Judicial Review Through Writs of Prohibition and Certiorari: A Constitutional Analysis

Introduction

India’s constitutional framework establishes an elaborate system of checks and balances where the judiciary plays a pivotal role in safeguarding individual liberties and maintaining the rule of law. Among the constitutional remedies available to citizens, the writs of prohibition and certiorari stand out as powerful instruments of judicial oversight. These writs, rooted in English common law traditions and enshrined in the Indian Constitution, serve as essential mechanisms through which superior courts exercise supervisory control over subordinate judicial and quasi-judicial authorities.

The writs of prohibition and certiorari form part of the five prerogative writs available under the Indian Constitution, alongside habeas corpus, mandamus, and quo warranto. While all five writs serve important constitutional functions, prohibition and certiorari are particularly significant in maintaining jurisdictional boundaries and ensuring that inferior courts and tribunals operate within their lawful authority. Understanding these writs requires not merely technical knowledge of procedural law but also an appreciation of their role in upholding constitutional governance and protecting citizens from arbitrary exercise of power.

Constitutional Framework and Legislative Provisions

The power to issue writs in India derives from two primary constitutional provisions that establish a dual mechanism for constitutional remedies. These provisions reflect the framers’ commitment to creating a robust system of judicial review while maintaining a federal structure that respects both central and state jurisdictions.

Article 32 of the Constitution of India confers upon every citizen the fundamental right to approach the Supreme Court for the enforcement of their fundamental rights. This article empowers the Supreme Court to issue directions, orders, or writs including habeas corpus, mandamus, prohibition, certiorari, and quo warranto for the enforcement of any of the rights conferred by Part III of the Constitution [1]. Dr. B.R. Ambedkar famously described Article 32 as the “heart and soul of the Constitution” because without an effective remedy, fundamental rights would remain mere declarations without practical enforceability. The right guaranteed under Article 32 is itself a fundamental right, meaning that any attempt to abridge or deny this right can itself be challenged through the same constitutional mechanism.

Article 226 of the Constitution of India, enshrined in Part V dealing with Union-State relations, grants extensive powers to the High Courts to issue writs not only for the enforcement of fundamental rights but also for any other purpose [2]. This broader scope distinguishes Article 226 from Article 32, as High Courts can entertain writ petitions for violation of any legal right, not limited to fundamental rights alone. The territorial jurisdiction of High Courts under this article extends to any person or authority within their respective territories, making it a more accessible remedy for ordinary citizens facing local administrative or judicial irregularities.

The distinction between these two provisions is significant in practice. While Article 32 creates an obligation on the Supreme Court to exercise its writ jurisdiction when fundamental rights are violated, Article 226 confers discretionary power on High Courts. Furthermore, the Supreme Court’s jurisdiction under Article 32 is concurrent with that of High Courts under Article 226, meaning petitioners can approach either forum, though the Supreme Court typically encourages parties to first exhaust remedies before the High Court unless the case involves matters of national importance or requires immediate intervention at the highest level.

The Writ of Prohibition: Preventive Judicial Control

The writ of prohibition represents a preventive remedy that operates as a judicial restraining order against inferior courts, tribunals, and quasi-judicial authorities. This ancient common law writ serves as a safeguard against jurisdictional excess and ensures that subordinate authorities do not venture beyond the scope of their legally conferred powers while proceedings are still pending before them.

Nature and Scope of Prohibition

Prohibition is essentially a stay order issued by a superior court directing an inferior court or tribunal to cease proceedings in a matter where the inferior body either lacks jurisdiction, exceeds its jurisdiction, or acts in violation of fundamental principles of natural justice [3]. The writ serves as a command to forbid the continuation of proceedings rather than to correct errors after they have occurred. Its preventive character distinguishes it from remedial writs that address completed actions.

The scope of prohibition is deliberately limited to judicial and quasi-judicial bodies. It cannot be issued against purely administrative authorities, legislative bodies, or private individuals and organizations [4]. This limitation reflects the writ’s historical origins as a mechanism to maintain proper hierarchical order within the judicial system. A body exercising quasi-judicial functions must have a duty to act judicially, meaning it must observe principles of natural justice such as hearing both parties (audi alteram partem) and maintaining impartiality (nemo judex in causa sua).

Grounds for Issuing the Writ of Prohibition

Superior courts will consider issuing a writ of prohibition when specific conditions indicating jurisdictional impropriety are demonstrated. The primary grounds include jurisdictional error, where an inferior court undertakes to hear and decide a matter over which it has no lawful authority. This can manifest as complete lack of jurisdiction, where the subject matter falls entirely outside the court’s competence, or as excess of jurisdiction, where the court possesses initial jurisdiction but exceeds its boundaries during the proceedings.

Another critical ground is violation of principles of natural justice. Even when a court has proper jurisdiction, if it conducts proceedings in a manner that denies fundamental fairness—such as refusing to hear one party, displaying bias, or failing to provide adequate opportunity to present evidence—a writ of prohibition may be warranted to halt such proceedings. The concept of natural justice embodies the fundamental requirement that justice must not only be done but must manifestly and undoubtedly be seen to be done.

The writ may also be issued when an inferior court acts under an invalid law or applies legal provisions in a manner that contravenes constitutional guarantees. If the statutory foundation for the court’s jurisdiction is itself unconstitutional or if the court interprets its powers in a way that conflicts with higher legal principles, prohibition provides a mechanism to prevent the continuation of fundamentally flawed proceedings.

Landmark Jurisprudence on Prohibition

The Supreme Court of India has developed substantial jurisprudence clarifying the scope and application of the writ of prohibition. In the seminal case of Hari Vishnu Kamath v. Syed Ahmad Ishaque (AIR 1955 SC 233), the Court distinguished prohibition from certiorari by emphasizing their temporal application [5]. The Court held that prohibition lies when proceedings are pending to any extent, serving as a preventive measure to stop an inferior court from proceeding with a matter beyond its jurisdiction. This distinction proved crucial in establishing that prohibition cannot be issued once a court has become functus officio—having completed its function and rendered a final decision.

In Romesh Thappar v. State of Madras (AIR 1950 SC 124), though primarily concerned with freedom of speech and expression under Article 19(1)(a), the petitioner sought writs of both prohibition and certiorari under Article 32 [6]. The case established important precedents regarding the Supreme Court’s original jurisdiction and the circumstances under which prohibition can be sought directly before the highest court without first approaching the High Court. The Court held that Article 32 does not merely confer power on the Supreme Court as Article 226 does on High Courts, but creates a constitutional right itself, which cannot be abridged except during a declared emergency.

The procedural aspects of prohibition have been refined through various judgments emphasizing that the writ should be invoked promptly when jurisdictional issues become apparent. Courts have consistently held that prohibition should not be used as a substitute for regular appeals or as a tactical delay mechanism. The remedy exists to protect litigants from being subjected to proceedings that are fundamentally without legal authority, not to provide an alternative route to challenge substantive decisions.

The Writ of Certiorari: Corrective Judicial Oversight

While prohibition prevents improper proceedings, certiorari provides a mechanism to correct jurisdictional errors after they have materialized in the form of orders or judgments. The Latin term “certiorari” derives from “certiorari volumus,” meaning “we wish to be certified,” reflecting the historical practice where superior courts would call for records from inferior courts to examine their decisions for legal correctness.

Nature and Function of Certiorari

Certiorari operates as both a supervisory and corrective writ, enabling superior courts to review and, if necessary, quash orders passed by inferior courts, tribunals, and quasi-judicial authorities [7]. Unlike an appeal, which involves a comprehensive review of both facts and law, certiorari exercises supervisory jurisdiction focused primarily on jurisdictional correctness and legal regularity. The superior court examines whether the inferior body acted within its lawful authority and followed proper legal procedures, rather than reassessing the merits of the underlying dispute.

The writ can be issued even after the inferior court or tribunal has ceased to exist or become functus officio. This distinguishes certiorari fundamentally from prohibition—while prohibition requires ongoing proceedings to halt, certiorari addresses completed decisions that require correction. The decision itself remains subject to review regardless of whether the body that rendered it continues to function [5].

Grounds for Granting Certiorari

Courts will grant certiorari when specific defects in the decision-making process are established. The most fundamental ground is jurisdictional error, which encompasses three categories: complete absence of jurisdiction where the authority had no power to entertain the matter; excess of jurisdiction where the authority exceeded the boundaries of its lawful powers; or failure to exercise jurisdiction where the authority wrongly declined to exercise powers it was legally obligated to use.

Certiorari will also be issued when proceedings violate principles of natural justice. If a party was denied a fair hearing, if the decision-maker exhibited bias or prejudice, or if there was a failure to disclose relevant evidence to affected parties, the resulting decision stands vitiated regardless of its substantive correctness. Natural justice represents the minimum procedural fairness required in any adjudicatory process.

Error of law apparent on the face of the record constitutes another significant ground. This refers to obvious legal mistakes that are evident from the record itself without requiring extensive investigation or argument. However, mere errors of fact, even if significant, generally do not justify certiorari unless they stem from jurisdictional impropriety or violation of natural justice. The superior court’s role is supervisory, not appellate—it does not substitute its own judgment on factual questions for that of the original decision-maker.

Importantly, certiorari can be issued even in administrative cases when authorities exercise quasi-judicial functions. The scope has expanded over time from purely judicial bodies to include any authority that must act judicially in determining questions affecting rights. This expansion reflects the modern administrative state’s complexity and the need to ensure all exercises of adjudicatory power remain subject to judicial oversight.

Leading Cases on Certiorari

The Supreme Court provided definitive guidance on certiorari’s scope in Hari Vishnu Kamath v. Syed Ahmad Ishaque (AIR 1955 SC 233), where it held that certiorari is directed against a decision rendered by a court or tribunal, and the continued existence of that body is not a condition for annulling its decision [5]. The Court explained that certiorari addresses the cause or proceeding in the lower court, not the court itself, making it fundamentally different from prohibition, which is directed to the court as an institution.

The case established that High Courts under Article 227 exercise superintendence that is both judicial and administrative over subordinate courts and tribunals. This supervisory jurisdiction includes the power to issue certiorari to ensure legal correctness in adjudicatory processes. The Court emphasized that certiorari serves as a vital check on jurisdictional excess and procedural irregularity throughout the judicial hierarchy.

The distinction between certiorari’s supervisory function and appellate review has been repeatedly emphasized in Indian jurisprudence. While an appellate court examines both the correctness of legal conclusions and the reasonableness of factual findings, certiorari focuses narrowly on whether the decision-making process was legally sound. The superior court does not retry the case or substitute its own assessment of evidence for that of the original tribunal.

Comparative Analysis: Prohibition Versus Certiorari

While Writs of prohibition and certiorari share the common objective of ensuring that inferior judicial and quasi-judicial bodies operate within their lawful authority, they differ significantly in their timing, scope, and practical application. Understanding these differences is essential for legal practitioners and litigants seeking the appropriate remedy.

Temporal Distinction

The most fundamental difference lies in when each writ is issued. Prohibition is issued while proceedings remain pending before the inferior court or tribunal, serving as a preventive measure to stop improper adjudication before a decision is rendered [8]. Once a final order has been passed, it becomes too late to seek prohibition because there are no longer any proceedings to halt.

Certiorari, conversely, is issued after a decision has been made, serving as a corrective mechanism to quash orders that were improperly rendered [8]. The writ addresses completed judicial acts rather than ongoing proceedings. In some situations involving interim or interlocutory orders that do not completely dispose of the matter, both writs may be necessary—certiorari to quash what has been decided and prohibition to prevent further improper proceedings.

Scope of Application

Both writs are available primarily against judicial and quasi-judicial authorities, but certiorari has gradually expanded to encompass certain administrative decisions that affect individual rights [9]. When administrative authorities exercise functions that require them to act judicially—observing procedures, hearing affected parties, and rendering reasoned decisions—their orders may be subject to certiorari. Prohibition remains more strictly confined to bodies exercising clear judicial or quasi-judicial functions.

Neither writ is available against legislative bodies in their law-making capacity, as legislative functions are fundamentally different from adjudicatory ones. Similarly, purely ministerial or administrative acts performed without any judicial element fall outside the scope of both writs. Private individuals and entities cannot be served with either writ, as these remedies address the exercise of public judicial power rather than private conduct.

Practical Considerations

From a procedural standpoint, prohibition must be sought promptly when jurisdictional defects become apparent. Delay in seeking prohibition may lead courts to conclude that the petitioner has acquiesced to the jurisdiction of the inferior body. Certiorari, while also subject to principles of laches and unreasonable delay, is sought after the impugned order exists, meaning the timing is necessarily different.

The remedies available through each writ also differ. Prohibition simply halts proceedings, requiring the matter to be taken up before the proper forum if further adjudication is necessary. Certiorari not only quashes the defective order but may result in the matter being remanded to the same or a different authority for fresh consideration, depending on the nature of the defect identified.

Certiorari Versus Appellate Jurisdiction

A critical question in writ jurisprudence concerns the relationship between certiorari and regular appellate processes. While both mechanisms involve superior review of inferior decisions, they serve distinct functions and operate under different legal principles.

Supervisory Versus Appellate Review

Certiorari exercises supervisory jurisdiction, focusing on the legality and procedural regularity of decision-making rather than the substantive correctness of conclusions reached. The superior court examines whether the inferior body acted within jurisdiction, followed proper procedures, and applied the law correctly—not whether its ultimate decision was the best or most reasonable outcome on the facts [7].

Appellate review, by contrast, involves a more comprehensive examination where the appellate court may reassess factual findings, reweigh evidence, and substitute its own judgment for that of the lower court. An appellate court has the power to correct any error, whether of law or fact, and to render the decision it believes should have been made in the first instance.

When Certiorari Cannot Substitute for Appeal

Indian courts have consistently held that certiorari cannot be used as an alternative to appeal when the law provides a specific appellate remedy. The principle of exhaustion of alternative remedies requires that where a statutory appeal mechanism exists, parties must pursue that remedy rather than seeking extraordinary writ relief [9]. This principle serves important policy objectives: it respects the statutory framework created by the legislature, allows for the development of factual records through the appellate process, and prevents circumvention of limitations periods or other conditions attached to statutory appeals.

The Supreme Court has emphasized that if the law does not allow an appeal in a particular case, then giving it a “back-door entry” via certiorari amounts to defeating the legislative purpose. Certiorari exists to address jurisdictional impropriety and legal error, not to provide a second appeal route in cases where the legislature has determined that a single level of review is sufficient.

However, the rule against using certiorari as an alternative to appeal is not absolute. When jurisdictional questions arise or when statutory remedies would be ineffective or inadequate to address fundamental legal errors, writ jurisdiction remains available. Courts retain inherent power under Articles 32 and 226 to intervene in exceptional circumstances where justice requires extraordinary relief.

Jurisdictional Limitations of Certiorari

Certiorari is explicitly unavailable against civil courts’ judicial orders as established through consistent judicial interpretation. The hierarchical appellate structure for civil litigation provides comprehensive review mechanisms, making writ intervention generally inappropriate. This limitation reflects the principle that established appellate procedures should not be bypassed through writ petitions absent compelling jurisdictional grounds.

Similarly, certiorari cannot be invoked purely on the basis of factual errors, however significant they may be. If the inferior body had jurisdiction to determine the matter and followed proper procedures, the fact that it may have reached an incorrect factual conclusion does not justify certiorari. The remedy addresses legal and jurisdictional defects, not factual errors that should be corrected through appeal or revision.

Constitutional Significance and Contemporary Relevance

The writs of prohibition and certiorari continue to play vital roles in India’s constitutional governance, serving as essential mechanisms for maintaining the rule of law and protecting individual rights against arbitrary exercise of power.

Safeguarding Constitutional Values

These writs embody the constitutional commitment to limited government and accountability of public authorities. By providing mechanisms to challenge jurisdictional excess and procedural irregularity, they ensure that even governmental bodies and statutory tribunals remain subject to legal constraints. This reflects the fundamental constitutional principle that all power is conferred by law and must be exercised within legal boundaries.

The writs also protect the integrity of the judicial hierarchy, ensuring that subordinate courts and tribunals do not assume powers beyond their legal authority. This hierarchical oversight maintains consistency in legal interpretation and application across the judicial system, promoting the rule of law through uniform adherence to jurisdictional boundaries.

Evolution in Response to Administrative Growth

The expansion of administrative tribunals and quasi-judicial authorities in modern India has increased the significance of Writs of prohibition and certiorari. As specialized tribunals proliferate to handle complex regulatory matters, writ jurisdiction provides essential oversight to ensure these bodies operate within their statutory mandates. Courts have adapted these ancient writs to address contemporary challenges posed by the administrative state.

The expansion of certiorari to administrative cases reflects recognition that modern governance increasingly involves quasi-judicial decision-making by bodies outside the traditional court system. Ensuring these authorities respect principles of natural justice and jurisdictional limits requires maintaining robust writ jurisdiction as a supervisory mechanism.

Balancing Judicial Review and Institutional Autonomy

Contemporary jurisprudence on these writs reflects ongoing efforts to balance effective judicial oversight with respect for the autonomy and expertise of specialized tribunals. Courts have developed doctrines of restraint, including the principle that writ jurisdiction should not be exercised to effectively conduct a second appeal on factual matters within a tribunal’s special competence.

At the same time, courts maintain vigilance against jurisdictional excess and procedural irregularity, recognizing that even expert tribunals must operate within legal constraints. This balance preserves the constitutional design of checks and balances while allowing specialized bodies to effectively perform their designated functions.

Conclusion

The writs of prohibition and certiorari represent enduring instruments of constitutional governance, adapted from English common law traditions to serve India’s unique constitutional framework. These remedies provide essential mechanisms through which superior courts exercise supervisory control over subordinate judicial and quasi-judicial authorities, ensuring adherence to jurisdictional boundaries and procedural regularity.

The distinction between prohibition as preventive and certiorari as corrective reflects the practical need for remedies appropriate to different stages of adjudicatory processes. While prohibition halts improper proceedings before they conclude, certiorari corrects jurisdictional errors after they have materialized. Both writs share the fundamental objective of maintaining legal order and protecting individuals from arbitrary exercise of judicial power.

The constitutional provisions of Articles 32 and 226 create a robust framework for writ jurisdiction, with the Supreme Court and High Courts serving complementary roles in safeguarding fundamental rights and enforcing legal limits on governmental authority. The evolving jurisprudence surrounding these writs demonstrates the Indian judiciary’s adaptability in applying ancient common law principles to contemporary governance challenges.

As India’s administrative state continues to expand and specialized tribunals proliferate, the significance of writs of prohibition and certiorari as supervisory mechanisms grows. These writs ensure that even as adjudicatory power becomes more diffused across various bodies, all exercises of such power remain subject to judicial oversight and legal accountability. This oversight function remains essential to preserving constitutional governance, protecting individual rights, and maintaining the rule of law in India’s democratic framework.

References

[1] Constitution of India, Article 32. Available at: https://legislative.gov.in/constitution-of-india/ 

[2] Constitution of India, Article 226. Available at: https://legislative.gov.in/constitution-of-india/ 

[3] iPleaders. “All You Need to Know About the Writ of Prohibition.” Available at: https://blog.ipleaders.in/all-you-need-to-know-about-the-writ-of-prohibition/ 

[4] iPleaders. “Difference Between Article 32 and Article 226.” Available at: https://blog.ipleaders.in/difference-article-32-article-226/ 

[5] Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233. Available at: https://indiankanoon.org/doc/1450722/ 

[6] Romesh Thappar v. State of Madras, AIR 1950 SC 124. Available at: https://indiankanoon.org/doc/456839/ 

[7] ClearTax. “Writs in the Indian Constitution.” Available at: https://cleartax.in/s/writs 

[8] Unacademy. “Prohibition – Writ of Prohibition and Certiorari.” Available at: https://unacademy.com/content/wbpsc/study-material/polity/prohibition/ 

[9] Legal Vidhiya. “Romesh Thappar v. State of Madras Case Analysis.” Available at: https://legalvidhiya.com/romesh-thappar-v-state-of-madras-air-1950-sc-124/

Author: Parthvi Patel, United World School of Law