Fundamental rights in India have always been given the utmost importance, next to basic structure doctrine. Fundamental rights are provided under Articles 12-35 of the Indian Constitution. Since it ensures the enforcement of the rights through writs, Article 32 is, according to Dr. BR Ambedkar, the heart and soul of the Constitution.
This article explores the writ of prohibition in detail, its development over time, and landmark judgements that involved this writ.
What is a Writ?
A writ is an official order which has been passed by the Supreme Court or a High Court. High Courts can issue writs under Article 226 of the Indian Constitution and the Supreme Court under Article 32. The Parliament also has the power, according to law, to extend writ jurisdiction to any other court within their local limits.
Article 226 has a broader scope, allowing the High Courts greater flexibility when dealing with cases involving fundamental rights violations.
Writs are different from Orders in that writs can be issued to provide extraordinary remedies. In addition, writs are classified into five types, whereas orders are only of one kind. One may say that all writs are orders, but the converse may not always be accurate.
Types of Writs
Writs under the Indian Constitution are of the following kinds-
- Habeas corpus: This writ is issued when a person has been illegally detained to protect that person’s liberty.
- Mandamus: This is a writ issued by a High Court or the Supreme Court on a lower court, tribunal, or a board asking them to perform public duties that the law imposes on them.
- Prohibition: This writ is as old as common law and an extraordinary writ with a preventive nature. It prohibits courts, tribunals, boards, quasi-judicial bodies, and other authorities from exercising powers beyond their jurisdictions.
- Certiorari: One of the most effective writs in use, a higher court issues the writ of certiorari to a lower one or any other authority which exercises judicial or quasi-judicial functions.
- Quo warranto: This writ is issued in cases where the judiciary aims to control the exercise of executive power in the appointment of public officers under the appropriate statutory provisions. This writ against a public officer makes it mandatory for them to show the statutory provision(s) from which they derive authority.
History and Evolution
Originating in England, this writ was created so that the King’s Bench and the Court of Common Pleas could prevent the lower courts from exceeding the boundaries of their jurisdiction. It was initially issued against ecclesiastical courts (courts that dealt with Christian spiritual matters)
The writ of prohibition evolved from the prerogative writs of the King, which were writs that the King could issue under the prerogative powers vested in him. Originally designed to prevent the abuse of power by public authorities, this writ, along with certiorari, used to be issued only to judicial and quasi-judicial bodies.
Scope
A writ of prohibition is generally issued when a lower court acts in one or all of the three following manners-
- Exceeding its jurisdiction
- Violating the rules of natural justice
- Acts under an unconstitutional law.
The writ of prohibition has a narrower scope than others, such as habeas corpus and mandamus. It is applicable in cases where a lower court has exceeded its jurisdiction and where it has no jurisdiction at all. In other words, this writ applies both when a court oversteps its jurisdiction and when jurisdiction is absent.
It is noteworthy that a higher court can only issue the writ of prohibition before a lower court has passed a judgment in a particular case. If the lower Court has already passed the decision, then the writ of certiorari would apply and not prohibition.
Landmark Judgements in India
Hari Vishnu Kamath v. Syed Ahmed Ishaque
This case involved an election to the Lok Sabha. The appellant said that the voters were given incorrect ballot papers, and thus those votes should not be counted.
The judge, in this case, laid down the rules to be followed for issuing the writ of prohibition. In effect, this clarified the distinguishing factors between the writs of certiorari and prohibition. The Supreme Court held that once a court has “given a decision”, the petitioner must file for a writ of certiorari and not prohibition since the latter is issued before passing a judgment. The Court said as follows:
“What is stated there is that both writs of prohibition and certiorari have for their object the restraining of inferior courts from exceeding their jurisdiction, and they could be issued not merely to courts but to all authorities exercising judicial or quasi-judicial functions.
But there is one fundamental distinction between the two writs, and that is what is material for the present purpose. They are issued at different stages of the proceedings. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the Superior Court for a writ of prohibition. On that, an order will issue forbidding the inferior Court from continuing the proceedings.
On the other hand, if the Court hears that cause or matter and decides, the party aggrieved would have to move the Superior Court for a writ of certiorari. On that, an order will be made quashing the decision on the ground of want of jurisdiction. “
This case was regarding a boundary dispute between the Central Government of India and Sri Lanka. The Delhi High Court refused to issue a writ of prohibition to prevent the former from entering into an agreement regarding the same. The Court reasoned that this writ does not apply to administrative bodies and only judicial ones; thus, it is not in the Court’s power to issue the writ.
Courts today are no longer of this view, considering that the concept of natural justice has expanded significantly. They do not rigidly enforce the writ anymore because the idea of fairness in administrative functions has also much evolved. Prohibition is now issued to any body, irrespective of the nature of their functions. This writ is now considered a general remedy for the judicial control of the exercise of power by non-judicial bodies.
In this case, the petitioner Govinda Menon was an IAS member against whom the government had initiated disciplinary proceedings and issued a show-cause notice following an enquiry. He filed a writ of prohibition, asking the High Court to prevent the government from proceeding with the show-cause notice.
The Court did not issue a writ of prohibition in this case and laid down the instances where prohibition can be issued. The Court held that the writ of prohibition may be issued in cases of exceeding jurisdiction, absence of jurisdiction and violation(s) of the principles of natural justice.
Conclusion
From this discussion, one can infer that prohibition is a particularly valuable writ to prevent the abuse of power by any authority. Knowing the difference between the writs of prohibition and certiorari will undoubtedly help a person seek the proper remedy when they are in distress. Preserving the principles of natural justice, the writ of prohibition is indeed a protector of the Constitution of India.
Author: Bhavana Haridas from NUALS, Kochi.
Juris Centre 