From Bench To Balance - Investigating The Role Of Writ Of Certiorari In Separation Of Power

Author: LawSphereX

Category: General Law

Published: 2026-08-23T19:52:39.833Z

Updated: 2026-08-30T07:13:09.920Z

FROM BENCH TO BALANCE: INVESTIGATING THE ROLE

OF WRIT OF CERTIORARI IN SEPARATION OF POWER

Aulinee Sen, Symbiosis Law School, Pune

ABSTRACT

Thanks to the various precedents, the higher judiciary enjoys mostly unbridled powers when it comes to the writ of Certiorari, leading to the concept of ‘Separation of Powers’ to turn into mere documentary piece instead of a practical one. Concerns have piled up stating that the courts have been taking a wrong mixture of cases, hearing too few of them and relying on their law clerks instead of their own parlance for the certiorari process. This paper aims to give an overview of how the writ petitions especially those of Certiorari allow the court to interfere with the workings of the executive. It would aim to provide an overview of Certiorari, Relevance of Administrative Reforms and Constitutional Dialogues to Certiorari, and a comparative study of the same. The author would also try to provide few solutions by the end of this article.

Keywords: Certiorari, Separation of Power, Constitutional Dialogue, Constitution, Executive

Introduction

There wouldn't need to be any extrinsic or intrinsic checks on governance if Gods ruled over humans. The biggest challenge in creating an administration that will be run by people over people is that you must first give the authorities the ability to rule those being governed before forcing it to regulate themselves. The concept of ‘Separation of Power’ is quite a long used one in a democratic form of governance, finding most of its relevance in the trajectory of administrative laws. The celebrated French Philosopher, Montesquieu was the main proponent of this concept, which is well adapted by the United States and France. Even if one looks at the Westminster System of Governance, the power of the Crown and the British Parliament have separate establishment. It is when this concept is applied into India, it doesn’t follow its traditional course.

In a nutshell Montesquieu's philosophy stipulates that neither a single individual nor group of people ought to dominate the legislative, executive, or judicial branches of governance. In terms of logic, each part ought to adhere to its respective domain and avoid invading the territory of other organs1. Though the Constitution of India tries to lay down a mirror of the Governance system of Britain, it does quite provide a ‘mirror image’,i. e.. completely the opposite. Yet, a deeper look reveals that India's system of administration does not operate like Britain and, in certain cases, hardly follows the letter of the Constitution. The Constitution makes provisions for the creation of autonomous commissions, adding to the mechanism of oversight and accountability that governs politics.

The Indian Higher Courts, especially those possessing appellate jurisdiction, enjoy unfettered powers in the matter of cases that they choose to hear through the discretionary power beget by the Writs as provided in Article 322 and Article 2263, especially via the writ of Certiorari. As Chief Justice John Marshall once put it, the Court ceases to acts in an international context where it has "no greater authority to refuse the use of power which has been provided than to seize authority that is not provided. " 1 Charles de Montesquieu, in Anne M. Cohler, Basia C. Miller and Harold S. Stone (Eds. ), The Spirit of the Laws 157 (Cambridge University Press 1989).

2 INDIA CONST.art.32.

3 INDIA CONST.art.226.

The Relevance of the Topic Chosen The importance of this subject comes from the realisation that the legal system has undoubtedly worked hard to disprove the separation of powers idea throughout the years by interfering with the authority of the executive and the legislative through its Writ jurisdiction, especially through the Writ of Certiorari. Therefore, it is crucial for academics to do study on this subject to guarantee that any flaws in the current judiciary that may be to blame for this invasion are found and fixed. Statement of Problem/Issues • Whether the Judiciary goes out of the black letters of law to encroach upon the powers of the Executive via its Writ Jurisdiction? • Whether Certiorari provides unfettered powers to the Courts to seek a review of the decision of the otherwise independent lower courts and other government agencies?

Objectives • To determine the issue with the executive's powers in relation to the judiciary's Writ jurisdiction. • To assess if constitutional dialogue may be used as a strategy to address the highlighted issue of Certiorari. • To provide a set of proposals to make sure India has an appropriate system for the separation of powers. Literature Review • University of Pennsylvania Law Review (December 2011)4 : Kathryn A. Watts write an article describing how the writ of certiorari is an overarching power for the judiciary and her approach It order to direct and mould the use of the certiorari powers, 4University of Pennsylvania Law Review, https://scholarship. law. upenn. edu/cgi/viewcontent. cgi? referer=&httpsredir=1&article=1036&context=penn_law _review, [last accessed on 21 August,2023. ] incorporates regularly utilised administrative law concepts.

In this article, she has examined the principles of administrative law into the process of Judicial Review through Certiorari. • Pen Acclaims; Correction of Quasi-Judicial Decisions5, Reginald Parker; Separation of Power; HeinOnline6 and PL Strauss ; Columbia Law Review7: In these influential juristical papers, the philosophists have explored the concept of Separation of Powers and its application in the modern constitutional system. In these three papers, they have discussed how the principles evolved and its implication. • Journal of International and Comparative Law8, Australian Law Reform Commission9: These papers deal with the international aspect of separation of power and how Certiorari works in the Courts of international repute. They discuss the structure and principle and the concept of checks and balances regarding the administrative aspect of it.

It also brings into consideration Montesquieu’s theories to avert tyranny and promote liberty. Critical Analysis The analysis would be segregated into four parts. In the first part, the analysis would try to lay down an overview of Certiorari while in the second half of it, it would try to bring forth the relevance of administrative law to Certiorari Reform. In the third part, the author would try to talk about Constitutional Dialogues and its applicability in India along with various legal 5Pen Acclaims, http://www. penacclaims. com/wp-content/uploads/2018/05/Kushagra-Chandel. pdf, , [last accessed on 21 August,2023. ]

6 HeinOnline,

https://heinonline.org/HOL/Page?handle=hein.journals/mlr49&div=66&g_sent=1&casa_token=Gma24jQd- OwAAAAA:OEMmmCyA3inqyiVXpzTyKYu0PBMvt4GDUXDetKSmI6j8wF7wB_2wnQRSc2FcpG_pqff2U4TzLs&collection=journals, , [last accessed on 21 August,2023.] 7JStore, https://www.jstor.org/stable/1122501?casa_token=pqIAV1J1FlIAAAAA%3AXH9jGBbQ6cfKcR1WbfFg_pFA mGO1wuv-UhJ0zrpF8-N4Iw5pfRI0q0b-GhZvg2NZWpyPWgRga6d2GIEchJfZ0F4tMrp1iHrCmO9GJ0IncP2emRAYqWeCA, , [last accessed on 21 August,2023.]

8 Journal of International and Comparative Law,

https://www. jicl. org. uk/storage/journals/November2020/MsB8UYMjSX5IVhr7VV3i. pdf, [last accessed on 21 August,2023. ] 9 Australian Law Reform Commission, https://www. alrc. gov. au/publication/traditional-rights-and-freedomsencroachments-by-commonwealth-laws-alrc-report-129/15-judicial-review/a-common-law-principle-13/, [last accessed on 21 August,2023. ] quagmires. In the fourth half, the paper would provide a comparative analysis of the same with various international legislations. I. Overview of Certiorari The Court's authority was not arbitrary when it first existed. Instead, the Court began as a court with mandatory jurisdiction10. A close scrutiny of Article 32 and 226 would show that the High Courts and the Supreme Court is not permitted to refuse to consider the writ petition for whatever reason according to Justice S. R. Das11.

It was along the course of precedents and legislations that the legislation granted the courts the power of a ‘discretionary docket’ than that of a ‘mandatory one’, which meant that according to the discretion of the judges, if the judges were of the view that the lower courts or the governmental institutions had not laid down decisions properly, the court would have the power to review them. It didn’t need to follow a due procedure, because once the higher judiciary thought that the decision laid down went against their ‘better judgement’, they would have unfettered powers to review it either suo moto or via parties that approached them, thus interfering with the procedure.

Article 133(1)12 and 13413 provide that the Apex Court shall have an appellate jurisdiction over the matters pertaining to substantive question of law or if provided a certificate by the High Courts asking the Apex to decide on a point of law. The Court can also grant special leave to appeal14, ‘as much as it may’ from any judgment, decree, decision laid by any Court or governmental tribunal in the territory of India. A close analysis of this would provide that the Court hence has ultimate discretion to grant a hearing or a review of the judgement and change it if so needed and as it deems fit.

As a result, the constitutional definition of appellate jurisdiction clearly states that " the circumstances, especially pertaining to indispensable question of law, not the Court, establishes the specific boundaries and limits of the Court's appellate jurisdiction regarding the stipulated cases and disputes”15. "In order to verify" is what the Latin word certiorari implies. It is an order that the High Court issues to a lower court or any other entity that performs judicial or quasi-judicial duties. The

10 Nilabati Behra v. State of Orissa, A.I.R. 1993 SC 1960.

11 K.K. Kochunni v. State of Madras, A.I.R. 1959 SC 725.

12 INDIA CONST.art.133(1).

13 INDIA CONST.art.134.

14 INDIA CONST.art.136.

15 EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE 321 (9th ed. 2007)

primary goal of this warrant is to maintain the superior courts, judges, and quasi-judges within their spheres of competence. Lord Atkin, in his comment about Certiorari pronounced that whichever institution has an authority to decide issues pertaining to rights and duties of subjects, always acts in the excess of the legal authority provided to them16. II. Relevance of Administrative Reforms to Certiorari It hasn't been overlooked that the Court has unrestricted authority to determine its agenda through certiorari. On the other hand, several academics and Court observers have criticised certiorari and suggested revisions. These revision ideas, nevertheless, have mostly been on requiring the Court to hear types of cases or more instances or conversely on removing its autonomy over certiorari and handing it to another body.

The origins of the Court's discretion and potential restrictions on the Court's expansive discretion, which the executive granted to the Court, have been mostly omitted from the conversation. For certiorari to follow, the selection must be administered by an executive department rather than a judicial or a quasi-judicial body, but quite contrary is the case. There lies a million dollar question which stipulates, “Where does the administrative cease and the judicial begin? 17” Administrative acts clearly should not be susceptible to Certiorari. Justice Hegde 18, reiterated that the blurring line separating an administrative power from quasijudicial power is quite delicate and is determined by the power used by the one to whom it is vested upon and the way in which it is to be wielded.

According to scholars, "Unfair practise" in India19 is the same as "unjustified" and "disproportionate" authority use. According to how the Constitution was construed in State of West Bengal v. Anwar Ali Sarkar20, such a violation would be punishable under Articles 1421, 1922, and 2123, including Maneka Gandhi v. Union of India24.

16 Province of Bombay v Khushaldas S. Advani, AIR 1950 SC 222.

17 R v Electricity Commissioner, 1942 1 KB 171.

18 A.K. Kripak v. Union of India, (1969) 2 SCC 262.

19 WADE, ADMINISTRATIVE LAW, 493-94, (2005).

20 West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 SC 75.

21 INDIA CONST.art.14.

22 INDIA CONST.art.19.

23 INDIA CONST.art.21.

24 Maneka Gandhi v. Union of India, 43 (1978) 1 SCC 248.

III. Constitutional Dialogues and Indian Legal Quagmire

The constitutional dialogue idea of judicial review was a brainchild of Po Jen Yap25 introduced in the countries of Hong Kong, Malaysia, and Singapore26. This enables a fair discussion on concerns of constitutional interpretation27 without interfering with the executive objectives of a democracy. This This method encourages an interactive strategy to determining constitutionality by allowing legislators to actively participate in socio-political response to decisions28. Another argument put forth by him is that constitutional conversation is ethically superior to the two main options, executive dominance, and supremacy of courts. Countries like Australia, New Zealand, and United Kingdom have the advantage of exercising democratic credibility since the courts in no way determine how the Constitution is to be interpreted.

Why is that a small number of unelected judges have a major say in how the country should interpret its administrative aspects? 29 Pre Covid-Legalities Referencing the rulings in Tata Cellular v. UOI30 and West Bengal Central School Service Commission v. Abdul Halim31, the SC highlighted a clear distinction between when the court can intervene with administrative action and when it cannot in Municipal Council Neemuch v. Mahadeo Real Estate & Ors32. In rendering its decision, the Court noted that interference with administrative processes is only permitted where they are flawed by "illegality, irrationality, or procedural impropriety. " As it heard various petitions opposing the hiring of younger teachers at government schools in the state of UP, the court took note of the state's numerous crumbling schools and issued orders to the government in the case of Shiv Kumar Pathak33.

The Court then took the extraordinary step of directing the Chief Secretary of Uttar Pradesh to take appropriate action in consultation

25 Po Jen Yap, Constitutional Dialogue in Common Law Asia (Oxford University Press 2015).

26 Hickman, T. 2009. Interpretations, Declarations and Dialogue

Rights Protection under the Human Rights Act and Victorian Charter of Human Rights and Responsibilities. Public Law, p. 112.

27 Waldron, J. 2006. The Core of the Case Against Judicial Review. Yale LJ, p. 1346.

28 Alexander Bickel, The Least Dangerous Branch

The Supreme Court at the Bar of Politics 16-19, (Yale University Press 1985).

29 Fallon, R. 2008. The Core of an Uneasy Case for Judicial Review. Harvard LR, 121, p. 1693.

30 Tata Cellular v. Union of India, (1994) 6 SCC 651.

31 West Bengal Central School Service Commission v. Abdul Halim, (2019) 18 SCC 39.

32 Municipal Council Neemuch v. Mahadeo Real Estate & Ors., (2019) 10 SCC 738.

33Shiv Kumar Pathak v. State of UP, (2016) 2 All LJ 374. with other concerned state officials to guarantee that all public employees, elected officials, judges, and anyone else who received a salary or benefit from the state exchequer or public fund sent their kids to primary schools run by the UP-State Education Board. Post Covid Legalities • In Sushil Kumar v. State of Haryana34, the Court, while reviewing a matter pertaining to retrospective promotion of a head constable, held that they are not concerned with the merits of the issue, but can only rule on whether the correct procedure has been complied with by the executive authorities. • In State of Maharashtra v.

Bhagwan35, the Court, while dealing with a matter concerning pensionary benefits under Service Rules for employees of Water and Land Management Institute, held that the Court should not delve into the merits of a policy decision if it has a flowing impact and concerns financial aspects, and therefore, whether employees deserve benefits needs to be decided by the executive authority in place and not the judiciary. IV. Comparative Analysis Australia: According to precedents and the common law system, Certiorari is held as the mechanism that ensures that executive activity is prohibited from surpassing the authority36 and tasks allotted to executive by law and the rights of the person are safeguarded appropriately37. It is neither greater or lesser than the implementation of the principle of law upon executive action38.

Singapore: In the laws of Singapore, Certiorari also known as ‘Quashing Order’ plays an important role in its administrative laws. Empty opinions are not eligible for a quashing order; only decisions with some type of actual or perceived legal consequence, whether direct or indirect, are. In the matter of Comptroller of Income Tax v. ACC39 (2010), the respondent, a

34 Sushil Kumar v. State of Haryana, (2022) 3 SCC 203.

35 State of Maharashtra v. Bhagwan, (2022) 4 SCC 193.

36 David Clark, Introduction to Australian Public Law (Lexis Nexis Butterworths, 4th ed, 2013) 247.

37 Church of Scientology V Woodward (1982) 154 CLR 25,70.

38 Australian Law Reforms Commission, https://www. alrc. gov. au/publication/traditional-rights-and-freedomsencroachments-by-commonwealth-laws-alrc-report-129/15-judicial-review/a-common-law-principle-13/, [last accessed on 21 August,2023]. 39 Comptroller of Income Tax v. ACC [2010] 2 S. L. R. 1189 at 1198, para. 21, C. A. (Singapore) ("ACC (C. A. )"). locally established company, had planned to engage in variable rate swap discussions with Singaporean banks or Singapore outposts of foreign banks for the purpose of its subsidiaries situated abroad. The Income Tax Act's section 12(6)40 applied to the transactions that the complaint received from its subsidiaries in line with those swap agreements, according to the Comptroller of Income Tax, making section 45's tax-withholding obligations relevant. To apply for an order, test for ‘Standing to apply for a quashing order’ applies.

Conclusion and Solutions From the analysis conducted above, several conclusions can be drawn with respect to the issues framed with respect to the topic, initially. From a broader perspective, one point is clear, that the writ of certiorari has given unbridled discretionary powers to the judiciary to hear cases to give decisions in an executive capacity, and in doing so, has contributed to the invalidation of the concept of separation of powers in India. To address this issue, the question of the applicability of a constitutional dialogue was evaluated in the aforementioned analysis.

The author is of the view that since constitutional dialogue, first of all, prioritizes constitutionality of an action and principles of the supreme law of the country, it is the most valid step that can be taken in order to curb the encroachment done by the higher courts, and secondly, since the tool finds a midway between the confusion of legislative and judicial supremacy, it is the best alternative for a country like India. To sum up, the author would provide the following suggestions to ensure that the concept of separation of powers is kept intact: • With increasing cases coming within the ambit of Certiorari, the Courts should put their ‘shoulders to the wheel’ by working harder, increasing the number of Judges and hearing more cases.

In addition that, scholars like Paul Carrington proposed a creation of separate Certiorari Division41 in the USA which could be followed by India as well. Thus, judicial self-restraint needs to be practiced by Courts.

40 ACC v. CIT [2010] 1 S.L.R. 273, H.C. (Singapore).

41 Paul D. Carrington & Roger C. Cramton, Judicial Independence in Excess

Reviving the Judicial Duty of the Supreme Court, 94 CORNELL L. REV. 587, 591 (2009).

Constitutional dialogue, as stated above, is the tool that needs to be adopted instead of giving either the judiciary or the legislature the supreme power. • Someone must be authorised to determine which cases are of public importance and the Judiciary’s broad discretional powers should be explained by the functional concerns which are related to experience and flexibility.