is a most potent weapon in the hands of the
judiciary for maintenance of the rule of law. The power of judicial review is an integral part of
our constitutional system and without it, there will be no government of laws and the rule of
law would become a teasing illusion and a promise of unreality.

The judicial review, therefore, is a basic and essential feature of the Constitution and it cannot
be abrogated without affecting the basic structure of the Constitution. The basic and essential
feature of judicial review cannot be dispensed with but it would be within the competence of
Parliament to amend the Constitution and to provide alternative institutional mechanism or
arrangement for judicial review, provided it is no less efficacious than the High Court. Though
judicial review cannot be altogether abrogated by Parliament it can certainly, without in any
way violating the basic structure doctrine set up effective alternative institutional mechanisms
or arrangements for judicial review 150 . It must, therefore, be read as implicit in the
constitutional scheme that the law providing for the alternative institutional mechanism or
arrangement for judicial review excluding the jurisdiction of the High Court under Articles 226
and 227 permissible under it, must not leave a void but it must set up another effective
institutional mechanism or authority and vest the power of judicial review in it which must be
equally effective and efficacious in exercising the power of judicial review. However, the
institutional mechanism or authority cannot be meant to be substitutes of the High Court under
Articles 226 and 227 of the Constitution in the exercise of their Writ jurisdiction.

149
1987 (1) SCC 124
150
Colonel A.D.Nargolkar vs Union Of India & Ors. on 26 April, 2011