Powers of the Courts under the writ of the Mandamus

“A writ issued by a court to compel performance of a particular act by a lower court or a governmental officer or body, to correct a prior action or failure to act.”[1]

Black’s Law Dictionary

Introduction:

Ever heard a Court’s order issuing instructions to a lower court! Well, you have not head it wrong. The name of one of the prerogative writs in the common law is a mandamus writ or occasionally called a mandate. A high-class court issues it to compel a lower court or a government officer to execute compulsory or official liabilities properly. In Latin terminology, it means – we command. This writ rests to impose a public duty in the performance of which the petitioner has a sufficient legal interest. However, he must demonstrate that he claimed an execution which the court refused.[2] This writ is upon the discretionary of the court and, if there exists an alternative remedy, then the court is not bound to grant it.[3]

But, what about its true nature? And how the apex courts and high courts interpret(s) it today? By digging deep further, one can also cover its judicial control of the administrative actions and the apex Court’s landmark judgments concerning this writ.

Definition of Mandamus

Revealing this writ’s true nature requires analyzing it with the help of the famous legal dictionaries.

Black’s law dictionary – 4th edition

This is the name of a writ (formerly a high prerogative writ)which issues from a court of superior jurisdiction and is directed to a private or municipal corporation, or any of its officers, or an executive, administrative or judicial officer, or an inferior court, commanding the performance of a particular act therein specified, and belonging to his or their public, official, or ministerial duty, or directing the restoration of the complainant to rights or privileges of which he has been illegally deprived.[4]

Wharton’s Law Lexicon, 15th Edition, 2009

A high prerogative writ of a most extensive remedial nature. In form, it is a command issuing in the King’s name from the King’s Bench Division of the High Court only and addressed to any person, corporation, or inferior court of judicature requiring them to do something therein specified, which appertains to their office, and which the court holds to be consonant to right and justice. It is used principally for public purposes, and to enforce the performance of public duties. It enforces, however, some privacy rights when they are withheld by public officers.[5] Page 400

Mandamus before the Constitution?

The East India Company introduced the writ of Mandamus using the Letters Patent and thus created the Supreme Court in Kolkata in 1773.[6] The Company also empowered the apex Courts to issue such writs in the Presidency towns.

The Government of India in 1877 substituted an order like Mandamus in the place of the writ of Mandamus, by any person holding a public office, to require any specific action to be done or forborne within the local limits of its ordinary civil jurisdiction, in the Specific Relief Act.[7] The Act omitted this provision since such provision under the Act became redundant because of an existing similar provision in the Constitution of India for the implementation of public obligations. The Constitution permitted all the High Courts to issue orders, directions, or writs. It included writs like Mandamus, which enforces the rights mandated by Part III and for other purposes.[8] For the enforcement of fundamental rights, the apex Court can issue mandamus also under Art. 329.[9]

The framework of law concerning Mandamus and the link to Courts

Dr. Ambedkar referenced Art. 32 in extraordinary words

“If I was asked to name any particular article in the Constitution as the most important – an Article without which this Constitution would be a nullity- I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of article 13.”[10]

Courts can issue it in the case of infringement of fundamental rights. Art.32 mandates that there must be a pure violation of fundamental rights. This violation should not involve any argued questions of fact. It also mandates that the government cannot enforce its policy, directly or indirectly, by mandamus writ. Concerning Mandamus, Art. 32 provides that the authorized courts may issue it where a statute infringes a fundamental right.

The concept of the discretionary power and the concept of continuous Mandamus

However, some cases call it as a discretionary power.[11] Art. 32 also mentions how courts can issue continuous mandamus. If a court issues a mandamus which is against public policy, then the superior court can issue a continuing mandamus. It has become, nowadays, to be the most commonly issued tool by the courts. Even though the fundamentals of law specifically state where the court can issue a mandamus, the courts still found it difficult to issue in many cases. Some major significant cases have been presented for the reference below.

When the court(s) can issue a writ of Mandamus?

The apex court or the High Courts can issue the writ of mandamus in the following situations:

1. The applicant, applying the writ, must have a legal right for performing the legal duty.[12]
2. Where the performance of an act does not invite the usage of discretionary power of the authority.[13]
3. It lies against a private individual in the case of conspiracy against another, conspiring with a public authority.[14]
4. If there arises no dispute from an agreement, which caused the legal duty to ascend.[15]
5. By the intermittent effects of a provision of Constitution14, a statute15, and the common law.[16]
6. If the rights of the petitioner, he wants to enforce, are subsisting on the date of the petition. However, if law terminates such rights before such a period, he is not permitted to apply for the writ.[17]
7. Where it does not leans in the expectation of injury.

Exceptions where the mandamus can lie:

• Where an order of a public officer affects someone and, such an officer violates his legal duties with the effect of such an arrangement, the affected person can file the writ.[18]
• Where the court issues an illegal or unconstitutional order, a person can file the writ before the court enforces such order or before someone performs an act detriment to his interests in the follow-up of such order.28.

When the court/courts cannot issue a writ of Mandamus?

Coupled with defined provisions and judicial precedents, here are the circumstances where the court(s) cannot issue this writ:

1. If it relaxes facing the President and the Governor of a State in case of their personal-capacities.[19]
2. It cannot prevail abreast an officer or Member of Parliament or an officer or member of the legislature of a State in whom the Constitution vests its powers for monitoring system or the conduct of business or for preserving order in Parliament or the State legislature.[20]
3. It cannot rest against forbidding the legislature to pass a legislation objectionable to the fundamental rights34.
4. It cannot lie against the officials administering the various staging of an election.[21] However, this prohibition affects only the elections of Parliament and State legislatures.[22]
5. It cannot rest against a company complying its duty in securing performance, not of a public nature, concerning its employees.[23]

Conclusion

Hence to protect the rights and the interests of the courts can issue the writ of Mandamus. It makes unfailing that the executive or administrative authorities are not using their power or the duties detrimental to the interests and rights of the people. It also defends the public from the administrative bodies who deliberately try to attach strings against the advantage of the people. Hence, this writ acts as a surveillance tool to check and compel the administrative bodies, if they deter the care to fulfill the duties which they are bound to perform as per the statutes.

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References:

[1] Henry Campbell Black, Black’s Law Dictionary, (9^th Ed. 2009)

[2] Syndicate v. Union of India. A.I.R. 1975 S.C. 460

[3] I.L.I. Judicial Review through Writ Petitions, p. 163. v. Bank of England (1819) 2 B.S.A. 620

[4] Henry Campbell Black, Black’s Law Dictionary, 1113, (4^th Ed. 1968)

[5] John Jane Smith Wharton, The Law Lexicon, 400, (1848)

[6] Binny Limited vs. V. Sadasivan 2005 AIR (SC) 3202

[7] Section 45, The Specific Relief Act, 1877, No. 47, Acts of Parliament

[8] INDIA CONST. art. 226

[9] Ibid, art. 32

[10] Charles R. Epp, The Rights Revolution, 81, (1998)

[11] Vineet Narain vs. Union of India 1998 AIR (SC) 889

[12] Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962 S.C. 1210

[13] Controller of Monghyr v. Keshav Prasad, A.I.R. 1962 S.C. 1694; State of U.P. v. Manbodhanlal, A.I.R. 1957 S.C. 912

[14] Praga Tools Corporation v. C.V. Imanual, A.l.R. 1969 S.C. 1306 and Sohanlal v. Union of India, A.I.R. 1957 S.C. 529: (1957) S.C.R. 738

[15] Carlsbad Mineral Water Mfg. Co. v. H.M. Jagtiani, A.I.R. 1952 Cal. 315

[16] Juggilal Kamalapat v. The Collector of Bombay, A.l.R. 1946 Bom. 280

[17] Kalyan Singh v. State of U.P., A.I.R. 1962 S.C. IIS3

[18] Guruswami v. State of Mysore, A.I.R. 1954 S.C. 592

[19] Supra note 8, art. 361

[20] Supra note 8, art 122, cl. 2 and art. 212, cl. 2

[21] Shankar v. Returning Officer, A.I.R. 1952 Bom 277

[22] Supra note 8, art. 329, 327, 328

[23] The Praga Toots Corporation v. C.V. Immanuel, A.I.R. 1969 S.C- 1306