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)).