Any person can approach the High Court or Supreme Court if his fundamental rights are violated and the court can issue writs. Writ is a primary provision to make right to constitutional remedies available to everyone. Both supreme court and high courts are empowered with writ jurisdiction. Even parliament by law can extend power to issue writs to any other courts for local limits of the jurisdiction of such courts. Writ of prohibition as the name suggests ‘to prohibit or stop’. This writ is issued when a lower court or a legal body tries to cross the limits or powers vested in it, commonly known as Stay Order which is commonly used in courts. Writ of prohibition is issued by supreme court or any high court to any lower court or quasi-judicial body in order to stop them from further proceeding.
A Writ of Prohibition is generally issued to prevent a lower court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice. When this writ is issued all the proceedings in the lower court come to a halt. Writ of prohibition is generally issued when lower court or tribunal acts without jurisdiction or in excess of jurisdiction. It is even issued in cases where there is a violation of rules of natural justice or fundamental rights and especially when an action is being carried out under a law which is ultra vires or unconstitutional.
Grounds to issue writ of certiorari and prohibition are almost similar but the only difference is at what phase they can be applied. Both cannot be issued for error of law. Writ of certiorari issued only after the order or decision has been announced. If the court hears the matter and gives the decision, the party is supposed approach the higher courts to quash the decisions on the grounds of wrong jurisdiction. Whereas Writ of prohibition is available during the pendency of proceedings. When a lower court or tribunal takes up a hearing of a matter on which it has no jurisdiction, the person against whom the hearing is taking place can move to the higher court for writ of prohibition to prohibit the lower court from proceeding over the issue.
Both writs are issued against legal bodies.
In India writs were issued only against judicial or quasi -judicial bodies. For example, in Brij Khandelwal v. Union of India, the Delhi High Court refused to issue prohibition to the Central Government so as to prevent it from entering into an agreement with Sri Lanka regarding a boundary dispute. The decision was based on the principle that prohibition does not lie against government discharging executive functions and that prohibition is intended to control quasi -judicial, and not executive or administrative, functions.
Above mentioned view of consideration is no longer tenable. With the expansion of the concept of natural justice and emergence of the concept of fairness even in administrative functions, the rigidity about certiorari or prohibition has also been relaxed. These writs can now issue to anybody which makes a decision affecting the rights and interests of any person, irrespective of the nature of the function discharged by it, whether administrative or quasi -judicial, if any of the grounds on which these writs are issuable is present. A writ court can issue a prohibition to restrain a tribunal from acting under an invalid law, but if the tribunal has already given its decision, then certiorari is the proper remedy.
In Raj Leathers v. Secretary to the government, Madras high court refused to issue prohibition to stop an investigation by the CBI into alleged economic offences by the petitioner. The Court observed: “As and when the authorities take any action on the basis of the investigation, there will be time enough for the petition to challenge the same. As such, the petitioner cannot seek the help of this Court and obtain a writ of prohibition to stop the authorities from conducting the investigation itself. I feel that this Court should be very slow in interfering with such investigation, especially when economic offences are suspected.”
In Isha Beevi v. The Tax Recovery Officer, prohibition was sought by the petitioner to quash notices issued by the tax recovery officer to commence proceedings to recover income-tax dues by attaching the petitioner’s property. The petition was rejected. It is well settled that a tribunal functioning under a statute is not authorized to adjudicate upon the constitutional validity of the statute under which it functions. A tribunal can decide only such questions as it is authorized to decide under the statute concerned and the question that the provisions of the statute are ultra vires is foreign to the scope of the tribunal’s jurisdiction.
In a case which is in pending both the writs can be applied, writ of certiorari for quashing the preliminary decision and writ of prohibition to halt the further actions. Prohibition can be issued inter alia to the following bodies or proceedings:
(1) Customs Collector;
(2) Government acting under S. 68 (d) of the Motor Vehicles Act;
(3) Income-Tax Assessor;
(4) A university when it cancels examination result of a candidate appearing at an examination;
(5) An enquiry commission established under the Commissions of Enquiry Act;
(6) Authorities dealing with licensing liquor shops;
(7) Authorities passing an order of confiscation or imposing penalty under the Customs Act;
(8) Tax assessment proceedings;
(9) Expulsion of a student by a university;
(10) Industrial Tribunals;
(11) Election Tribunals;
(12) Dismissal from service;
(13) Removal from membership of a body;
(14) Cancellation of a license;
(15) Requisitioning of property for a public purpose;
(16) Enquiry Committee;
(17) District Consumer Forum, State Consumer Forum as well as National Commission constituted by the Consumer Protection Act, 1986, as these bodies have adjudicatory powers.
A court-martial constituted under the Army Act has been held to be subject to certiorari or prohibition. A High Court cannot exercise powers of superintendence under Art. 227 over the courts and tribunals functioning under any law relating to armed forces. Such a tribunal although not regarded as one subordinate to the High Court for purposes of Art. 227, is yet subject to the High Court’s writ jurisdiction under Art. 226 as such subordination is not necessary for purposes of Art. 226. The Supreme Court can exercise jurisdiction over military tribunals under Art. 32, but not under Art. 136.
Prohibition is an efficient remedy when a person does not desire any other relief but to halt the administrative agency or the lower court to continue with the proceedings. The conditions are same for issuing both writ of certiorari and writ of prevention with the only difference being at what phase the writ is being issued. The writ of prohibition will issue to prevent the tribunal or lower court from proceeding further, when they proceed to act without or in excess of jurisdiction. This writ can be issued even when the tribunals or lower court proceed to act in violation of the rules of natural justice.
Author: Lohith Konda from Indian Institute of Technology (IIT), Kharagpur.