INTRODUCTION

One of the most significant means of protection of rights with respect to the judicial system is
the Writ of Prohibition in India. Simply placed, by avoiding undue authority, the writ holds a
balance on the subordinate courts or tribunals. In other terms, on the basis of exercising
greater authority than that conferred by the statute in effect at the moment, the writ provides
an ability to contest the actions of a subordinate court or tribunal. It also continues to prohibit
the adjudicating bodies from compromising, in the practise of their authority, the concepts of
natural justice. Thus, administrative law is an exceedingly significant shield, as its field of
regulation applies to institutional decision-making tribunals and to the standards of natural
justice, which are the guiding laws for all administrative bodies.

The Writ of Prohibition was defined in East India Commercial Co. v. Collector of Customs1
as, “an order to an inferior tribunal forbidding it from continuing with a proceeding on the
ground that the proceeding is without or in excess of jurisdiction or contrary to the law of the
land, statutory or otherwise.”

1
1962 AIR 1893
REVIEW OF ADMINISTRATIVE ACTION THROUGH DIFFERENT WRITS

There is no debating the reality that today there is a big surge in the duties of the bureaucracy
owing to the complex political system. Therefore, this will lead to a true welfare society if
these new developed mechanisms are correctly implemented and if exploited, they will
contribute to an authoritarian state.2

The primary role of judicial review, in this context, is to control the misuse of executive
forces and to enforce liability on the administrators of such forces. The significant feature of
the examination of public law is not just the protection of private interests, but the effective
regulation of administrative and quasi-administrative machinery. In S.L. Kapoor v.
Jagmohan,3 by the Apex Court, this element of public law examination has also been
discussed by . In the present case, two non-official representatives of the Municipal
Committee of New Delhi lodged a petition before the Supreme Court, according to Article
136, against the government's decision to overtake the Municipal Committee without
compliance with the standards of natural justice. The term of office of the petitioners ended
after the suspension of the lawsuit. It was claimed that the court had no authority to proceed
with the appeal because the case had been futile. Rejecting the appeal, the Supreme Court
found that because the petition concerns a matter of public interest, even in the face of the
lack of prominence of the petitioners, the court may still determine the question.

The right of judicial review shall be exercised by the Supreme Court and the High Courts by
means of decisions pursuant to Articles 32 and 226, as well as by exercising authority under
Articles 136 and 227 of the Constitution. As has already been mentioned, the Supreme Court
and the High Courts have the authority, pertaining to Articles 32 and 226, to issue writs in the
form of habeas corpus, quo warranto, mandamus, certiorari and prohibition. In India, these
writs were borrowed from England, where they had a long and difficult background of
growth and gathered a variety of technicalities in return. 4 Indian Constitutional rules, the
terms "in the context of" are relevant since they suggest that, from time to time and matter to
matter, the Indian courts are not required to obey all the technicalities of the English law

2
Lord Denning, Freedom under the Law (1949) p. 126, quoted by Thakker C.K., Administrative Law (1992) p.
374.
3
(1980)4 SCC 382,
4
Bassappa v. Naggappa, AIR 1954 SC 440.
concerning them, or the changes in judicial opinion there. Therefore, all that the Indian
Courts have to do is follow the wide and essential concepts underlying English law; the
courts should not have to believe that they are absolutely constrained by those concepts.
Thus, with certain exceptions here and there, the courts in India have usually been inclined to
adopt the concepts established in England, except that certain radical deviations from the
English stance have been rendered in recent years.5

Although under the impulse of the definition of egalitarian democracy, the policy spreads and
perfects modern methods to intervene with human rights, the mechanisms at the discretion of
the courts to regulate the same remain rather antiquated. Outside the purview of judicial
review, rather a few facets of administrative operation do exist. The effect is the strange
situation that a party aggrieved by disciplinary action can not necessarily obtain redress by
legal action.

5
Jain M.P. & S.N. Principles of Administrative Law (1997) p. 513.
DISTINGUISHED FROM OTHER WRITS

WRIT OF PROHIBITION V. WRIT OF CERTIORARI

The Writ of Certiorari is often mistaken for the Writ of Prohibition. This is because there are
a number of shared characteristics in the two reliefs. iBoth the reliefs lie against institutions
having legal authority and fulfilling the role of adjudication. Administrative rules and
organisations span the spectrum of both; they are targeted against judicial and quasi-judicial
organisations.
In the case of Issardas And S. Lulla v. Hair And Ors. 6, the reach and character of the Writs of
Prohibition and Certiorari was contrasted by the Madras High Court. The two reliefs find
their origin in Article 226; the court's authority to issue prerogative writs.

Referring to R. v. St. Edmundsbury,

"Prohibition is a process for preventing inferior courts from intermeddling with or executing
anything beyond their jurisdiction. When an inferior Court exceeds its jurisdiction by
maintaining an action or matter of which it has not cognizance by law, the Queen's Bench
Division has power to issue an order of prohibition to restrain the inferior court......... If the
judgment of the inferior court has been given, the Queen's Bench Division may exercise its
discretionary power of having the record brought up by certiorari in order that it may be
quashed."

The Halsbury's Laws of England 7 describes the writ of certiorari in the following manner,
"The Writ of certiorari is 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
jurisdictions to certify or send proceedings before them into the King's Bench Division,
whether for the purpose of examining into the legality of such proceedings, or for giving
fuller or more satisfactory effect to them than could be done by the court below."

On the other hand, the Writ of Prohibition has been defined as,

6
AIR 1962 Mad 458.
7
Vol. 9, 3rd Edn. 351-352) (6) Short and Meller, Crown Side Practice at page 14.
"A judicial writ, issuing out of a Court of superior jurisdiction and directed to an inferior
court from usurping a jurisdiction with which it is not legally vested or, in other words, to
compel courts instructed with judicial duties to keep within the limits of their jurisdiction."
The biggest distinction between the two, in more clear terms, lies in the point of
implementation. At a later point, the Writ of Certiorari is used to quash a judgement that has
already been made by an inferior court in violation of its authority or in non-compliance with
natural justice standards. The Writ of Prohibition, on the other side, falls into effect at an
earlier point, prohibiting the presumption of undue authority or going beyond the law of
natural justice by a lower court or tribunal. Thus, the Writ of Prohibition, used before the
vesting stage, may be said to be protective or obfuscatory in purpose. Therefore, the option of
a relief for an aggrieved individual relies on whether their rights are abused.

WRIT OF PROHIBITION V. WRIT OF MANDAMUS

The reliefs of Mandamus and Prohibition are somewhat distinct and work in two entirely
different regions. If Mandamus guides action, Prohibition guides inactivity.

The focus or goal of the two reliefs is also a point of distinction. The Writ of Mandamus can
be released on any officer of the judiciary, public entity, business, inferior court, tribunal or
government where a Writ of Prohibition is given only on the part of the courts and quasi-
judicial authorities.
GROUNDS FOR WRIT OF PROHIBITION

The Writ of Prohibition can be issued on the following grounds:

1. Absence of Jurisdiction or overstepping- If in the absence of a conferred or
presence of an undue authority conferred by the law in force at the time, an inferior
court or tribunal exercises authority, Prohibition can be issued.
2. Violation of Natural Justice- While in the practise of its authority the inferior court
or tribunal breaches natural justice standards, a writ of prohibition may be given. For
eg, where the Court declines to grant an oral hearing to a group where the parent
statute allows for an oral hearing. Audi Alterum Partem's natural justice right in this
situation is abused.
3. Unconstitutional Statue- Where the Lower Court or Tribunal exercises its authority
under a statue that is prima facie ultra vires of the constitution or unconstitutional by
definition, it is a logical corollary that the power derived out of it Is unconstitutional.
4. Infringement of Fundamental Right- When any fundamental right of the applicant
is violated by the challenged conduct, Prohibition may be issued.
5. Error of law Apparent on the face of Record
WRIT OF PROHIBITION: ANALYSIS

Prohibition is relief for right and not that for course, inevitably, it is of a protective and not a
punitive kind. Prohibition is relief for right and not that for course, inevitably, it is of a
protective and not a punitive kind. The key aim of this relief is to avoid an illegitimate
jurisdiction. Consequently, the relief cannot be exercised wrongly or inaccurately in the case
of irregularities in the operation of jurisdiction. An alternative relief does not render an
absolute bar on the question of a Writ of Prohibition. During the litigation pending before a
judicial and quasi-judicial tribunal, this writ can be granted and if the trials have been
discontinued and the jurisdiction has been functus officio, then Writ of Prohibition may not
be given in those situations. Certiorari may be given in these situations. In respect to who
may applie, where the absence to authority is clear in the proceedings, not only an aggrieved
party but an normal individual not party to the dispute may also render a prohibition claim.
The idea behind this law is the neglect of the Monarch and its infringement of the royal
prerogative. Accordingly, the court's acknowledgement of the usurpation is immaterial.

It can be issued against judges, tribunals and other quasi-judicial officials, such as tax
authorities, as regards who is lying about the writ, because it is a judicial relief. Although not
against the authorities, customs, settlement officers and arbitrators. In essence, in the
discharge of judicial, statutory or ministerial duties, the statute does not lie against
institutional authorities. It therefore does not cheat against the legislature, prohibiting it from
promulgating or applying a statute.

As pointed out in Bengal Immunity Co. Ltd. v. State8, the writ is not discretionary. The
presence of another appropriate and equally effective remedy is a matter which the High
Court can take into account when granting the writ. But the lack of an alternate solution does
not pose an absolute bar for the Writ of Prohibition to be given. The lack of an appropriate
remedy is thus completely meaningless and the Writ of Prohibition is given as a question of
rule where there is a statutory absence of jurisdiction in a lower court, where the rule
conferring jurisdiction over such a court is itself invalid or when there is a violation of the
civil rights of the applicant.

8
AIR 1955 SC 661 (726)
WRIT OF PROHIBITION: SCOPE & AMBIT

Prohibition is an exceptional deliberate rule of a protective character. It aims to avoid the

usurpation of authority or the practise of control by judges, judges, quasi-judicial bodies and
officials or individuals holding judicial or quasi-judicial powers not vested in them.9

Prohibition is a judicial warrant . It can be served against a judicial or quasi-judicial authority

if that authority exceeds its ability or seeks to assert power which it does not have. A high
court or the Supreme Court can prohibit it from exercising jurisdiction and retain it within its
jurisdictional limits if a lower court or an inferior tribunal hears a matter over which it has no
jurisdiction.10

In East India Commercial Co. Itd. v. Collector of customs the Supreme Court found out: “A
writ of Prohibition is an order sent to an subordinate court preventing it from conducting a
case on the basis that the case is without or in violation of authority or contradictory to the
laws of the country, whether procedural or otherwise.”

The primary aim of the prohibition statute is to discourage the violation of power. Its role is
to prohibit the exercise of judicial or quasi-judicial authority by judges, tribunals and quasi-
judicial bodies from expanding their powers and enforcing powers that are not vested in them
and confining them within the scope of the statute. Therefore, prohibition would not entail an
action amongst private litigants. It is, in essence, a proceeding between two courts-a supreme
and an intermediate court-a supreme and an intermediate court- superior court. That is a
process by which a superior court imposes its control over an inferior court by holding the
inferior court within the boundaries of jurisdiction granted on it by legislation.11

Certiorari and Prohibition are legal reliefs against courts and tribunals that are available.
However, they vary with regard to period. A judgement which is fait accompli refers to the
former: the latter tries to avoid the reality from being accompli. In comparison to mandamus,
prohibition is opposite in that although mandamus pressures the authority to do something,
prohibition forbids a court or tribunal from performing anything that it has no right to do so.
In other terms, mandamus requires operation, whereas inactivity calls for prohibition.

9
C.k. Takwani, Lectures on Administrative Law, p.386(6th Edition, 2018).
10
East India Commercial Co. Ltd. V. Collector of Customs, AIR 1962 SC 1893; (1963 3 SCR 338)
11
C.k. Takwani, Lectures on Administrative Law, p.387(6th Edition, 2018).
While prerogative writs are descriptive in nature, public law is specifically concerned with
certiorari and prohibition. Accordingly, it is the responsibility of superior courts to ensure
that a lower court or inferior court is limited to the authority imposed on it and may not
extend its authority, although a distinction must be made between a patent or an obvious
absence of authority and a latent or questionable absence of authority. A writ may be given
by a higher court in the case of the former, inasmuch as it is the responsibility of the higher
court to preserve the progress of justice by stopping the lower court from dealing with the
matter in which it has little authority. In the event of the above, the court is able to issue or
deny the waiver and acquiescence relief, etc.12

A lower court or an inferior tribunal and a person to which it has been given must respect a
writ of prohibition. Where there is no authority or excess of authority, an individual or officer
convicted of infringement of command is liable for contempt of a writ of prohibition.
Therefore, where delegated jurisdiction is manifest, it is not only the right but the obligation
of a supreme court to make a judgement to prohibit a subordinate court or inferior court from
usurping or violating the authority not vested in it.13

It is respectfully submitted that the following observation by Brett L lays out the right
proposition of law and must be kept in mind whilst enforcing the authority to enforce a
prohibition, the authority of prohibition at present is that the court may not be able to employ
it, except that if the legislature entrusts to someone other than the superior court.

12
R. v. Fullham, Hammersmith & Kensington Rent Tribunal, (1951) 2 KB (DC).
13
C.k. Takwani, Lectures on Administrative Law, p.393(6th Edition, 2018).
SCOPE OF WRIT OF PROHIBITION AGAINST STATUTORY AUTHORITY
WITHOUT JURISDICTION

Prohibition can be given if an inferior court or tribunal operates without or in violation of its
authority, or operates in infringement of the standards of natural justice, or acts which are
ultra vires or acts in infringement of constitutional rights, or where there is a clear fault in the
court or tribunal's exercise of jurisdiction on the face of the record.

In the absence or absolute deprivation of jurisdiction, a writ of prohibition against a judicial

or quasi-judicial authority banning the practise of jurisdiction not imposed on it will be
accessible. Therefore, in the case of a licence fee levy lacking the force of statute, prohibition
was given.14 Then, a relief of prohibition can be given where a regulating body intends to
levy a tax on a product exempted under the Act. Nevertheless, it may be recalled that any
absence or absence of jurisdiction should be patent and clear on the face of the record and
should not be latent and does not usually entail a lengthy investigation into questions of truth
for its establishment.

Again, a difference can be drawn between the absence of jurisdiction and the court or tribunal
's way and procedure of enforcing jurisdiction. The prohibition cannot be focused on
reversing the direction of an inferior court or a tribunal's process or policy or on an erroneous
judgement on the merits. Accordingly, if a tribunal has authority to render an order but, in the
exercise of that power, creates an error as to whether it is an element of rule, the error may be
resolved only through an appeal or a trial and not by a warrant of prohibition.15

Finally, in the event of excess of jurisdiction, to the degree of that excess of jurisdiction, a
writ of prohibition can be granted to a court or tribunal enabling it to practise authority
bestowed on it, given that the proceedings performed by that court or tribunal are severable.

Prohibition, of necessity, is not a writ, yet it is a privilege and not discretional, but it is a
protective, or a correction solution. Therefore, the presence of another sufficient, appropriate
and equally effective remedy is a matter which the High Court can take into account in
granting a writ of prohibition. However, the lack of an acceptable solution is not an absolute

14
A.B. Abdulkar v. State of Kerala, AIR 1962 SC 922
15
S. Govind Menon v. Union of India, AIR 1967 SC 1274
bar to the enforcement of the prohibition order. Accordingly, when there is a proprietary
absence of authority in a lower court or if the statute conferring jurisdiction on such a court is
personality-unconstitutional or ultra vires, or if there is a violation of some substantive right
of the applicant whether there may be an obvious mistake in statute on the face of the record,
the presence of an appropriate remedy is entirely meaningless and the application for
injunction is wholly irrelevant.
LIMITATION

First, the intent of the Writ of Prohibition is to preclude the presumption of authority from
being unlawful. It may then be released only after it is determined that a judicial or quasi-
judicial body does not have jurisdiction, or behaves in violation of the jurisdiction bestowed
on it. Prohibition does not lie in situations where it is exercised irregularly, wrongly or
erroneously by an entity with jurisdiction.

Secondly, “the Writ of Prohibition often extends exclusively to situations in which trials are
pending before a quasi-judicial or judicial jurisdiction. Therefore, where an authority
investigates a matter over which it has no jurisdiction, the aggrieved party may move to the
High Court for the Writ of Prohibition forbidding such authority to continue with the matter,
but if the proceedings have been terminated and such authority has become functus officio,
there is no Writ of Prohibition.” - Hari Vishnu Kamath v. Ahmad Ishaque.16

Thirdly, where trials are partly within and partly beyond jurisdiction before a judicial or
quasi-judicial body, the Writ of Prohibition can be given in respect of the latter. Therefore,
for example, if the Customs Collector puts invalid conditions on the payment of a fine in
place of confiscation for the liberation of such deities, the Writ of Prohibition may be given
against the Collector for the implementation of unlawful provisions. Similarly, where such
cases are disposed of and others are already ongoing, the Writ of Prohibition may be given in
regard to the cases ongoing..

16
AIR 1955 SC 233
CONCLUSION

Where there is shortage of jurisdiction or proliferation of jurisdiction, a writ of prohibition

lies. Therefore, where a deficiency in jurisdiction is evident, it is not just the authority but the
obligation of a superior court to give this order in order to prohibit a higher court or inferior
court from usurping or exceeding a power not vested in it. Prohibition, of necessity, is not a
writ, yet it is a privilege and not discretion, but it is a protective, or a punitive solution.
Therefore, the presence of another sufficient, appropriate and equally effective remedy is a
matter which the High Court can take into account in granting a writ of prohibition. The
principle of prohibition at present is that the court shall not be hesitant to exercise it, and that
whatever the legislature confers on any entity other than the superior courts the right to force
on individuals a responsibility on the courts to exercise the power to regulate such bodies of
persons as broadly as they may, whether such persons admittedly seek to exercise powers.

As held in the case of Taj Mahal Transporters v. Regional Transport Authority 17, If judicial
or quasi-judicial bodies seek to assert authority above the rights imposed upon them by
Parliament, the supreme court should be active in using the right of prohibition.

Prohibition is usually an easy and quick recourse when a person does not want any other help
than to avoid the regulatory department. The requirements for the prohibition situation are the
same as that for the certiorari situation, with the exception of the point during which the relief
is eligible. It follows that the grounds on which prohibition may be given are the same on
which certiorari will be given if, after the tribunal has already announced its verdict, the
applicant comes to court. Therefore, whether the inferior court or tribunal continues to act
beyond or in excess of authority, and even if the inferior court or tribunal intends to behave in
breach of the laws of natural justice, Prohibition would bar the tribunal from going further.

17
AIR 1966 Mad 8