Certiorari

Introduction
In the legal landscape of India, the writ of certiorari holds a position of paramount importance,
serving as a cornerstone of judicial review and ensuring the maintenance of constitutional
supremacy. Rooted in the principles of administrative law, this writ empowers the higher judiciary,
particularly the Supreme Court and High Courts, to review and quash decisions of inferior tribunals,
administrative bodies, and governmental authorities that fall outside the ambit of their jurisdiction
or are tainted by error of law. Through this mechanism, the judiciary upholds the rule of law,
safeguards individual rights, and maintains the delicate balance of powers enshrined in the Indian
Constitution.

History
The oldest and most common use of the writ of certiorari was to order the transfer of records to a
superior court. If parts of the record were missing, the reviewing court would issue a certiorari to the
lower court to have the missing pieces of the record sent up for review. A second use emerged,
primarily in criminal cases, to remove a case when the accused could not get a fair trial in the lower
court. The third use is the most relevant one.

The Writ of Certiorari was initially introduced as a part of the prerogative writs to ensure that the
King’s bench had supervisory control over the decisions of inferior courts. It was introduced in the
English legal system as a means to control the jurisdiction of lower courts. In the 19th Century, as
English legal principles were transplanted to India, the writ of certiorari became an integral part of
the Indian legal system. The High Courts, established in various regions, were empowered to issue
this writ to correct errors of jurisdiction or law. Further, the Government of India Act 1935 granted
expanded powers to the Federal Court and the High Courts, authorizing them to issue certiorari to
enforce fundamental rights and to review decisions of inferior courts. After India gained
independence in 1947, the legal framework underwent significant changes. The Supreme Court’s
authority to grant certiorari allows it to select cases of national importance or cases where lower
courts have reached conflicting decisions. This power has been crucial in shaping legal precedents
and ensuring uniformity in interpreting and applying federal law.

Writs and its types

A writ is basically a formal order issued by a legal authority having administrative or judicial powers.
In the Indian context, the writ jurisdiction of the Supreme Court and the High Courts has been
guaranteed by Articles 32 and 226 respectively. Article 32 has been called the “heart and soul” of the
Indian Constitution by the Chairman of the Drafting Committee, Dr. B. R. Ambedkar. This is because
the fundamental rights mentioned in Part III forms the essence of the constitution. However,
without any recourse to enforce them when violated, there is no purpose served by them. Thus,
Article 32 provides us that protection. Article 32 is a fundamental right, albeit Article 226 is not.
Article 226 is a constitutional provision and provides wide discretionary powers to the High courts.

Article 32(2) lists down various writs as follows-

Habeas corpus
It translates to “You may have the body”. It protects a person’s personal liberty and can be invoked
whenever it has been breached illegally. It is usually issued by the courts in cases of illegal detention
and presenting a prisoner before the court. Any such person held, can file the writ petition either
himself or through another person.

Mandamus

It is a Latin word for “We Command”. It is usually issued by a higher judicial court to a lower court,
tribunal, or public authority to direct them to perform a particular task. It is invoked when a public
authority fails to perform the action assigned to it. So, when the authority fails, this writ can be
issued to command them to do a particular thing as required by the law.

Prohibition

It is invoked by a higher court to stop a lower court or a body from transgressing the limits of its
powers. It can be passed only during the pendency of the proceedings.

Quo Warranto

It literally means questioning “what is your authority”. It is invoked to restrain a person from taking
charge of a public office to which he is not entitled. It is a safeguard against persons illegally holding
offices they are not fit for.

Certiorari

Basically, it means “to be certified”. It can be issued by the Supreme Court or the High Court to
quash an order already passed by a lower court. It could also be used by the Supreme Court to
transfer a particular matter to it or some other superior judicial authority for consideration.

Certiorari
Certiorari is a corrective writ which gives special emphasis on correcting various errors in
record. Certiorari is a legal term that originates from a Latin word meaning ‘to be certified’ or ‘to be
informed’. The writ of certiorari is issued by a higher court to quash an order already passed by
inferior or subordinate courts, tribunals, and other public authorities. As per the Merriam-Webster
Dictionary, the word certiorari is defined as “A writ of superior court to call up the records of an
inferior court or a body acting in a quasi-judicial capacity.” The writ of certiorari is a legal mechanism
that allows higher courts to review decisions made by lower courts or administrative bodies
directing them to transfer the record of a particular case. In other words, this writ can be issued
against the statutory bodies exercising judicial or quasi-judicial powers. The primary purpose of this
writ is to determine whether the lower court or administrative body has correctly applied the law.

Who can apply for this writ and against whom?

The writ of certiorari can be applied by the parties aggrieved by a decision of a lower court or any
other administrative body. The one who seeks the writ must demonstrate that they have a direct
and substantial interest in the case and that they have exhausted all available remedies within the
lower courts before seeking review of a higher court.

Before 1991 writ of certiorari was only enforced against Quasi-judicial and judicial authorities and it
was not enforceable against administrative authorities. In 1991 Supreme Court stated that writ of
certiorari will be enforceable against administrative authorities for not properly maintaining law &
order and affecting individual rights. According to constitutional provision, certain conditions must
be met to obtain writ of certiorari from the Supreme Court and High Court of India. Writ of
certiorari by the Supreme Court can be imposed against administrative authorities which affects the
rights of individuals. Reason: Writ of certiorari issued due to error in legal framework and lack of
jurisdiction and excess amount of jurisdiction are reasons behind enforcement of Writ of certiorari in
Indian constitution.

Writ of certiorari issued against quasi-judicial and judicial authorities for not maintaining law and
order properly as mentioned in Indian constitution. It cannot be issued against legislative bodies and
private individuals or bodies.

Grounds for seeking Certiorari

 Jurisdictional Error: Certiorari may be sought when there are doubts about the jurisdiction
of the lower courts, meaning they exceeded their legal authority or failed to exercise it when
they should have. Even though the body has acted well within the limits of its jurisdiction, a
decision can be quashed if there is a blatant error prima facie. The error here means an error
of law.

 Error of Law: If there is an alleged error of law in the judgment of the lower court, such as
incorrectly interpreted or applied the law, resulting in an unjust or erroneous decision, that
could have significant consequences then a party may seek this writ to correct that error.

 Substantial Question of Law: Must involve a substantial question of law such as the
interpretation of a constitutional provision, that requires resolution or clarification by the
higher court.

 Conflicting Decisions: If different lower courts have issued conflicting decisions on a legal
issue, certiorari might be sought to resolve the inconsistency and establish a uniform
interpretation of the law.

 Violation of Natural Justice: If the petitioner alleges that the principle of natural justice is
violated during the lower court proceedings or there is a failure of justice due to the
presence of elements such as corruption, fraud, or collision then the writ of certiorari can be
sought.

 Judicial Review: If there is a belief that the lower court failed to review or control an
administrative body’s decision adequately then certiorari can be caught to challenge
administrative decisions or actions.

The Application Process

The procedure to file a writ of certiorari in India is similar to filing any writ petition which means, this
writ can be filed either in the Supreme Court under Article 32 or in the High Court under Article 226
of the Constitution of India. To file a writ of certiorari, there must be a violation of a person’s
fundamental rights and the same should be filed within a reasonable time after the violation of an
individual’s right. In India, the application process for a writ of certiorari involves several steps which
are as follows:

 The party seeking the writ initiates the process by filing a Special Leave Petition (SLP) in the
Supreme Court. The SLP serves as the application for seeking permission to appeal.
 The grounds on which the writ is sought should be clearly stated by the petitioner.
 If the SC is convinced that the case warrants special consideration, it grants special leave,
and the SLP is converted into a petition for certiorari.
 The petitioner then must prepare a comprehensive document outlining the facts of the case
specifying the breach of his rights, legal arguments, and the reasons why the SC should
exercise its discretion to issue the writ of certiorari.
 A specific date will be prescribed by the court for hearing and both parties will appear before
the Court and put forward their arguments. Further, the judgment is passed by the judge
after hearing both sides.

Case Laws
1. Hari Vishnu Kamath v. Syed Ahmed Ishaque (December 09, 1954) (Landmark)

Facts

In this case, both the appellant and respondent were two election candidates from the constituency
of Hoshangabad for the election to the House of the People. When the result came out, the
respondent secured more votes than the appellant and the Returning Officer declared the former as
the winner. The appellant then filed a writ petition challenging the election and setting it aside. The
Election Tribunal dismissed the petition on the ground that the result was not affected by the wrong
acceptance of votes. The appellant then moved to the High Court for a writ of certiorari to quash the
former orders on the ground that Tribunal had overstepped its jurisdiction.

Issue

Whether the High Court had the jurisdiction to issue a writ under Article 226 against the decision of
the Election Tribunal?

Held

It was held that the petition was maintainable and the decision of the Tribunal came under the writ
jurisdiction of the High Court. The decision by the Election Tribunal was also quashed.

Also, it firmly established the following principles:

(i) The writ can be issued for correcting the errors of jurisdiction committed by the lower courts.

(ii) It is a part of the supervisory jurisdiction of the court and not the appellate jurisdiction. If the law
does not allow an appeal in a particular case, then giving it a back-door entry via the writ of
certiorari amounts to defeating the purpose of the law.
(iii) The aim here is not to re-hear the case and consider the facts once again. It can only be invoked
in cases of error of law

2. Syed Yakoob v. K.S. Radhakrishnan & Ors. (October 09, 1963) (Landmark)

Facts

The State Transport Authority had called for applications for the grant of two-stage carriage permits
via a notification under the Motor Vehicles Act, 1939. After receiving a number of applications, the
first permit was granted to one of the applicants while fresh applications were called for the second
one. Following this, the appellant appealed to the State Transport Appellate Tribunal. The Tribunal in
its decision confirmed the first permit and in the second it allowed the appellant’s appeal and held
that it should be given to him. The respondent then moved to the High Court with a writ of
certiorari. It contended that the Tribunal had overlooked several material considerations. When the
previous order was affirmed, the appellant then moved the Supreme Court under a special leave
petition.

Issue

Did the High Court exceed its jurisdiction by issuing the writ of certiorari?

Held

It was held that the High Court did exceed its jurisdiction by issuing the writ of certiorari in the
present case. It was observed that this writ is issued to correct instances where a court has exceeded
its jurisdiction. Under the powers granted by the writ, the court cannot act as a court of appeal or
check an error of fact. It can be employed in cases where there is an error of law, or when it can be
shown that there has been a violation of the principles of natural justice. But not on the basis of an
error of fact solely. However, whether there has been such an error or not is a matter of the court’s
discretion.

3. Central Council for Research in Ayurvedic Sciences v. Bikartan Das, decided on 16-08-2023

For the issuance of a writ of certiorari, the Court pointed certain essential conditions:

1. The party concerned must make out a definite case for issue of writ of certiorari and is not a
matter of course.
2. It shall be issued to correct errors of jurisdiction i.e., excess or failure to exercise and also
when in the exercise of undoubted jurisdiction, there has been illegality.
3. It shall also be issued to correct an error in the decision or determination itself, if it is an
error manifest on the face of the proceedings. By its exercise, only a patent error can be
corrected but not a wrong decision.

The Court concluded that writ of certiorari is a high prerogative writ and should not be issued on
mere asking. The Certiorari is not appellate but only supervisory. The Court also explained that while
adjudicating a writ-application for a writ of certiorari, the Court is not sitting as a Court of appeal
against the order of the Tribunals to test the legality thereof with a view to reach a different
conclusion.
Global Perception
The similar provisions of Certiorari exist in different nations such as:

USA

The writ of certiorari is often employed in the United States Supreme Court to review the judgments
of lower courts. A party cannot appeal to the SC directly as a matter of right. Thus, it has to use
certiorari to seek a review of the case from a lower court. In order to entertain a plea for certiorari,
then at least four judges must agree to hear the review. This is called ‘granting certiorari’. ‘Denying
certiorari’ is when the judges refuse to accept the review. Rule 10 of the US SC Rules List contains
the criteria for granting certiorari.

UK

In the UK, the writ is used at judicial discretion, granted only when there is a jurisdictional error. It is
available in the original jurisdiction of the High Court under Section 75(v) of the British Constitution.
It is also available with the Federal Court as per Section 39B(1) of the Judiciary Act, 1903.

France

The writ of certiorari can be issued by the Cour de cassation in the following cases:

(i) When the previous court did not have jurisdiction to give the judgment

(ii) When due process has not been followed

(iii) If the reasoning given is not pertinent

(iv) If the decision is not compatible with the legal framework

Australia

In common law followed there, judicial review can be obtained by the means of various prerogative
writs and certiorari is one of them. Certiorari sets aside a decision given contrary to the law.

Conclusion
In the vibrant tapestry of Indian jurisprudence, the writ of certiorari emerges as a bulwark against
arbitrariness and abuse of power, ensuring that governmental actions remain within the confines of
legality and constitutional propriety. Its invocation signifies the judiciary's commitment to upholding
the fundamental principles of justice, equality, and the rule of law. As the sentinel of constitutional
values, certiorari embodies the aspirations of a democratic society, where the exercise of
governmental authority is subject to rigorous scrutiny and accountability. Thus, the writ of certiorari
not only serves as a legal instrument but also as a symbol of the judiciary's unwavering resolve to
safeguard the rights and liberties of the citizens and to uphold the foundational principles upon
which the Indian Republic stands.