Writ of certiorari and duty to act judicially

Certiorari means “to be certified” or “to be informed”. It is issued by a higher court to the lower court, either to transfer the case pending with the later to itself OR to quash the order of the later. Hence, unlike the Writ of prohibition, which is only preventive the Writ of certiorari is both preventive as well as curative.

Writ of certiorari may issue “whenever any, body of persons having legal authority to determine the questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority ((R v. Electricity Commissioner, (1924) 1 KB 171)). As approved by the Supreme Court of India in Gulab Singh v. Collector of Farrukhabad ((AIR 1953 All 585)), it consists of four major components such as;

  1. Any body of persons;
  2. Having legal authority;
  3. To determine questions affecting the rights of subjects; and
  4. Having the duty to act judicially

The duty to act judicially may arise in widely differing circumstances and it would be impossible to define exhaustively all the circumstances ((Jaswant Sugar Mills Ltd. v. Lakshmi Chand, AIR 1963 SC 677)). There are two propositions ((Province of Bombay v. Khushaldas S Advani, AIR 1959 SC 222))however, which are well established for ascertaining if the authority is under a duty to act judicially, namely;

  • That, if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute, which claim is opposed by another party, and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie, and in the absence of anything in the statute to the contrary, it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
  • That, if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the context is between the authority proposing to do the act and the subject opposing it, the final determination of authority will be a quasi-judicial act provided the authority is required by the statute to act judicially.

The decision about the expediency or the necessity of requisitioning was left to the unfettered subjective opinion of the government and there was no judicial process involved for determining the matter. Hence, the decision to requisition the house of the petitioner in that case was held to be an administrative act of the Government ((Id.)).

In determining the jurisdiction of Writ of certiorari, the courts in India have for some time been mainly guided by the principle laid down in R v. Electricity Commissioner (([1924] 1 KB 171)), R v. Legislative Committee of the Church Assembly (([1928] 1 KB 411))and Nakkudda Ali v. Jayaratne ((1951 AC 66)). Accordingly, in order that a body may satisfy the required test, it is not enough that, it should have legal authority to determine the questions affecting the rights of subjects; there must be “superadded” to the characteristic, the further characteristic that the body has “the duty to act judicially”.

Supreme Court quashed the decision of the Board which cancelled the examination of a candidate on the ground of shortage of attendance ((Board of High School & Intermediate Education v. Chitra, (1970) 1 SCC 121)). After admission to the examination, the candidate had appeared and passed in all the papers. Cancellation of examination was held to be quasi-judicial function and the principles of natural justice, ought to have been observed. It was held by the Supreme Court that, the decision was taken without giving proper notice to the candidate to explain their part ((Id.)).

However, if the candidates at any of the examination centres have indulged in mass copying, the cancellation of said examination and re-conducting the same for all the candidates may attract the application of the principles of natural justice ((Bihar School Education Board v. Subhas Chandra Sinha, AIR 1970 SC 1269)).

The extent of area, where the principles of natural justice have to be followed and the judicial approach has to be adopted, must depend primarily on the nature of the jurisdiction, and the power conferred on any authority or body by statutory provisions, to deal with the questions affecting the rights of citizens. In other words, the court has held that, the test prescribed by Lord Reid in Ridge v. Baldwin ((1964 AC 40)), affords valuable assistance in dealing with the vexed questions with which we are concerned in the present appeal ((Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767 See also, Associated Cement Companies Ltd. v. PN Sharma, AIR 1965 SC 1595)).

The duty to act judicially need not be superadded in the statutory provision, but it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person affected and where it is found to exist, the rules of natural justice would be attracted. It was also observed that, it may be taken as a settled now that, even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable ((Maneka Gandhi v. Union of India, AIR 1978 SC 597)).

Writ of certiorari is discretionary; it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an authority under the Income Tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition of Writ. Where the aggrieved party has an alternative remedy available, the High Court would be slow to entertain the petition challenging an order of a taxing authority, which is ex facie within jurisdiction. A petition for Writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises the question of jurisdiction or of infringement of fundamental rights of the petitioner ((Champalal Binani v. CIT, (1971) 3 SCC 20)).

Writ of Quo Warranto in India

The term Quo Warranto means “by what authority or warrant”. It is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power they claim to hold. It is a notice of demand, issued by a person, to the respondent claiming some delegated power, and filed with a court of competent jurisdiction.

In other words, the writ of Quo Warranto is issued by the court to inquire into the legality of claims of a person to a public office. A writ of Quo Warranto calls upon the holder of the office to show the court under what authority he holds the office. Purpose or objective of this writ is to prevent persons who has wrongfully usurped and office from continuing that office ((University of Mysore v. Govinda Rao, AIR 1965 SC 491)).

The writ of Quo Warranto is unlike a petition or motion to show cause, because the onus is on the respondent, not on the demandant. Unlike other four writs such as Habeas Corpus, Mandamus, Prohibition and Certiorari a writ of Quo Warranto can be sought by any interesting party and it is not necessary by the aggrieved person.

In the proceedings for a writ of Quo Warranto the applicant does not seek to enforce any right of his as such nor does he complain of any non-performance of duty to him. The question here in a writ of Quo Warranto is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office ((GD Karkare v. TL Shevde, AIR 1952 Nag 330, 334)).

An application for the writ of Quo Warranto, challenging the legality of an appointment to an office of a public nature is maintainable at the instance of any private person, although he is not personally aggrieved or interested in the matter ((G Venkateshwara Rao v. Government of Andhra Pradesh, AIR 1966 SC 828)).

However, in order to claim a writ of Quo Warranto, the applicant must satisfy the court that, the office in question is a public office and is held by a 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 the law or not ((University of Mysore v. Govinda Rao, AIR 1965 SC 491)).

For the purpose a writ of Quo Warranto, a public office means an office in which the public have an interest. For example; an office of the Speaker of a Legislative Assembly is a public office and a writ of Quo Warranto can be issued against the Speaker to inquire by what authority he supported his claim to the office ((Anand Bihari v. Ram Sahay, AIR 1952 MB 31)).

Similarly, it was held that the office of the Advocate General is a public office and a writ of Quo Warranto, could be issued against the office of the Advocate General ((GD Karkare v. TL Shevde, AIR 1952 Nag 333)). However, the writ of Quo Warranto will not lie in respect of an office of a private nature ((R v. Mousley, (1846) 115 ER 1130, see also Jamalpur Arya Samaj v. Dr. D Ram, AIR 1954 Pat 297)).

The issue of a writ of Quo Warranto is discretionary in nature and the petitioner is not necessarily entitled to the issue of a writ. It is also necessary that, the office in respect of which a writ of Quo Warranto is moved must be of a substantive character, and the term “substantive character” mean an office independently entitled ((R v. Speyer, (1916) 1 KB 595)).

Writ of Prohibition in India

Writ of prohibitio, also called as Writ of prohibition commands the court or tribunal to whom it is issued to refrain from doing something, which it is about to do. This Writ is issued by either Supreme Court or High Court to an inferior court forbidding it to continue proceedings in a case in excess of its jurisdiction.

Writ of prohibitio prevents a tribunal processing judicial or quasi-judicial powers from assuming or threatening to assume jurisdiction which it does not possess ((CCE v. National Tobaco Co. Of India Ltd., AIR 1972 SC 2563)).

Writ of prohibition prevents a tribunal processing judicial or quasi-judicial powers from assuming or threatening to assume jurisdiction, which it does not possess. Writ of prohibition has many common features as that of Writ of certiorari viz. the scope and the rules by which the Writ is governed.

Both the Writs of prohibition as well as certiorari have for their object the restraining of inferior courts from exceeding their jurisdiction and they could be issued not merely to court, but to authorities exercising judicial or quasi-judicial functions ((Hari Vishnu Kamath v. S. Ahmad Ishaque, AIR 1955 SC 233)). 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 ((Id.)).

When an inferior court takes up any matter for hearing, over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a Writ of prohibition. Upon such application, an order will issue for forbidding the inferior court from continuing the procedure.

For example; where, the Regional Transport Authority has no power under Section 62, of the Motor Vehicle Act, to entertain an application for a temporary permit during the pendency of an application for new permits, the grant of temporary permits was beyond the power conferred upon the Regional Transport Authority and a Writ of prohibition prohibiting Regional Transport Authority from proceeding with the application for a temporary permit was issued ((Hari Narain Roy v. Regional Transport Authority, AIR 1965 Pat 248)).

Existence of an alternative remedy may be more appropriate in case of a Writ of certiorari, but where an inferior court OR tribunal has shown to have usurped jurisdiction, which does not belongs to it, that consideration is irrelevant and the Writ of prohibition has to issue as of right ((Calcutta Discount Co. Ltd., v. ITO, AIR 1961 SC 372)).