The writ of certiorari is one of the most important constitutional remedies available under the legal system. The word certiorari originated from Latin and literally means “to be certified, to be informed or shown’[1], which means it is “a writ of a superior court to call up the records of an inferior court or a body acting in a quasi-judicial capacity.”[2]Enumerated in Article 32 and 226 for the Supreme Court and High Court, respectively, this writ acts as an important safeguard against the abuse of power, excess jurisdiction, and violations of fundamental rights by lower courts, tribunals, and administrative authorities. Higher courts and the Supreme Court in India utilize certiorari as a constitutional remedy to protect citizens by bringing records of illegal administrative or judicial decisions before them for scrutiny. It is a corrective and supervisory legal remedy used against lower courts or bodies acting in a quasi-judicial capacity, made to quash decisions made in excess of their powers. Over the years, the scope of certiorari has undergone significant development through judicial interpretations adapting to the dynamic needs of administrative governance.
Historical Evolution
The writ of certiorari finds its origins in English common law as a supervisory writ, where it was issued by the court of King’s Bench as a prerogative writ, which is an order of the superior court to compel bodies like lower courts to perform a specific duty, review an improper decision, or stop an unlawful action[3]. The use of the writ of certiorari can be traced back to 1280[4]. It is used in countries influenced by common law, like England, Ireland, Canada, India, etc largely as a result of colonialism. It was used to furnish a court with records from another court or tribunal, and was used as a ‘royal demand for information[5]’.
It was later introduced in India by a Royal Charter of Britain that established the Supreme Court in Calcutta and granted it the power to issue all the writs that were issued in England in 1774. Later on, Supreme Courts were added in Madras and Bombay in 1800 and 1823, respectively, with similar provisions. The three Supreme Courts were replaced by the High Courts under the Indian High Courts Act of 1961, but they retained the power to issue writs, which was confined to the writs of Prohibition and Certiorari[6]. However, there was no provision for High Courts to issue writs in the Government of India Act, 1935; they were instead incorporated in varied pieces of legislation, such as Section 491 of the British Code of Criminal Procedure, which recognised the writ of habeas corpus, allowing an individual no right to seek redress[7].
When the Constitutional Assembly convened, these limitations were taken care of; a transition from a colonial police state to a democratic welfare state was sought. The writs were considered an extraordinary “prerogative” crown privilege; this was reversed, and through Article 32, the right to move the Supreme Court for writs was turned into a Fundamental Right. Dr. B.R. Ambedkar referred to it as “the heart and soul of the Indian Constitution”. Further, the power to issue writs was extended to all the High Courts by way of Article 226.
Nature & Scope
The scope of the writ of certiorari is limited; it is a supervisory, not appellate writ issued in case of an error apparent on the face of the record, meaning it does not reweigh evidence or re-determine pure questions of fact. Unlike the writ of prohibition, it is both preventive and curative, and is purely discretionary and is guided by established principles rather than being an automatic right. As the definition suggests, it is issued by the superior court to quash the orders of the inferior courts, tribunals, and quasi-judicial authorities made in excess of the judicial powers conferred to them.
The writ can only be issued on the following grounds, as held in Hari Vishnu Kamath v. Syed Ahmad Ishaque (1954)[8]:
- Jurisdictional Error- When an inferior court or tribunal acts without jurisdiction, exceeds its jurisdiction, or fails to exercise the jurisdiction it possesses.
- Error of Law Apparent on the Face of Record- When there is a prima facie error that does not require excessive inquiry to discover.
- Violation of Natural Justice-When an authority acts arbitrarily, such as failing to give an affected party sufficient opportunity to be heard.
Additionally, in Nagendra Nath Bora v Commissioner of Hills (1958), it was held that mere formal or technical errors, even though of law, are not sufficient for the issuance of the writ of certiorari, reiterating the requirement of prima facie error.
Drafting
Drafting of a writ petition of certiorari is a very meticulous process, and it requires a careful appreciation of the case at hand. It is unlike an appeal where the correctness of the decision is challenged; rather, it focuses on the legality of the decision. The petition must show that the impugned order suffers from a jurisdictional or procedural error+0which gives rise to the legal remedy.
The essential components of a writ of certiorari are:
- Invocation of Jurisdiction- The writ petition must state the jurisdiction under which it is filed, i.e., Article 32 under the Supreme Court or Article 226 under the High Court.
- Statement of Facts-The facts must be chronologically and clearly stated and should be limited to the dispute.
- Identification of Impugned Order- The petition must clearly recognise the impugned order or proceedings that need to be quashed. And since the writ is issued against courts, tribunals, and other bodies, it is also pertinent to establish the nature of authority involved.
- Grounds for Issuance- The petition must contain, clearly, the grounds, for example, jurisdictional error, violation of natural justice, or an error apparent on the face of the record.
- Reliefs Sought- The petition must contain the reliefs sought by the party, depicting its clear intention.
- Prayer Clause- The petition should conclude with a prayer seeking the issuance of a writ of certiorari quashing the impugned order, along with any consequential or ancillary relief.
Judicial Trends
The judicial trends in the case of certiorari have considerably evolved beyond its originally narrow English common law confines. Courts have consistently widened the writ’s reach while at the same time refining the conditions under which it may be granted.
One of the most significant developments in this field is the extension of certiorari to private entities. Traditionally, it was only issued against courts, tribunals, and statutory authorities. However, the Calcutta High Court in the case of Rajeev Jhunjhunwala v. State of West Bengal &Ors.(2023) issued the writ of certiorari against a private entity, Bajaj Housing Finance Limited, holding that “a writ of Certiorari can also be issued against a body which has acted in flagrant disregard of the law or the rules of procedure or in violation of the principles of natural justice including failure of justice where no fixed procedure has been prescribed.”[9]This is traced back to the Supreme Court’s position in T.C. Basappa v. T. Nagappa (1954), that the applicability of the writ is dependent on the nature of the function performed and not merely the status of authority.
The alternative remedy doctrine, which stated that a court will ordinarily refuse to grant a writ of certiorari if the petitioner has not first exhausted other adequate remedies, like administrative appeals or specialized tribunals, has also undergone remarkable changes. The Supreme Court in the landmark Whirlpool Corporation v. Registrar of Trade Marks (1998) established four exceptions where writ petitions remain maintainable despite alternative remedies, namely, enforcement of fundamental rights, violation of natural justice, absence of jurisdiction, and challenge to the constitutional validity of legislation. This was subsequently expanded in Godrej Sara Lee Ltd. v. Excise and Taxation Officer(2023), where the Court added a fifth exception: where the controversy is purely legal without any disputed questions of fact, the High Court ought to decide it rather than dismiss it on alternative remedy grounds.
Additionally, in August 2023, the Supreme Court of India reiterated and consolidated the cardinal principles governing certiorari under Article 226., affirming its supervisory rather than appellate character, the requirement of error apparent on the face of the record, its discretionary nature, and the prohibition on re-appreciating evidence[10].
All these cases, and more, have proved the dynamic nature of the writ of certiorari as it developed and evolved with the growing trends.
Conclusion
The writ of certiorari has made an important place in the development of constitutional and administrative law in India. Borrowed from English common law and adapted into the Indian Constitution, it has grown from a narrow prerogative writ into a supervisory remedy that keeps judicial and quasi-judicial authorities within their lawful limits. Its evolution reflects the judiciary’s recognition that governance does not remain static, and neither can the remedies meant to check it.
As the drafting discussion makes clear, certiorari is not an appeal by another name. A petition must be rooted in jurisdictional error, procedural irregularity, or violation of natural justice, not a quarrel with how facts were weighed. Losing sight of this distinction is perhaps the most common reason such petitions fail. The writ’s continued relevance is, in some ways, a reflection of a larger reality: that the abuse of power and the overreach of authority are not problems that resolve themselves. Certiorari exists precisely for that reason, and that is unlikely to change.
[1]https://www.etymonline.com/word/certorari
[2]https://www.merriam-webster.com/dictionary/certiorari
[3]https://www.law.cornell.edu/wex/prerogative_writ
[4]https://moglen.law.columbia.edu/twiki/bin/view/EngLegalHist/OriginCertiorari
[5]https://moglen.law.columbia.edu/twiki/bin/view/EngLegalHist/OriginCertiorari
[6]https://www.jetir.org/papers/JETIREP06035.pdf
[7]https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4706237
[9]https://www.livelaw.in/news-updates/calcutta-high-court-writ-of-certiorari-private-entity-right-to-a-fair-hearing-222429
[10]https://www.livelaw.in/supreme-court/supreme-court-judgement-explains-certiorari-writ-jurisdiction-article-226-constitution-236373