The Writ of Prohibition

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Introduction to the Writ of Prohibition

The Writ of Prohibition is a legal term that implies ‘to prohibit, prevent, forbid, or restrain’ and is also known as ‘Stay Order’. It is a legal remedy that can be sought from a higher court to prevent a lower court, administrative body, or tribunal from exceeding its jurisdiction or acting unlawfully. As per the Merriam-Webster Dictionary, the writ of prohibition is defined as “a writ issued by a superior court to prevent an inferior court from acting beyond its jurisdiction.” This means it is a command issued by a superior court to a lower court, directing it to cease proceedings that are beyond its legal authority or contrary to the principles of natural justice. In essence, the writ of prohibition serves as a check on the power of lower courts or tribunals, ensuring that they operate within the boundaries of their jurisdiction and adhere to the principles of justice. It acts as a mechanism to correct errors and prevent potential harm that may arise from biased or unfair proceedings.

Historical Background

The writ of prohibition has ancient roots and can be traced back to English common law. In the past, it was used by high courts (such as the Court of Common Pleas and the King's Bench) to limit the jurisdiction of lower courts. It emerged as a means to control the jurisdiction of ecclesiastical courts and prevent them from encroaching upon the authority of the common law courts. Over time, its scope expanded to include the power to supervise and correct errors of inferior courts, ensuring that they acted within the bounds of their jurisdiction.

Purpose and Scope of the Writ of Prohibition

The primary purpose of the writ of prohibition is to prevent a lower court, administrative body, or tribunal from exceeding its jurisdiction or acting in a manner contrary to the principles of natural justice. It acts as a judicial command, directing the court or tribunal to cease proceedings that are beyond its legal authority. The writ is typically sought when there is a genuine apprehension of bias, lack of jurisdiction, or a violation of the principles of natural justice, such as denial of a fair hearing or violation of the rule against bias. In comparison to the writ of habeas corpus and the writ of mandamus, the scope of this writ is narrow and can only be issued to a judicial body and quasi-judicial authorities. Now let us understand ‘what are the grounds on which the writ of prohibition can be issued?’ in the following part of the article.

The Writ of Prohibition: Grounds to Issue

Some of the grounds for seeking the writ of prohibition include:

• Lack of Jurisdiction: The writ of prohibition can be sought when the lower court or tribunal is acting beyond its lawful jurisdiction. This means that it is taking up a matter that is outside the scope of its authority or hearing a case that it does not have the power to decide. If it can be demonstrated that the lower court lacks jurisdiction, the writ may be issued to prevent further proceedings
• Violation of Natural Justice: Natural justice refers to the principles of fairness and due process. If it is alleged that the lower court or tribunal has violated these principles, such as by denying a fair hearing, showing bias, or not giving an opportunity to be heard, the writ of prohibition may be sought to halt the proceedings. This ensures that justice is served and the rights of the parties involved are protected.
• Violation of Basic Rights: If a lower court or tribunal violates the fundamental rights of an individual or entity, the writ of prohibition may be sought. Fundamental rights are typically protected by constitutional provisions or international human rights standards. If it can be demonstrated that the lower court's actions infringe upon these rights, such as freedom of speech, religion, or due process, the writ can be used to halt the proceedings and protect those rights.
• Errors of Law: In some jurisdictions, the writ of prohibition may be available to correct errors of law made by the lower court. If it can be shown that the lower court has misapplied the law or made a significant legal error that affects the fairness or legality of the proceedings, the higher court may issue the writ to prevent further erroneous actions.
• Acts unconstitutionally or ultra-vires: The writ of prohibition can be sought when a lower court or tribunal acts in a manner that is unconstitutional or beyond its lawful authority. This refers to situations where the court or tribunal exceeds its powers or acts in a way that is contrary to the provisions of the constitution or governing legislation. If it can be shown that the lower court's actions are unconstitutional or ultra vires (beyond its legal authority), the writ can be requested to prevent further unconstitutional or unlawful acts.
• Lack of evidence in truthful judgments: The writ of prohibition can be sought if it can be demonstrated that a lower court or tribunal has rendered a judgment or decision without sufficient evidence or in disregard of the truth. This ground typically requires showing that the lower court's decision is based on a clear error of fact or a misinterpretation of the evidence presented. The writ can be sought to prevent the enforcement of an unjust or erroneous judgment based on a lack of evidence or truthfulness.
• Excess of Jurisdiction: Even if the lower court has the authority to hear a particular case, it may still act in excess of its jurisdiction. This occurs when it goes beyond the powers conferred upon it or acts in a manner that is arbitrary or unreasonable. The writ of prohibition can be sought to prevent the lower court from exceeding its lawful authority.

Procedure to Issue the Writ of Prohibition

To initiate a writ of prohibition, an aggrieved party, usually through legal representation, must file a petition to the higher court with supervisory jurisdiction over the court or tribunal in question. The petition must clearly specify the grounds on which the writ is sought, such as lack of jurisdiction or violation of natural justice. The higher court then reviews the petition and decides whether to issue the writ. If granted, the writ directs the lower court or tribunal to discontinue the proceedings that are deemed unlawful or beyond its jurisdiction.

The Supreme Court and any High Court of India can issue a prohibition writ under Article 32 and Article 226 of the Constitution of India respectively. 

Difference Between the Writ of Mandamus and Writ of Prohibition

Nature

• Writ of Mandamus: Mandamus is a Latin term that means ‘we command’. A writ of mandamus is an order from a higher court to a lower court, public authority, or official, commanding them to perform a specific act or duty that falls within their official capacity.
• Writ of Prohibition: Prohibition is a legal order that prohibits a lower court or tribunal from proceeding with a case or taking a particular action.

Purpose

• Writ of Mandamus: It is typically sought when there is a clear legal right to the performance of a duty, and there is a failure or refusal to fulfill that duty. It is a remedy to enforce public duties and to ensure that justice is served.
• Writ of Prohibition: Its purpose is to prevent a lower court or authority from acting beyond its jurisdiction or in excess of its lawful powers. It is a preventive measure to halt proceedings that are deemed illegal or without proper authority.

Against whom the writ be issued

• Writ of Mandamus: Against tribunal, inferior court, government, public corporation, and public official.
• Writ of Prohibition: Against Judicial and Quasi-judicial authorities.

Example

• Writ of Mandamus: If a government official refuses to release certain information that the law requires to be public, a writ of mandamus may be sought to compel the official to disclose the information.
• Writ of Prohibition: If a lower court is about to hear a case that is clearly outside its jurisdiction, a writ of prohibition may be sought to stop the proceedings.

Difference Between the Writ of Certiorari and Writ of Prohibition

Meaning

• Writ of Certiorari: Certiorari is a Latin word that means ‘to be certified’ or ‘to be informed’.
• Writ of Prohibition: Prohibition is a legal term that implies ‘to prohibit, prevent, forbid, or restrain’.

Purpose

• Writ of Certiorari: Its purpose is to provide a mechanism for the higher court to review lower court decisions, ensuring uniformity in the interpretation and application of the law. It allows the higher court to select cases that raise significant legal issues or involve conflicting decisions among the lower courts.
• Writ of Prohibition: Its purpose is to prevent an inferior court or body from acting beyond its legal authority and does not violate the rights of the parties involved.

Criteria for Granting

• Writ of Certiorari: In most jurisdictions, the writ of certiorari is discretionary, meaning the higher court has the discretion to decide whether to grant or deny the writ. The higher court typically considers factors such as the importance of the legal question presented, the existence of conflicting decisions among lower courts, and the potential impact of the case on the development of the law.
• Writ of Prohibition: A writ of prohibition is typically granted when there is a clear showing that the lower court or body is acting without jurisdiction, or when it is about to exceed its lawful authority. The petitioner seeking the writ must demonstrate that there is no other adequate legal remedy available to address the issue.

Effect

• Writ of Certiorari: If the higher court grants the writ of certiorari, it effectively agrees to review the case and determine whether the lower court's decision was correct. The higher court may affirm the lower court's decision, reverse it, or remand the case back to the lower court for further proceedings.
• Writ of Prohibition: If the higher court grants the writ of prohibition, it effectively bars the lower court or body from proceeding with the case or taking any further action. The lower court or body must comply with the writ and cease its activities in the matter specified. The writ of prohibition is aimed at preventing future harm or injustice that may result from the lower court or body's actions.

Remedy

• Writ of Certiorari: It is a Corrective remedy, orders and judgments of the inferior court are quashed.
• Writ of Prohibition: It is a Preventive remedy, that prevents orders and judgments of lower courts.

Related Case laws

• Hari Vishnu Kamath vs. Ahmad Ishaque (December 09, 1954)
• S. Govind Menon vs. Union of India (February 02, 1967)
• Sheshank Sea Foods Private Limited, Karnataka vs. Union of India (November 19, 1996)
• Thirumala Tirupati Devasthanams vs. Thallappaka Anantha Charyulu (September 10, 2003)
• Kopargaon S. S. K. Ltd. vs. State of Maharashtra (December 18, 2008)

Conclusion 

The writ of prohibition stands as a crucial legal remedy, ensuring that courts and tribunals act within their jurisdiction and uphold the principles of justice. It acts as a protective shield, preventing lower courts or tribunals from overstepping their prescribed authority and engaging in proceedings that fall beyond their lawful purview. By granting the power to halt proceedings that are unlawful or unfair, it safeguards the rights of individuals and maintains the integrity of the judicial system. We can conclude that it serves as a sentinel against potential miscarriages of justice that may arise when legal entities act beyond the limits defined by the law.