SCOPE AND DEVELOPMENT OF JURISDICTION

The scope of the principal writs in India is, subject to two qualifications, substantially the same as in this country. The two qualifications relate to mandamus and certiorari. A writ of mandamus in India is of wider ambit than an order of mandamus in this country.

* Jesingbhai Ishwarlal v Emperor: A.I.R. (1950) Bom. 363; Carlsbad Mineral Heater Manufacturing Co. Ltd. v H. M. Jagtiani: A.I.R. (1952), Cal. 315.

¹ G. D. Karkare v T. L. Shevde: A.I.R. (1952), Nag. 330.

¹ The Supreme Court has said that the concluding words of Art 226 ‘have to be read in the context of what precedes the same. Therefore the existence of the right is the foundation of the existence of jurisdiction of the Court under the Article’. The State of Orissa v Madan Gopal Rungta: [1952] S.C.R. 28, 33.

⁴ [i95S] 1 S.C.R. 568.

Court issued a mandamus to the Bombay Government commanding it not to enforce an order which it had made that no primary or secondary school should admit to a class where English was the medium of instruction any pupil whose language was not English.

As regards certiorari., there has been some hesitation, perhaps even some reluctance, in accepting the view that this writ can properly be used to quash the decision of an inferior tribunal on the ground of error of law on the face of the record; and some doubt may even yet remain.

The view originally taken by the Supreme Court was that the writ could issue on the ground of an error apparent on the face of the record,^[III] but shortly thereafter the Court held, in two cases,² that no writ could issue to quash the decision of an inferior court, acting within its jurisdiction, on the ground that the decision was wrong. It is per­haps not surprising that in these circumstances different views were taken by the High Courts, and even by the same High Court at different times, with regard to the grounds upon which the writ could issue; and the doubt remained unresolved until 1955 when the Supreme Court considered²—it seems for the first time—the Northumberland case,⁴ and accepted the view that error apparent on the face of the record is a ground upon which the writ may issue. That acceptance was not however unqualified, for the Court went on to say that the error of law must be a ‘manifest’ or patent error in contradistinction to a ‘mere wrong decision’.² The difference between these categories of

CONSTITUTIONAL WITS IN INDIA error was shortly afterwards considered in another case,¹ but the only conclusion at which the Court then arrived was that an error on the face of the record cannot be defined and ‘must be left to be determined judicially on the facts of each case’. Unfortunately, if I may say so with respect, the principles on which it has to be determined were not stated.

It is interesting to speculate, if speculation be permitted, on the reason for the hesitation of the courts in India in accepting the English rule. There is the uncertainty which for some years existed in England prior to the decision of the Northumberland case with regard to the scope of the writ, and with this was possibly coupled a desire on the part of the courts in India to place some check on the marked tendency of the public to regard relief by way of writ as an alternative to a remedy by way of a civil suit. It must also, I think, not be overlooked that the decisions of quasi-judicial tribunals in India are almost invariably speaking orders—often speaking, if I may so, at some length—and there seems to have been some apprehension that, if caution were not exercised, certiorari might issue ‘as the cloak of an appeal in disguise’? It is curious also that when, in 1955, the Supreme Court considered the Northumberland case, it appears not to have had brought to its notice that the Divisional Court did examine and con­strue what Lord Goddard, L.C.J., described as ‘this very complicated set of regulations’? that is to say the Court by implication negatived the view that the error of law must be ‘patent’.