Constitutional Law-1-Assignment 2-Part B - Difference Between Writ of Certiorari and Writ of Prohibition & Their Usage
Difference Between Writ of Certiorari and Writ of Prohibition & Their Usage
1. Introduction
The Indian Constitution provides various constitutional remedies to ensure justice and protect fundamental rights. One of the most important remedies is the writ jurisdiction under Article 32 (Supreme Court) and Article 226 (High Courts).
Among the five types of writs—Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto—the writs of Certiorari and Prohibition are often confused as they both deal with judicial review and control over lower courts and tribunals.
However, there is a key difference:
- Writ of Prohibition is issued before an illegal action is completed.
- Writ of Certiorari is issued after an illegal action has been completed.
In this essay, we will explore the difference between Certiorari and Prohibition, their scope, application, and when they are used.
2. Meaning of Writs & Constitutional Provision
🔹 What is a Writ?
A writ is a formal order issued by a court directing a person, authority, or government to do or refrain from doing something. It is a crucial tool in judicial review and enforcement of rights.
🔹 Constitutional Basis:
- Article 32 – Empowers the Supreme Court to issue writs for the protection of Fundamental Rights.
- Article 226 – Empowers the High Courts to issue writs for both Fundamental Rights and other legal rights.
3. Writ of Certiorari – Meaning, Features & Usage
🔹 Meaning of Certiorari
- The word ‘Certiorari’ is a Latin term meaning ‘to be informed’ or ‘to be certified’.
- It is issued by a higher court (Supreme Court or High Court) to a lower court, tribunal, or public authority to quash an illegal decision or order that has already been passed.
🔹 Key Features of Certiorari
✔️ Issued after an order or judgment has been passed by an inferior court or tribunal.
✔️ It nullifies decisions made without jurisdiction or against the law.
✔️ Ensures that inferior courts do not exceed their legal authority.
✔️ Can be used for both judicial and quasi-judicial bodies, but not for purely administrative actions.
🔹 When is the Writ of Certiorari Used?
The Supreme Court or High Courts may issue Certiorari when:
✅ A lower court or tribunal has passed an order beyond its jurisdiction.
✅ There is a violation of principles of natural justice (e.g., not giving a fair hearing).
✅ There is an error of law in the decision.
✅ The order is unconstitutional or violates Fundamental Rights.
📌 Example: If a tribunal gives a judgment without allowing one party to present their case, the High Court can quash the decision using Certiorari.
4. Writ of Prohibition – Meaning, Features & Usage
🔹 Meaning of Prohibition
- The word ‘Prohibition’ means ‘to forbid’ or ‘to stop’.
- This writ is issued by a higher court to a lower court or tribunal to stop it from proceeding with a case that is beyond its jurisdiction.
🔹 Key Features of Prohibition
✔️ Issued before the lower court or tribunal delivers a final order.
✔️ Prevents excessive use of jurisdiction or illegal proceedings.
✔️ It is issued only against judicial or quasi-judicial bodies, not against administrative or legislative actions.
🔹 When is the Writ of Prohibition Used?
The Supreme Court or High Courts may issue Prohibition when:
✅ A lower court or tribunal is hearing a case beyond its jurisdiction.
✅ There is violation of fundamental rights or natural justice.
✅ The matter is not legally within the scope of the lower court.
✅ The law under which the tribunal is acting is unconstitutional.
📌 Example: If a consumer forum starts hearing a criminal case, the High Court can stop it using Prohibition because consumer courts do not have jurisdiction over criminal matters.
5. Key Differences Between Certiorari and Prohibition
| Basis | Writ of Certiorari | Writ of Prohibition |
|---|---|---|
| Meaning | Issued to quash an illegal decision already passed. | Issued to stop an illegal proceeding before the final decision is made. |
| Stage of Issuance | After the order is passed. | Before the order is passed. |
| Purpose | To correct errors of jurisdiction and quash an invalid order. | To prevent excess jurisdiction and stop an unlawful proceeding. |
| Against Whom? | Lower courts, tribunals, and public authorities. | Lower courts and tribunals. |
| Effect | Declares the previous action null and void. | Prevents further action on a case before the final decision. |
| Nature | Corrective – Fixes a wrongful order. | Preventive – Stops wrongful proceedings. |
| Example Case | A tribunal wrongly convicts a person – the High Court quashes the decision using Certiorari. | A district court is about to try a case beyond its jurisdiction – the High Court stops it using Prohibition. |
6. Judicial Precedents & Case Laws
📌 Writ of Certiorari Case: A.K. Kraipak v. Union of India (1969)
➡️ Facts: In this case, a selection board member was also a candidate for a job. The board selected him unfairly.
➡️ Verdict: The Supreme Court quashed the selection list using Certiorari, as it violated natural justice.
📌 Writ of Prohibition Case: Govind Menon v. Union of India (1957)
➡️ Facts: A tribunal was about to hear a case outside its legal authority.
➡️ Verdict: The Supreme Court issued Prohibition, stopping the tribunal from continuing the case.
7. Conclusion
✔️ Both Certiorari and Prohibition are important writs that ensure courts and tribunals do not exceed their powers.
✔️ Certiorari is used after a wrongful decision is made, whereas Prohibition is used before an unlawful proceeding is completed.
✔️ These writs help in judicial review, prevent abuse of power, and protect fundamental rights.
✔️ The power of High Courts (Article 226) and Supreme Court (Article 32) to issue these writs strengthens the rule of law and prevents judicial overreach.
Thus, both Certiorari and Prohibition play a crucial role in ensuring fairness, justice, and legal correctness in the Indian judiciary.
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