Introduction:
This article talks about writ of Prohibition under the Indian constitution. A right without a remedy does not have much substance. As there’s a well known maxim ‘ubi jus ibi remedium’ i.e. where there’s a right there’s a remedy. The Fundamental Rights guaranteed by the Constitution would have been worth nothing had the Constitution not provided an effective mechanism for their enforcement. Art. 32 of the Indian constitution confers power on the Supreme Court to enforce Fundamental Rights. The High Courts also have a parallel power under Art. 226 to enforce Fundamental Rights.
In the Indian Constitution, Articles 32 and 226 play a vital role in safeguarding citizens’ fundamental rights by providing them with legal remedies through writ petitions.
About Article 32 and Article 226 of the Indian constitution
Article 32, often referred to as the “heart and soul” of the Constitution by Dr. B.R. Ambedkar, grants citizens the right to approach the Supreme Court directly when their fundamental rights are violated.
Article 226, on the other hand, extends the power to issue writs to the High Courts, but with a broader scope. While the Supreme Court under Article 32 can only enforce fundamental rights, High Courts under Article 226 can address not only violations of fundamental rights but also other legal rights. This makes High Courts an accessible venue for citizens seeking remedies for a variety of grievances.
Meaning of writs
The word “writ” refers to “written command”. It is a command of the Court issued to an official or other person and directing him to act or abstain from acting in some way. The Supreme Court of India under Article 32 and all the High Courts under Article 226 of the Constitution of India are empowered to issue writs.
5 writs under the Indian constitution:
The writs are:
- Writ of Habeas Corpus,
- Writ of Mandamus,
- Writ of Prohibition,
- Writ of Quo Warranto,
- Writ of Certiorari
Meaning of Writ of Prohibition:
The writ of prohibition is issued primarily to prevent an inferior Court or tribunal from exceeding its jurisdiction. It is to prohibit the inferior Courts or tribunals from exercising power or authority not vested in them. The writ is issued against judicial or quasi-judicial authorities, on the ground of excess of jurisdiction, absence of jurisdiction or for acting in violation of the principles of natural justice. It is a prohibitive writ and forbids the authority from continuing the proceedings beyond its jurisdiction. It is a jurisdictional writ
Essentials for issue of writ of prohibition:
A writ of prohibition is issued when:
- The lower court or body is acting without jurisdiction or in excess of jurisdiction or acting against the principles of natural justice.
2. The lower court or body is about to exceed its lawful authority.
3. There is no other adequate legal remedy available to address the issue.
4. The proceedings are pending in a court.
5. Issued in the form of a prohibitory relief and forbids the authority from continuing the proceedings beyond its jurisdiction.
Case on Writ of Prohibition :
Govind Menon v. Union of India (1967)
It was held that a writ of prohibition can be issued in both circumstances of excess jurisdiction and absence of jurisdiction, Writ of prohibition was Issued by a higher court, namely the Kerala High Court, to a lower court in order to take over jurisdiction that was not initially vested, or in other words, to compel lower courts to retain their jurisdictional limitations. The writ can be issued when there is an excess of jurisdiction as well as when there is an absence of jurisdiction.
Difference between writ of certiorari and prohibition
- Writ of certiorari is issued after the lower Courts have declared their judgments whereas prohibition is issued before the lower Courts have completed their proceedings.
2. Certiorari means ‘to be certified’ and prohibition means ‘to forbid or to prevent’.
3. Certiorari is curative in nature and prohibition is preventive in nature.
4. Certiorari is in the form of quashing orders and decisions while prohibition is issued by the higher Courts to prevent or stop lower Courts from exceeding their jurisdiction and acting against their powers.
5. Certiorari provides remedy and prohibition prevents the exceeding of jurisdiction or violation of natural justice principles.
Also read:
Doctrine of severability, eclipse and waiver u/a 13 of Indian constitution: https://kanoonnotes.com/wp-admin/post.php?post=1615&action=edit
Sources of Hindu law: https://kanoonnotes.com/wp-admin/post.php?post=1602&action=edit