Mandamus in literal sense refers to mandatory fulfillment of someone’s duty. The courts use this writ as a weapon to make the person or authority responsible to effectuate their duty. This writ has a remedial nature and can be exercised by Hon’ble Supreme Court and High Court under Article 32 and 226 of Constitution of India. It is put in action when there a breach in Fundamentals Rights of the citizens. Started as a command in England, mandamus is now one of the five writs under Constitution. The apex court in case of State of West Bengal v. Nuruddin [1] interpreted that writ of mandamus obliges fulfillment of duties rested upon a person and when their dereliction towards exercise of powers.
Mandamus do compel the performances or the duties, but it does not create any power or right or any law. The writ only confers obligations upon the powers that are already in existence. The foundation stone notion for the writ of mandamus is to fortify the already existing rights and to enforce duties established by law itself. The recent nomenclature of mandamus by judiciary has been circumscribing many more aspects, namely, certiorari mandamus, anticipatory mandamus and continuing mandamus. The court under continuing mandamus does not issue the writ at once, however it issues the directions in time intervals alongside keeping the case pending and observes the process of the enactment. The court took into use of this concept in the case of Vineet Narain [2] to observe investigation carried out by CBI against high level officers.
Continuing Mandamus
Continuing formally was acknowledged in 1998 under South African Constitutional Court. The concept of continuing mandamus had no friction and slipped into the constitutional principles as an effective remedy in India. The writ is used to ensure that authorities render their legal duties efficiently and effectually. By the writ of continuing mandamus court has the right and duty to interfere and make the authorities oblige to complete their work as they were supposed to be. This remedy is treated as the socio-economic remedy by the courts. The practice of continuing mandamus came into light from the case of Hussainara Khatoon,[3] in which prisoners’ got relief under the judgment.
This term was explicitly used in case of Vineet Narain v. Union of India,[4] the Hon’ble Supreme Court stated that continuing mandamus was a new aid to be used in rare matters as of in this case. Following to it CBI and other authorities were made to discharge their norms and public duties. The judgment lead to extensive use of this remedy specially in socio- economic rights and rights under Article 21. This remedy is an outcome of judicial activism over the years in India. There are numerous PIL cases in which Supreme Court has interpreted or ordered ‘continuing mandamus.
In case of Bandhua Mukti Morcha, Apex Court intervened the functioning of state governments and highlighted concerned towards labor welfare and their violation of rights including working under inhumane conditions, no access to clean water, etc. the interference resulted in implementation of Bonded Labor System (Abolition) Act, 1976. The Apex Court and High Courts have been responsive towards fortifying the Rights whether they are fundamental, environmental, etc. looking upto these instances it is evident that the writ of mandamus have always been a writ to protect the interest of public. Moreover, the writ of mandamus is often clubbed with PIL to bring necessary changes in the interest of public.
Dilemma in using Mandamus by courts
The writ of Mandamus is remedial in nature and it is used to keep in check the authorities to not violate fundamental rights of citizens. Although it cannot be used to frame policies or laws. The judiciary under this writ cannot consider taking policy decisions. Adding to the scenario, election procedures also cannot be put into the boundaries of mandamus. There are a number of limitations acting on the writ to be used for certain matters. The right duty of policy making is in the hands of executive and judiciary being one of the founding pillars ought not to intervene into either executive or legislature. Judiciary can act upon this writ only when there is violation of rights in the hands of government or any public authority. Though the writ of mandamus is counter to the key concept of separation of powers. Thereby, it is necessary that this writ to be issued with caution and diligence.
In case of Kumari Regina, [5] it was held that mandamus cannot be used against management of private institutions. The court can also not intervene in decisions of Governor with the writ of Mandamus. In case of Parkasho v. State of Uttar Pradesh,[6] it was stated that High Court can confirm order of Governor commuting death sentence, but cannot interfere with mandamus.
Conclusions and suggestion
The writ of mandamus is a prerogative command given specifically by Supreme Court and High Court in India under Article 32 and 226 of Constitution respectively. Judiciary, executive and legislative are foundation stones of Indian democracy. Judiciary cannot intervene into functioning of other organs, yet it can push government awake from sleep walking during fulfillment of its public duties. In the recent years, judicial activism has resulted in expansion of mandamus namely, certiorari mandamus, anticipatory mandamus and continuing mandamus. The writ fortifies public rights and ensures that power or duties in hand of authorities shall not be abused by administrative or executive bodies.
This writ acts as a tool in the hands of public when authorities fail to perform their duties. If the court observes discrepancies in duties of other bodies, along with infringement of Fundamental Rights of citizens it can issues the writ of mandamus obliging the authority concerned to abide by their work under the statute it is legally bound to follow. Writs are the remedies gearing up the Constitution against unfair use of powers by government. It is a system established by democracy to keep check and balance between the foundation pillars. Judiciary has adopted activist view in getting the system from a sloth working tendency towards jaguar tendency of work.
Judiciary has always been counter majoritarian which do not get involved in the vote bank politics. Thereby it becomes necessary that the judiciary keep check and balance on the public officials and government as well. Though the concept of separation of power restrict judiciary from doing the work of the other branches of the democracy but even the concept of separation of power allows to keep checks and balances among the branches of the democracy.
Mandamus do act as a remedy against violation of rights by government authorities, however it does not fortify the citizens against case concerning private wrongs. The private wrongs include infringement of rights by private institutions, organizations, persons, etc. As well as this writ cannot be proclaimed against Head of state either it is President or the Governor.
[1]State of West Bengal v. Nuruddin(1998) 8 SCC 143.
[2] Vineet Narain v. Union of India, (1998) 1 SCC 226.
[3] Hussainara Khatoon v. State of Bihar, A.I.R. 1979 S.C. 1360.
[4]Supra note 2.
[5] Kumari Regina v. St. Aloysius Higher Elementary School, (1972) 4 SCC 188.
[6] Parkasho v. State of Uttar Pradesh, AIR 1962 All 151.
Author: Isha Singh from Indore Institute of Law.
Juris Centre 