One of the most confusing legal terms in administrative authority is Writ of Prohibition. Unlike Writ of Quo Warranto there is some sort of summary on the internet for this Writ but not in a proper way. Today probably for the first time in the web world you will get the absolute explanation on Writ of Prohibition. A Writ of Prohibition is a judicial writ. It can be issued against a juidcial or quasi-judicial authority. When such authority exceeds it’s jurisdiction or tries to exercise jurisdiction not vested in it. When a sub-ordinate court or an inferior tribunal hears a matter over which it has no jurisdiction, the High Court or the Supreme Court can prevent it from usurping jurisdiction and keep it within its jurisdiction boundaries.
In East India Commercial Co. vs. Collector of Customs, AIR 1962 SC 1893 (1903) : (1963) 2 SCR 338, the Supreme Court observed :-
“A Writ of Prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or or contrary to the laws of the land, statutory or otherwise.” The principle underlying the Writ of Prohibition is that ‘prevention is better than cure’.
Grounds – Essentially, the Writ of Prohibition can be issued when an inferior court or tribunal acts without or in excess of its jurisdiction, or acts in violation of principles of Natural Justice, or acts under a law which is ultra vires or acts in contravention of Fundamental Rights.
1) Absence or Excess of Jurisdiction – In case of absence or total lack of jurisdiction, Writ of Prohibition would be available against a judicial or quasi-judicial authority prohibiting it from exercising jurisdiction not vested in it. Thus, in case [Abdul Kadir vs. State of Kerala, AIR 1962 SC 922 : 1962 Supp (2) SCR 741], of levy of license fee without authority of law, prohibition was issued. Again, if a taxing authority proposes to impose tax on a commodity exempted under the Act, a Writ of Prohibition can be issued. It should, however, be remembered that, such absence or lack of jurisdiction should be patent and apparent on the face of the record and should not be latent and should not ordinarily require for its establishment a lengthy inquiry into question of fact.
Similarly, a distinction must be drawn between lack of jurisdiction and the manner or method of exercising jurisdiction vested in a court or tribunal. Prohibition an not lie to correct the course, practice or procedure of an inferior court or a tribunal or against a wrong decision on the merits. Therefore, when a tribunal has the jurisdiction to make an order, but in the exercise of that jurisdiction, it commits a mistake whether of fact or of law, the said mistake can only be corrected by an appeal or revision and not by a Writ of Prohibition.
2) Violation of Natural Justice – A Writ of Prohibition can also be issued when there is violation of the principles of Natural Justice. In fact, if the principles of Natural Justice have not been observed, For Example, if there is bias or prejudice on the part of the Judge or if no notice was issued or hearing given to the person against whom the action is sought to be taken, there is no jurisdiction vested in the court or the tribunal to proceed with such matter.
3) Unconstitutionality of Statute – A Writ of Prohibition will also be issued if a court or a tribunal proceeds to act under a law which is ultra vires or unconstitutional. Thus, if the proceedings are pending in a court or a tribunal under a statute which itself is ultra vires Article 14, or Article 25 and 26, of the Constitution or is beyond the competence of the legislature, a Writ of Prohibition can be issued against further proceedings.
4) Infringement of Fundamental Rights – Writ of Prohibition can also be issued where the impugned action infringes the Fundamental Rights of the petitioner. Thus, prohibition was issued against the income tax assessment proceedings where the order by which the proceedings were transferred to another officer was arbitrary and violative of Article 14.
Who May Apply – Where the defect of jurisdiction is apparent on the face of the proceedings, an application for prohibition can be brought not only by the aggrieved party but also by a stranger. The principle underlying this rule is that usurpation of jurisdiction is contempt of the Crown and an encroachment upon royal prerogative. Consequently, it is immaterial by whom the Court is informed about the usurpation.
Against Whom Writ of Prohibition Would Lie – A Writ of Prohibition is a judicial writ. It may be issued against courts, tribunals and other quasi-judicial authorities such as Tax authorities, not Custom authorities, Settlement Officers, Statutory Arbitrators etc.
Against Whom Writ of Prohibition Does Not Lie – Prohibition, however, does not lie against administrative authorities from discharging administrative, executive or ministerial functions. Likewise, it would not lie against legislature restraining it from enacting or enforcing a law.
Alternative Remedy – Prohibition is not a Writ of course but it is a Writ of right and not discretionary. The existence of another alternative, adequate and equally efficacious remedy is a matter which may be taken into consideration by the High Court in granting a Writ of Prohibition. But the existence of an alternative remedy is not an absolute bar to the issuance of a Writ of Prohibition. Therefore, where there is patent lack of jurisdiction in an inferior tribunal, or where the law which confers jurisdiction on such tribunal is itself unconstitutional or ultra vires, or there is infringement of any Fundamental Right of the petitioner, the existence of an alternative remedy is altogether irrelevant and the Writ of Prohibition will be issued as of right.
Writ Of Prohibition Limits –
1) The object of the Writ of Prohibition is to prevent unlawful assumption of jurisdiction. Therefore, it can be issued only when it is proved that a judicial or quasi-judicial authority has no jurisdiction or it acts in excess of jurisdiction vested in it. Prohibition can not lie in cases where such authority having jurisdiction exercises it irregularly, improperly or erroneously.
2) A Writ of Prohibition can lie only in cases where the proceedings are pending before a judicial or quasi-judicial authority. Thus, when such authority hears a matter over which it has no jurisdiction, the aggrieved person may move a High Court for this Writ forbidding such authority from proceeding with the matter. But if the proceedings have been terminated and such authority has become Functus Officio, a Writ of Prohibition would not lie. There the remedy may be a Writ of Certiorari.
3) If the proceedings before a judicial or quasi-judicial authority are partly within and partly without jurisdiction, the Writ of Prohibition may be issued in respect of latter. Thus, if the Collector of Customs imposes valid conditions for release of certain goods on payment of fine in lieu of confiscation, the Writ of Prohibition may be issued against the Collector from enforcing illegal conditions. Similarly, if some proceedings are disposed of and some are still pending, in respect of the pending proceedings, the Writ of Prohibition may be issued.
Conclusions – A Writ of Prohibition lies where there is absence of jurisdiction or excess of jurisdiction. Hence, if defect of jurisdiction is apparent, it is not only the power but the duty of superior court to issue this Writ to prevent a subordinate court or inferior tribunal from usurping jurisdiction not vested in it or from exceeding it. A superior court should not be chary of exercising power of prohibition if judicial or quasi judicial authorities attempt to exercise jurisdiction beyond the powers given to them by Parliament.