The Role Of Writs In The Administrative Law

Administrative law has greatly demarcated the checks, balances and permissible area of an
exercise of power, authority and jurisdiction over administrative actions enforced by the any
State, Governmental agencies and instrumentalities defined under Article 12 of the Constitution
of India. And the judiciary is dynamically carving the principles and exceptions, while making
the judicial review of administrative actions.
The administrative law is that branch of law that keeps the governmental actions within the
bounds of law or to put it negatively, it prevents the enforcement of blatantly bad orders from
being derogatory.
The Courts have constantly tried to protect the liberties of the people and assume powers under
the Constitution for judicial review of administrative actions. The discretionary powers have to
be curbed, if they are misused or abused. The socio-politic Institution need not cry, if the courts
do justice and perform the substantial role. That is the essence of justice. It is submitted, the
trend is to read the social justice and to translate in reality. The welfare State has to discharge its
duty fairly without any arbitrary and discriminatory treatment to the people in the country. If
such powers come to the notice of the Courts, the courts have raised the arms consistently with
the rule of law. Today the Government is the provider of social services; new form of property
like jobs, quotas, licenses and mineral rights etc. The dispenser of special services cannot
therefore act arbitrarily. Courts laid the standard of reasonableness in Governmental action.
Origin
of
Writs
The origin of writs can be drawn from the English Judicial system and were created with the
development of English folk courts-moots to the common law courts . The law of writs has its
origin from the orders passed by the Kings Bench in England. Writs were issued on a petition
presented to the king in council and were considered as a royal order. Writs were a written order
issued in the name of the king which acted as groundwork for the subsequent proceedings.
However, with different segments writs took various forms and names. The writs were issued by
the crown and in the interest of the crown but with the passage of time it became available for
ordinary citizens also. However a prescribed fee was charged for it and the filing of these writs
were known as Purchase of a writ.
Historical
Background
The origin of writs in India goes back to the Regulating Act, 1773 under which Supreme Court
was established at Calcutta. The charter also established other High courts and these High Courts
had analogous power to issue writs as successor to the Supreme Court. The other courts which
were established subsequently did not enjoy this power. The writ jurisdiction of these courts was
limited to their original civil jurisdiction which they enjoyed under section 45 of the Specific
Relief Act, 1877.
Writs
o
Certiorari
Certiorari is a Latin term being in the passive form of the word Certiorare meaning to inform. It
was a royal demand for information. Certiorari can be described as one of the most valuable and

efficient remedies. Certiorari is one of the five prerogative writs adopted by the Indian
Constitution under Article 226 which would be enforced against the decisions of the authority
exercising judicial or quasi judicial powers. Such powers are exercised when the authorities have
failed to exercise the jurisdiction though vested in it or failed to exercise the jurisdiction though
vested on him or to correct the apparent error on the face of record or there is violation of the
principle of natural justice. An instance showing the certiorari powers was exercised by the
Honble Supreme court in A.K.Kraipak v. Union of India , where the selection was challenged
on the ground of bias. The Supreme Court delineated the distinction between quasi judicial and
administrative authority. The Supreme Court exercising the powers issued the writ of Certiorari
for quashing the action.
Prohibition
The writ of Prohibition is issued by the court exercising the power and authorities from
continuing the proceedings as basically such authority has no power or jurisdiction to decide the
case. Prohibition is an extra ordinary prerogative writ of a preventive nature. The underlying
principle is that prevention is better than cure . In East India Commercial Co. Ltd v. Collector
of Customs , a writ of prohibition is an order directed to an inferior Tribunal forbidding it from
continuing with a proceeding therein on the ground that the proceeding is without or in excess of
jurisdiction or contrary to the laws of the land, statutory or otherwise.
Mandamus
Mandamus is a judicial remedy which is in the form of an order from a superior court to any
Government agency, court or public authority to do or forbear from doing any specific act which
that body is obliged to do under the law . The writ of mandamus is issued whenever the public
authorities fail to perform the statutory duties confirmed on them . Such writ is issued to perform
the duties as provided by the state under the statute or forbear or restrain from doing any specific
act. The first case reported on the writ of mandamus was the Middletone case in 1573 wherein a
citizens franchise was restored. The writ of mandamus can be issued if the public authority
vested with power abuses the power or acts mala fide to it. In Halsburys Laws of England , it is
mentioned that,
As a general rule the order will not be granted unless the party complained of has known what it
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 that demand was met by a refusal.
Quo Warranto
Quo Warranto means by what warrant or authority. Quo Warranto writ is issued against the
person of public who occupies the public seat without any qualification for the appointment. It is
issued to restrain the authority or candidate from discharging the functions of public office. In
University of Mysore v. Govinda Rao,12 the Supreme Court observed that the procedure of quo
Warrato confers the jurisdiction and authority on the judiciary to control executive action in
making the appointments to public offices against the relevant statutory provisions; it also
protects a citizen being deprived of public office to which he may have a right.

Habeas Corpus
The Latin term Habeas Corpus means have the body. The incalculable value of habeas corpus
is that it enables the immediate determination of the right of the appellants freedom . The writ
of Habeas Corpus is a process for securing liberty to the party for illegal and unjustifiable
detention. It objects for providing a prompt and effective remedy against illegal restraints. The
writ of Habeas Corpus can be filled by any person on behalf of person detained or by the
detained person himself. It is a judicial order issued by Supreme Court or High Court through
which a person confined may secure his release. The writ of Habeas Corpus can be filed by any
person on behalf of the other person. In Icchu Devi v. Union of India , the Supreme Court held
that in a case of writ of Habeas corpus there are no strict observances of the rules of burden of
proof. Even a post card by any pro bono publico is satisfactory to galvanize the court into
examining the legality of detention. In A.D.M. Jabalpur v. Shivakant Shukla , it was observed
that the writ of Habeas Corpus is a process for securing the liberty of the subject by affording an
effective means of immediate relief from unlawful or unjustifiable detention whether in prison or
private custody. By it the High Court and the judges of that court at the instance of a subject
aggrieved command the production of that subject and inquire into the cause of his
imprisonment. If there is no legal justification for that detention, then the party is ordered to be
released.
Constitutional
provisions
The makers of the Constitution have adopted the English remedies in the Constitution under
Articles 32 and 226. There has been specifically made provisions in the Constitution which
empowers the Supreme Court and High Courts to issue writs in the nature of Habeas Corpus,
Mandamus, Prohibition, Quo Warranto and Certiorari. The fundamental rights which are
inalienable sacrosanct in nature and character which were conceived in national and public
interest could be illusory if there is no constitutional machinery provided for its enforcement.
Unless such constitutional remedies for its enforcement is not provided the rights guaranteed by
part III of the Constitution cannot be ever implemented by the citizens. Article 32 contained in
Part III is itself a fundamental right given to the person under the Constitution. Similarly Article
226 of the Constitution is conferred on the High Courts to exercise its prerogative writs which
can be issued against any person or body of person including the government. The distinction
between the two remedies is very negligible. The remedy under Article 32 is confined to
enforcement of fundamental rights whereas Article 226 is available not only against the
enforcement of fundamental rights but also for any other purpose. Thus the constitution provides
the discretionary remedies on the High Court and the Supreme Court. In the absence of the
provisions of such remedies no one can enforce its rights given. Thus wherever there is a right
there must be a remedy for it. Thus it should satisfy the maxim, ubi jus ibi remedium.
One of the principle makers of the constitution, Dr. Ambedkar has given the prime importance to
Article 32 among all other articles from the Indian Constitution. He has referred that, It is the
very soul of the Constitution and the very heart of it .
In
Devilal
v.
STO
,
it
has
been
marked
that,
There can be no doubt that the Fundamental Rights, guaranteed to the citizens are a significant

feature of our Constitution and the High Courts under Article 226 are bound to protect these
Fundamental Rights.
Justice Subbarao in the case of Basheshwar Nath v. Commissioner, Income Tax ,stated that,
A large majority of people are socially poor educationally backward and politically yet not
conscious of their rights, cannot be pitted against the state or the institution or they cannot be put
on equal status with the state or large organisations. The people are requires to be protected from
themselves. It is therefore the duty of the court to protect their rights and interests. Fundamental
rights are therefore transcendental in nature and created and enacted in national and public
interest and therefore they cannot be waived.
In Daryao v. State of U.P. , it was held that the right to obtain a writ must equally be a
fundamental right when a petitioner presents the case. Thus, it cannot merely be considered as an
individuals right to move the Supreme Court but it is also the duty and responsibility of the
Supreme
Court
to
protect
the
fundamental
rights.
Role
of
writs
in
administrative
actions
Now as far as the role of the writs is concerned, let us go by illustration over the cases on
discretion. Conferment of discretionary powers has been accepted as necessary phenomena of
modern administrative and constitutional machinery. Law making agency legislates the law on
any subject to serve the public interest and while making law, it has become indispensable to
provide for discretionary powers that are subject to judicial review. The rider is that the Donnie
of the discretionary power has to exercise the discretion in good faith and for the purpose for
which it is granted and subject to limitations prescribed under the Act. The Courts have retained
their jurisdiction to test the Statute on the ground of reasonableness. Mostly, the courts review on
two counts; firstly whether the statute is substantively valid piece of legislation and, secondly
whether the statute provides procedural safeguards. If these two tests are not found, the law is
declared ultra vires and void of Article 14 of the Constitution.
Beside this, Courts control the discretionary powers of the executive government being exercised
after the statutes have come to exist. Once they come into existence, it becomes the duty of the
Executive Government to regulate the powers within limitations prescribed to achieve the object
of the Statute. The discretionary powers entrusted to the different executives of the Government
play substantial role in administrative decision making and immediately the settled principles of
administrative law trap the exercise of powers. If these discretionary powers are not properly
exercised, or there is abuse and misuse of powers by the executives or they take into account
irrelevant consideration for that they are not entitled to take or simply misdirect them in applying
the proper provision of law, the discretionary exercise of powers is void. Judicial review is
excluded when it is found that executives maintain the standard of reasonableness in their
decisions. Errors are often crept in either because they would maintain pure administrative spirit
as opposed to judicial flavour or that they influence their decisions by some irrelevant
considerations or that sometimes, the authorities may themselves misdirect in law or that they
may not apply their mind to the facts and circumstances of the cases. Besides, this aspect, they
may act in derogation of fundamental principles of natural justice by not conforming to the

standard or reasons and justice or that they do not just truly appreciate the existence or non
existence of circumstances that may entitle them to exercise the discretion.
The Executive have to reach their decisions by taking into account relevant considerations.
They should not refuse to consider relevant matter nor should they take into account
considerations that are wholly irrelevant or extraneous. They should not misdirect themselves on
a point of law. Only such a decision will be lawful. The courts have power to see that the
Executive acts lawfully. They cannot avoid scrutiny by courts by failing to give reasons. If they
give reasons and they are not good reasons, the court can direct them to reconsider the matter in
the light of relevant matters though the propriety adequacy or satisfactory character of these
reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to
exercise their powers they should state their reasons and there must be material to show that they
have considered all the relevant facts.
The role of writs is also sensibly laid down in a famous Padfields case:
In England in earlier days the Courts usually refused to interfere where the Government or the
concerned officer passed what was called a non-speaking order, that is, an order which on the
face of it did not specify the reasons for the orders. Where a speaking order was passed the
Courts proceeded to consider whether the reasons given for the order or decision were relevant
reasons. Where there was a non-speaking order they used to say that it was like the face of the
Sphinx in the sense that it was incurable and therefore hold that they could not consider the
question of the validity of the order. Even in England the Courts have travelled very far since
those days. They no longer find the face of the Sphinx inscrutable.
X
Application
of
the
Writ
of
Certiorari
The writ of Certiorari is basically issued against the statutory bodies exercising judicial or quasi
judicial powers. Such writ is issued against the authorities namely the government and the courts
or other statutory bodies who have power to determine and decide the lis between the parties. In
deciding such issues if the decision making order is passed without any authority or has passed
the order in exercise of such authority or has committed an error of law and facts the high court
is empowered to correct such error of the lower court or government authorities. Certiorari may
apply when the administrative or executive authority fails to observe their duty to act fairly with
respect to the administrative functions. The writ of Certiorari may also be issued against a
subordinate tribunal even if the decision impugned is pronounced. A leading case of Ryots of
Garabandho v. Zamindar of Parlakimedi , was the first decision on the writ of Certiorari.
X
Application
of
the
Writ
of
Mandamus
The writ of mandamus is ordered when the statutory authorities who entrusted with the duties
fail to discharge its obligatory duty. It may be applied when the government authorities vested
with absolute powers fail to perform their administrative and statutory duties. In Ratlam
Municipal Council v. Vardichand , on account of the public nuisance created in the area by the
corporation in not maintaining the drainage system and the dirty water stinking had clogged
around which obviously created nuisance at the hands of municipality for not discharging the
duties under the act. As a result the residents of Ratlam municipality moved the Sub-divisional
magistrate under section 133 of Code of Criminal Procedure, 1973 for abatement of nuisance and
the court issued the directions that, Judicial discretion when facts for its exercise are present has

a mandatory import. Therefore when the Sub-Divisional Magistrate, Ratlam, has before him
information and evidence which disclose the presence of public nuisance, considers it lawful to
remove such obstruction. This is a public duty implicit in the public power to be exercised on
behalf of the public and is pursuant to public proceeding.
Lord
Denning
observed:
In my opinion every genuine complaint which is worthy of investigation by the committee of
investigation should be referred to that committee. The Minister is not at liberty to refuse it on
grounds which are arbitrary or capricious. Not because he has a personal antipathy to the
compliant or does not like his political views. Nor on any other irrelevant ground... It is said that
the decision of the Minister is administrative and not judicial. But that does not mean that he can
do as he likes, regardless of right or wrong. Nor does it mean that the Courts are powerless to
correct him. Good administration requires that complaints should be investigated and that
grievance should be remedied. When parliament has set up machinery for that very purpose, it is
not for the Minister to brush it on one side. He should not refuse to have a complaint investigated
without good reason... But it is said that the Minister is not bound to give any reason at all. And
that, if he gives no reason, his refusal cannot be questioned. So why does it matter if he gives bad
reason? I do not agree. This is the only remedy available to a person aggrieved Else why did it
set up a committee of investigation? Minister would at least have good reasons for refusal; and
if asked, he should give them. If he does not do so, the court may infer that he has no good
reasons. If it appears to the Court that the Minister has been, or must have been, influenced by
extraneous considerations which ought not to have influenced him or, conversely, has failed, or
must have failed, to take into account considerations which ought to have influenced him. The
court has power to interfere; it can issue a mandamus to compel him to consider the complaint
properly.
Application
of
the
Writ
of
Prohibition
The writ of Prohibition is issued essentially against the government or its authorities when they
are not conferred with the power or jurisdiction to decide the dispute. The court by virtue of this
power restrains the authority to exercise such powers which are not given to the authority.
Application
of
the
Writ
of
Quo
Warranto
The high Court would exercise the power of Quo Warranto against the public authority or
government who acts contrary to the provisions of the statute and restrains the authority or public
servant from usurping the public office on account of lack of qualification. It is a means of
asserting sovereign right. In Sonu Sampat v. Jalgaon Borough Municipality , If the appointment
of an officer is illegal, everyday that he acts in that office, a fresh cause of action arises and there
can be therefore no question of delay in presenting a petition for quo warranto in which his very,
right to act in such a responsible post has been questioned.
Application
of
the
Writ
of
Habeas
Corpus
The writ of Habeas Corpus is a writ issued in order to protect the liberty and freedom which is
conceived to be very vital. It is issued against the wrongful detention or confinement through the
police authority. By virtue of this writ the police authorities or other such statutory authorities are
empowered to bring the custody of the person who has been wrongfully detained by the court of
law. In the case of State of Bihar v. Kameshwar Singh it was stated that, the writ of Habeas

Corpus is in the nature of an order for calling upon the person who has detained or arrested
another person to produce the latter before the court, in order to let court know on what ground
he has been confined and to set him free if there is no legal justification for the imprisonment .
One of the telling ways in which the violation of that right can reasonably be prevented and due
compliance with the mandate of article 21 secured, is to mulct its violators in the payment of
monetary compensation.
Conclusion
The prerogative powers of writ jurisdiction conferred by the constitution for judicial review of
administrative action is undoubtedly discretionary and yet unbounded in its limits. The discretion
however should be exercised on sound legal principles. In this respect it is important to emphasis
that the absence of arbitrary power is the first essential of the rule of law upon which the whole
constitution system is based. In a system governed by rule of law when discretion is conferred
upon the executive authorities it must be based on clearly defied limits. Thus the rule of law from
this point of view means that the discretion or the decision must be based on some principles and
rules. In general the decision should be predictable and citizens should know where he is. If a
decision is taken not on the basis of any principle or rules then such decision is arbitrary and is
taken not in accordance with the rule of law.
The law has reached its finest moments stated Duglas, C.J. in United States v. Wunderlich when
it has freed man from the shackles of unlimited discretion. The man has suffered on account of
absolute discretion. The decision should be guided by rule of law and it should not be based on
whims, fancy and humour.
The Constitution is the law of the laws and nobody is supreme. Even the judges of Supreme
Court are not above law and they are bound by the decisions which are the law of the land
declared by them under the writ petitions. Thus, the constitutional remedies provided under the
constitution operate as a check and keeps the administration of government within the bounds of
law.
Analysis Of Writ Of Mandamus
In India Article 32 and 226 of the Constitution gives power to the Supreme Court and High
Court to issue writs in case of breach of Fundamental rights of any citizen by the state. By such
writs the Judiciary can control the administrative actions and prevent any kind of arbitrary use of
power
and
discretion.
There
Mandamus

are
Certiorari

5
Prohibition

kinds
Quo

warranto

of
-

Habeas

writs
corpus

A writ of mandamus or mandamus (which means "we command" in Latin), or sometimes

mandate, is the name of one of the prerogative writs in the common law, and 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. The first instance of
mandamus being used for enforcing the fight of a private citizen was in 1615 when it was issued

to a mayor and corporation to restore a burgess to his office unless they could show cause to the
contrary. As no cause was shown, a peremptory order to restore him to the office was issued.1
By the early eighteenth century, it was used to compel performance of a variety of public duties
which had been wrongly refused.2 Mandamus lies to enforce a public duty in the performance of
which the petitioner has a sufficient legal interest, but he must show that he has demanded
performance which has been refused.3 It is discretionary and will not be granted if there is an
alternative
remedy
equally
beneficial,
convenient
and
effective.4
The project covers the judicial control of the administrative actions by way of mandamus in
India and the landmark judgments given by the apex Court in relation to it. It also elaborates the
position
of
the
Doctrine
in
U.K.
Definition
of
Mandamus
Mandamus
according
to
Black's
law
dictionary,
Ninth
Edition
"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 Lexicon, 15th Edition, 2009
"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 order of mandamus is of a most extensive remedial nature, and is in form, a command
issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal,
requiring him or them to do some particular thing therein specified which appertains to his or
their office and is in nature of a public duty. Mandamus is not a writ of right, it is not
consequently granted of course, but only at the discretion of the court to whom the application
for it is made; and this discretion is not exercised in favour of the applicant, unless some just and
useful purpose may be answered by the writ. A writ of mandamus or remedy is pre -eminently a
public law remedy and is not generally available against private wrongs. It is used for
enforcement of various rights of the public or to compel the public statutory authorities to
discharge their duties and to act within the bounds. It may be used to do justice when there is
wrongful
exercise
of
power
or
a
refusal
to
perform
duties5.
Mandamus
in
Indian
Law
prior
to
the
Constitution
Mandamus was introduced in India by the Letters Patent creating the Supreme Court in Calcutta
in 1773. The Supreme Courts in the Presidency towns were empowered to issue the writ. 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.6
Under the Specific Relief Act, 1963, which replaced the earlier Act, this provision has been
omitted. This omission must have been because such a provision under the Specific Relief Act

became redundant since the Constitution of India contains a similar and more efficacious
provision for the enforcement of public duties. The Constitution empowered all High Courts to
issue directions, orders or writs including writs in the nature of mandamus for the enforcement of
any of the rights conferred by Part III and for any other purpose.7 The Supreme Court can also
issue
mandamus
for
the
enforcement
of
fundamental
rights.8
Framework
of
law
in
relation
to
mandamus
The Supreme Court has the power to issue writs under the Constitution of India, art. 329. The
Supreme Court has the power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, certiorari, prohibition and quo warranto, whichever may be
appropriate for the enforcement of any right conferred by this part. It is an important part of the
constitution. Art. 32 guarantee to every person the right to move the Supreme Court directly for
enforcement of fundamental rights. It provides an inexpensive and expeditious remedy. In
Ambedkar's memorable words: 'If I was asked to name any particular Article in the Constitution
as the most important - an Article without which this Constitution would be a nullity- I could not
refer to any other Article except this one. It is the very soul of the Constitution and the very heart
of it'13. This provision states that there must be a clear breach of fundamental right not involving
disputed questions of fact. It also states that government policy may not be enforced by writ
under the article. With regard to mandamus, art. 32 states that it may be issued where a
fundamental right is infringed by a statute. It may be a statutory order or an executive order.
However, according to some decisions it is discretionary10. The aforesaid provision also
mentions continuing mandamus where a mere issue of mandamus would be futile against a
public agency guilty of continuous inertia and thus continuing mandamus' may be issued. This
continuous mandamus has become the most commonly issued mandamus. Although the
framework of law clearly states where a mandamus may be issued, the courts have not found it
easy in many cases whether to issue a mandamus and it has become an important question of
law.
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 the performance of a legal duty11. It will not issue
where to do or not to do an act is left to the discretion of the authority12. It was refused where
the legal duty arose from an agreement which was in dispute13. The duty to be enforced by a
writ mandamus could arise by a provision of the Constitution14 or of a statute15 or of the
common
law16.
(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 issue against a private individual to enforce a private right such as a contract17.Even
though mandamus does not lie to enforce a contract inter partes, it will lie where the petitioner's
contractual right with a third party is interfered with by the State18. Mandamus will not issue to
enforce departmental manuals or instructions not having any statutory force which do not give

rise to any legal right in favour of the petitioner as in the cases of Raman & Ramanv. State of
Madras, A.l.R. 1959 S.C. 694; State of Assam v. Ajit Kumar, A.l.R. 1965 S.C. 1196.
However if the authority were under law obliged to exercise discretion, mandamus would lie to
exercise it in one way or the other. Mandamus can be issued to compel an income-tax officer to
carry out the instructions issued by income-tax appellate tribunal exercising its appellate
power19. Again it can be issued to a municipality to discharge its statutory duty20.
There are however exceptions to this rule. Where there is no statutory provision, executive
instructions fill in the gap and are capable of conferring rights on the citizen imposing
obligations on the authorities. In appropriate cases the courts may even compel the performance
of such a duty21. Mandamus is not available where the order upon which the alleged right of the
petitioner is founded is itself ultra vires22. Similarly it was held that the grant of dearness
allowance at a particular rate is a matter of grace and not a matter of right and hence mandamus
cannot issue to compel the Government to pay dearness allowance at a particular rate.23 Article
320 (3) of the Constitution which provides that before a government servant is dismissed, the
Union Public Service Commission should be consulted, does not confer any right on a public
servant and hence failure to consult the Public Service Commission does not entitle the public
servant to get mandamus for compelling the government to consult the Commission24. 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 writ25.
(iv) As a general rule, mandamus is not issued in anticipation of injury. There are exceptions to
this rule. Anybody who is likely to be affected by the order of a public officer is entitled to bring
an application for mandamus if the officer acts in contravention of his statutory duty26. Thus an
intending bidder at an auction is entitled to apply if the authority holding the auction acts
contrary to the statute under which the auction is held or fails to perform his statutory duties in
connection with the auction27. A person against whom an illegal or unconstitutional order is
made is entitled to apply to the court for redress even before such order is actually enforced
against him or even before something to his detriment is done in pursuance of the order. For, the
issue of such order constitutes an immediate encroachment on his rights and he can refuse to
comply
with
it
only
at
his
peril28.
Against
whom
Mandamus
will
not
issue
In England, mandamus does not lie upon the Crown. In India, it will not lie upon the President
and the Governor of a State in their personal capacities29. However, the Constitution expressly
provides that appropriate proceedings may be brought against the Government of India and the
Government of a State30. Further the Constitution empowers the courts "to issue to any person
or authority, including in appropriate cases any Government" any of the writs mentioned there
in.31
Mandamus
is
therefore
issued
against
the
government32.
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.33 Mandamus will not issue to a legislature to forbid it from passing legislation
repugnant to the fundamental rights34. Mandamus was issued to a municipality to forbid
collection of a tax ultra vires the Municipalities Act,35 to a University directing it to forbear
from giving effect to an order made in violation of its own rules36. 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 underarticle327 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. It is not therefore
possible to obtain mandamus against officials conducting the various stages of an election, ft was
refused against a returning officer who rejected a nomination paper37. This ban however applies
only in respect of elections to Parliament and State legislatures. Mandamus was issued upon the
Deputy Commissioner compelling him to hold municipal elections within a month and a half38.
Mandamus lies to secure the performance of a public duty. If the petitioner has sufficient legal
interest in the performance it will issue even if the body against which it is claimed is not a
statutory body. Thus it was issued against the Sanskrit Council; which was constituted by a
resolution of the state government to. compel it to hold the examination and publish the
results39. However, it will not lie to secure performance by a company of a duty towards its
employees
which
is
not
of
a
public
nature.40
Alternative
Remedy:
A
Bar
to
Mandamus
Mandamus is not refused on the ground that there is an adequate alternate remedy where the
petitioner complains that his fundamental right is infringed41. The courts are duty bound to
protect the fundamental rights and therefore mandamus is issued. It is only when mandamus is
issued "for any other purpose" that the existence of an alternate remedy bars its
issuance42.Mandamus will not, however, be refused when ordinary civil proceedings or
administrative appeals or revision do not provide an equally effective and convenient remedy.
Thus if the alternative remedy imposes a heavy financial burden on the petitioner, it will not be
regarded
as
a
ground
for
refusing
mandamus43.
Demand
and
refusal
For the issue of mandamus against an administrative authority the affected individual must
demand justice and only on refusal he has right to approach the Court. In S.I. Syndicate v. Union
of India44, the Supreme Court has adopted the following statement of law in this regard. :
"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 party seeking mandamus must show that the demand justice from the authority
concerned by performing his duty and that the demand was refused. In S.I.Syndicate the court
refused to grant mandamus as there was no such demand or refusal. Where a civil servant

approached the court for mandamus against wrongful denial of promotion, he was denied the
relief because of his failure to make representation to the government against injustice45. The
demand for justice is not a matter of form but a matter of substance and it is necessary that a
"proper and sufficient matter has to be made"46. The demand must be made to the proper
authority and not to an authority which is not in a position to perform its duty in manner
demanded. It is suggested that the court should not fossilize this rule into something rigid and
inflexible but keep it as flexible. As Wade suggests, "these formalities are usually fulfilled by the
conduct of the parties prior to the application, and refusal to perform the duty is readily from
conduct". Demand may also not be necessary "where it is obvious that the respondent would not
comply with it and therefore it would be but an ideal formality."
UK
perspective
The writ of mandamus is commonly used as weapon by the ordinary civilian when public
authority fails to do its duty. Mandamus is used to enforce performance of many duties which
directly affect the individual. Mandamus can be issued where there is duty to exercise discretion,
such a duty of the tribunal to hear and determine a case within its jurisdiction.
Section 10 of the Tribunals & enquiries Act, 1992, imposes a duty on tribunal to give reasons for
its decisions. Such a duty may be enforced by issuance of writ of mandamus.
A writ of mandamus is not being granted where law provides some other adequate remedy.
However mandamus has lost the character of residual remedy. Section 40 (5) of the Crown
Proceedings Act, 1947, already provides that introduction of a new remedy of the Act shall not
limit
the
discretion
of
court
to
grant
the
mandamus.
Conclusion
Hence the writ of mandamus is to protect the interest of the public from the powers given to
them to affect the rights and liabilities of the people. This writ makes sure that the power or the
duties are not misused by the executive or administration and are duly fulfilled. It safeguards the
public
from
the
misuse
of
authority
by
the
administrative
bodies.
Although there are certain conditions also which were discussed in the project like all the
alternative remedies should be exhausted and it should be a statutory duty and not discretionary
in nature. Hence it forms one of basic tool in the hands of the common people against the
administrative bodies if they do not fulfil the duties which by statutes they are bound to perform.
Writs in Indian Society & Its Execution
In India Article 32 and 226 of the Constitution gives power to the Supreme Court and High
Court to issue writs in case of breach of Fundamental rights of any citizen by the state. By such
writs the Judiciary can control the administrative actions and prevent any kind of arbitrary use of
power
and
discretion.
There are 5 kinds of writs
Mandamus, Certiorari, Prohibition, Quo warranto, Habeas corpus

A writ of mandamus or mandamus (which means "we command" in Latin), or sometimes

mandate, is the name of one of the prerogative writs in the common law, and 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. The first instance of
mandamus being used for enforcing the fight of a private citizen was in 1615 when it was issued
to a mayor and corporation to restore a burgess to his office unless they could show cause to the
contrary. As no cause was shown, a peremptory order to restore him to the office was issued.1
By the early eighteenth century, it was used to compel performance of a variety of public duties
which had been wrongly refused.2 Mandamus lies to enforce a public duty in the performance of
which the petitioner has a sufficient legal interest, but he must show that he has demanded
performance which has been refused.3 It is discretionary and will not be granted if there is an
alternative
remedy
equally
beneficial,
convenient
and
effective.4
The project covers the judicial control of the administrative actions by way of mandamus in
India and the landmark judgments given by the apex Court in relation to it. It also elaborates the
position
of
the
Doctrine
in
U.K.
Definition
Mandamus

according

to

of
Black's

law

dictionary,

Ninth

Mandamus
Edition

"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 Lexicon, 15th Edition, 2009
"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 order of mandamus is of a most extensive remedial nature, and is in form, a command
issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal,
requiring him or them to do some particular thing therein specified which appertains to his or
their office and is in nature of a public duty. Mandamus is not a writ of right, it is not
consequently granted of course, but only at the discretion of the court to whom the application
for it is made; and this discretion is not exercised in favour of the applicant, unless some just and
useful purpose may be answered by the writ. A writ of mandamus or remedy is pre -eminently a
public law remedy and is not generally available against private wrongs. It is used for
enforcement of various rights of the public or to compel the public statutory authorities to
discharge their duties and to act within the bounds. It may be used to do justice when there is
wrongful
exercise
of
power
or
a
refusal
to
perform
duties5.
Mandamus

in

Indian

Law

prior

to

the

Constitution

Mandamus was introduced in India by the Letters Patent creating the Supreme Court in Calcutta
in 1773. The Supreme Courts in the Presidency towns were empowered to issue the writ. 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.6
Under the Specific Relief Act, 1963, which replaced the earlier Act, this provision has been
omitted. This omission must have been because such a provision under the Specific Relief Act
became redundant since the Constitution of India contains a similar and more efficacious
provision for the enforcement of public duties. The Constitution empowered all High Courts to
issue directions, orders or writs including writs in the nature of mandamus for the enforcement of
any of the rights conferred by Part III and for any other purpose.7 The Supreme Court can also
issue
mandamus
for
the
enforcement
of
fundamental
rights.8
Framework
of
law
in
relation
to
mandamus
The Supreme Court has the power to issue writs under the Constitution of India, art. 329. The
Supreme Court has the power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, certiorari, prohibition and quo warranto, whichever may be
appropriate for the enforcement of any right conferred by this part. It is an important part of the
constitution. Art. 32 guarantee to every person the right to move the Supreme Court directly for
enforcement of fundamental rights. It provides an inexpensive and expeditious remedy. In
Ambedkar's memorable words: 'If I was asked to name any particular Article in the Constitution
as the most important - an Article without which this Constitution would be a nullity- I could not
refer to any other Article except this one. It is the very soul of the Constitution and the very heart
of it'13. This provision states that there must be a clear breach of fundamental right not involving
disputed questions of fact. It also states that government policy may not be enforced by writ
under the article. With regard to mandamus, art. 32 states that it may be issued where a
fundamental right is infringed by a statute. It may be a statutory order or an executive order.
However, according to some decisions it is discretionary10. The aforesaid provision also
mentions continuing mandamus where a mere issue of mandamus would be futile against a
public agency guilty of continuous inertia and thus continuing mandamus' may be issued. This
continuous mandamus has become the most commonly issued mandamus. Although the
framework of law clearly states where a mandamus may be issued, the courts have not found it
easy in many cases whether to issue a mandamus and it has become an important question of
law.
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 the performance of a legal duty11. It will not issue
where to do or not to do an act is left to the discretion of the authority12. It was refused where
the legal duty arose from an agreement which was in dispute13. The duty to be enforced by a
writ mandamus could arise by a provision of the Constitution14 or of a statute15 or of the
common
law16.

(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 issue against a private individual to enforce a private right such as a contract17.Even
though mandamus does not lie to enforce a contract inter partes, it will lie where the petitioner's
contractual right with a third party is interfered with by the State18. Mandamus will not issue to
enforce departmental manuals or instructions not having any statutory force which do not give
rise to any legal right in favour of the petitioner as in the cases of Raman & Ramanv. State of
Madras, A.l.R. 1959 S.C. 694; State of Assam v. Ajit Kumar, A.l.R. 1965 S.C. 1196.
However if the authority were under law obliged to exercise discretion, mandamus would lie to
exercise it in one way or the other. Mandamus can be issued to compel an income-tax officer to
carry out the instructions issued by income-tax appellate tribunal exercising its appellate
power19. Again it can be issued to a municipality to discharge its statutory duty20.
There are however exceptions to this rule. Where there is no statutory provision, executive
instructions fill in the gap and are capable of conferring rights on the citizen imposing
obligations on the authorities. In appropriate cases the courts may even compel the performance
of such a duty21. Mandamus is not available where the order upon which the alleged right of the
petitioner is founded is itself ultra vires22. Similarly it was held that the grant of dearness
allowance at a particular rate is a matter of grace and not a matter of right and hence mandamus
cannot issue to compel the Government to pay dearness allowance at a particular rate.23 Article
320 (3) of the Constitution which provides that before a government servant is dismissed, the
Union Public Service Commission should be consulted, does not confer any right on a public
servant and hence failure to consult the Public Service Commission does not entitle the public
servant to get mandamus for compelling the government to consult the Commission24.
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 writ25.
(iv) As a general rule, mandamus is not issued in anticipation of injury. There are exceptions to
this rule. Anybody who is likely to be affected by the order of a public officer is entitled to bring
an application for mandamus if the officer acts in contravention of his statutory duty26. Thus an
intending bidder at an auction is entitled to apply if the authority holding the auction acts
contrary to the statute under which the auction is held or fails to perform his statutory duties in
connection with the auction27. A person against whom an illegal or unconstitutional order is
made is entitled to apply to the court for redress even before such order is actually enforced
against him or even before something to his detriment is done in pursuance of the order. For, the
issue of such order constitutes an immediate encroachment on his rights and he can refuse to
comply
with
it
only
at
his
peril28.

Against
whom
Mandamus
will
not
issue
In England, mandamus does not lie upon the Crown. In India, it will not lie upon the President
and the Governor of a State in their personal capacities29. However, the Constitution expressly
provides that appropriate proceedings may be brought against the Government of India and the
Government of a State30. Further the Constitution empowers the courts "to issue to any person
or authority, including in appropriate cases any Government" any of the writs mentioned there
in.31
Mandamus
is
therefore
issued
against
the
government32.
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.33 Mandamus will not issue to a legislature to forbid it from passing legislation
repugnant to the fundamental rights34. Mandamus was issued to a municipality to forbid
collection of a tax ultra vires the Municipalities Act,35 to a University directing it to forbear
from giving effect to an order made in violation of its own rules36. 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 underarticle327 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. It is not therefore
possible to obtain mandamus against officials conducting the various stages of an election, ft was
refused against a returning officer who rejected a nomination paper37. This ban however applies
only in respect of elections to Parliament and State legislatures. Mandamus was issued upon the
Deputy Commissioner compelling him to hold municipal elections within a month and a half38.
Mandamus lies to secure the performance of a public duty. If the petitioner has sufficient legal
interest in the performance it will issue even if the body against which it is claimed is not a
statutory body. Thus it was issued against the Sanskrit Council; which was constituted by a
resolution of the state government to. compel it to hold the examination and publish the
results39. However, it will not lie to secure performance by a company of a duty towards its
employees
which
is
not
of
a
public
nature.40
Alternative
Remedy:
A
Bar
to
Mandamus
Mandamus is not refused on the ground that there is an adequate alternate remedy where the
petitioner complains that his fundamental right is infringed41. The courts are duty bound to
protect the fundamental rights and therefore mandamus is issued. It is only when mandamus is
issued "for any other purpose" that the existence of an alternate remedy bars its
issuance42.Mandamus will not, however, be refused when ordinary civil proceedings or
administrative appeals or revision do not provide an equally effective and convenient remedy.
Thus if the alternative remedy imposes a heavy financial burden on the petitioner, it will not be
regarded
as
a
ground
for
refusing
mandamus43.
Demand
and
refusal
For the issue of mandamus against an administrative authority the affected individual must
demand justice and only on refusal he has right to approach the Court. In S.I. Syndicate v. Union

of India44, the Supreme Court has adopted the following statement of law in this regard. :
"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 party seeking mandamus must show that the demand justice from the authority
concerned by performing his duty and that the demand was refused. In S.I.Syndicate the court
refused to grant mandamus as there was no such demand or refusal. Where a civil servant
approached the court for mandamus against wrongful denial of promotion, he was denied the
relief because of his failure to make representation to the government against injustice45. The
demand for justice is not a matter of form but a matter of substance and it is necessary that a
"proper and sufficient matter has to be made"46. The demand must be made to the proper
authority and not to an authority which is not in a position to perform its duty in manner
demanded. It is suggested that the court should not fossilize this rule into something rigid and
inflexible but keep it as flexible. As Wade suggests, "these formalities are usually fulfilled by the
conduct of the parties prior to the application, and refusal to perform the duty is readily from
conduct". Demand may also not be necessary "where it is obvious that the respondent would not
comply with it and therefore it would be but an ideal formality."
UK
perspective
The writ of mandamus is commonly used as weapon by the ordinary civilian when public
authority fails to do its duty. Mandamus is used to enforce performance of many duties which
directly affect the individual. Mandamus can be issued where there is duty to exercise discretion,
such a duty of the tribunal to hear and determine a case within its jurisdiction.
Section 10 of the Tribunals & enquiries Act, 1992, imposes a duty on tribunal to give reasons for
its decisions. Such a duty may be enforced by issuance of writ of mandamus.
A writ of mandamus is not being granted where law provides some other adequate remedy.
However mandamus has lost the character of residual remedy. Section 40 (5) of the Crown
Proceedings Act, 1947, already provides that introduction of a new remedy of the Act shall not
limit
the
discretion
of
court
to
grant
the
mandamus.
Conclusion
Hence the writ of mandamus is to protect the interest of the public from the powers given to
them to affect the rights and liabilities of the people. This writ makes sure that the power or the
duties are not misused by the executive or administration and are duly fulfilled. It safeguards the
public
from
the
misuse
of
authority
by
the
administrative
bodies.
Although there are certain conditions also which were discussed in the project like all the
alternative remedies should be exhausted and it should be a statutory duty and not discretionary
in nature. Hence it forms one of basic tool in the hands of the common people against the
administrative bodies if they do not fulfil the duties which by statutes they are bound to perform.
_________________________