This article is written by Adhila Muhammed Arif, a student of Government Law College, Thiruvananthapuram. This article seeks to elucidate the writ of Mandamus and its use in the case of John Paily v. the State of Kerala.
The Constitution of India guarantees its citizens certain basic rights and liberties such as the Right to life, freedom of speech and expression, equality, etc., which are enshrined in Part III of the Indian Constitution. However, mere granting of rights is not sufficient. The State must take action to uphold and protect the constitutionally guaranteed rights of the Indian citizens. When an injustice occurs to anyone in any part of a state, the State should provide a remedy to correct the wrong or injustice. There has to be a redressal mechanism following which the citizens can avail justice when their rights are violated. This is where the concept of writ gets its basis from.
In India, only High Courts and Supreme Court have the power to issue writs. The power of High Courts to issue writs is vested in Article 226 of the Indian Constitution, whereas the power of the Supreme Court to issue writs is vested in Article 32. It is important to note that writs and orders are different. While an order is wider in its scope and can be issued regarding any matter, a writ is issued to provide an extraordinary remedy.
There are five types of writs enumerated in the Indian Constitution which are issued by both Supreme Courts and High Courts. They are Mandamus, Certiorari, Habeas Corpus, Quo Warranto, and Prohibition. The writ of Mandamus is issued for commanding any authority to perform the public duties that were entrusted to them. In the recent case of John Paily & Ors v. State of Kerala & Ors, there was a request for issuing the writ of Mandamus and hence, it is important to explore the justifications of the petitioner in requesting the remedy, along with the verdict of the court and its reasoning.
Writ of Mandamus : an insight
The word ‘mandamus’ means ‘command’. It refers to a command or order issued to direct any person, corporation, inferior court or government to perform the public duty that they are legally bound by. Any person who is affected by the violation or abuse of such public duty and has the right to compel its performance can apply to a High Court or the Supreme Court for the issuing of the writ of Mandamus.
Conditions for the issuance of Mandamus
The following are the conditions to be satisfied before a writ of Mandamus can be issued :
- The person or authority against whom the writ is sought to be issued must have some public duty to perform, which he has failed to do so.
- Such public duty must be imperative or mandatory in nature and not discretionary and there has to be a failure in its performance.
- The petitioner should have the right backed by law to compel the authority or person against whom he seeks to issue the writ of Mandamus.
- When the petitioner called upon the authority to perform its public duty and it refused to do so.
Purpose of Mandamus
On comparing Articles 32 and 226, we can find that there is a difference between the purposes for which a Mandamus can be issued by High Courts and by the Supreme Court.
The following are the purposes for which a writ of Mandamus may be issued :
- For the enforcement of fundamental rights, the writ of Mandamus will be issued by the court that would restrain the public official or the government from doing the act against the aggrieved person.
- There are other purposes for which writ of Mandamus can be issued by a High Court, but not the Supreme Court. They are the following :
- To restrain a public official or the government from enforcing any law that is unconstitutional.
- To compel a court or tribunal to exercise its jurisdiction when it has refused to do so.
- To compel any person to perform their public duty which is either constitutional or statutory.
- When an official exercises his public authority excessively, or unlawfully, or maliciously, or in a manner in which he does not apply his mind in it, or abuses his discretionary powers.
Exceptions to its application
There are certain persons against whom the writ of Mandamus won’t lie. The following are the limitations to the application of Mandamus:
- No writ of Mandamus can be granted against the President and governors of states.
- It won’t be granted against private individuals and companies that have no public duty to perform.
- It cannot be issued against a legislature, commanding or preventing it to enact a legislation.
Types of Mandamus
There are three types of Mandamus in the Indian legal system that one can find by observing the judgments related to Mandamus. The three types of Mandamus are the following :
- Certiorarified Mandamus: The writ of Certiorari serves the purpose of providing a judicial review for a case that has already been tried by a subordinate court or when there has been an excess in its jurisdiction. When it is issued, the order of the subordinate court will be quashed. The writ of Mandamus can be issued when there has been a refusal in the exercise of jurisdiction. In certain cases, the writ of Mandamus and writ of Certiorari can coexist and complement each other. When a case gets rescinded by writ of Certiorari, it can be tried again according to the procedure of law, when a writ of Mandamus is issued subsequently.
- Anticipatory Mandamus: It has been confirmed in several judgments that a writ of Mandamus cannot be issued on the mere apprehension of the petitioner that his fundamental or any other statutory rights are likely to be violated or that a public authority is likely to omit the performance of its public duties.
- Continuing Mandamus: In certain cases, after the issuing of a writ of Mandamus, continuous supervision is also required. In such cases, the court can issue interim directions for surveillance and also call for the submission of a compliance report.
The case of John Paily & Ors v. the State of Kerala
In the recent case of John Paily & Ors v. State of Kerala & Ors [WPC 428/2021] (LL 2021 SC 227), a writ petition was heard by Justice D.Y Chandrachud and Justice M.R Shah, a two-judge bench of the Supreme Court. The petitioners sought certain reliefs and asked the Court to issue the writ of Mandamus under Article 32.
The petition was said to be an attempt to prevent the operation of the case K.S Varghese v. Saint Peter’s & Saint Paul’s Syrian Orthodox Church (2017). The case was decided by the High Court of Kerala and affirmed by the Supreme Court. The basis for the case was the constant conflicts between the Orthodox faction and the Patriarch faction, also called the Jacobites, over the control of the St. Peter’s Church. The decision was given in favour of the Orthodox faction, like most of the earlier decisions on conflicts over management of Churches. As a result, the petitioners in the current case felt aggrieved as members of the Patriarch denomination. They felt that their fundamental rights of religious freedom were violated and thus, they filed a petition for the issuing of a Writ of Mandamus to enforce their fundamental rights.
The contention of the Petitioner
The following are the contentions of the petitioners :
- The petitioners wanted the Court to issue directions that are in the nature of a Mandamus for the establishment of an independent tribunal composed of retired High Court judges so that they can look into the claims of each parish Church and determine which denomination will get to control it.
- The petitioners also contended that there must be an Order to execute the decisions of the tribunal by handing over the management of Churches to their concerned denominations or by partitioning all the disputed Churches and their properties in an equitable manner.
- They also argued that the State of Kerala must enact laws to protect the Churches that belong to the members of the Patriarch denomination and to uphold their right to exercise religious freedom.
- The petition also sought to direct the state of Kerala to enforce and uphold the fundamental rights of the petitioners as given under Articles 14, 21, 25, and 26 of the Constitution.
- The petitioners also contended that a declaration must be issued that no previous decisions of the Supreme Court operate against the beliefs of the petitioners and the members of the sect.
- And lastly, the petitioners asked the Court to issue a declaration that states that the members of the sect had the Right to practise, profess and propagate their religion.
Findings of the Court
The following are the observations made by the Court :
- The Court observed that this petition that was filed under Article 32 of the Indian Constitution, is an absolute abuse of the process.
- The purpose of the petition is obvious, which is to obtain a direction against the operation of any previous decisions of the Supreme Court on the same matter. It was evident to the Court that the petitioners considered themselves to be aggrieved by the decision given In the case of K.S Varghese v/s. Saint Peter’s & Saint Paul’s Syrian Orthodox Church (2017).
- The Court also observed that a party who is aggrieved by a judicial decision passed by the Supreme Court, cannot file a petition seeking remedy under Article 32 of the Indian Constitution.
The Supreme Court bench ruled that the Court cannot direct the establishment of a tribunal by issuing the Writ of Mandamus. The Court said that as per Articles 245 and 246 of the Indian Constitution, the Court cannot direct the legislature of a state to enact a law on any matter. The verdict also stated that such a petition cannot be entertained and the petition was accordingly dismissed.
Other relevant case laws
In the case of Sohanlal v. Union of India (1957), the Supreme Court stated that the Writ of Mandamus will only lie against a private individual if it is proven that he is integrated with a public authority.
In the case of Rashid Ahmad v. Municipal Board (1950), it was held that even when there are alternative remedies available in cases of violation of fundamental rights, seeking the issuing of writs cannot be absolutely restricted.
In the case of Sharif Ahmad v. HTA., Meerut (1977), when the respondent did not obey the orders of the tribunal, the petitioner approached the supreme court for the enforcement of the orders of the tribunal. The Supreme Court issued a Mandamus ordering the respondent to abide by the orders of the tribunal.
In the landmark case of SP Gupta v. Union of India (1981), the judges ruled that the president of India cannot have a writ issued against him, that directs him to fix the number of judges of the High Court and fill vacancies. The courts cannot issue a writ of Mandamus against persons like the president and governors.
In the case of C.G. Govindan v. the State of Gujarat (1991), the Court refused to issue a writ of Mandamus against the governor to approve the salaries of court staff fixed by Chief Justice of High Court under Article 229. It was ruled that a writ of Mandamus cannot be issued against a governor.
To sum up, the writ of Mandamus is an instrument of law that can be utilized by the citizens when they are aggrieved by a breach in the performance of a public duty by any authority, which violates their fundamental or any statutory rights. It serves a major role in ensuring that the state remains accountable to its citizens and protects citizens against the excess in the use of power by the state. However, there are certain limitations and conditions to its application. As it was seen in the case of John Paily & Ors. v. State of Kerala & Ors., a writ of Mandamus cannot be issued to compel the legislature to enact a law. It was also observed that the main intention behind the petition was to avoid the operation of a previous Supreme Court decision and as a result, the petition was not maintainable.
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