Vikram Hegde
History of the Writ of Certiorari
Certiorari. A word that seems as at home in the middle of a tongue twister of rolled Rs as in an officious direction by a Constitutional Court. The prerogative writ of Certiorari derives its name from the practice where a sovereign, upon hearing a complaint from a subject that injustice had been done, would say he “wished to be certified certiorari-of the matter, and direct the records in the matter to be transmitted to the Court in which he was sitting”.[1]
The writ of Certiorari, in the judicial sense, has been in common use for nearly 800 years now. Despite such antiquity, it has not diminished in utility or ubiquity. Certiorari in India has acquired its own shape, the contours of which the Supreme Court had occasion to delineate recently in General Manager, Rengali Hydro Electric Project v. Sri Giridhari Sahu.[2]
Early decisions of the Supreme Court of India
The Supreme Court of India, in its early years, considered the application of the Writ of Certiorari in the Indian context in Basappa v. Nagappa[3]. The Court in Basappa took care to iterate multiple times that the writ of Certiorari is not another mechanism of appeal and that the superior court does not review or reweigh the evidence on the basis of which the decision of the inferior tribunal purports to be based. Further, the court held that the writ of Certiorari demolishes the erroneous order but does not substitute it with its own views. But what a court exercising its power to issue writ of Certiorari does check is the jurisdiction of the tribunal below and the qualifications and conditions of its exercise; and the observance of law in the course of exercising such jurisdiction.
Examination of facts by the Writ Court
In the Basappa formulation of limitations and scope of the writ of Certiorari there are some special circumstances where a Superior Court can go into a question of fact (1) when the jurisdiction of the lower tribunal depends upon the finding on the question of fact; and (2) when the decision is unsupported by material evidence.
In the UK, according to De Smith’s Judicial Review, the power seems to have evolved to permit review of fact even in cases of “misdirection, disregard or mistake of material fact”.[4] But as the Supreme Court noted in Radhey Shyam v. Chhabi Nath[5] on a connected but slightly different issue, the change of law in England would not dilute the binding precedent of our own Constitutional Courts. Indeed, an early Constitution Bench of the Supreme Court of India in Hari Vishnu Kamath v. Ahmad Ishaque[6] has taken the opposite shine on this question and held that the Court will not review findings of fact reached by the inferior court or tribunal even if they are erroneous.
Rengali Hydro Electric Project v. Giridhari Sahu
The Supreme Court had occasion to tread this fine line once again in Rengali Hydro Electric Project v. Sri Giridhari Sahu decided on 12th September. Whether the writ court delves into facts or not, for the purposes of this article we may briefly glance at them to understand the circumstances in which the Court propounded on the law.
The matter arose out of a dispute that turned upon these questions. Non-muster roll workers of the Rengali Hydro Electric Project (RHEP) had approached the High Court seeking regularization which was allowed. RHEP challenged the High Court order before the Supreme Court. It is the claim of the workers that, RHEP, in the pendency of the appeal, got the workers to sign some papers by telling them they were for regularization, but the papers turned out to be a Voluntary Separation Scheme. The laborers, upon coming to know they had been deceived, approached the Labour Court under Section 33A of the Industrial Disputes Act seeking to avail protection from the alteration of conditions of service during the pendency of an industrial dispute as provided under Section 33 of the Industrial Disputes Act. The Labour Court considered oral and documentary evidence and passed an award in favour of the workers. RHEP challenged this before the High Court by way of a petition seeking the Writ of Certiorari. The High Court took note of the pendency of the industrial dispute and that the award of the Labour Court was passed after detailed appreciation of evidence and not finding any jurisdictional error or error apparent on the face of it, dismissed the petition of RHEP.
The Supreme Court in Rengali relied upon the decisions referred above, except Radhey Shyam, and also on its earlier decision in Management of Madurantakam Sugar Mills Ltd. v. S. Vishwanathan[7] which expands the scope by holding that if a fact is perverse or not based on legal evidence, a High Court exercising power under Article 226 or 227 can go into the question of fact decided by the Labour Court or tribunal. The Court held that when a collateral fact is also a jurisdictional fact, the finding of the tribunal on such fact is not immune from review under the writ of Certiorari. But on the question of examining a finding unwarranted by the evidence, the Court held it to be the same as a finding unsupported by evidence and took the support of the decision in Hari Vishnu Kamath cited above, though a plain reading of Hari Vishnu Kamath would indicate otherwise. Having thus found that the superior court exercising its power to issue the writ of Certiorari can also go into facts, the Supreme Court considered the evidence in some detail and held that the finding of the Labour tribunal that the workers had been deceived was not supported by evidence.
Impact
This judgment tilts the balance in favour of greater scrutiny of facts by a court exercising the power of issuing the writ of Certiorari and will certainly have the effect of expanding the scope of the Writ of Certiorari. Indeed the act of calling for records, which has been the hallmark of the writ of Certiorari as reflected in its etymology, acquires greater meaning with the expansion in the scope of examination of facts. The present author would, however, stop short of saying that this tends towards the UK standard described above as it has evolved in very different circumstances.
It remains to be seen how a greater appreciation of facts will affect that curious hybrid which has been engendered in the rarefied halls of the Madras High Court – Writ of Certiorarified Mandamus.
[1] R. v Titchmarsh (1915) 22 D.L.R. 272 as cited in Woolf, H. et. al. (2013) De Smith’s Judicial Review, 7th Edn., Sweet and Maxwell.
[2] Civil Appeal No. 8071 of 2010, decided on 12.09.2019.
[3] (1955) 1 SCR 250
[4] Woolf, H. et. al. (2013) De Smith’s Judicial Review, 7th Edn., Sweet and Maxwell.
[5] (2015) 5 SCC 423
[6] AIR 1955 SC 233
[7] (2005) 3 SCC 193
About the Author: Vikram Hegde is an Advocate at the Supreme Court of India and various tribunals in New Delhi and tweets at @vikramhegde