Certiorari and Prohibition in Practice: Timing, Combined Prayers and What Survives of the Distinction

Certiorari quashes a decision already made; prohibition stops a proceeding before the decision comes. The distinction is therefore one of timing, and it was of real importance when the writs were separate remedies with their own procedures and a petitioner who asked for the wrong one failed. Under Article 226 a High Court may issue directions, orders or writs including these writs, and it is not confined to the technical requirements that governed them in England. The consequence is that a petitioner who claims the wrong relief is no longer turned away, and the distinction now matters chiefly for what the court can usefully do at the stage the matter has reached. This topic sets out the practical dimension.

1. The Distinction Stated

Basis	Certiorari	Prohibition
When available	After the decision or order is made	While the proceeding is pending
What it does	Quashes what has been done	Restrains what is proposed to be done
Nature	Corrective	Preventive
Effect on the record	The record is brought up and the order quashed	Nothing is quashed; the proceeding stops
Grounds	Want or excess of jurisdiction, error apparent on the record, breach of natural justice, fraud	Want or excess of jurisdiction, breach of natural justice
Error apparent on the record	A ground	Not applicable; no order has been made to disclose an error
Against whom	Bodies with a duty to act judicially; extended under Article 226	The same
Consequence of success	The matter may be remitted for fresh decision	The authority is stopped, and may not proceed further
Timing of the petition	After the order, subject to delay and laches	Before the order; delay may render it infructuous

2. Certiorari and Error Apparent on the Record

📖 Custodian of Evacuee Property, Bangalore v. Khan Saheb Abdul Shukoor, AIR 1961 SC 1087

Facts: Proceedings under evacuee property legislation resulted in a declaration affecting property rights. The order was challenged by certiorari, and the question was the extent to which the High Court, exercising that jurisdiction, could examine the correctness of the determination made by the statutory authority.

Held: The Supreme Court held that certiorari is available where the inferior authority has acted without jurisdiction or in excess of it, where it has acted in violation of the principles of natural justice, or where there is an error of law apparent on the face of the record. It held that the jurisdiction is supervisory and not appellate: the court does not review the evidence or substitute its own conclusion for that of the authority on a question of fact, and a finding of fact, however erroneous, is not open to correction unless it is based on no evidence or is otherwise perverse. On error apparent, the Court held that the error must be manifest on the face of the record and must be capable of being seen without a long process of reasoning on points where there may conceivably be two opinions; an error requiring elaborate argument to establish is not an error apparent.

Ratio: Certiorari lies for want or excess of jurisdiction, breach of natural justice and error of law apparent on the face of the record. The jurisdiction is supervisory, and an error requiring elaborate reasoning to establish is not apparent.

3. Want of Jurisdiction and the Power to Recall

📖 A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602

Facts: In an earlier proceeding the Supreme Court had directed that a criminal case against a former Chief Minister be withdrawn from the Special Judge and transferred to the High Court for trial. The statute under which the offences were to be tried conferred exclusive jurisdiction on a Special Judge, and no provision permitted the trial to be conducted by the High Court. The accused subsequently contended that the direction had been made without jurisdiction and that the trial before the High Court was a nullity.

Held: A Bench of seven Judges held the earlier direction to be without jurisdiction and recalled it. It held that a direction conferring jurisdiction on a court which the statute had not given it is a nullity, that jurisdiction cannot be conferred by consent or by a court's own order, and that a trial held under such a direction is without authority of law. The Court held that where a direction has been made per incuriam and without jurisdiction, and has resulted in the violation of rights, the Court has power to recall it ex debito justitiae, and that no person should suffer by reason of an act of the court itself. It held that the accused had been deprived of the right of appeal that a trial before the Special Judge would have carried, which was itself a violation of Articles 14 and 21.

Ratio: A direction conferring on a forum a jurisdiction the statute has not given it is a nullity, jurisdiction cannot be conferred by consent or by order, and an order made without jurisdiction may be recalled so that no one suffers by an act of the court.

4. The Practical Position under Article 226

The form of the prayer is not decisive. Article 226 empowers the issue of directions, orders or writs, and a court will grant the appropriate relief whatever the petitioner has asked for.
Both may be sought together, and commonly are, where part of a proceeding is complete and part is pending.
The technical requirements of the English writs do not confine the jurisdiction, which is wider than the writs it names.
Timing determines what is useful. Prohibition is worthless once the order has been made, and certiorari cannot be asked for before it.
Interim relief substitutes for prohibition in practice, since a stay of proceedings achieves the same result pending the petition.
Delay bears on both, though differently: it may render a prohibition petition infructuous and may bar certiorari on the ground of laches.
A writ of certiorarified mandamus may issue, quashing the order and directing the authority to act in a particular way, which neither English writ alone achieved.

5. Choosing the Relief

The stage reached	The relief
Proceedings initiated by an authority with no jurisdiction, still pending	Prohibition
Notice issued under a provision that does not apply, no order yet made	Prohibition, and a stay in the meantime
Order already made without jurisdiction	Certiorari
Order made in breach of natural justice	Certiorari, with remission for a fresh hearing
Order disclosing an error of law on its face	Certiorari (Khan Saheb Abdul Shukoor)
Order made, and further proceedings pending before the same authority	Certiorari and prohibition together
Order quashed, and a direction needed as to how the authority should proceed	Certiorari with mandamus
Authority refusing to exercise a jurisdiction it possesses	Mandamus, not prohibition
A tribunal exceeding its authority while acting within its general jurisdiction	Article 227 supervision, or certiorari after the order

⚠ The distinction survives as a matter of timing, not of entitlement

Under the old practice a petitioner who sought prohibition after the order had been made, or certiorari before it, failed on that ground alone, and considerable care went into choosing the writ. Article 226 removed that trap by empowering the High Court to issue directions, orders or writs, so the court grants the relief the facts require and a misdescribed prayer is not fatal. What the distinction still determines is what the court can usefully do. If the order has been made, there is nothing left to prohibit and the order must be quashed; if it has not, there is nothing to quash and the proceeding must be stopped. The enquiry is therefore into the stage the matter has reached, and the labels follow from it rather than determining it.

6. The Position in Summary

Certiorari is corrective and quashes an order already made; prohibition is preventive and stops a pending proceeding, the difference being one of timing.
Certiorari lies for want or excess of jurisdiction, breach of natural justice and error of law apparent on the face of the record, the jurisdiction being supervisory and not appellate (Khan Saheb Abdul Shukoor).
An error apparent must be manifest on the record and capable of being seen without elaborate reasoning on points admitting of two opinions.
A direction conferring a jurisdiction the statute has not given is a nullity, jurisdiction cannot be conferred by consent or by order, and such an order may be recalled (A.R. Antulay).
Under Article 226 the form of the prayer is not decisive, both writs may be sought together, and the distinction survives as a question of what the court can usefully do at the stage reached.

7. Related Topics and Provisions

Certiorari vs Prohibition (Topic 111), Writ of Certiorari (Topic 109) and Writ of Prohibition (Topic 110).
The Five Constitutional Writs Compared (Topic 114) and Mandamus vs Certiorari (Topic 113).
Judicial Review of Tribunal Decisions (Topic 128): Articles 226 and 227 compared.
Judicial Review vs Appeal (Topic 201): the supervisory character of the jurisdiction.
Delay and Laches (Topics 119 and 190): the effect of delay on each remedy.
Constitution of India: Articles 14, 21, 32, 226 and 227.