Definition and nature of certiorariÂ

When an administrative action is ultra vires it can be controlled by certiorari and also by some other public law remedies. But where such an action involves a quasi-judicial element and has been reached violating the rules of natural justice or in reaching a decision the authority commits an error of law, certiorari is practically the main method of judicial control. This scope of certiorari has made it a very suitable method to control administrative tribunals. A consequence of the modern social service state has been the increase of administrative tribunal. Therefore the importance of ‘certiorari has also increased in recent years.  Certiorari is historically an extraordinary legal remedy and is corrective in nature. It is issued in the form of an order by a superior court to any inferior civil tribunal which deals with the civil rights 1 of persons and which is a public authority 2 to certify the records of any proceedings of the latter to review the same for defect of jurisdiction, fundamental irregularities of procedure and for error of law apparent on the proceedings. This remedy arises on principle from the superintending authority which the sovereign’s superior courts possess and exercise over inferior jurisdictions as the delegates of the sovereign.  “The origin of this controlling power was the writ of certiorari by which the King commanded the judges of any inferior court of record to certify of any matter in their court with all things touching the same and to send it to the King’s Court to be examined. The wording of the writ was for many centuries as follows, being originally in Latin and afterwards in English :  We being willing for certain reasons that all and singular orders made by you (as is said) be sent by you before us, do command that you do send forthwith before us all and singular the said orders with all things touching the same, as fully and perfectly as they have been made by you and now remain in your custody or power, together with this our writ, that we may cause further to be done thereon what of right and according to the law and Custom of England we shall see tit to be done . I would pause for a moment to notice the amplitude of this writ. The record of the inferior court is to be sent up so that the King’s Bench may cause to be done thereon “what of right and according to the law and custom of England” ought to be done. The width of these words is only matched by the width of the words used by the great masters of the law in speaking of certiorari. Thus Joseph Chitty, in his book on ‘General Practice’, Edn. 3, Vol. II, p. 353a, said :  “As an essential mode of exercising a control over all inferior courts, (the Court of Queen’s Bench) has a most extensive power to bring before it their proceedings, and fully to inform itself upon every subject essential to decide upon the propriety of the proceedings below. This is effected by a writ called certiorari… .The writ issues in civil as well as criminal cases. Thus, such a writ was ordered to be issued to the judge of an inferior jurisdiction to return and Certify the practice of his court (see ‘Williams v. Lord Bagot’ (1824) Dow & Ry. K. B. 315 : 16 Digest 436, 2999 3.”  There are many types of this writ 4. But students of judicial control are concerned only with certiorari to quash 5. In fact, when it is usually stated that certiorari was issued originally to courts proper and was later extended to tribunals of a judicial nature it is not always remembered that there is a fundamental distinction between certiorari and another equally celebrated writ, namely, the writ of error. The difference was that the former is issued against tribunals whose procedure was out of the course of common law while the latter was issued to courts that proceeded according to common-law 6. The provinces of the writs of error and ‘certiorari’ were generally mutually exclusive 7.  In its own province certiorari is historically an extraordinary legal remedy. This is the general view but its accuracy is doubted. However, whether it has not become an ordinary remedy under Arts. 32 and 226 of our Constitution whenever a fundamental right is violated is yet to be decided by the Supreme Court. That a remedy under Art. 226 is a matter of right when the violations of a fundamental right is proved is the minimum that could be claimed 8. The most liberal view is that stated by Mootham J. in Tshwariprasad v. Allahabad University’ 9 to the effect that when a legal right of the petitioner is proved to have been violated by the impugned administrative action the court is obliged to issue certiorari unless the respondent can show that the petitioner by his conduct has become disentitled to the remedy. The optimum is that when violation of legal right or interest is shown the writ will go unless the conduct of lie petitioner or inefficacy of issue of the writ, public interest or presence of special remedies show contrary reasons. As regards the position of certiorari under Art. 226 of the Constitution regarding rights which are not fundamental, the weight of authority inclines to the view that its previous position of an extraordinary legal remedy is not affected 10.  The characteristic of an extraordinary remedy that has grown in the shade of the royal prerogative is that its issue is discretionary when a private individual prays for it. However, in the case of certiorari this discretion is in practice influenced by two considerations : the existence of other ordinary remedies which are equally convenient and the existence or otherwise of equitable considerations.  It has been pointed out that certiorari is a corrective remedy. This is its distinctive feature. Error jurisdictional or otherwise apparent on the face of the proceedings, is a ground for the issue of the writ and if Lord Goddard’s exhortation 11 to make all orders of administrative tribunals “speaking orders” 12 is universally followed nothing better could be envisaged to bring about all-round satisfaction in the court-administrative relation. This corrective function of certiorari is sometimes forgotten.  The object of the writ being correction the attention of this remedy is revetted on the record. As its name indicates, the superior court is entitled, as the delegate of the sovereign, to be informed of the correctness of the impugned proceedings, to be made ‘certain’ that all is well with the administration of justice by the inferior tribunals which are spread over the realm. Just as ‘habeas corpus’ looks for the jailor of the aggrieved detenu, mandamus for a delinquent public authority disinclined to do his duty, ‘quo warranto’ for an impostor and prohibition for a tribunal about to proceed or proceeding in an illegal manner, certiorari looks for the record from which it wants to detect error, jurisdictional or other, and if it is there, to liberate the individual as well as the tribunal from the bondage. Of such error 13.  Though it is destruction, quashing, that is done by ‘certiorari’ this is only the apparent aspect. In effect and substance it is correction, a duty analogous to that once performed by the complimentary writ of error which, as is well known, was the only kind of appeal originally known to the common law of England. ‘Certiorari’ has, therefore, to be issued to the legal keeper of the record if the tribunal is not available. If a tribunal after giving its decision or order become ‘functus officio’ then the writ for its records ought to go to that body which has, under law, the custody of those records.  For example under S. 103, Representation of the Peoples Act, 43 of 1951, every election tribunal is directed to transmit the records after announcing its orders either to the District Judge of the District if it sat in the mofussil or to the Chief Judge of the Court of Small Causes if it sat in a Presidency Town. This provision enables the High Courts and Supreme Court of India to scrutinize the decisions of election tribunals even after they have become ‘functus officio’ by issuing certiorari to the legal keepers of records 14.  Thus it has been stated by the highest authority that if the writ for quashing was in reality directed against a record, there was no reason why it should not be issued to whosoever had the custody thereof and that the power to issue a writ under Art. 226 to a person as distinct from an authority was sufficient to take in any person who had custody of the record 15. ‘Certiorari’ is a proceeding in ‘personam’. The effect of this rule is however simple: if the person against whom the order is issued disobeys it he will be forthwith committed for contempt of court 16. Even if the recipient of the order is of opinion that the Court has no jurisdiction to issue it, he should plead that.  Under the existing law, one cannot state, a ‘priori’ what will be the nature of a proceedings for a writ of certiorari under the common law as well as under Art. 226 of the Constitution, Now India appears to follow the English practice. Lord Sumner explained the English position in — ‘Re Clifford and O’Sullivan’ 17, and said that “an application for a writ of prohibition is in itself no more and no less criminal than it is the contrary.  This quality of the matter of an application for that writ must be decided according to the subject-matter dealt with on the application. The same is true of certiorari 18 and habeas corpus 19…........ I think the real test is the character of the proceedings themselves which are the subject-matter of the particular application, whatever it be…... 20.”  It has been stated at the beginning that ‘certiorari’ issues against an inferior tribunal. The growth of law in this matter covered in its path not only Courts proper but tribunals which had all the trappings of a Court, modern administrative tribunals which had often only few such trappings and then judicial acts of purely executive authorities. Now according to the Supreme Court decision in Basappa v. Nagappa 21, the expression ‘judicial acts’ in the rule that ‘certiorari’ would issue against judicial acts included “the exercise of quasi-Judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and was used in contrast with what were purely ministerial acts.”  Certiorari is an original proceeding in the superior Court. It has its origin in the Court of issue and thus the petition has to be filed in India directly before the High Courts for relief under Art. 226 and before the Supreme Court for relief under Art. 32 of the Constitution.  Certiorari may therefore be defined as a judicial order operating in ‘personam’ and made in an original legal proceeding, directed by a superior court to an inferior public civil authority, or, to a person who has custody of the record of such an authority, requiring some cause or matter which is not of a ministerial nature to be certified to the superior Court, and on its arrival there, to be dealt with according to law. Â

Author Name: A. T. Markose