mandamus – we command

“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.”

INTRODUCTION

In India, Articles 32 and 226 of the Constitution empower the Supreme Court and High Court to issue writs in cases where the state has violated a citizen’s fundamental rights. The Judiciary can utilise such writs to control administrative operations and prevent any arbitrary use of power or discretion.

There are 5 kinds of writs

(1) Mandamus (2) Certiorari (3) Prohibition (4) Quo warranto (5) Habeas corpus

A writ of mandamus, also known as a mandate, is a prerogative writ in the common law that is “issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.” It is “issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.” The word “mandamus” appeared in a number of orders issued by the sovereigns who ruled England in the live centuries following the Norman Conquest. These orders however were not concerned with the grievances of the citizens. Mandamus was first used to enforce a private citizen’s rights in 1615, when it was given to a mayor and corporation ordering them to restore a burgess to his office unless they could prove cause to the contrary. Due to the lack of evidence, a peremptory order was issued restoring him to his position.

It was employed to compel the fulfilment of a number of public responsibilities that had been wrongfully refused by the early eighteenth century. Mandamus is used to compel the execution of a public obligation in which the petitioner has a sufficient legal interest, but he must establish that he has demanded and been denied performance. It is discretionary and will not be granted if there is an alternative remedy equally beneficial, convenient and effective.

Exceptions:

1) The writ cannot be issued unless the legal duty is of a public nature and the applicant of the writ has a legal right to its execution. The remedy is discretionary, meaning that a court might refuse to give it if another remedy is available.

2) Mandamus cannot be granted against a state’s President or Governor “for the exercise and performance of the powers and duties of his office, or for any conduct done or purported to be done by him in the exercise and performance of those powers and duties,” according to Article 361.

3) The writ cannot be issued against a private individual or body, unless the State is working with the private party to violate a constitutional or statutory provision.

DEFINITION OF MANDAMUS

The order of mandamus is of a broad remedial nature, and it is in the form of a command issued by the High Court of Justice to any person, corporation, or inferior tribunal, requiring him or them to do some specific thing specified in the order that pertains to his or her office and is in the nature of a public duty. Mandamus is not a writ of right, and as a result, it is only given at the discretion of the court to whom the application is made; and this discretion is not exercised in favour of the petitioner unless the writ can serve some just and useful purpose. A writ of mandamus or remedy is pre -eminently a public law remedy and is not generally available against private wrongs. It is used to compel public statutory authorities to execute their duties and act within the limitations, or to enforce different public rights. When there is a wrongful exercise of authority or a failure to perform obligations, it can be used to bring justice.

Mandamus in Indian Law prior to the Constitution

Mandamus was first used in India in 1773, when the Supreme Court of Calcutta was established by Letters Patent. The writ was issued by the Supreme Courts in the Presidency towns. The Specific Relief Act of 1877 replaced the writ of mandamus with an order in the nature of mandamus for the purpose of “requiring any specific act to be done within the local limits of its usual civil jurisdiction by any person holding a public office by any person holding a public office.”

This clause was removed from the Specific Relief Act of 1963, which replaced the previous Act. This omission is likely due to the fact that such a provision under the Specific Relief Act is no longer necessary because the Indian Constitution includes a similar and more effective mechanism for the enforcement of public responsibilities. The Constitution gave all High Courts the power to issue instructions, orders, or writs, including mandamus writs, for the enforcement of any of Part III’s rights and for any other purpose. The Supreme Court has the power to issue mandamus in order to enforce basic rights.

Framework of Law In Relation To Mandamus

Art. 329 of the Indian Constitution gives the Supreme Court the power to issue writs. The Supreme Court has the authority to issue instructions, orders, or writs, including writs of habeas corpus, mandamus, certiorari, prohibition, and quo warranto, as necessary for the enforcement of any right conferred by this section. It is a crucial provision of the constitution. Every person has the right to petition the Supreme Court immediately for the enforcement of fundamental rights, as guaranteed by Article 32. It gives a cost-effective and quick solution.

“If I were asked to select any one Article in the Constitution as the most significant – an Article without which this Constitution would be a nullity,” Ambedkar famously said, “I could not refer to any other Article but this one.” It is the Constitution’s very soul and very heart.’ This section indicates that there must be a clear violation of a basic right that does not include contested facts. It further adds that under the article, government policy cannot be enforced by writ. Article 32 of the Constitution stipulates that mandamus may be issued when a statute infringes on a fundamental right. It could be either a statutory or executive order. Some decisions, on the other hand, are discretionary. The aforementioned section also includes continuing mandamus, which can be used when a single mandamus would be ineffective against a public agency that has been inactive for an extended period of time. This continuous mandamus is the most typical type of mandamus issued. Despite the fact that the statute explicitly indicates when a mandamus may be granted, the courts have found it difficult in many circumstances to decide whether to issue a mandamus, and it has become a significant legal concern.

INTERPRETATION OF PUBLIC RIGHT AND MANDAMUS

Mandamus lies against authorities whose duty is to perform certain acts and they have failed to do so. Under following circumstances mandamus can be issued:

(i) The applicant must have a legal right to carry out a legal obligation. It will not be an issue where the authority’s decision to do or not do something is left to their discretion. When the legal obligation originated from a disputed agreement, it was denied. A provision of the Constitution, a legislation, or the common law may create a duty to be enforced by a writ mandamus.

(ii) The legal duty must be of a public nature. In The 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 the Supreme Court stated that mandamus might under certain circumstances lie against a private individual if it is established that he has colluded with a public authority.

It will not be used to enforce a private right such as a contract against a private individual. Even though mandamus does not lie to enforce a contract between parties, it does lie when the State interferes with the petitioner’s contractual right with a third party. As in the cases of Raman & Raman v. State of Madras, A.l.R. 1959 S.C. 694 and State of Assam v. Ajit Kumar, A.l.R. 1965 S.C. 1196, a mandamus will not be issued to enforce departmental manuals or instructions that have no statutory force and do not give rise to any legal right in favour of the petitioner.

However, if the authority is required by law to exercise discretion, mandamus would compel it to do so in one of two ways. Mandamus can be used to compel an income-tax officer to follow instructions issued by the income-tax appeal tribunal while it is exercising its appellate power19. It might be issued to a municipality to fulfil its statutory obligations once more.

This rule, however, has some exceptions. Executive orders fill in the gaps where there is no statutory provision and are capable of bestowing rights on citizens and imposing obligations on authorities. The courts may even force the discharge of such a duty in suitable circumstances. Where the order on which the petitioner’s purported right is based is itself ultra vires, a mandamus is not attainable. Similarly, it was determined that the payment of dearness allowance at a specific rate is a matter of grace, not of right, and that mandamus could not be issued to compel the government to pay dearness allowance at a specific rate.

Article 320 (3) of the Constitution, which states that the Union Public Service Commission should be consulted before a government employee is fired, does not confer any rights on the employee, and thus failure to consult the Public Service Commission does not entitle the employee to seek mandamus to compel the government to consult the Commission. Where provisions are merely directory, non-compliance with them does not render an act invalid and hence no mandamus issues.

(iii) The right sought to be enforced must be subsisting on the date of the petition. If the interest of the petitioner has been lawfully terminated before that date, he is not entitled to the writ.

(iv) In most cases, mandamus is not issued in advance of an injury. This rule is not without exceptions. Anyone who is likely to be harmed by a public official’s order has the right to file a mandamus petition if the officer fails to perform his statutory duties.

Thus, if the authority holding the auction acts counter to the statute under which the auction is held or fails to perform his statutory duties in connection with the auction, an intending bidder at the auction has the right to apply. A person who is the subject of an illegal or unconstitutional order has the right to seek redress in court even before the order is actually implemented against him or before something to his disadvantage is done as a result of the order. Because the issuance of such an order is an immediate invasion on his rights, he can only refuse to comply with it at his own risk.

Against whom Mandamus will not issue

Mandamus does not apply to the Crown in England. It will not fall on the President and Governor of a State in their individual capacity in India. The Constitution, on the other hand, specifically states that the Government of India and the Government of a State may be subjected to proper legal action. Furthermore, the Constitution enables the courts to “issue any of the writs named therein to any person or authority, including in appropriate situations any Government.” As a result, a writ of mandamus is issued against the government.

No mandamus will lie against an officer or Member of Parliament or an officer or member of the legislature of a State In whom powers are vested by or under the Constitution for regulating procedure or the conduct of business or for maintaining order in Parliament or the State legislature. Mandamus will not be issued to prevent a legislature from passing legislation that violates basic rights.  Mandamus was awarded to a municipality to prevent the collection of a tax that was imposed in violation of the Municipalities Act, and to a university to prevent it from carrying out an order that was made in violation of its own rules.  Article 329 of the Constitution precludes any law courts from entertaining electoral matters such as the validity any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to beside under Article 327 or article 328 and provides that no election to either House of Parliament or to the House or either House of the legislature of a State shall be questioned except by an election petition presented as provided by Parliament.

Election includes everything from the issue of the notification to the announcement of the result. Mandamus cannot be obtained against officials who administer the various stages of an election; it was previously denied against a returning officer who rejected a nomination form. This prohibition, however, only applies to elections to the House of Commons and state legislatures. A mandamus was issued to the Deputy Commissioner, mandating him to hold municipal elections within a month and a half.

Mandamus is used to ensure that a public duty is carried out. Even if the body against whom the claim is made is not a statutory authority, if the petitioner has a significant legal interest in the performance, it will be granted.  It was so issued against the Sanskrit Council, which was established by a state government resolution to compel it to hold the examination and publicise the results. It will not, however, lie to ensure that a corporation fulfils a duty to its employees that is not of a public nature.

Alternative Remedy: A Bar to Mandamus

When a petitioner claims that his fundamental right has been violated, Mandamus is not denied on the grounds that there is an adequate alternative remedy. Mandamus is issued because the courts have a duty to defend basic rights. The presence of an alternate remedy only prevents the granting of mandamus when it is provided “for any other purpose.” Mandamus, on the other hand, will not be denied if conventional civil proceedings, administrative appeals, or revision do not give an equally effective and expedient remedy. As a result, if the alternative remedy places a significant financial hardship on the petitioner, it will not be considered a reason to deny mandamus.

Demand and Refusal

In order to get mandamus against an administrative authority, the aggrieved individual must first demand justice, and only if that is denied, does he have the right to go to court. The Supreme Court of India accepted the following statement of law in S.I. Syndicate v. Union of India:

“As a general rule the orders would not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that the demand was met by a refusal.”

Thus, a person seeking mandamus must establish that he or she sought justice from the authority in question by doing his or her duties and that the request was denied. The court in S.I.Syndicate refused to grant mandamus because no such demand or refusal existed. A public servant who sought mandamus against erroneous denial of advancement was refused relief because he failed to make representations to the government against injustice. The demand for justice is a question of content, not form, and it is essential that a “appropriate and sufficient matter be made.”

The demand must be addressed to the appropriate authority, not to an authority that is unable to discharge its duties in the manner required. The court should not turn this regulation into something stiff and inflexible, but rather keep it as flexible as possible. “These formalities are frequently met by the parties’ conduct prior to the application,” Wade says, “and unwillingness to perform the duty is easily from conduct.” Demand may also be unnecessary “when it is clear that the respondent will not comply with it and hence it will be nothing more than a formality.”

UK Perspective

When a public entity fails to execute its job, the writ of mandamus is frequently employed as a weapon by ordinary citizens. Mandamus is a legal tool that is used to compel the completion of a variety of tasks that directly impact an individual. Mandamus can be issued in cases where the tribunal is required to use discretion, such as hearing and deciding a case within its jurisdiction.

The Tribunals and Enquiries Act of 1992, Section 10, requires tribunals to provide explanations for their rulings. A writ of mandamus can be used to enforce such a responsibility.

Where the law provides an adequate remedy, a writ of mandamus is not given. Mandamus, on the other hand, has lost his residual remedy status. The establishment of a new remedy under the Act does not limit the court’s power to issue the mandamus, according to Section 40 (5) of the Crown Proceedings Act, 1947.

CONCLUSION

As a result, the purpose of the writ of mandamus is to defend the public’s interests from the powers granted to them to harm the people’s rights and liabilities. This writ ensures that the executive or administration does not abuse their power or fail to carry out their responsibilities. It protects the people from administrative bodies abusing their authority.

Although there are other requirements that were mentioned in the project, such as all alternative remedies being exhausted and it being a legislative duty rather than discretionary. As a result, it serves as a basic tool in the hands of the general public against administrative organisations that fail to carry out the tasks that are imposed on them by statute.

BIBLIOGRAPHY

1) The NAACP’s Legal Strategy Against Segregated Education, 1925-1950, Volume 2

       By Mark V. Tushnet, Professor of Law and Associate Dean Mark V Tushnet

2) http://www.legalserviceindia.com/legal/article-68-types-of-writs-in-indian-constitution.html

Aishwarya Says:

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