Writ of Certiorari: Meaning, Grounds, Against Whom It Lies and Its Limits

Certiorari is the writ by which a superior court quashes the decision of an inferior tribunal or authority. Its name comes from the original form of the order, which required the record of the proceeding to be certified and sent up so that the superior court could examine it, and that origin still shapes the remedy: the court looks at the record, and corrects errors that appear upon it. Certiorari is the principal instrument of judicial review of adjudicatory action in India, and its grounds are the grounds of review themselves: want or excess of jurisdiction, breach of natural justice, and an error of law apparent on the face of the record. What it does not do is reappreciate evidence, and that limitation defines the remedy as much as its grounds do.

1. Nature and Scope

📖 T.C. Basappa v. T. Nagappa, AIR 1954 SC 440

Facts: An Election Tribunal set aside an election, and the question before the Supreme Court was the nature and scope of the writ of certiorari under Article 226, and how far the English learning on the prerogative writ governed its exercise in India.

Held: The Supreme Court held that Article 226 is couched in comprehensive terms and that the High Courts may issue writs in the nature of certiorari; the Article is not confined by the technicalities of English law, though the broad fundamental principles that govern the exercise of the jurisdiction should be kept in view. Certiorari is issued to a body performing judicial or quasi-judicial functions, to correct the record of proceedings where the body has acted without jurisdiction or in excess of it, or has failed to exercise its jurisdiction, or has acted in flagrant disregard of the law or the rules of procedure, or in violation of the principles of natural justice, or where there is an error apparent on the face of the record. The Court emphasised that certiorari does not lie to correct a mere error of fact or an erroneous decision on the merits, since the jurisdiction is supervisory and not appellate.

Ratio: The foundational Indian statement of the nature of certiorari. The Indian writ follows the broad principles of the English remedy without its technicalities, and is directed at jurisdiction, procedure and errors of law apparent on the record.

2. Conditions for Issue

A body with legal authority. The respondent must be a court, tribunal or authority exercising power conferred by law, and not a purely private or consensual body.
A determination affecting rights. The function performed must be judicial or quasi-judicial in character, or at least a determination affecting the rights of a person, the classification having been much relaxed since A.K. Kraipak v. Union of India, (1969) 2 SCC 262.
A decision already made. Certiorari quashes what has been done; where the proceeding is still pending, the appropriate remedy is prohibition, and where it is part-heard both may issue.
A defect of the recognised kind. Want or excess of jurisdiction, breach of natural justice, or an error of law apparent on the face of the record.
An aggrieved applicant, subject to the relaxation of standing in public interest proceedings.

3. The Grounds

3.1 Want or excess of jurisdiction

The authority had no power to decide at all; or exceeded the persons, subjects, territory, period or amount its power covered; or assumed jurisdiction by wrongly deciding a jurisdictional fact on which the power depended; or declined jurisdiction it possessed. Since Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 AC 147, an error of law that leads the authority to misconceive the question entrusted to it is treated as taking the decision outside jurisdiction, so that most errors of law now fall under this head, and a finality or ouster clause does not protect a decision that is a nullity.

3.2 Violation of natural justice

Denial of notice, of disclosure of the material, of a hearing or of cross-examination where it was due; decision by a biased or disqualified authority; division of hearing from decision; or failure to give reasons where they are required. This is the most frequently invoked ground in practice.

3.3 Error of law apparent on the face of the record

📖 Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233

Facts: An Election Tribunal, in deciding an election petition, misapplied the law relating to the treatment of certain ballot papers, and the question was whether the error could be corrected by certiorari and what constituted an error apparent on the face of the record.

Held: A Constitution Bench held that certiorari lies to correct an error of law apparent on the face of the record, but not an error of fact however grave. The Court set out the propositions governing the writ: it is issued to correct errors of jurisdiction, and also when the court or tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice; the jurisdiction is supervisory and not appellate, so the court cannot review findings of fact reached by the inferior tribunal; and an error of law is apparent where it is self-evident on the face of the record and does not require an elaborate examination of the record or a long drawn process of reasoning on points where there may conceivably be two opinions.

Ratio: The classic statement of the error-apparent ground. The error must be self-evident on the record; a point on which two views are reasonably possible, or which requires elaborate argument to establish, is not an error apparent.

Two further points complete this ground. What constitutes the record includes the pleadings, the order and the reasons given, but not the evidence, since certiorari does not go into the evidence. And a finding reached on no evidence at all is treated as an error of law and is correctable, while the adequacy or sufficiency of evidence is not, the position stated in Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477.

4. Against Whom Certiorari Lies

Body	Whether certiorari lies
Statutory tribunals and quasi-judicial authorities	Yes; the classical field of the writ
Administrative authorities determining rights	Yes, since the administrative and quasi-judicial distinction was narrowed in Kraipak
Subordinate criminal courts	Yes, as courts subject to the supervisory jurisdiction
Civil courts	No; judicial orders of civil courts are not amenable to certiorari, though Article 227 supervision is available
Domestic and private bodies	Only where the body exercises a statutory or public function
Legislative action and rule-making	No; certiorari lies against a determination, not against legislation, which is challenged as ultra vires
Purely executive acts affecting no right	No; there is no determination to quash

The position on civil courts was for a time unsettled. In Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 it had been held that certiorari could issue against orders of civil courts. That view was reconsidered by a three-Judge Bench in Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423, which held that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226, overruling Surya Dev Rai to that extent, and that the appropriate remedy against such orders is the supervisory jurisdiction under Article 227 or the statutory remedies of appeal and revision.

5. What Certiorari Will Not Do

Reappreciate evidence. The court does not weigh the material or substitute its own findings of fact.
Correct an error of fact, however grave, unless the finding rests on no evidence at all.
Act as an appellate court. The jurisdiction is supervisory, and the correctness of a decision on the merits is not the issue.
Issue where the proceeding is still pending and nothing has been decided; prohibition is the remedy at that stage.
Reach a decision of a court of competent civil jurisdiction (Radhey Shyam v. Chhabi Nath).
Substitute the court's decision for the tribunal's. Certiorari quashes; the ordinary consequence is that the matter goes back for a fresh decision according to law.

6. Certiorari and Prohibition Compared

Basis	Certiorari	Prohibition
Stage	After the decision has been made	While the proceeding is pending
Effect	Quashes what has been decided	Restrains the body from proceeding further
Object	To undo an excess or an error already committed	To prevent an excess about to be committed
Grounds	Jurisdiction, natural justice, error apparent on the record	Substantially the same grounds, applied prospectively
Where the matter is part-heard	May issue as to what has been decided	May issue as to the remainder; both may go together
Consequence	The matter is ordinarily remitted for fresh decision	The proceeding stops, leaving the parties to a competent forum

⚠ The error must be on the record, and the record is not the evidence

The two limitations that decide most certiorari petitions work together. The error must be apparent, meaning self-evident rather than established by elaborate argument, so that a point on which two views are reasonably possible is not correctable. And it must appear on the record, which comprises the pleadings, the order and its reasons but not the evidence, because certiorari does not travel into the evidence at all. A petition that asks the court to read the depositions and conclude that the tribunal drew the wrong inference therefore fails twice over: the complaint is one of fact, and the material is outside the record.

7. The Position in Summary

Certiorari quashes the decision of a court, tribunal or authority exercising legal authority to determine questions affecting rights; the Indian writ follows the broad principles of the English remedy without its technicalities (T.C. Basappa).
Its grounds are want or excess of jurisdiction, breach of natural justice, and an error of law apparent on the face of the record; after Anisminic most errors of law are treated as jurisdictional.
An error is apparent only where it is self-evident on the record and does not require elaborate reasoning; two reasonably possible views exclude the ground (Hari Vishnu Kamath).
The jurisdiction is supervisory and not appellate: evidence is not reappreciated and errors of fact are not corrected, though a finding on no evidence is an error of law.
It does not lie against judicial orders of civil courts, for which Article 227 and the statutory remedies apply (Radhey Shyam v. Chhabi Nath), and it is distinguished from prohibition only by the stage at which each operates.

8. Related Topics and Provisions

Constitutional Writs (Topic 106): Articles 32 and 226 and the five writs.
Writ of Habeas Corpus (Topic 107) and Writ of Mandamus (Topic 108): the companion remedies.
Grounds of Judicial Review (Topic 90): jurisdictional error, error of law and the no-evidence rule.
Quasi-Judicial Functions (Topic 18) and Administrative vs Quasi-Judicial Action (Topic 16): the classification the writ once depended on.
Principles of Natural Justice (Topics 58 and 59): the most frequently invoked ground.
Constitution of India: Articles 32, 136, 226 and 227.