In case a fundamental right of a citizen is violated, there is a provision under the Indian Constitution stated in Articles 32 & 226 which grants the power to issue writs by the Supreme court and the High courts. This article focusses on one such writ called the Mandamus. Mandamus is basically a writ evolved from a Latin term which means to command. This article deals with the definition & meaning of mandamus, types of mandamus, origin, limitations as well as the case laws related to the writ of mandamus.
Introduction
By virtue of the Article 32 & Article 226 of the Indian Constitution, the Supreme Court and the High court has the power to issue writs in case any citizen’s fundamental right is violated. There are five kinds of writs which can be issued by the Supreme Court or the High Court; namely – Habeas Corpus, Certiorari, Prohibition, Mandamus & Quo Warranto. This article mainly focuses on the issue of the writ of Mandamus. The word “Mandamus” originated from the Latin language and its literal meaning is “We Command/we mandate”. The writ of mandamus was initially used by the English courts in the early seventeenth century. Mandamus is an order given or made by the Supreme Court or the High Court to a lower or a subordinate court or a public authority or a tribunal to perform a public or statutory duty. This writ is issued by the Supreme Court or High Court when any court, government, corporation or any authority having a public or statutory duty fails to perform its duties. The writ of Mandamus maybe issued to order for the commission or omission of a particular duty. This article deals with the origin of mandamus, its types, on whom it can be applied, its limitation as well as some of the case laws regarding it.
Mandamus – Definition & Explanation
According to the 9th Edition of the Black’s law dictionary, Mandamus is –
“A writ issued by a court to compel performance of a particular act by lower court or a governmental officer or body, to correct a prior action or failure to act.”
The order of mandamus is of a most substantial remedial nature, and is in the form of a command issued from the Supreme Court or High Court, which is directed to any authority having a public or statutory duty to perform the particular duty which falls under its authority or power and in the nature of a public duty. It is not a writ of right whereas it is granted only at the discretion of the court on whom the application for issue of writs was made & it must be for a just purpose. This remedy or writ is primarily for a public law remedy and is not usually available in case of private wrongs. [1] (Verma, 2020)
This power of issue of writs is mentioned in Article 32 & Article 226 of the Indian Constitution which gives the power to the Supreme Court and the High court to issue writs when the fundamental rights of a citizen is violated. These writs grant power to the Judicial body to keep a check or control over the administrative actions of the State and thereby prevent any forms of arbitrary use of power and discretion. A writ of mandamus is issued by a judge on the request made by a plaintiff requiring a public authority or a statutory body to constitutionally perform a task which they are obliges to do. This writ can also be issued to compel a lower court or the government to perform a duty or to restrain from misusing its power. Thus, this power of court to issue a writ of mandamus is executed mainly on the court’s discretion and on fair grounds. [2](Rishabh, 2020)
Types of mandamus
Under the Indian jurisprudence, there lies three types of Mandamus which have evolved over these years through the various case laws and judgements. They are as follows:
- Certiorarified Mandamus
On the basis of jurisdiction, Certiorari checks if a subordinate court for judicial review of an already tried case has exceeded its jurisdiction whereas Mandamus keeps an account and checks if an authority having public or statutory authority refuses to do its duty. When there is an issue of writ of Certiorari, the order of the lower court or tribunal stands quashed and void. In certain cases, with distinct facts and moot issues, both the writs of certiorari and mandamus may complement each other such that the allocation of both are justified by the circumstances of the case and they do not end up in discharging the issue completely. A case might be revoked due to relevance of certiorari and may end up getting decided by following the due process of law because of a subsequent issuance of mandamus. This type of writ is known as Certiorarified Mandamus.
In the case of Y. Mahaboob Sheriff & others v. Mysore State Transport Authority, in spite of getting a permit sanctioned or approved for a period of three years, the renewal was permitted only for a year. In the execution of the writ of certiorari, the Supreme Court of India revoked the previous judicial order of the subordinate court and in the execution of the writ of mandamus, directed the concerned authority for the renewal of three years. This is a case of certiorarified mandamus.
- Anticipatory Mandamus
In the case of Maganbhai Ishwarbhai Patel v. Union of India, a group of petitioners issued a writ of anticipatory mandamus in order to restrict the Government of India from sanctioning or giving approval to certain areas lying in Rann of Kutch to Pakistan as a part of the award. The Court held that the mandamus shall not be granted merely on the suspicion of the violation of rights except if some actual damage or infringement has happened.
In many other cases which has taken place both in India and abroad, it has been held by the courts of law that on the mere basis of anxiety of getting one’s statutory or fundamental rights violated or an anticipatory omission of the duties or responsibilities of a public authority, it is not a sufficient ground for granting the issuance of a writ of mandamus.
- Continuing Mandamus
In certain cases, it shall be deemed fit by the court of law that the mere issuance of the writ of mandamus will not be sufficient for demanding the public authority to perform a task and a consistent supervision needs to be conducted in order to ensure the proper following of the adjudication. This is executed by the courts by adequate court visits and presentation of reports that the order has been complied with by the authority. This legalese has evolved greatly after judicial activism and PILs. In the case of Chhetriya Pardushan Mukti Samiti v. State of Uttar Pradesh, the Supreme Court held that besides ensuring the appropriate enforcement of the fundamental rights, the Court also has the responsibility to figure out the ways to prevent the misuse of authoritative power and full adherence to the order. [3] (B&b Associates, 2020)
Mandamus in Indian Law prior to the Constitution
In the year 1773, the writ of Mandamus was established in India by the Letters Patent which developed the Supreme Court at Calcutta. The writs were to be issued by the Supreme Courts in the Presidency towns. In the year1877, the Specific Relief Act substituted an order in the nature of the writ of the mandamus for the purpose of the performance of any specific act or to refrain any person holding a public office outside its ordinary jurisdiction.
In a Leading case of Raman & Raman v. State of Madras, A.l.R. 1959 S.C. 694 & in the case of State of Assam v. Ajit Kumar, A.l.R. 1965 S.C. 1196, it was held that the Mandamus will not be issued to enforce departmental manuals or instructions which do have any statutory authority or which do not give rise to any legal right for the benefit of the petitioner.
In the case of Binny Limited V. Sadasivan, 2005 AIR (SC) 3202, it was held that the writ of mandamus is a public law remedy and not usually available against private wrongs. [4] (Ghorpade, 2020)
Under the Specific Relief Act, 1963, which replaced the earlier Act, this provision has been excluded. This exclusion is because such a provision under the Specific Relief Act became inessential since the Constitution of India contains a similar and more efficacious provision for the enforcement of public duties. The Constitution gives power to all the High Courts to issue directions, orders or writs including writs in the nature of mandamus for the implementation of any of the rights conferred by Part III and for any other grounds. The Supreme Court can also issue mandamus for the execution or implementation of fundamental rights. [5] (Rishabh, 2020)
Case Laws
- In the case of Kerr v. United States District Court, the Supreme Court held that the refusal of a writ of mandamus requested by the prison officials to prevent the district court from compelling them to change the personnel and inmate files of the seven prisoners who had sued the prison for claiming constitutional violations. The prison officials argued that turning over the records bring a compromise upon the prison communications and confidentiality.
- In a famous case of Praga Tools Corporation v. Shri C.A. Imanual & Ors, the Supreme Court held that a mandamus can be issued to an official or a society in order to compel or force him to carry out the duties or obligations under it. A mandamus would also lie against a company which is constituted by a statute or an authority for fulfilling public responsibilities or duties.
- In the case of Chiranjit Lal Chowdhuri vs The Union Of India And Others, the Supreme Court held that a writ of mandamus can be requested for as a remedy for the enforcement of statutory duties or to compel a person holding a public office to do or forbid from doing something which is obligatory or binding upon him to do or forbid from doing something under the provisions of any law. [6] (B&B associates, 2020)
Alternative Remedy: A Bar to Mandamus
Mandamus is not denied on the ground that there is an appropriate alternate remedy where the petitioner states or brings to notice that his fundamental right is infringed or violated. The courts have an obligation to protect the fundamental rights and for this purpose the writ of mandamus is issued. It is only when the mandamus is issued “for any other purpose” that the existence of an alternate remedy obstructs or inhibits its issuance. However, a writ of Mandamus will not be denied when the ordinary civil proceedings or the administrative appeals or the revision fails to provide an equally effective and suitable remedy. Therefore, if the alternative remedy imposes a heavy financial burden on the petitioner, it will not be considered as a ground for the refusal or denial of writ of mandamus. [7] (Verma, 2020)
Limitations of Writ of Mandamus
The writ of mandamus is basically a public law remedy which has to be applied in cases where a citizen’s rights have been violated by the administrative or statutory bodies. It cannot be applied in cases of private wrongs. There are certain limitations in issuing the writ of mandamus which are as follows:
- Private persons, institutions or organizations for their omission or error cannot be held accountable for their negligence by the issuance of writ of mandamus.
- If the duty or the activity of the public authority is not under a compulsory obligation or a duty but is discretionary in nature, the writ of mandamus cannot be issued for the implementation or enforcement of such duties.
- The writ of mandamus cannot be issued against the President or the Governor of a State.
- The present or existing Chief Justice of the Supreme Court and the Chief Justice of the distinct high courts are all immune from being held responsible by the issuance of a writ of mandamus.
- The writ of mandamus cannot be issued for the implementation or enforcement of a contractual relationship that is private in nature.
- A writ of mandamus cannot be issued against any Member of Parliament (MP) or any Member of Legislative Assembly (MLA) of any state for the purpose of providing a smooth functioning and performance of the parliamentary considerations.
- The writ of mandamus cannot be issued against any legislative institution which is passing such a law that is in violation or infringement of the fundamental rights mentioned under Part III of the Constitution. This was held in the case of Chotey Lal v. State of Uttar Pradesh & Ors by the apex court.
- Electoral matters that have been kept away from the scope of the writ of Mandamus and those officials who are engaged in different levels of the electoral process cannot be managed by mandamus. The writ of Mandamus can be issued in matters of dispute relating to the Union & State Parliament and the municipal level elections.
These are the various limitations of issuing the writ of mandamus. [8] (Ghorpade, 2020)
Writ of Mandamus exercised in various countries
The writ of mandamus is an essential part of both Parliamentary and Presidential structure. Examples of some of the parliamentary democracies which have the writ of mandamus as a part of their legal governments are Australia, England and Wales. In Australia, the writ of mandamus is a constitutional provision and is under section 75(v) of the Australian Constitution. In Wales, mandamus exists as a mandatory order and not as a writ.
According to the UK perspective, the writ of mandamus is most commonly used as a weapon by the ordinary civilian when public authority fails to do its duty. The Section 10 of the Tribunals & Enquiries Act, 1992 inflicts a duty on the tribunal to give reasons for its decisions. Such a duty may be implemented by the issuance of the writ of mandamus. Section 40 (5) of the Crown Proceedings Act, 1947 provides that the introduction of a new remedy of the Act shall not restrict or limit the discretion of court to grant the mandamus.
The United States of America is a prominent example of a presidential autonomy that has provision of mandamus in its legal system across its federal and state-level courts. The acts of the administrative institutions have been held to be subject to mandamus in various states across their country through the amendments of statutes or judicial expansion. [9](B&b associates, 2020)
Conclusion
To conclude, the writ of mandamus aims to protect the interest of the public from the authoritative powers which affects the rights & liabilities of the citizens. This writ validates that the power or the duties by the executive or administrative bodies are not misused and are duly adhered to. This writ also safeguards the public from the misuse of authority by the administrative bodies. Thus, to conclude this power of the Supreme court and the high court to issue writ of mandamus is an important writ which ensures that the lower courts, tribunals, as well as the authoritative bodies perform their duties truly in order to avoid the miscarriage of justice.
References
Ghorpade, P. (n.d.). Analysis of Writ of Mandamus. www.Legalservicesindia.Com; Legal Services India. Retrieved October 1, 2020, from http://www.legalservicesindia.com/article/592/Analysis-Of-Writ-Of-Mandamus.html
Mandamus – Legal Maxim. (2020, March 27). B&B Associates LLP. https://bnblegal.com/mandamus/
Verma, A. (2020a, July 25). What powers do the courts have under writ of mandamus. IPleaders. https://blog.ipleaders.in/powers-courts-writ-mandamus/
Frequently Asked Questions (FAQ’s)
- What is the meaning of the writ of Mandamus?
- Which provision of law in India deals with the writ of Mandamus?
- What are the different types of mandamus?
- Is there any limitation to the issuance of Mandamus? If yes, what are they?
- How is the writ of mandamus exercised in other countries?
[1] Verma, A. (2020a, July 25). What powers do the courts have under writ of mandamus. IPleaders. https://blog.ipleaders.in/powers-courts-writ-mandamus/
[2] Rishabh Sachdev. (2020, February 7). WRIT OF MANDAMUS. SoOLEGAL. https://www.soolegal.com/roar/writ-of-mandamus
[3] Mandamus – Legal Maxim. (2020, March 27). B&B Associates LLP. https://bnblegal.com/mandamus/
[4] Ghorpade, P. (n.d.). Analysis of Writ of Mandamus. www.Legalservicesindia.Com; Legal Services India. Retrieved October 1, 2020, from http://www.legalservicesindia.com/article/592/Analysis-Of-Writ-Of-Mandamus.html#:~:text=In%20India%20Article%2032%20and
[5] Rishabh Sachdev. (2020, February 7). WRIT OF MANDAMUS. SoOLEGAL. https://www.soolegal.com/roar/writ-of-mandamus
[6] Mandamus – Legal Maxim. (2020, March 27). B&B Associates LLP. https://bnblegal.com/mandamus/
[7] Verma, A. (2020a, July 25). What powers do the courts have under writ of mandamus. IPleaders. https://blog.ipleaders.in/powers-courts-writ-mandamus/
[8] Ghorpade, P. (n.d.). Analysis of Writ of Mandamus. www.Legalservicesindia.Com; Legal Services India. Retrieved October 1, 2020, from http://www.legalservicesindia.com/article/592/Analysis-Of-Writ-Of-Mandamus.html#:~:text=In%20India%20Article%2032%20and
[9] Mandamus – Legal Maxim. (2020, March 27). B&B Associates LLP. https://bnblegal.com/mandamus/
