Writ of certiorari and duty to act judicially

Certiorari means “to be certified” or “to be informed”. It is issued by a higher court to the lower court, either to transfer the case pending with the later to itself OR to quash the order of the later. Hence, unlike the Writ of prohibition, which is only preventive the Writ of certiorari is both preventive as well as curative.

Writ of certiorari may issue “whenever any, body of persons having legal authority to determine the questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority1. As approved by the Supreme Court of India in Gulab Singh v. Collector of Farrukhabad2, it consists of four major components such as;

  1. Any body of persons;
  2. Having legal authority;
  3. To determine questions affecting the rights of subjects; and
  4. Having the duty to act judicially

The duty to act judicially may arise in widely differing circumstances and it would be impossible to define exhaustively all the circumstances3. There are two propositions4however, which are well established for ascertaining if the authority is under a duty to act judicially, namely;

  • That, if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute, which claim is opposed by another party, and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie, and in the absence of anything in the statute to the contrary, it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
  • That, if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the context is between the authority proposing to do the act and the subject opposing it, the final determination of authority will be a quasi-judicial act provided the authority is required by the statute to act judicially.

The decision about the expediency or the necessity of requisitioning was left to the unfettered subjective opinion of the government and there was no judicial process involved for determining the matter. Hence, the decision to requisition the house of the petitioner in that case was held to be an administrative act of the Government5.

In determining the jurisdiction of Writ of certiorari, the courts in India have for some time been mainly guided by the principle laid down in R v. Electricity Commissioner6, R v. Legislative Committee of the Church Assembly7and Nakkudda Ali v. Jayaratne8. Accordingly, in order that a body may satisfy the required test, it is not enough that, it should have legal authority to determine the questions affecting the rights of subjects; there must be “superadded” to the characteristic, the further characteristic that the body has “the duty to act judicially”.

Supreme Court quashed the decision of the Board which cancelled the examination of a candidate on the ground of shortage of attendance9. After admission to the examination, the candidate had appeared and passed in all the papers. Cancellation of examination was held to be quasi-judicial function and the principles of natural justice, ought to have been observed. It was held by the Supreme Court that, the decision was taken without giving proper notice to the candidate to explain their part10.

However, if the candidates at any of the examination centres have indulged in mass copying, the cancellation of said examination and re-conducting the same for all the candidates may attract the application of the principles of natural justice11.

The extent of area, where the principles of natural justice have to be followed and the judicial approach has to be adopted, must depend primarily on the nature of the jurisdiction, and the power conferred on any authority or body by statutory provisions, to deal with the questions affecting the rights of citizens. In other words, the court has held that, the test prescribed by Lord Reid in Ridge v. Baldwin12, affords valuable assistance in dealing with the vexed questions with which we are concerned in the present appeal13.

The duty to act judicially need not be superadded in the statutory provision, but it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person affected and where it is found to exist, the rules of natural justice would be attracted. It was also observed that, it may be taken as a settled now that, even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable14.

Writ of certiorari is discretionary; it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an authority under the Income Tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition of Writ. Where the aggrieved party has an alternative remedy available, the High Court would be slow to entertain the petition challenging an order of a taxing authority, which is ex facie within jurisdiction. A petition for Writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises the question of jurisdiction or of infringement of fundamental rights of the petitioner15.

  1. R v. Electricity Commissioner, (1924) 1 KB 171 []
  2. AIR 1953 All 585 []
  3. Jaswant Sugar Mills Ltd. v. Lakshmi Chand, AIR 1963 SC 677 []
  4. Province of Bombay v. Khushaldas S Advani, AIR 1959 SC 222 []
  5. Id. []
  6. [1924] 1 KB 171 []
  7. [1928] 1 KB 411 []
  8. 1951 AC 66 []
  9. Board of High School & Intermediate Education v. Chitra, (1970) 1 SCC 121 []
  10. Id. []
  11. Bihar School Education Board v. Subhas Chandra Sinha, AIR 1970 SC 1269 []
  12. 1964 AC 40 []
  13. Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767 See also, Associated Cement Companies Ltd. v. PN Sharma, AIR 1965 SC 1595 []
  14. Maneka Gandhi v. Union of India, AIR 1978 SC 597 []
  15. Champalal Binani v. CIT, (1971) 3 SCC 20 []