The Writ of Certiorari
Chapter Thirty-Eight
Syllabus topic 3, "Jurisdiction"
Pages 115 to 117 of 430
In one line
Certiorari is the writ that brings up a decision already made and quashes it.
In the wording a student can write in an exam: certiorari, meaning to be certified, is a writ issued by a superior court to an inferior court, tribunal or authority requiring the record of a decision to be transmitted so that it may be quashed, on the grounds of want or excess of jurisdiction, violation of the principles of natural justice, or an error of law apparent on the face of the record.
The foundational statement
T.C. Basappa v. T. Nagappa, AIR 1954 SC 440, worked in [The Five Writs and Where They Came From], holds that an Indian court may issue an order in the nature of certiorari in all appropriate cases so long as the broad and fundamental principles regulating the writ are adhered to; that it lies to review judicial acts, an expression which includes the quasi-judicial functions of administrative bodies but not purely ministerial acts; and that in granting it the superior court does not exercise appellate powers.
Against whom, and the collapse of the old limit
The traditional requirement was a body with a duty to act judicially, which is why Province of Bombay v. Kusaldas S. Advani, AIR 1950 SC 222, refused it against a requisition. That limit went with A.K. Kraipak v. Union of India, AIR 1970 SC 150, and certiorari now lies against an administrative body which determines rights, provided the decision is not legislative and not purely ministerial.
It does not lie against a superior court of record: Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1.
The three grounds
One, want or excess of jurisdiction. The body had no power over the person, the place, the subject matter or on the facts required to exist; or it exceeded the power it had. This is worked in [Jurisdictional Error and the Collateral Fact Doctrine].
Two, violation of the principles of natural justice. No notice, no hearing, bias, a decision by one who did not hear, reliance on undisclosed material. Module III.
Three, error of law apparent on the face of the record. A mistake of law that appears from the order and the proceedings themselves and needs no long argument to establish. This is worked in [Error of Law Apparent on the Face of the Record].
To those three the modern law adds a fourth in substance: a finding of fact based on no evidence at all, which is treated as an error of law.
The great limit: it is not an appeal
Hari Vishnu Kamath v. Syed Ahmad Ishaque, AIR 1955 SC 233.
Facts. An election tribunal decided an election petition and then became functus officio. The losing side sought certiorari, and it was argued both that Article 329(b) barred the High Court and that certiorari could not issue against a tribunal that no longer existed.
The Writ of Certiorari
Held. Article 226 is in terms absolute and unqualified and an election tribunal within the High Court's territory falls within its sweep, unaffected by Article 329(b). Certiorari is directed against a record, and since a record can be brought up only through a human agency it is ordinarily issued to the person or authority whose decision is to be reviewed, so a tribunal becoming functus officio is no obstacle. Certiorari lies for a defect of jurisdiction, a violation of natural justice, and an error of law apparent on the face of the record; and it is distinguished from prohibition, which stops what is being done, while certiorari quashes what has been done.
Why it matters here. It fixes the grounds, the target of the writ and the difference from prohibition, all in one case.
Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477, then fixes the limit: the jurisdiction is supervisory and not appellate; findings of fact are not reviewed however erroneous; evidence is not reappreciated; an error of law apparent on the face of the record can be corrected but an error of fact cannot, however grave; and a finding reached on no evidence at all is an error of law, while a finding on insufficient evidence is not.
What "the record" means
The order, the pleadings, the issues framed, the evidence recorded so far as it is referred to, and any document forming part of the proceedings. It does not include material which has to be brought in from outside, which is why an error requiring evidence to establish it is not apparent on the face of the record.
A worked example
A Rent Controller holds that premises let for a shop are residential premises, on the ground that the tenant sleeps there, and fixes a standard rent on the residential scale. The order records that finding and quotes the definition section.
Certiorari lies. Whether the premises are residential turns on the construction of the definition section, so the mistake is one of law; it appears from the order itself, so it is apparent on the face of the record; and no evidence from outside is needed to show it. Contrast a complaint that the Controller believed the landlord's witness and not the tenant's, which is an error of fact and outside certiorari on Syed Yakoob.
Distinctions that carry marks
| Certiorari | Prohibition | |
|---|---|---|
| When | After the decision | While the proceeding is pending |
| Effect | Quashes | Stops |
| Available for an error on the face of the record | Yes | No, it goes to jurisdiction |
| Both may be sought together | Where part of the proceeding is over and part is pending |
The Writ of Certiorari
| Certiorari | Appeal | |
|---|---|---|
| Evidence | Not reappreciated | Reappreciated |
| Error of fact | Not corrected | Corrected |
| Source | Constitutional | Statutory |
| Outcome | Quash and remit | Substitute |
What certiorari is NOT
It is not available against a purely ministerial act, because there is nothing determined.
It is not available against legislative action, including delegated legislation, which is attacked by a declaration that the rule is ultra vires.
It is not available to correct an error of fact.
It is not defeated by the tribunal ceasing to exist.
Quick revision
To be certified. Issued after a decision, against a body determining rights, to quash. Three grounds: want or excess of jurisdiction, breach of natural justice, error of law apparent on the face of the record, with no evidence at all treated as an error of law. Basappa is the foundation, Hari Vishnu Kamath fixes the grounds and the functus officio point, Syed Yakoob fixes the limit. It is not an appeal, not available against ministerial or legislative acts, and not available against a superior court of record.
Test yourself
1. Name the three classical grounds of certiorari. Want or excess of jurisdiction, violation of the principles of natural justice, and an error of law apparent on the face of the record.
2. A tribunal makes a finding with no evidence at all. Is that within certiorari? Yes. Syed Yakoob treats a finding of fact based on no evidence as an error of law; a finding on insufficient evidence is not.
3. Does certiorari lie against a tribunal that is functus officio? Yes. Hari Vishnu Kamath holds that the writ is directed against the record, which survives the tribunal.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.