CERTIORARI TO QUASH ORDERS OF SUBORDINATE COURTS CANNOT BE TAKEN AWAY BY A JUDICIAL PRONOUNCEMENT RADHE SHYAM V. CHHABI NATH[1]
NEEDS RECONSIDERATION
Nobody
had ever doubted that a writ or an order in the nature certiorari could not be
issued to inferior court exercising civil or criminal jurisdiction until very
recently when the correctness of the decision of the Supreme Court in Surya Dev Rai’s[1]
case was questioned and the aforesaid issue was raised in Radhe Shyam v. Chhabinath[2]
(hereafter “Radhe Shyam’s case”). The judgment of the Supreme Court of
India in Radhe Shyam has now finally decided this question by
stating that order of the subordinate court cannot be challenged by seeking
writ of certiorari under Article 226 of the Constitution. This judgment has
taken away the powers of the High Court in India to examine and quash any order
passed by subordinate courts by issuing a writ or an order in the nature of
certiorari. The judgment, however, does not make it clear whether any other
order or direction can be issued by the High Court to the subordinate court under
article 226 of the Constitution of India. Be that as it may, now in view of
this judgment, where against any order passed by the subordinate court no
appeal, revision or review is provided in the statute, the only option left for
the litigant is to invoke the power of superintendence under Article 227 of the
Constitution of India. It is a well settled position of law that the power of
the High Court under article 227 of the Constitution can be invoked for the
correction of pure jurisdictional errors only. Other errors of law, violation
of principles of natural justice, non-compliance of a substantive or procedural
law or perversity cannot be examined under Article 227.[3] The decision in Radhe Shyam’s case has seriously
curtailed the width of certiorari.
Ratio of Radhe Shyam’s case:
Judicial orders of civil court are not
amenable to writ jurisdiction under Article226 of the Constitution.
For the aforesaid conclusion the Supreme Court
in para 11,21 states “No direct decision
of this Court except Surya Dev Rai has been brought to our notice where
certiorari may have been issued against the order of a judicial court. There
are no precedents in India for High Courts to issue writs to subordinate
courts”
In Para 12 and 13 it states that
judicial orders cannot be challenged as violating fundamental rights under
Articles 14 and 19 and for this proposition of law the Supreme Court’s
decisions in Ujjambai[4] and
Naresh[5] have been referred to and relied upon.
In Para 21 it states “a writ of
certiorari lies against patently erroneous or without jurisdiction order of
Tribunals or authorities or courts other than judicial courts.”
The
conclusion that judicial orders of civil court are not amenable to writ
jurisdiction under Article226 of the Constitution recorded in Radhe Shyam’s
case requires reconsideration for the following reasons.
“Certiorari” its meaning and origin:
“Certiorari" is a late Latin word being
the passive form of the word "certiorare" meaning 'inform' and
occurred in the original Latin words of the writ which translated read
"we, being desirous for certain reasons, that the, said record should by
you be certified to us". Certiorari was essentially a royal demand for information;
the King, wishing to be certified of some matter, orders that the necessary
information be provided for him. In De Smith's "Judicial Review of
Administrative Action", 4th edition, page 587, some interesting instances are
noted where writs of certiorari were so issued. Thus, these writs were
addressed to the escheator or the sheriff to make inquisitions; the earliest
being for the year 1260. Similarly, when Parliament granted Edward II one
foot-soldier for every township, the writ addressed to the sheriffs to send in
returns of their townships to the Exchequer was a writ of certiorari. Very soon
after its first appearance this writ was used to remove to the King's Court at
Westminster the proceedings of inferior courts of record; for instance, in 1271
the proceedings in an Assize of Darrein
presentment were transferred to Westminster because of their dilatoriness. This
power was also assumed by the Court of Chancery and in the Tudor and early
Stuart periods a writ of certiorari was frequently issued to bring the proceedings
of inferior courts of common law before the Chancellor. Later, however, the
Chancery confined its supervisory functions to inferior courts of equity.
In
"A New Abridgment of the Law",
Seventh Edition, Volume II at pages 9 and 10, Matthew Bacon has described a
writ of certiorari in these words :
"A Certiorari is an original writ issuing out
of Chancery, or the King's Bench, directed in the King's name, to the judges
or officers of inferior courts, commanding them to return the records of a
cause pending before them, to the end the party may have the more sure and
speedy justice before him or such other justices as he shall assign to
determine the cause."
According
to Corpus Juris Secundum (Vol. 14,
page 121) certiorari is a writ issued from a superior Court to an inferior
Court or Tribunal commanding the latter to send up the record of a
particular case.[6]
The
underlying policy is that all inferior Courts and authorities have only
limited jurisdiction or powers and must be kept within their legal bounds. This
is the concern of the Crown, for the sake of orderly administration of justice,
but it is a private complaint which sets the Crown in motion.
Types of certiorari:
Certiorari
had many different forms in England which may be classified as follows:
(1) Certiorari to remove for trial;
(2) Certiorari for Judgment or indictment;
(3) Certiorari to quash;
(4) Certiorari for purposes of execution or
coercive process:
(5) Certiorari to remove orders etc., on case
stated;
(6) Certiorari to remove Depositions for Bail, and
(7) Certiorari to remove Record for use as
evidence.
The
aforesaid features of certiorari was noted by the Supreme Court[7] in India also. For the
purpose of this article we are concerned with certiorari to quash only since as
observed in Halsbury’s Laws of England that for the most of the purposes
mentioned above certiorari became obsolete except certiorari for quashing.
“Certiorari” to quash, its objects and
later developments:
During
the seventeenth century Certiorari evolved as a general remedy to quash
the proceedings of inferior tribunals and was used largely to supervise
justices of the peace in the performance of their criminal and administrative
functions under various statutes. In
1700 (R. v. Glamorganshire Inhabitants
(1700) 1 Ld. Raym 580 and Groenvelt v.
Burnell (1700) 1 Ld. Raym 454) it was held that the Court of King's Bench
would examine the proceedings of all jurisdictions erected by Act of
Parliament, and that if under pretence of such an Act they proceeded to
arrogate jurisdiction to themselves greater than the Act warranted, the court
would send a certiorari to them to have their proceedings returned to the court
so that the court might restrain them from exceeding that jurisdiction. The
ambit of certiorari and prohibition was not limited to the supervision of
functions that would ordinarily be regarded as strictly judicial, and in the nineteenth century the
writs came to be used to control the exercise of certain administrative
functions by local and central government authorities which did not necessarily
act under Judicial forms. [8]
Quashing
and prohibiting orders are primarily for the control of inferior courts,
county courts, justices of the peace, coroners and all statutory tribunals.
These courts or tribunals are liable to have their decisions quashed or their
proceedings prohibited, except where Parliament provides otherwise and
sometimes even when it does.[9]
The order (in the nature of certiorari)
cannot be directed by the High Court to any tribunal which is a branch of the
High Court for the purpose of quashing its proceedings, but it may issue to
the crown court although it is a superior court. The order can be directed
to inferior courts within England and Wales and such dependencies as are
integral parts of England. Inferior
courts, which are newly created, are amenable to certiorari if their
jurisdiction is within the scope of that of the High Court.[10]
For the purpose of quashing, certiorari lies
at common law to remove the proceedings of inferior courts of record or
other persons or bodies exercising judicial or quasi-judicial functions. In the
case of judgments of inferior courts of civil jurisdiction, it seems that
certiorari lay to quash for want of jurisdiction. Certiorari will lie although
a right of appeal has been conferred by statute. Certiorari lies to bring up
and quash an order of the inferior courts where the judge of that court has
acted without jurisdiction.[11]
In relation to the jurisdiction of the Crown
Court, other than its jurisdiction in matters relating to trial on indictment,
the High Court has all such jurisdiction to make an order of certiorari as it
possesses in relation to the jurisdiction of an inferior court. In footnote 1
to Para 1528 on Page 806 it has been clearly stated that “certiorari does lie
to quash orders of inferior courts of civil jurisdiction which have acted
without jurisdiction: see note 6, infra” Note 6 reads as follows: R v. Judge Hurst ex parte Smith[12],
R v. Judge Worthington Evans ex parte
madam[13], DC; cf. Lawes V. Hutchinson [1853] 3 Dowl 506 at
508, per Parker B; Kemp V. Balne
[1844] I Dow & L 885 at 887 per Williams J”[14]
Certiorari cannot be taken away by law:
Halsbury’s
Laws of England Vol.10 page 175 para
345 states “Certiorari can only be taken away by express negative words.
In Annie Besant v. Advocate General[15] the Privy Council made the following
observations on the effect of an ordinary legislation on the certiorari
jurisdiction:
“Section 435 of Cr.PC and Section 115 of CPC 1903
are not exhaustive. Their lordship can imagine cases, though rare ones, which
may not fall under either of these Sections. For such cases, their lordships do not think that the powers of
High Courts, which have inherited the ordinary and extraordinary jurisdiction
of the Supreme Court to issue writs
of certiorari, can be said to have been taken away.”
The aforesaid paragraph means that apart from the
revision jurisdiction conferred under the ordinary civil and criminal law upon
the High Courts, for the orders that are not subject to revision by the high
Court under civil or criminal law, writ of certiorari can be issued to the
subordinate court. In other words the power of certiorari is a power which the
High Court possesses in addition to its power of supervision and revision under
s.115 of CPC and s.107 of GOI Act
In Muniswami
Chetti v Board of Revenue[16]
the Madras High court said that the insertion of the words ‘final’ and ‘without
appeal’ in statutes would not restrict or take away the right of superior court
to bring the proceeding before itself by certiorari, if other conditions be
satisfied. It is not taken away by words which direct that certain matter shall
be ‘finally determined’ in the inferior court. Not by a proviso that ‘no
other court shall intermeddle’ with regard to certain matters as to which
jurisdiction is conferred on the inferior court. Please refer to Halsbury’s
Laws of England 4th Edition Vol 1 para 155, R. v. Medical Appeal Tribunal ex. Pt Gilmore[17]
Lord Denning “I find it very well settled that the remedy by certiorari is
never to be taken away by any statute except by most clear and explicit words.”
“No certiorari” (i.e. certiorari ouster clause)
clause have usually been interpreted not to oust the jurisdiction of superior
courts to exercise the power of judicial review.[18]
In Ras Behari v. King Emperor[19]
Lord Atkin said “Finality is good thing but justice is better.”
During the
constituent assembly debates also the issue was considered whether the writs
should be incorporated by their name in the constitutional provisions of
Article 32 and Article 226 and the Assembly thought it proper to make a special
reference of the prerogative writs in the aforesaid articles so that by an
ordinary law Parliament cannot take away these writs or dilute their amplitude.[20]
Therefore a fortiori
a judgment of the Supreme Court cannot take away the jurisdiction of the High
Court under Article 226 to issue writ in the nature of certiorari to
subordinate court or tribunal. The basic structure doctrine also does not
permit taking away or giving a restricted interpretation to the power of
judicial review vested in the high court under Article 226.[21]
Even otherwise Certiorari is always considered to
be original jurisdiction possessed by three Chartered High Courts and the said
jurisdiction is saved by Article 225 of the Constitution of India as no express
provision has been made to the contrary in the Constitution of India or any
other law.
Naresh’s
case grossly
misunderstood:
By
19th and 20th century certiorari became predominantly a
writ for quashing only. The aforesaid meaning and later historical development
shows that certiorari was invented to exercise judicial control over
subordinate courts and that there are number of instances where certiorari was
issued to magistrates, justices of the peace, county courts, crown courts.
Nobody had ever doubted that certiorari could not be issued to inferior court
exercising civil or criminal jurisdiction. It is true that during this period
many statutes were enacted in England and India investing the High Court and
some other courts with judicial control in the form of appeal, revision and
review over the subordinate courts and, therefore, the instances of issuing
writ of certiorari to inferior courts gradually became rare. It would be,
however, incorrect to hold that certiorari cannot be issued to subordinate
civil or criminal courts of primary jurisdiction. In fact the position of law was made very
clear in the case of Annie Besant (supra) by the Privy Council. The Privy
Council held that certiorari may lie against the order of inferior courts of
civil or criminal jurisdiction where an order of such courts is neither
appealable nor revisable under CPC or Cr.PC.
Naresh’s
case Para 63 does not seem to have correctly stated the statement of law on the
scope of certiorari. It is noticed that in Naresh’s
case Halsbury’s Laws of England 3rd
Edition of year 1953 had been referred to. However, by the time in Naresh’s case the reference of the Halsbury’s Laws of England 3rd
Edition, Year 1953 was made, the law on this issue was already clarified in R.
v. Judge Hurst, Ex parte Smith [1960] 2 All E R 384 and R v. Judge Worthington
ex parte Madan [1960] All E R 457. Accordingly Halsbury’s laws of England, 4th Edition, year 1976 clearly
states that the county court which is an inferior court of civil jurisdiction
is subject to certiorari.
Dr.
Bakshi Tekchand in Constituent Assembly at the time of discussion of Draft
Article 202 (Now Article 226) suggested to equip every high court with the
jurisdiction to issue certiorari outside the territorial limits of town and to
make it available in mofussil also. He gave a specific example saying that
prior to the Constitution if a particular proceeding was pending in the court
of Trichonapoly or Madura, the High court of Madras had no jurisdiction to
issue writ of certiorari to such courts because of the language of the charter
by which the high court was established. He therefore suggested that such a
restriction should be removed. The Constituent Assembly Debates records at many
places that its members wanted to equip every high court that may be
established under the Constitution to possess besides other powers, the powers
of the Courts of Kings Bench in England. This leads to an irresistible
conclusion that if in England certiorari could be used to quash an order or
judgement of inferior court, it is equally permissible in India to use
certiorari to quash an order of the inferior court. The fact that in Article
226 the words “court” or “tribunal” have not been used is not a pointer to hold
that Article 226 does not empower the high court to issue certiorari to
subordinate courts. As stated above
there is an intrinsic evidence in the history of certiorari, judgments in
England and positive statement of law by the Privy Council in Annie Besant’s case that certiorari was
from its advent in modern form meant to quash the decisions of the inferior
courts of civil or criminal jurisdiction.
Naresh’s case is not an
authority for the proposition of law that certiorari cannot be issued to any
subordinate court. Naresh’s case
simply states that the order of the High Court cannot be subject matter of a
petition under Article 32 before Supreme Court and that one Superior Court of
record cannot by issuing certiorari quash the order of another superior court
of record. In Naresh’s case
whether writ of certiorari can be issued to the subordinate court did not
arise. Some passing observations in the judgment of Naresh’s case cannot be said to be the ratio decidendi of the case. In fact in that very case the Supreme
Court cautioned that while interpreting constitutional provisions the court
should not make observations on the points not directly arising in the case.[Please
refer to para 16 and 18 of Naresh’s case
for appreciating this statement and the specific issues examined by the Supreme
Court in that case.] In Sanjeev Coke Manufacturing Company v. M/s. Bharat
Coking Coal Ltd.[22] the Supreme Court expressed serious reservations
on the question whether it is open to a Court to answer academic or
hypothetical questions. The Court said that judges were not authorized to make
disembodied pronouncements on serious and cloudy issues of constitutional
policy without battle lines being properly drawn. Judicial pronouncements
cannot be immaculate legal conceptions. It is but right that no important point
of law should be decided without a proper lis
between parties properly ranged on both side and a crossing of the swords. It
is inexpedient for the Supreme Court to delve into problems which, do not arise
and express opinion thereon.
No
reference of the words “court” or tribunal in Art.226 not significant:
Under this article the words “Court” and “Tribunal
are not mentioned as the framers of the Constitution wanted to confer much
wider power on the High Court. Certiorari was a known writ since time
immemorial. The words “any person or authority” in this article are intended
to expand the control by writ of
certiorari over other authorities or persons discharging judicial or
quasi-judicial function also. This article never intended to circumscribe the judicial control by High Court
in the form of certiorari by excluding courts or tribunals from the preview of
certiorari. The words ‘certiorari’ and ‘prohibition’ in Article 226 are
sufficiently clear to invest the High Court with the power of judicial control
over the subordinate courts or tribunal. [Please refer the Constituent Assembly
Debates, the history of High Courts and the Supreme Court judgment in the case Election Commission v Saka Venkata Rao.1953
SCR 1144] The absence of the word “court” in Article 226 if construed to mean
that certiorari is not to be issued to subordinate courts, the same argument
can be made for tribunals also as the word “tribunal” is also not there in
Art.226. However, as said above the word certiorari is sufficiently clear to
include both within its sweep and hence this argument is of no substance.
Certiorari and prohibition are not
issued for protecting fundamental rights:
It is by now a well-settled position of law that
the judicial or quasi-judicial order cannot violate fundamental rights.[23]
The purpose of the writs of certiorari and/or prohibition is to review and
correct the defect of jurisdiction or an error apparent on the face of the
record or to quash any order passed in violation of substantive or procedural
law or in violation of the principles of natural justice. Thus, writs of
certiorari or prohibition is issued for “any other purpose” as stated in
Article 226 and hence, the requirement of violation of fundamental right and that
the respondent in such a proceeding is whether “State” or not within the
meaning of Article 12 of the Constitution of India is hardly relevant.
Article 227 not a substitute for
certiorari under art.226:
Now
after the 1999 and 2002 Amendments Act in CPC the scope of revision is
restricted to such an extent that for correcting the errors of law apparent on
the face of record in the order of the inferior courts or where an order is
passed in violation of a substantive or procedural law or principles of natural
justice there is no other remedy except approaching the High Court under
article 226 of the Constitution of India.
The remedy under Article 227 of the
Constitution of India can be invoked in very rare cases where the proceedings
of the inferior court is without jurisdiction.[24] Article 227 cannot be
used as a substitute of certiorari under Article 226.
Conclusions:
(i)There
is ample evidence available in England and India that certiorari is issued to
inferior courts of civil and criminal jurisdiction.
(ii)
In neither Naresh’s case nor in Radhe Shyam’s case the decision of the
Privy Council in Annie Besant’s case[25]
was brought to the notice of the Supreme Court where it was held that
certiorari would lie against the orders of subordinate court of civil and
criminal jurisdiction in respect of orders that are not revisable under CPC or
CrPC.
(iii)
Naresh’s
case Para 63 has not correctly stated the law on
certiorari. It clearly emerges from the facts recorded that in Naresh’s case Halsbury’s Laws of England, 3rd Edition of year 1953 was
referred to and relied upon. However, by the time the reference of the Halsbury’s Laws of England, 3rd
Edition, Year 1953 was made in Naresh’s
case, the law on this issue was already clarified in R. v. Judge Hurst, ex parte Smith[26]
and R v. Judge Worthington, ex parte
Madan[27]. Accordingly Halsbury’s laws of England, 4th
Edition, year 1976 clearly states that county courts which is an inferior court
of civil jurisdiction is subject to certiorari.
(iv) Naresh’s
case ratio is that the Supreme Court under Article 32 cannot issue writ of
certiorari to quash the decision of the High Court and that usually orders of
any court exercising judicial power cannot violate the fundamental right of a
person. Naresh’s case nowhere decides
that certiorari cannot be issued to subordinate court. The reproduction of a
footnote from Halsbury’s laws of England
3rd Edition, Year 1953 is not the ratio of the case.
(v)
In none of the cases referred to and relied upon by the Supreme Court in Radhe Shyam’s case the issue was directly
or indirectly raised about High Court’s power to issue writ of certiorari to
subordinate court or inferior court.
(vi)
The conclusions of the Supreme Court in Radhe
Shyam’s case that there is no evidence of certiorari being issued to
subordinate courts is erroneous. This reasoning cannot be described to be
sound. A constitutional issue cannot be decided on the reasoning that there is
no precedent brought to the notice of the court where writ of certiorari was
issued to the subordinate court. A constitutional issue ought to be decided on
the basis of the language of the provision and in case of ambiguity internal
and external aid can be resorted to.
(vii)
Certiorari can only be taken away by express negative words and not otherwise.
(viii)The
very purpose for which the writ of certiorari was evolved is to control
subordinate courts only but with the passage of time it was made available to
quash the orders passed by quasi-judicial authorities and persons discharging
functions of judicial nature. This would however not mean that the original
purpose and the principal object of certiorari as a tool to control inferior
courts was lost.
(ix)
Article 227 is just power of superintendence which cannot be invoked in a
routine manner. It can be invoked only when the High Court as a Superintendent
feels its duty to exercise the power to prevent subordinate court from
exercising the jurisdiction not vested in it or to prevent a gross miscarriage
of justice. Article 227 is not a substitute for “certiorari”.
[1] AIR 2003 SC 3044
[2] 2015(3) SCALE
88
[3] Please refer
to Waryam Singh v. Amarnath AIR 1954
SC 215, Mohd. Yunis AIR 1984 SC 38
and Sadhna Lodh AIR 2003 SC 1561. The
judgments of the Supreme Court or the High Court holding contrary in the matter
of interpreting Article 227 and expanding its amplitude do not reflect the
correct position of law.
[4] AIR 1962 SC
1621
[5] AIR 1967 SC 1
[6] Surya Dev Rai
v. Ram Chander Rai AIR 2003 SC 3044 (Para 6 to 15)
[7] S. S. Khanna,
Major v. Brig. F. J. Dillon AIR 1964 SC 497 (Hidayatullah J para 29 to 33),
Hari Vishnu Kamath V. Ahmad Ishaque AIR 1955 SC 233 (para 10,11)
[8] Prabodh Verma
v. State of U.P. AIR 1985 SC 167 (Para 31 to 38), Ryots of Garabandho and other
villages v. Zamindar of Parlakimedi AIR 1943 PC 164 (para 164h,166a)
[9] Prof. Wade, page 512 Administrative law
[20] Please refer
to the comments of Dr. Ambedkar, Mr. K M. Munshi, Sir Alladi Krishnaswami Ayyar
at the time of discussing Draft Article 25(Now Article 32) and Draft Article
202( Now Article 226)
[23] Naresh
Mirajkar AIR 1967 SC 1, Ujjam Bai AIR
1963 SC 1621, Rupa Hurra AIR 2002 SC
1771
[24] Please refer
to Waryam Singh v. Amar Nath AIR 1954
SC 215, Mohmmad Younis AIR 1984 SC
38, Sadhna Lodh AIR 2003 SC 1561.
[25] AIR 1919 PC 31
No comments:
Post a Comment