“When a court has the power to issue the writ, it is not, according to the fundamental principles of certiorari, an inferior court or a court of limited jurisdiction.”- Justice Sarkar  

Certiorari is a writ, and it is issued to an inferior court. The origin of this writ is from England. The inferior court conceived in English law in this context is a court of limited jurisdiction: Rex v. Chancellor of St. Edmundabury[1]. The origin of this test of an inferior court appears to have been this.

Read also- Writ of Certiorari- Meaning, History and Analysis

In English theory, all judicial power is vested in the King. It was earlier exercised by the Court of King’s Bench because the King, initially in person and later in theory, sat there. In course of time as the ‘Court in which the King sat, actually or in theory, was not enough to meet the needs of the people, a number of other courts had to be set up. The instruments creating such other courts always defined their jurisdiction.

The King, however, retained his right to see that these courts did not encroach upon the royal prerogative of dispensing justice, that is, entertained cases which were beyond their jurisdiction as limited by the instruments creating them and thereby decided cases which the King had the right to decide.

In England the King was the court of universal jurisdiction and he, therefore, issued the writ to the courts of limited jurisdiction to keep them within the limits prescribed for them. The King’s prerogative to issue the writ is now vested in the High Court of England by statute.

In our country there is no court of universal jurisdiction in the sense in which the High Court of England is. The jurisdiction of our Supreme Court is prescribed by the Constitution. The Constitution also provides how the jurisdiction of High Courts is to be prescribed. Jurisdiction of other courts is to be found in the statutes setting them up. Thus, in our country all courts are in the sense, courts of limited jurisdiction.

In the case of Naresh Shridhar Mirjakar v. State of Maharashtra (1966)’, Justice Sarkar made comments about certiorari to High Court, the court said,

“I find great difficulty in thinking of the High Courts as courts of inferior jurisdiction. Certain other tests for deciding what a court of inferior jurisdiction is, have been suggested but none of them, in my view, can support the conclusion that a High Court is an inferior court. I proceed to discuss these tests first.

It was said that the High Courts were inferior courts as appeals lie from them to the Supreme Court. This argument is really based on the theory that an inferior court is one from which an appeal lies to another court.

Now, there are many tribunals from which no appeal lies to a High Court upon which the Constitution has conferred the power to issue a writ of certiorari. If appealability was the test, then the High Courts would not be able to issue writs of certiorari to such tribunals as they would not then be inferior courts.

In that case, a High Court’s power to issue the writ would only be confined to courts from which appeals lie to it. It would be strange if this was what the Constitution contemplated when it provided that the High Courts would have the power to issue writs of certiorari. I am not prepared to adopt a test which produces such a result. Nor do I think that the Constitution intended it.

With the growing number of these tribunals and the increasing scope of their activity covering a large part of an average citizen’s life, property and work, it is of the utmost importance that the citizens should have the quick and effective remedy of a writ of certiorari by approaching the High Courts for such writs. I am not prepared to accept a test which would affect that right in any way.

Besides this aspect of the matter, the power to issue a writ of certiorari is most valuable and most needed where an appeal does not lie from a decision of a tribunal and that decision is sought to be called in question.

A test which would prevent the writ from lying in a case where it is most needed is not acceptable to me. I may add that in England where a writ of error a form of appeal lay, the certiorari does not appear to have issued.

Another test suggested was that the inferior court was one over which the superior court issuing the writ had a supervisory jurisdiction. This test would fail for the same reason as the test of appealability. The Supreme Court has no supervisory jurisdiction over any court though it has power to issue the writ, nor have the High Courts over many to which it is necessary that they should issue the writ and have in fact been doing so all along with great beneficial results.

This test will not, therefore, work in our country. That is not a test in England either. No doubt, in England it is said that the High Court exercises supervision over the inferior courts by the issue of the writ but that is so because the power to issue the writ carried with it the power to supervise and not because the writ is issued as there is a power to supervise. The power to issue the writ arises from what was once the royal prerogative and not from what is only a power to supervise.

I confess the question is of some haziness. That haziness arises because the courts in our country which have been given the power to issue the writ are not fully analogous to the English courts having that power. We have to seek a way out for ourselves. Having given the matter my best consideration, I venture to think that it was not contemplated that a High Court is an inferior court even though it is a court of limited jurisdiction.

The Constitution gave power to the High Courts to issue the writ. In England an inferior court could never issue the writ. I think it would be abhorrent to the principle of certiorari if a court which can itself issue the writ is to be made subject to be corrected by a writ issued by another court.When a court has the power to issue the writ, it is not, according to the fundamental principles of certiorari, an inferior court or a court of limited jurisdiction.

It does not cease to be so because another court to which appeals from it lie, has also the power to issue the writ. That should furnish strong justification for saying that the Constitution did not contemplate the High Courts to be inferior courts so that their decisions would be liable to be quashed by writs issued by the Supreme Court which also had been given the power to issue the writs.

Nor do I think that the cause of justice will in any manner be affected if a High Court is not made amenable to correction by this Court by the issue of the writ. In my opinion, therefore, this Court has no power to issue a certiorari to a High Court.”


Naresh Shridhar Mirjakar v. State of Maharashtra (1966)

[1] [1948] 1 K.B. 195