Law of writ

Writ of Prohibition

1. Writ of Prohibition Presented by:-Abhishek tiwari

2. What is writ of prohibition Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order". This writ is issued by the supreme court or high court to its inferior court forbidding it to continue proceeding in a case in excess of its jurisdiction.

3. Writ of prohibition and INDIAN constitution Article 32 and Article 226 of the Constitution provide two separate but parallel provisions of writ jurisdiction with the Supreme Court and High Courts respectively. Article 32 has been incorporated as a fundamental right and it provides for the constitutional remedy against the violation of fundamental rights. This remedy is limited to the violation of fundamental rights only under Article 32.   But the scope of Article 226 is wider than that of Article 32 because the operation of Article 226 is not limited to violation of fundamental rights only, but it can be operated for other purposes also. However, in entertaining the writs, the High Court enjoys wide and open powers as a matter of discretion. And this writ of prohibition is one of the writ which is provided to the citizens of India by the makers of the constitution. As a right which can't be suspended during the emergency. And that’s why the father of our Indian Constitution Dr. B.R. Ambedkar said that "If I was asked to name any particular article in this constitution as the most important --- An article without which this constitution would be a nullity ------ I could not refer to any other Article except this one …..... It is the very soul of the constitution and the very heart of it".

4. Nature Prohibition is writ of right not a writ of course and is of preventive nature rather than corrective. The main object of this writ is to prevent unlawful assumption of jurisdiction. Therefore, writ does not lie in case of irregularity in exercise of jurisdiction or jurisdiction has been exercised improperly or erroneously. Availability of an alternate remedy does not create an absolute bar on issuance of a writ of prohibition.. It is issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this Writ proceedings in the lower court etc. come to a stop. This writ can be issued during the proceedings are pending before a judicial and quasi-judicial body and if the proceedings have been terminated and authority became functus officio then in such cases writ of prohibition can’t be issued. In such cases writ of certiorari may be issued.

5. Important facts RELATED TO WRIT OF PROHIBITION Writ of prohibition is not available against a public officer not vested with judicial or quasi-judicial powers.  The Supreme Court/High Court can issue this Writ only where a fundamental right is affected. A writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural justice. It is also known by  STAY ORDER. The court is not bound to issue this writ as it is issued in English law. It is the power of the supreme court and high court to issue it for doing justice.

6. Purpose This writ is issued to the court or any tribunal to bar them from doing something what they are about to do. This bar is applied whenever a subordinate court or tribunal hears the matter beyond their jurisdiction or on matters on which they have no jurisdiction. Thus In both cases where there is excess of jurisdiction and where there is absence of jurisdiction. In both the condition if the supreme court or high court found it that the inferior court  is going beyond his jurisdiction then these court can issue a writ of prohibition to stop that proceeding, which is also said to be the stay order. 

7. Who can apply for the Writ of Prohibition?   Any person whose right is violated can apply for the writ of prohibition.

8. When can a Writ of Prohibition be granted?   When the inferior Court or quasi-judicial authority exceeds its jurisdiction.  When the inferior Court acts without lawful jurisdiction.  When the inferior Court or quasi-judicial authority acts against the rule of natural justice.  When there is an apparent error on the face of the judicial record.

9. Case laws East India Commercial Co. Ltd. V Collector of Customs:- In the given case an observation is given by the Supreme Court that writ of prohibition is an order directing inferior courts and tribunals to stop from proceeding therein on the ground that the proceeding are taking place with excess jurisdiction or lack of jurisdiction. S. Govinda Menon v Union of India :- In this case the Supreme Court has explained the jurisdiction of the court for grant of a writ of prohibition. It says that power to issue writ of prohibition is primarily supervisory and the main object for behind the writ of prohibition is to restrain inferior courts or tribunals from exceeding their jurisdictional limits. It is well settled law derived from decided cases that writ of prohibition lies not only in case of excess of jurisdiction or for abuse of judicial power but writ lies also in cases of where the actions are taken in contravention to the rules of Natural Justice Sewapujanrai Indrasanari Ltd. V Collector of Customs :- It was held that the Central Government may, from time to time, by notification in the Official Gazette, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India across any customs frontier as defined by the Central Government.” and the High Court may issue writ of prohibition for prohibiting the customs authorities from enforcing the invalin conditions without the consult of the Central Government

10. Distinction between Certiorari and Prohibition These two writs are that both these are issued at different stages of proceedings. One is issued to the inferior court when such court acted without any jurisdiction then the person against the proceedings are taking place can move to the superior court for a writ of prohibition, whereas on the other hand for a writ of certiorari court have to hear the matter and gives decision on that and the aggrieved party can move to the superior court of issuance of writ.further the order may be passed for quashing the decision on the ground of want of jurisdiction.

11. CONCLUSION  

12. Thank you!