3. Illusions of a Process: Violating the Right to Fair Trial Scope of writ of Certiorari under Article 226234 A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals: these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. The jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. 78 The High Court’s approach has compounded these limits. Rather than engaging with whether writ petitions disclose errors of law, judges have often used the restrictive frame of certiorari as a cover for non-intervention, skirting any meaningful assessment. In doing so, they effectively refuse to exercise their discretion to define an error of law or assess whether cases meet that threshold. This abdication is not compelled by certiorari but reflects a judicial choice, as illustrated by multiple examples discussed below. Problematic Invocations of Certiorari The following paragraph has been reproduced in many cases: “Needless to say that the Writ Court exercising its power of judicial review under Article 226 of the Constitution of India cannot re-appreciate the evidence and/or sit on appeal over the findings recorded by the Tribunal appreciating the evidence on record.” On this basis, non-interference into writ petitions has been frequently justified by the Gauhati High Court. Illustration (1): Hasina Begum (WP(C) 6752/2016) filed a writ arguing that the evidence she submitted in support of her citizenship claim was not properly considered. Justice Bhuyan dismissed the writ pertition, citing lack of jurisdiction to interfere with factual findings. However, he did not justify how this non-appreciation of evidence does not amount to an error of law. Instead, he proceeded to review the evidence and commented on its shortcomings, specifically her inability to prove a link to her grandfather. This suggests that the jurisdictional ground cited was more of a pretext, and the Court’s use of certiorari as a reason for dismissal appears to be a legal facade, obscuring the true basis for the decision and muddling the interpretation of error of law. Illustration (2): In Md. Tafer Ali’s case (WP(C) 4369/2015), Justice B.K. Sharma invoked certiorari to justify noninterference, despite the tribunal’s decision containing an error of law. The tribunal had dismissed Tafer Ali’s claim due to minor discrepancies in names across documents, which constitutes an improper consideration of evidence. Justice Sharma’s refusal to intervene without explaining why this did not meet certiorari’s threshold raises questions about the lack of meaningful assessment in the Court’s decision making. 234 G. Veerappa Pillai v. Raman & Raman Ltd. (1952) 1 SCC 334 [5]; T. C. Basappa v. T. Nagappa (1954) 1 SCC 905 [5]; Hari Vishnu Kamath v. Syed Ahmad Ishaque 1954 SCC OnLine SC 8 [7]; Syed Yakoob v. K.S. Radhakrishnan (1964) 5 SCR 64 [5].