Certiorari

The oldest and most common use of the writ of certiorari was to order the transfer of records
to a superior court. 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.
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(2) lists down various
writs as follows-
Habeas corpus
It is usually issued by the courts in cases of illegal detention and presenting a prisoner before
the court.
Mandamus
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.
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.
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.
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.
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.
 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

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)
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)
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 (August 16,
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 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. 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.
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.