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The Writ Of Continuing Mandamus – A Step Towards Development Of Constitutional Jurisprudence (By- Anwita Maheshwari)
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The Writ Of Continuing Mandamus – A Step Towards Development Of Constitutional Jurisprudence
Authored By- Anwita
Maheshwari
(1)
Introduction
The Indian Constitution has provided its citizens with Fundamental Rights
and they form an integral and essential part of our governance,
democratic in nature. So as to provide safeguards and to protect citizens from suffering curtailment of rights, the
Constitution has provided various writs. A writ in its literal sense refers to “a written order issued by a court,
commanding the party to whom it is
addressed to perform or cease performing
a specified act”. Writs act as an instrument to out check on the infringement
of the Fundamental Rights and provide
immediate relief as required by the case. The Constitution, as a further
safeguard, clearly states that —
“Laws inconsistent with or in derogation of the Fundamental Rights are void and
the same can be challenged through
writs”. One of the writ under this is of ‘mandamus’. It in its literal sense
means that “an order 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”. When this order becomes continuous
or the court check the implementation of its order
or authorise someone
to check it, it is known as ‘continuing mandamus’.
(2)
The Writ Of Continuing Mandamus: Building The Bridge Between
Rights And Remedies
In India, Article 32 and 226 of Constitution of India provides for the
safeguard of people of upholding their rights
and liberties issued by the Apex Court and the High Courts respectively. The
Constitution makers adopted the writ
system in India from the British Judicial system as this was an act of great
wisdom as it protects the legal
rights of people. Dr. BR Ambedkar termed Article 32 as ‘heart and soul of the
Constitution’ because without
any remedies the rights given to people are of no
use. The writ of Mandamus was introduced
in 1773 when the Supreme Court was created by the Letters Patent. In the
presidency towns the Supreme Court
was empowered to issue writs. “In 1877, the Specific Relief Act substituted an
order in the nature of mandamus in
the place of the writ of mandamus for the purpose of "requiring any
specific act to be done or forborne
within the local limits of its ordinary civil jurisdiction by any person
holding a public office”.1 As of now this provision has been omitted
under the new Specific Relief Act2 because
the Indian Constitution contains a similar
and more effective
provision for the imposition of public duties.
“The transformation of the Supreme Court of India into a Supreme Court
for Indians”3 has been striking with exceptional pace towards
bridging the gap between the rights and its remedies
which has also been the major concern cause for the
Constitutional makers. “In the context of Social Action Litigation, Upendra
Baxi remarked that the ‘fundamental
issue of how the Court should make the state and its agencies fully liable fordeprivations or denials of fundamental
rights still remains to be authoritatively answered”4. This paper by Baxi traces the multitudinous attempts
by the appellate judiciary which
has given real meaning to our rights.
In the democratic set up, the writ courts are legitimise by a right to
constitutional remedy. Even the day dreaming practice
can be contrary to the constitutional spirit.
While applying this writ of continuing mandamus the court has to interfere in the
functioning of executive organ of the system for making it certain that the executive
agencies is complying
with judicial directions. In this sense,
the judiciary plays an important
part in constantly re-evaluating and balancing the rights of citizens and
governmental action. In this class
of litigation, Judges have likewise instituted remedies in private law such as
“injunctions” and “stay orders” into what are basically matters
of public law.
Mandamus according
to Black's law dictionary5:
"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."
Mandamus according
to Wharton's Law Lexicon6,
"A high prerogative writ of a most extensive remedial nature. In
form it is a command issuing in the King's name
from the King's Bench Division of the High Court only, and addressed to any
person, corporation, or inferior
court of judicature requiring them to do something therein specified, which
appertains to their office, and which the court holds to be consonant
to right and justice. It is used principally for public purposes,
and to enforce performance of
public duties. It enforces, however, some private rights when they are withheld
by public officers."
The writ of mandamus is not a right but is the most extensive remedy and
is a command issued by the Apex Court
or the High Courts which directs the person to do his specified job which is
his duty to do. It is issued only at the
discretion of the court and does is not issued against private individuals for
example in contracts against a
private right. This remedial jurisprudence has reached at its zenith point
which is now can be named as ‘continuing mandamus’— “a form of adjudication that enables
the Supreme Court to ensure and supervise
the implementation of its directions”.7
Under
‘continuing mandamus’ instead of giving conclusive or decisive judgment,
the litigation keeps ongoing for monitoring
purpose and to give order from time to time as needed but this should not be
construed as delay, since numerous
judgments are of substantive nature and is kept pending because regular
hearings are necessary. For the said delay the Government and the administrative authorities submits
the affidavit mention the cause for delays and the reason
for inaction. The concept
was first established by the Supreme
Court in the case of Vineet Narain v. Union of India8 where the Supreme Court defined it as a continuous process by which
the court issues orders or directions and keeps
the case at hand pending for scrutinisation. In this regards, the landmark case
was of Hussainara Khatoon v. State of Bihar9 where before the Apex
Court the case remained pending for 15 years and more and as many as seven detailed orders were passed with the
directions with regards to the under trial prisoners
for their release who were suffering due to the pending cases and wanted their
speedy disposal. Similarly, the trend
which was started in this case was adopted in the cases of public interest,
“with the court meting out sweeping
affirmative interim relief addressing a pressing need, pushed the final
decision as to factual issues and
liability determination to a much later date”.10 The concept draws
the close relevance from the
principle of structural interdicts. Where the structural interdicts is issued
by drawing inference from the government’s
opinion and various stakeholders, the continuing mandamus is issued more often
in several kinds of situations to ensure implementations and proper functioning of the court order.
(3)
WRIT OF CONTINUING MANDAMUS
VIS-A-VIS Pils
Public Interest Litigation (hereinafter PIL) has been defined as
“something in which the public, the community
at large has some pecuniary interest, or some interest by which their
legal rights or liabilities are affected. It
does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected
by the matters in question.
Interest shared by citizens generally
in affairs of local, state or
national government”.11 In PIL any individual having enough interest
or cause can maintain an action or be a
member of the PIL implementing a public duty against public authority.
Any legal action commencing in the court
of law for implementing general or public interest wherein people in general or
a class of the group has economical
interest or some kind of interest which is affecting their legal rights or
liabilities can be called as PILs.
The evolution of PILs was started when the Judiciary realised its
constitutional obligation towards the large sections of the society.
This included people from poor and marginalised groups as well as the bourgeois
class. Reliance can be placed upon the case of M. C. Mehta & Another v. Union of India & Others12 where
the Supreme Court construed that Article 32 does not merely use to issue direction but it conferred
the duty of the court to protect
the rights of the people more specifically, fundamental rights. The court also interpreted that beside the constitutional obligations
the powers include to design new remedies and carve out new strategies to enforce fundamental rights.
Due to the extreme poverty the Court realised that not every section or the member of the society can
approach the court. So, to preserve fundamental rights of the weaker section of the society the court by
judicial innovation and strategies started giving orders keeping in mind the interest
of the public.
With the
increase of technologies, the condition of our environment started to decline
which instead of nurturing and protecting us, it started to
affect our health conditions and thats when the environment activists started filing cases against the
government for violating environmental laws for the development.
When the plethora
of cases started
to reach the court, it tried to protect the ecology, forest
cover and environment orders which also
needed the series of directions to be issued by the court and this started the
process of ‘continuing mandamus’ in the matters
related to environmental laws.
2.1] Pils In Environmental Cases
“Environmental PIL has emerged because of the court's interpretation of
Article 21 of the Constitution”.13 The Supreme Court has in many cases reasserted the fact that Article
21 of the Constitution not only gives right for life but also combine it with right to have the quality of
life and anything which threaten this right in derogation with fundamental laws has a right to
remedy under Article 32 to take recourse. The first case in this sense is of Bandhua Mukti Morcha14 case
where workers were working in inhumane and brutal conditions in certain mines located
in Faridabad. Later a writ petition was filed for the improvement of the
aforesaid conditions and the Judge
held that this was against Article 21 which grants every person to have quality
life and these conditions are in
derogation with the aforesaid law given in the Constitution of India. The court
then continued to monitor the proper
implementation of the order passed by it against the state and this was the
first instance where court at its discretion issued a continuing mandamus although it wasn’t called so.
Further, in the case of Vellore
Citizen’s Wellfare Forum v. Union of India15 a writ petition was
filed in the state of Tamil Nadu
against the tanneries as their effluents which was emptying in the ground water
was left untreated and this was
polluting the water. In its decision the Apex Court held that the its the
responsibility of the Central
Government to create an authority which deals with the above issue. Further the
court directed to set up a Green Bench to monitor the functioning
and implementation of the order passed by the court and the authority which was set up. Therefore, the
continuous monitoring by the committee is the another show of continuing mandamus but was not recognised.
Another case which can be relied upon is the case of D.K. Joshi v. Chief Secretary, State of UP16 a writ petition was filed for increasing the
quality of life for the citizens in Agra. It was claimed that despite several orders given by the Court the authorities
concerned was extremely sluggish in implementing directions. The court finally held that after the failure
of the authorities in implementing directions a special committee is needed to be set up for the special
monitoring. However, the remedy of ‘continuing mandamus’ was not very successful in this case as limited
level of efforts
was put in by the authorities.
Later in one of the case, seeing the increase in vehicular pollution in
Delhi a writ petition was filed by the people in Delhi.17 The Supreme Court then pass an order for
the conversion of diesel into CNG but due to
the shortage of CNG the said order was not complied with by the authorities. “This is a case where,
in spite of several directions by the Supreme
Court, the government had been extremely slow in responding to the order. This was hence an extremely
difficult case to implement although the pollution levels have gone down to an extent”.18
“In the case of continuing mandamus, it might be argued that although the
words ‘appropriate order’ or ‘direction’ in Article 32 of the Constitution have not been defined and have a wide amplitude, the court need not invent new remedies such as that
of continuing mandamus, since it was totally unnecessary”.19 There
are times when judiciary interfere
with the executive as it is up to them to enforce all these legislation which
the court has taken into its own hand due the executive’s inefficacy and also made the government to report back to the court regularly.
The remedy has often been considered fruitful in the case of rights
children where the executive
has continuously failed to enforce their rights. Thus to protect child
rights the only remedy which is left
is PIL. The court has not invented any new remedies but has only given a new
name to the existing one.
(4) Covid Times And Continuing Mandamus
The unexampled health emergency, brought by the spread of the COVID-19
pandemic, has blown the conch for a
large number of difficulties to be faced by all over the world and its people.
The class which had been extremely
affected by the spread of the virus are those who are at the foreground of
weaker section of the society which
is exposed at ease. In other countries as well as in India, the worst storm
affected the migrant labourers, who
were left in the streets or in the city to fight for themselves in such
atrocious times. The greater part of
them survived on limited food supplies, and even had to sleep on an empty
stomach for days together. The pandemic affected
them so much that they do not have sufficient resources to take care of their health and was not able to buy medicine.
Many of the people did not comply with the order passed by the government for waiving of the rent which
made their condition worser and was forced to migrate without any adequate
facilities.
All this hardships faced by the labours attracted the attention of the
Supreme Court which in turn took suo motu
cognisance of the matter seeking replies from the union and the state
executives. The relief which was granted
by the court directly affected the lives of millions of migrants who were
affected by the said pandemic during
the lockdown. The court issued order for the free food, water and
transportation for the stranded labours.
In its order dated 28th May 2020 it also directed the states to sent the
migrant labours home within 15 days
from the date of the said order. “Subsequently, state and central governments
started arranging for Shramik trains under the aegis of the Indian Railways for cross border conveyance of the migrants”.20 But due to the large population the government was unable to provide for the exact number of migrants who have not been covered under this operation. Later again
an order was passed by the government for activating
schemes for
benefitting the migrants and also directed the state to spread about the
same. The court shows its
dissatisfaction for the state of Maharashtra for the poor management and
failure to provide the status for the
migrant workers. This approach by the court to an extent reveals the use of the
writ of ‘continuing mandamus’ where
it cautiously overstepped its domain. Continuous monitoring by the court for ensuring
effective implementation of the order shows that the court is following
the path of continuous mandamus. Periodic
follow ups by the
court where the executive has been ineffective
in it's functioning is the situation
which has been seen many times in the past also. One such example
is the case of Olga Tellis v. Bombay Municipal Corporation21 where the court directed the state government for the proper accommodation of the slum dwellers before being evicted
from their places but unfortunately the state
government did not comply with the said order and the dwellers were
evicted without being provided with proper housing
which was promised
to them.
The dictum of the Supreme Court on the Migrants’ issue is likely to touch
upon the basic rights falling under Article
21, such as food, shelter, and healthcare.22 When the court gives
only directive with regard to this issue,
its of no use without their proper implementation as reality do not meet the
ends of justice. The objective of the court when it issues the writ of continuing mandamus
is that even the last person in the line is not excluded from the benefit
received from the remedial jurisprudence.
[4.1] SOCIO ECONOMIC
RIGHTS AND CONTINUING MANDAMUS
The executive and judiciary should work in collaboration to offer
explicitness to socio-economic rights by emphasising
on accountability, clear standards and prioritisation to make sure that the
minimum core of socio-economic rights
are being ensured
by the State. However, such judicial overreach
raises concern since it
impede the doctrine of separation of powers, one of the cornerstones of the
Indian Constitution. Therefore, before delivering any judgment it is the duty of the court to ensure
that the Court does not disobey executive’s domain.
“The Supreme Court of India has time and again given
mandatory orders to the government
instead of limiting its powers to declaration of remedies”.23 In the
case of Consumer Education and Research Centre
v. Union of India24 the
court keenly observed
the actions of the government (such as
health status of workers, rules and regulations of factories, etc.) while
recognising healthcare rights of the workers.
During this judgment the Supreme Court realised that the socio economic rights
of the workers cannot be achieved by
one time orders and thus constant monitoring and scrutinisation is required.
This approach by the court was
evolved as the writ of ‘continuing mandamus’ which ensured that the justice is delivered
in reality.
[4.2] BENEFITS OF CONTINUING MANDAMUS
AS COMPARED TO THE WRIT OF MANDAMUS
The writ of continuing mandamus has wider scope than that of writ of mandamus.
Continuous mandamus rightly bridges
the gap between the rights and the remedies which has been the primary
objective of the constitution makers
to provide to people rights with remedies. Only rights without remedies are of
no use to people because
they cannot enforce
them in the court when their rights
get infringed.
The writ of continuing mandamus is used as a tool to combat the inactions
of the executive and ensures that justice is delivered in its full sense and in practicality not just in essence. The judiciary is the last resort for the person whose rights have been infringed
and as seen as the effective tool to uphold the true sanctity of justice when executive fails to do so. The
present situation is that if any order is passed by the court, it can monitor the implementation or enforcement
of that order if it deems fit to the court which results in proper functioning of the executive making this as a viable
tool for the problem.
(5)
CASE ANALYSIS: T. N. Godavaraman Thirumulpad V. Union Of India & Others
FACTS:
In order to protect and conserve the Nilgiris forest, a writ petition was filed with the Supreme Court of India for illegal timber operations.
The Supreme Court using its discretion expanded this case of one forest reformation into the policy of whole country’s forest
reformation. Firstly the Supreme Court granted an injunction against the respondent in order to stop cutting of
trees which eventually badly affected the wood
based industries. During the hearing of eight hundred interlocutory
applications the Court has assumed the positions of policy maker, interpreter of law and administrator of policy.
The present case opened up Pandora’s Box that affects
the industries and forest dwellers
continuously in the country. The court for the first time defined the term forest which
will help them to determine that which region of land will come under the said definition.
ISSUES:
(i) Whether the appointment of the regulator at a national
level is advisory
or mandatory in nature?
(ii) Whether section
2 of the Forest (Conservation)
Act, 1980 should be r/w section 3 of the Environment (Protection) Act, 1986 and the Forest Policy
1980?
HELD:
The Supreme Court in the present
case used the concept of ‘continuing mandamus’ which made it a landmark judgment in the history. It delivered orders in several parts
periodically from time to time. In its first
part, the court granted an injunction order banning the felling of trees
across the nation. The court held it mandatory to take prior permission of central government in order to carry out any
non-forest activity including mining
and sawmills, in any area coming under the dominion of forest according to
section 2 of FCA, 1980 and if prior
permission is not granted then the legal authorities have the power to cease
such activity. The court further gave
instructions to .state government for forming an expert .committee within one month to identify areas which are forest
irrespective of any ownership or classification, recognising the areas which were initially a part of “the forest
but now are cleared lands due to illegal activities like deforestation, and figuring out the areas comprising of
plantations and segregate those belonging to the government from those of private
individuals”.
(6)
Comparative Analysis:
Philippine
“The new Rules of Procedure for Environmental Cases also integrate
another procedure that was adopted by the Supreme
Court in the Manila Bay case in its en banc decision of December 18, 2008”.25 The present case is concerned of cleaning up of Manila
Bay where the group of people won a court action which compels the government of Philippine for cleaning Manila
Bay.
After ten years
of litigation the Supreme Court
of Philippine ordered
to prepare a plan of action to be prepared by the twelve national government
agencies for conservation of the environment and to restore the productivity of Manila Bay so that it can
nurture marine life in it. For ensuring the effectiveness of the ordered passed,
the government from the respondent
side was asked to submit every ninety days reports’
progress to the Supreme Court
so that the Court can monitor the measures taken up by the government. In this process the judges of the Supreme Court
took an unexpected tour and inspected the clean up progress of Manila Bay. It was the judicial inspection where the Court was updated
by the lead agency and the respondent.
The court in this case realised the difficulties people have in filing separate
suits so the judgment encourages
the people to file class action suits for infringement of their environmental
laws and they were also not required to pay fees at the beginning of the action.
There is no hindrance for the Supreme Court of Philippine to formulate
and design new Rules of Procedure for
Environmental Cases. Under the Constitution of the Philippine 1987, it has the
power to formulate rules which
concerns the protection and implementation of constitutional rights.26
The Civil Code of Philippines states
about the freedom of laws enforced through judicial decision and their validity
without the hinderance of any other
law and make those laws part of the legal system of the country.27
“Variations of this writ have been utilized in other jurisdictions like Australia,
India, Pakistan, and the United
States of America”.
28
(7)
Conclusion
The writ of continuing mandamus has proven to be effective in the
environmental jurisprudence. It has successfully
acted as the guardian of the environment making available for the public the
right to healthy environment. The
judiciary held that Article 21 grants every person to have quality life and the
conditions of the environment was in
derogation with the fundamental right of the people. In the case of Vineet Narain the development of procedural innovation of the writ of continuing
mandamus had taken place. The judiciary has done
the commendable job in effectively implementing mandamus orders. Especially in
the Crime Bureau Investigation cases
the implementation of continuing mandamus helped throughout the investigation
as the court supervises the process
of investigation. Before
the term was originated the judiciary had the similar kind
of approach where it used to pass orders and then check its implementation.
This was done when the legislature fails to perform
its responsibility and to avoid injustice to people.
“However, the legislature’s inactions cannot be taken as an excuse by the judiciary to micromanage policy-making decisions. This is exactly
what happened in the Godavarman case
which is the most glaring example of the judiciary exceeding its mandate
and therefore violating the doctrine of separation of powers”.
The whole process can be seen as a broader concept for social welfare where all, the state, key actors, stake-holders, citizenry and interest-groups are involved with the judiciary acting as its ombudsman. Fruitful involvement of the judiciary will require closer attention to the environment of such involvement, although the judiciary should step in with much caution when an extreme measure is required. It can be said that the writ is the step towards developing of environment.
The writ of mandamus came as a saviour for the migrants workers in the
COVID times. The hardship that labours
were facing because of migrating to their hometown attracted the attention of
the Supreme Court and the court
directed the state for the supply of free food, water and transportation for
the stranded labours. This order by the Apex Court affected
the millions of labours which
was affected by the said pandemic.
[7.1] Suggestions
•
Proper implementation of the court’s
order is necessary
for the effective application
of the writ of continuing mandamus.
•
In order to save the environment from degrading the
court should issue mandamus orders to the authorities for taking care of the nature.
•
The
blame should not be taken by the Judiciary to have extent it limit and enter
the arena of legislature in checking the implementation of the orders through self acclaimed principle
rather the judiciary has done a commendable job in maintaining the balance as enshrined under the Constitution.
•
We should
make contempt proceedings more credible in order to spread awareness of such writ.
Article Information
The Writ Of Continuing Mandamus – A Step Towards Development Of Constitutional Jurisprudence (By- Anwita Maheshwari)
Author Name: Anwita Maheshwari
Title: The Writ Of Continuing Mandamus – A Step Towards Development Of Constitutional Jurisprudence
Email Id: anwita.maheshwari28@nmims.edu.in
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/05
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International Journal for Legal Research and Analysis
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