Explain the nature and scope of the Writ of Prohibition. How is it different from the Writ of Mandamus?

Question: Explain the nature and scope of the Writ of Prohibition. How is it different from the Writ of Mandamus? [BJS 2018]

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Answer

The Supreme Court has been empowered to issue writs in the nature of habeas corpus, mandamus, prohibition, and certiorari and quo warranto for protecting the fundamental rights [article 32(2)]. Similar power has been conferred on the High Court under Article 226 of the constitution.

Prohibition is a judicial order to the agencies (constitutional, statutory, or non-statutory) from continuing their proceedings in excess or abuse of their jurisdiction or in violation of the principles of natural justice or in contravention of the law of the land. It is issued primarily to prevent an inferior court or tribunal from exercising its jurisdiction, power or authority not vested in them.

In Esha Beevi v. Tax Recovery Officer, the court ruled that writ of Prohibition does not lie against an authority discharging purely administrative or executive functions, it issues only against an authority discharging judicial functions. Following are certain grounds based on which writ of Prohibition can be issued in cases:

• Absence or excess of jurisdiction: where there is an absence of jurisdiction or total lack of jurisdiction.
• Violation of natural justice: In a case where the principle of natural justice has not been observed or if observed there is a violation of those principles. For example, if the opposite party has not been served with the notice and not been heard. Then the writ of prohibition can be issued.
• Unconstitutionality of Statute– whenever any tribunal or court proceeds to act under the law which is ultra vires or unconstitutional, a writ of prohibition can be issued against the proceedings.
• Infringement of Fundamental Right– where the impugned action is infringing any fundamental right of the petitioner then the writ of prohibition can be issued.
• The error of law apparent on the face of the Record.

Further, the scope of a writ of prohibition is narrower than that of a writ of mandamus as a writ of prohibition can only be issued to a judicial body, and not to administrative bodies. On the contrary, the primary purpose of issuing a writ of mandamus is to make the Government, machinery work properly. An order of mandamus is a command directed to any person, corporation or an inferior tribunal, requiring them to do some particular thing which pertains to their/his office and which is in the nature of public duty.

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