This article is written by Dhawal Srivastava, a student pursuing B.A. LLB. (Hons.) from Rajiv Gandhi National University of Law, Punjab. In this article, a detailed analysis of the writ of mandamus and the command of the courts under it has been done. 

Introduction

In pursuance of the Right to Constitutional Remedies for the violation of any of the enlisted fundamental rights under Part III or others that are enshrined in the Constitution of India or otherwise, both the Supreme Court and the High Courts have been vested with the authority of issuing ‘writs’ under Article 32 and 226 respectively. There are five types of writs that are issued in India: Habeas Corpus, Prohibition, Certiorari, Mandamus and Quo Warranto. Out of these, the writ of mandamus, which is a Latin term for ‘we command’, is an authoritative writ issued by a higher court to oblige a lower court or some government official(s) to dispense their sanctioned duties compulsorily and correctly. 

Writ of mandamus

According to the Ninth Edition of Black’s Law Dictionary, writ of mandamus is one that is issued against an inferior court, a governmental body or officer by a superior court to rectify an action of the past or omission to act along the lines of the responsibility that they are entitled to. Writ of Mandamus can also be issued against public corporations and tribunals. As it is directed to set the indolent authorities to task, it is also described as a “wakening call”, dictating their activity and setting them in action in pursuance of discharging public duty.

Grounds of the writ of mandamus

Mandamus is remedial in nature and cannot be expressed as a writ of right as it is issued only at the discretion of the court after the applicant of the same is able to prove to the Court that some utilitarian or just question would be answered by the writ. The essential grounds necessary for the issuance of Mandamus have been enlisted below: 

• There exists a legally sanctioned right of the petitioner or the applicant of the writ and a violation or compromise of this right has been committed.
• The infringement of the rights of an applicant can be done by a public authority in the following manners: 

1. Crossing the limits of the powers and duties vested to their office.
2. Failure or omission to act responsibly according to the conditions laid down by the law for the exercise of their power.
3. Denial by an official or authority to perform their statutory duties. 
4. A complete disregard for or contravention of the principles of natural justice.

• Another ground for the legality of issuing the writ of mandamus is the failure to act or perform the legal duty despite being demanded by the applicant for the same. This was also upheld by the Supreme Court in Saraswati Industrial Syndicate v. Union of India.
• The writ should be applied for in good faith, without any ulterior motive or intent on the part of the applicant.
• Lastly, the writ of mandamus can only be issued when no other recourse, redressal mechanism or legal alternatives have been left at the disposal of the applicant. 

Mandamus in Indian law prior to the constitution

The Writ of Mandamus was introduced in India by the British in the year 1773 with the establishment of the Supreme Court of Calcutta and all the supreme courts that were situated in the Presidency Towns (Calcutta, Madras and Bombay) were vested with the powers of issuing this writ under the Letters Patent Act. Later on, in the year 1877, the writ of mandamus from the Letters Patent Act was replaced by an order under the then newly introduced Specific Relief Act that required the completion or forbearing of a specific activity within the “local limits of its ordinary civil jurisdiction” by a competent authorised official. 

However, with the institutionalisation of the constitutional regime in India and the introduction of the new Specific Relief Act in 1963, this order incorporated within the 1877’s law was done away with as the provision for writ of mandamus was already enshrined in the Constitution. The latter provision was far more competent and had a wider scope of applicability while the former was pretty restrictive in nature as it applied only to a particular nature of cases. Additionally, the constitutional provision also provided the High Courts with the power of issuing writs, thus including mandamus as well for the enforcement in cases of contravention of fundamental as well as legal rights. 

Framework of law in relation to mandamus

The Supreme Court of India has been authorised with the power of issuing writs under Article 32 of the Constitution. Out of the five categories of writs that are a part of the Indian legal framework, the most appropriate for the enforcement of the rights of the claimant shall be applied by the court. Rightly described as the “very soul of the Constitution and the very heart of it” by Dr Bhimrao Ambedkar, Right to Constitutional Remedies or Article 32 states that there must be a clear breach of fundamental rights not incorporating contentious factual questions. Under Article 32, the writ cannot be issued for the enforcement of governmental policy and a statute violating a fundamental right can be contended against by mandamus. Any executive or statutory order can be enforced by Mandamus following due process of law. Over the course of years, it has been found that continuous mandamus or the writ of mandamus issued against a prolonged failure to act on the part of state agencies. 

Although the law is pretty clear with regards to the cases or instances where the applicability of the writ of mandamus stands, it has not been an easy decision for the Indian courts and judiciary applying this writ in distinct cases. Thus, it has become a significant question of law in the modern-day legal system of India.

Types of mandamus

There are three types of Mandamus that exist within the Indian jurisprudence and has been developed over the years through case laws and judgements. These have been discussed under the following headings.

• Certiorarified mandamus

The basic difference between the two writs of certiorari and mandamus can be explained on the basis of jurisdiction; while former provides for judicial review of an already tried case by a subordinate court and checks whether a jurisdiction has been exceeded, the latter takes into account whether a jurisdiction has been refused from getting exercise. If Certiorari stands, the order of the subordinate court or tribunal stands quashed and void. In certain cases with peculiar facts and moot issues, both the writs of certiorari and mandamus complement each other provided the issuance of both are warranted by the circumstances of the case in hand and do not end up discharging the issue altogether. A case might be rescinded due to application of certiorari and may end up getting decided by following the due process of law because of a subsequent issuance of mandamus. This kind of writ is known as certiorarified mandamus. 

In Y. Mahaboob Sheriff & others v. Mysore State Transport Authority, the renewal of a permit, despite getting sanctioned for three years, was only granted for a year. In pursuance of the writ of certiorari, the Supreme Court of India invalidated the previous judicial order of the subordinate court and in the effect of the writ of mandamus, directed the concerned authority for the renewal of three years. This is an instance of certiorarified mandamus.

• Anticipatory mandamus

In Maganbhai Ishwarbhai Patel v. Union of India, the group of petitioners issued a writ of anticipatory mandamus in order to restrain the Government of India from sanctioning 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 unless some actual damage or infringement has happened. 

In plenty of other cases, both in India and other countries, it has been held by the courts of law that on the mere basis of perturbation of getting one’s statutory or fundamental rights violated or an anticipatory omission of the duties or responsibilities of a public authority are not sufficient grounds 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 mere issuing of the writ of mandamus will not be sufficient for exacting the task from the public authority and that continuous supervision of the situation needs to be conducted in order to ensure the proper following of the verdict. This is done by the courts by providing for court visits and presenting a report of compliance of their verdict on behalf of the public authority. This legalese has developed and become a part of the jurisprudence after much judicial activism and several public interest litigations. The Supreme Court, in Chhetriya Pardushan Mukti Samiti v. State of Uttar Pradesh, held that besides ensuring the adequate enforcement of the fundamental rights, it is also the Court’s responsibility to ascertain the prevention of misuse of authoritative power and full adherence of the order.

Limitations

Writ of mandamus is basically a public law remedy of the common law system that, though can be rightfully applied for by any citizen whose rights have been violated by governmental or judicial bodies, is not sanctioned to be availed in cases of private wrongs. The writ of mandamus cannot be issued against the following: 

1. Private persons, institutions or organizations, if default, cannot be held accountable for their inaction by the issuance of mandamus.
2. If the duty or the activity that is in the question of the public authority is not mandated by a compulsory obligation but is discretionary in nature, the writ of mandamus cannot be issued for the enforcement of such duties.
3. The writ of mandamus cannot be issued against the Head of the State, that is, the President on a national level or Governor at the state level.
4. The incumbent Chief Justice of the Supreme Court and distinct high courts are also exempted from being held accountable by the issuance of a writ of mandamus.
5. For the enforcement of a contractual relationship that is private in nature, writ of mandamus cannot be issued for its enforcement.
6. A writ of mandamus cannot be issued against any Member of Parliament (MP of Lok Sabha or Rajya Sabha) and any Member of Legislative Assembly (MLA) of any state for the purpose of providing a smooth functioning and conduct of the parliamentary deliberations. 
7. Mandamus cannot be issued against any legislative institution which is passing such a law that is in contravention of the fundamental rights promised under Part III of the Constitution. This was subsequently upheld by the apex court in Chotey Lal v. State of Uttar Pradesh & Ors. The petitioner had moved a writ petition against the State of Uttar Pradesh as the state legislature had passed Zamindari Abolition and Land Reforms Bill in 1951 which was considered to be unconstitutional according to the applicant.
8. Electoral matters have been kept away from the purview of the writ of Mandamus and those officials that are engaged in different levels of the electoral process cannot be directed by mandamus. However, this is applicable only for elections to Union and state parliament. Mandamus can be issued in matters of contention relating to Municipal level elections.

Thus, the major legal requirements for the issuance of the writ is the public nature of the body, person or authority against whom the writ is getting applied for and a valid, justified rationale of the claims on the part of the petitioner. 

Interpretation of public right and mandamus

Writs of mandamus are to be issued in the following situations and for the same, a comprehension of public rights is a necessity: 

1. There must exist a legal right of the petitioner for getting a legal duty of the public authority to be discharged, provided that legal duty is compulsory and not discretionary in nature. Moreover, mandamus cannot be utilised for enforcing department specific rules or instructions which have got no statutory backing with regards to provisioning for legal rights of the petitioner(s). An exception to this rule is that statutory void is filled with executive orders. 
2. The legal responsibility of the authority or body should be of a public nature. The apex court, however, held in the Praga Tools Corporation v. C.V. Imanual that a writ of mandamus shall also be granted against a private entity or individual provided there has been a third-party involvement of the state authorities. The same principle is used with regards to a private contractual relationship where there is a state interference. 
3. The right that is sought to be enforced or implemented by the petitioner must remain in force or effect on the date of issuance of the petition. If there has been a lawful expiration of the interest of the applicant before the date of the petition, he loses his entitlement to the writ.
4. Issuance of anticipatory writs of mandamus is not encouraged by the Indian courts. However, there can exist exceptions to this rule. Provided an authority acts contrary to its statutory duty, anyone who is likely to be affected by any such order of that public officer or body. For instance, in Commissioner of Police, Bombay v. Gordhandas Bhanji, an unlawful order against the spirit of the Constitution was issued against an individual who sought a writ petition of mandamus even before the passage of the order. The Court held in this case that the issue of such an order implied an immediate infringement on the rights of the petitioner and was thus empowered to seek the redressal interference of the court on this matter.

Writ of mandamus exercised In various countries

The writ of mandamus is an integral part of both Parliamentary and Presidential setups. Examples of some parliamentary democracies that have the writ of mandamus as a part of their legal regimes are Australia, England and Wales. In Australia, the writ of mandamus is a constitutional provision and is under section 75(v) of their Constitution. In England Wales, mandamus exists as a mandatory order and not a writ.

The United States of America is an important example of a presidential democracy that has got a provision of mandamus in its legal system across federal and state-level courts. Acts of administrative institutions have been held to be subject to mandamus in various states across their country through amendments of statutes or judicial expansions.

Conclusion

Therefore, the writ of mandamus can be rightly described as a legal instrument of ensuring general public interest, safeguarding their rights promised to them in the Constitution and other laws of the land. It is also an effective mechanism for maintaining accountability of the state or public authorities and mandating them to comply with their constitutional and statutory obligations. Thus, writ of mandamus is essentially a pro-democratic mechanism which empowers the common people to get their rights enforced by the administrative bodies.

References

• https://www.researchgate.net/publication/314384185_Writ_of_Mandamus
• http://www.legalservicesindia.com/article/592/Analysis-Of-Writ-Of-Mandamus.html

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