Rohit Kapoor
Mandamus is a judicial remedy available in the form of Writ under Article 226 of the Constitution of India. The purpose of mandamus is to remedy defects of justice. It lies in the cases where there is a specific right but no specific legal remedy for enforcing that right. In India, the sine qua non for mandamus is the existence of a statutory public duty incumbent upon the person or body against whom the mandamus is sought. There must equally co-exist a corresponding right in the petitioner entitling him to claim the enforcement of such public duty. There are three kinds of mandamus:
Alternative Mandamus,
2. Pre-emptory Mandamus,
3. Continuing Mandamus.
I am concentrating on continuing mandamus significance to ensure the authorities concerned, do not sleep over the directions of the Court once these are issued. It has yielded extremely impressive results and it continues to do so. It is of then said “these are issued to keep the pot boiling”.
It has also generated awareness of the need of probity in public life and provided mode of enforcement of accountability in public life. Even though the matter was brought to the court ( Vineet Narayan vs. U.O.I.) by certain individuals claiming to represent public interest, yet as the case progressed, in keeping with the requirement of public interest, the procedure devised was to appoint the petitioners’ counsel as the amicus curiae and to make such orders from time to time as were consistent with public interest. Intervention in the proceedings by everyone else was shut out but permission was granted to all, who so desired, to render such assistance as they could, and to provide the relevant material available with them to the amicus curiae for being placed before the court for its consideration. It does appear that it has helped in future decision making and functioning of the public authorities.
It was noticed by the Apex Court, merely issuance of a mandamus directing the agencies to perform their task would be futile and, therefore, it was decided to issue directions from time to time and keep the matter pending requiring the agencies to report the progress of investigation so that monitoring by the court could ensure continuance of the investigation.
Inertia was the common rule whenever the alleged offender was a powerful person. Thus, it became necessary to take measures to ensure permanency in the remedial effect to prevent reversion to inertia of the agencies in such matters through continuing mandamus.
Two points should, however, have been noted (about Indian Supreme Court’s record on Public Interest Law). First, the Court has adapted its procedure to enable it to adjudicate polycentric issues more appropriately. Wide standing rules require the court to conduct some of its own fact-finding, sometimes through establishing its own commissions. It has also fashioned its own remedial orders to provide ongoing management. For example, in the “Right to Food” case, it has issued a continuing mandamus to require states to fully implement specific schemes including mid-day meals at school. Secondly, affirmation of wide duties is often used to counter maladministration rather than to initiate new projects.
Thus the right to livelihood of pavement dwellers gave rise only to a duty to consult before removing them; and the right to a road gave rise only to a duty to complete a project for which funds had already been allocated. In the right to food case, a primary problem was maladministration: the Court found that about half of the food subsidy was being spent on holding excess stocks; reducing stocks would free up large resources to distribute food and provide hot mid- day meals for school children.
Recovering of substantial amounts of arrears of tax, enforcement of civic laws, punishing the offenders for sale of question papers of medical entrance examinations and prosecution of corrupt in the State of Jammu and Kashmir are few examples of the efficacy, of continuing mandamus, that is large in scale or scope. And therefore so it must continue.
(The author is an advocate)
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