Writ of Prohibition: History, Scope and Evolution, and Landmark Judgements

By | January 23, 2021
Writ of Prohibition

In this article “Writ of Prohibition: History, Scope and Evolution, and Landmark Judgements,” the author has discussed the writ of prohibition which is nearly as old as the common law itself. Like other writs, the writ of prohibition is guaranteed under the Constitution of India—specifically Articles 32 (for the Supreme Court) and 226 (for the High Courts).

This article excavates the history of the writ, its evolution along the ages, its scope—narrow as it is—and landmark judgements involving it. Its origins in the English King’s Bench and Court of Common Pleas have been linked to its present-day form. Importantly, Indian landmark cases which shaped the contours of this writ have also been explicated.

I. Introduction

A writ of prohibition is a writ that is typically issued by a court to an inferior court or quasi-judicial tribunal. This writ is issued to prevent lower courts or judicial bodies from overstepping their jurisdiction. This type of order is also known as a ‘stay order’.

It is important to note that prohibition only applies before a lower court has rendered its verdict on the case at hand. If the court has already given judgement on a particular issue, another writ will apply—the writ of certiorari.[1]

The power to issue this writ is, like all other writs, vested in the Supreme Court and the various high courts by virtue of Articles 32 and 226 of the Constitution of India respectively.

II. History, Scope and Evolution

The writ of prohibition has a long history, originating in England as means for high courts, including the King’s Bench and the Court of Common Pleas, to stop lower courts from exceeding their jurisdictional boundaries.[2]

These were originally deployed against ecclesiastical courts—courts dealing with Christian spiritual matters—but were later used against the Admiralty and the Court of Requests (one of the equity courts). Gradually, this writ became common practice and became part of the common law tradition. It was used to protect individuals from arbitrary judicial action.

The scope of a writ of prohibition is narrower than that of a writ of habeas corpus or even mandamus. A writ of prohibition can only be issued to a judicial body, and not to administrative bodies.

To probe a bit deeper into the scope of this writ, this writ is employed both when there is an excess of jurisdiction and when there is an absence of jurisdiction. Put simply, the writ is applicable when the courts overstep their jurisdiction and where the courts have no jurisdiction at all.

Apart from those two cases, the writ can also be issued when there is a ‘departure from the rules of natural justice’.[3]

III. Landmark Judgements

  1. Hari Vishnu Kamath v. Syed Ahmad Ishaque (1954)[4]

This was a case involving election to the House of the People (Lok Sabha). The appellant complained that voters were given the wrong ballot paper to use, and that, therefore, those ballots should be excluded.

In the course of the judgement, the court laid down the rules for issuing a writ of prohibition which have been discussed briefly above:

… [B]oth writs of prohibition and certiorari have for their object the restraining of inferior courts from exceeding their jurisdiction, and they could be issued not merely to courts but to all authorities exercising judicial or quasi-judicial functions. But there is one fundamental distinction between the two writs, and that is what is material for the present purpose. They are issued at different stages of the proceedings.

When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition, and on that, an order will issue forbidding the inferior court from continuing the proceedings. On the other [h]and, if the court hears that cause or matter and gives a decision, the party aggrieved would have to move the superior court for a writ of certiorari, and on that, an order will be made quashing the decision on the ground of want of jurisdiction. (emphasis supplied)

This portion of the judgement spells out the distinction between a writ of prohibition and certiorari. It states that when a lower court ‘gives a decision’, the petitioner will have to file a certiorari petition as prohibition writs can only be pleaded for when judgement has not already been tendered.

  1. S Govinda Menon v. Union of India (1967)[5]

Govinda Menon was a member of the Indian Administrative Service. The government had started disciplinary proceedings against him. After a failed petition by Menon, the government issued a show-cause notice to Menon after an enquiry was conducted by a retired I.C.S. officer. Menon subsequently prayed for a writ of prohibition to stop the government from proceeding on the show-cause notice.

Over the course of the proceedings, the court affirmed the cases where a writ of prohibition can be issued:

The jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of that writ is to restrain courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine courts or tribunals of inferior or limited jurisdiction within their bounds. It is well-settled that the writ of prohibition lies not only for the excess of jurisdiction or for the absence of jurisdiction but the writ also lies in a case of departure from the rules of natural justice.

Thus, the court laid down the following circumstances for a writ of prohibition:

  1. Excess of jurisdiction
  2. Absence of jurisdiction
  3. Departure from the rules of natural justice

IV. Conclusion

The writ of prohibition is a useful writ to protect individuals from arbitrary judicial action. Any individual, in the event of a case being taken up by a wrong court or quasi-judicial body, can simply plead for a writ of prohibition to prevent any injustice from being wrought on him.

Moreover, it has also been used to preserve the sanctity of the constitutional order. Courts cannot simply take up any petition and rule on any matter without it being in its jurisdiction; the writ of prohibition ensures that.

[1] Hari Vishnu Kamath v Syed Ahmad Ishaque, 1955 AIR 233.

[2] Charles M. Gray (1994). The Writ of Prohibition: Jurisdiction in Early Modern English Law. Available here.

[3] S. Govinda Menon v Union of India, 1967 AIR 1274.

[4] Id. at note 1

[5] Id. at note 3

  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Online Exam Preparation – The Prep Destination

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