Writ of mandamus and Indian Constitution

Writ of mandamus is an order by the superior court commanding a person or a public authority to do or forbear to do something in the nature of public duty. In other words, it is a judicial remedy which is in the form of an order from a superior court to any government, court, corporation, or any public authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing as the case may be and which is in the nature of a public duty and certain cases of a statutory duty ((AT Markose, Judicial Control of Administrative Action in India, p. 364)).

Writ of mandamus is a writ of most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation, or an inferior tribunal requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Purpose of Writ of mandamus is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, where all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where although there is an alternative legal remedy, yet the mode of redress is less convenient beneficial and effectual ((Halsbury’s Laws of England, 4th Edition, Vol. I Para 89)). However, a Writ of mandamus cannot be issued to compel an authority to do something against the statutory provision ((Hope Textiles Ltd. v. Union of India, 1995 Supp (3) SCC 199)).

No one can ask for a mandamus without a legal right. There must be a judicially enforceable as well as legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it ((Mani Subrat Jain v. State of Haryana, AIR 1977 SC 276)).

An applicant praying for a Writ of mandamus must show that, he has a legal right to compel the opponent to refrain from doing something. In other words, there must be in the applicant a right to compel the performance of some duty cast on the opponent ((Union of India v. Orient Enterprises, (1998) 3 SCC 501)).

The duty sought to be enforced must have three qualities, viz.

  1. It must be a duty of public nature. A duty will be of a public nature if it is created by the provisions of the Constitution ((Rashid Ahmed v. Municipal Board, AIR 1950 SC 610))OR of a statute ((State of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610))OR some rule of common law ((Sharif Ahmed v. Regional Transport Authority, AIR 1978 SC 209)). A public duty need not, however be always statutory ((Andi Mukta Sadguru Shree SMVSJMS Trust v. VR Rudani, AIR 1989 SC 1607)). A duty corresponding to a private right is not a duty which can be enforced by mandamus.
  2. The duty must be imperative and not discretionary one. In other words, mandamus lie to compel the performance of an absolute duty. The office of a mandamus is to compel the performance of a plain and positive duty. It is issued upon the application of one who has a clear right to demand such performance, and who has no other adequate remedy ((Robert L. Cutting, Re, 94 US 14)).
  3. No mandamus will lie where the duty is of a discretionary in nature. It is issued to enforce the performance of ministerial functions and it must be issued when, there is no alternative remedy available to enforce such functions ((Sharif Ahmed v. Regional Transport Authority, AIR 1978 SC 209)).

An application of mandamus will not lie for an order of reinstatement to an office which is essentially of a private character, nor can such application be maintained to secure performance of obligations owed by a company registered under the Companies Act towards its workmen or to resolve any private dispute ((Praga Tools Corporation v. CA Imanual, (1969) 1 SCC 585)).

It is not necessary that, the person or authority on whom the statutory duty is imposed need be a public authority. A mandamus can issue, for instance to an official of a society to compel him to carry out the terms of the statute under or by which their organisation is constituted or governed or to carry out the duties placed on them by the statutes authorising their undertakings. Writ of mandamus will also lie against companies constituted for the purpose of fulfilling public responsibilities ((Praga Tools Corporation v. CA Imanual, (1969) 1 SCC 589)).

Writ of mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a right or sufficient legal interest ((Praga Tools Corporation v. CA Imanual, (1969) 1 SCC 1306)), or whose rights are directly and substantially invaded and are in imminent danger of being invaded ((State of Kerala v. Lakshmikutty, AIR 1987 SC 331)).

However, Writ of mandamus cannot be issued to the State Government to prevent it from considering a bill which is alleged to have been in violation of Constitution. Similarly, no court can issue a mandate to any Legislature to enact any specific law ((Chote Lal v. State of Uttarpradesh, AIR 1951 All 228)).

Writ of certiorari and duty to act judicially

Certiorari means “to be certified” or “to be informed”. It is issued by a higher court to the lower court, either to transfer the case pending with the later to itself OR to quash the order of the later. Hence, unlike the Writ of prohibition, which is only preventive the Writ of certiorari is both preventive as well as curative.

Writ of certiorari may issue “whenever any, body of persons having legal authority to determine the questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority ((R v. Electricity Commissioner, (1924) 1 KB 171)). As approved by the Supreme Court of India in Gulab Singh v. Collector of Farrukhabad ((AIR 1953 All 585)), it consists of four major components such as;

  1. Any body of persons;
  2. Having legal authority;
  3. To determine questions affecting the rights of subjects; and
  4. Having the duty to act judicially

The duty to act judicially may arise in widely differing circumstances and it would be impossible to define exhaustively all the circumstances ((Jaswant Sugar Mills Ltd. v. Lakshmi Chand, AIR 1963 SC 677)). There are two propositions ((Province of Bombay v. Khushaldas S Advani, AIR 1959 SC 222))however, which are well established for ascertaining if the authority is under a duty to act judicially, namely;

  • That, if a statute empowers an authority, not being a court in the ordinary sense, to decide disputes arising out of a claim made by one party under the statute, which claim is opposed by another party, and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie, and in the absence of anything in the statute to the contrary, it is the duty of the authority to act judicially and the decision of the authority is a quasi-judicial act; and
  • That, if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the context is between the authority proposing to do the act and the subject opposing it, the final determination of authority will be a quasi-judicial act provided the authority is required by the statute to act judicially.

The decision about the expediency or the necessity of requisitioning was left to the unfettered subjective opinion of the government and there was no judicial process involved for determining the matter. Hence, the decision to requisition the house of the petitioner in that case was held to be an administrative act of the Government ((Id.)).

In determining the jurisdiction of Writ of certiorari, the courts in India have for some time been mainly guided by the principle laid down in R v. Electricity Commissioner (([1924] 1 KB 171)), R v. Legislative Committee of the Church Assembly (([1928] 1 KB 411))and Nakkudda Ali v. Jayaratne ((1951 AC 66)). Accordingly, in order that a body may satisfy the required test, it is not enough that, it should have legal authority to determine the questions affecting the rights of subjects; there must be “superadded” to the characteristic, the further characteristic that the body has “the duty to act judicially”.

Supreme Court quashed the decision of the Board which cancelled the examination of a candidate on the ground of shortage of attendance ((Board of High School & Intermediate Education v. Chitra, (1970) 1 SCC 121)). After admission to the examination, the candidate had appeared and passed in all the papers. Cancellation of examination was held to be quasi-judicial function and the principles of natural justice, ought to have been observed. It was held by the Supreme Court that, the decision was taken without giving proper notice to the candidate to explain their part ((Id.)).

However, if the candidates at any of the examination centres have indulged in mass copying, the cancellation of said examination and re-conducting the same for all the candidates may attract the application of the principles of natural justice ((Bihar School Education Board v. Subhas Chandra Sinha, AIR 1970 SC 1269)).

The extent of area, where the principles of natural justice have to be followed and the judicial approach has to be adopted, must depend primarily on the nature of the jurisdiction, and the power conferred on any authority or body by statutory provisions, to deal with the questions affecting the rights of citizens. In other words, the court has held that, the test prescribed by Lord Reid in Ridge v. Baldwin ((1964 AC 40)), affords valuable assistance in dealing with the vexed questions with which we are concerned in the present appeal ((Shri Bhagwan v. Ram Chand, AIR 1965 SC 1767 See also, Associated Cement Companies Ltd. v. PN Sharma, AIR 1965 SC 1595)).

The duty to act judicially need not be superadded in the statutory provision, but it may be spelt out from the nature of the power conferred, the manner of exercising it and its impact on the rights of the person affected and where it is found to exist, the rules of natural justice would be attracted. It was also observed that, it may be taken as a settled now that, even in an administrative proceeding, which involves civil consequences, the doctrine of natural justice must be held to be applicable ((Maneka Gandhi v. Union of India, AIR 1978 SC 597)).

Writ of certiorari is discretionary; it is not issued merely because it is lawful to do so. Where the party feeling aggrieved by an order of an authority under the Income Tax Act has an adequate alternative remedy which he may resort to against the improper action of the authority and he does not avail himself of that remedy the High Court will require a strong case to be made out for entertaining a petition of Writ. Where the aggrieved party has an alternative remedy available, the High Court would be slow to entertain the petition challenging an order of a taxing authority, which is ex facie within jurisdiction. A petition for Writ of certiorari may lie to the High Court, where the order is on the face of it erroneous or raises the question of jurisdiction or of infringement of fundamental rights of the petitioner ((Champalal Binani v. CIT, (1971) 3 SCC 20)).

Writ of Prohibition in India

Writ of prohibitio, also called as Writ of prohibition commands the court or tribunal to whom it is issued to refrain from doing something, which it is about to do. This Writ is issued by either Supreme Court or High Court to an inferior court forbidding it to continue proceedings in a case in excess of its jurisdiction.

Writ of prohibitio prevents a tribunal processing judicial or quasi-judicial powers from assuming or threatening to assume jurisdiction which it does not possess ((CCE v. National Tobaco Co. Of India Ltd., AIR 1972 SC 2563)).

Writ of prohibition prevents a tribunal processing judicial or quasi-judicial powers from assuming or threatening to assume jurisdiction, which it does not possess. Writ of prohibition has many common features as that of Writ of certiorari viz. the scope and the rules by which the Writ is governed.

Both the Writs of prohibition as well as certiorari have for their object the restraining of inferior courts from exceeding their jurisdiction and they could be issued not merely to court, but to authorities exercising judicial or quasi-judicial functions ((Hari Vishnu Kamath v. S. Ahmad Ishaque, AIR 1955 SC 233)). Writ of prohibition will lie when the proceedings are to any extent pending and a Writ of certiorari for quashing after they have terminated in a final decision ((Id.)).

When an inferior court takes up any matter for hearing, over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a Writ of prohibition. Upon such application, an order will issue for forbidding the inferior court from continuing the procedure.

For example; where, the Regional Transport Authority has no power under Section 62, of the Motor Vehicle Act, to entertain an application for a temporary permit during the pendency of an application for new permits, the grant of temporary permits was beyond the power conferred upon the Regional Transport Authority and a Writ of prohibition prohibiting Regional Transport Authority from proceeding with the application for a temporary permit was issued ((Hari Narain Roy v. Regional Transport Authority, AIR 1965 Pat 248)).

Existence of an alternative remedy may be more appropriate in case of a Writ of certiorari, but where an inferior court OR tribunal has shown to have usurped jurisdiction, which does not belongs to it, that consideration is irrelevant and the Writ of prohibition has to issue as of right ((Calcutta Discount Co. Ltd., v. ITO, AIR 1961 SC 372)).