INTRODUCTION AND DEFINATION
Many a times, it so happens that the government officials overlook the duties which have been assigned to them , for the welfare of the public to make sure that the justice, is very well delivered to the people whose rights have been violated. but when the government officials overlook their duties, the right to have justice of the people is violated, for which the writ of mandamus is filled in the high court and supreme court of India, for the orders to be given to the lower courts and the government officials to fulfill their duties in the due interest of the welfare of the person whose rights have been violated, and pass the necessary orders. The writ of mandamus can be filed within the ambit of article 32 and 226 of the constitution of India.
The writ of mandamus, which basically means, “we command” in Latin, is one of the most important writs in India, which is, “issued by the higher courts, to the lower court or the government officers, to perform the purely mandatory duty, which hasn’t been performed by the concerned authority till time.”
According to black’s law dictionary, “A writ issued by the court to compel performance of a particular act, by the lower court or the government official or body, to correct a prior action or failure to act.”
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 kings division bench 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 the right and justice. It is usually principally for the public purposes, and to enforce performance of public, duties. It enforces, however some private rights when they are withheld by public officers.”
The existence of mandamus before the independence of the country.
The writ of mandamus firstly introduced in year 1773, when it was taken by letter patent under the jurisdiction of supreme court of Calcutta (one of three presidencies under British India in 1700’s). in 1877, by the specific relief act, the supreme courts of the three presidencies were empowered to take up the writ of mandamus, to direct the person who holds any government office, to perform a specific task, which ought to be done by him in the capacity he is holding the government office.
In 1963, the earlier act was replaced and the new was commenced, as now all the high courts and the supreme court of independent India were provided with original jurisdiction over the writ matters, and for giving instructions to the lower courts.
In case of Syndicate v/s Union of India A.I.R. 1975 S.C. 460, “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
The writs under article 32 of the constitution of India.
Under article 32 of the Indian constitution, the Supreme Court and the high court have the original power to deal with any of the 5 writs, which are– habeas corpus, mandamus, certiorari, prohibition and quo warranto. article 32 can be regarded as the soul of the constitution of India and it is clear that without the provision of writs in case of the violation of the fundamental rights, the constitution of India would be null and without life.
If in any case, the fundamental rights of the person have been violated by any individual or group of person or maybe any of the government body or official in charge, the victim can go for the writs and claim for the restoration of the fundamental rights which have been violated on the hands of the other individuals and groups.
In case of State of Bombay v. United Motors. A.I.R 1953 S.C. 252: (1953) S.C.R. 1069., it was held that, “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 results.”
When is mandamus issued?
The writ of mandamus is basically issued when the government officials and incharge are not able to discharge the duties which have been assigned to them by the senior authorities, for the safeguard of the fundamental rights of the citizens. some of the situations, where the writ of mandamus can be issued by the high court and supreme court, ordering for the particular work to be done by the government officials are:-
- It can be issued when the applicant have the right to perform the legal duty for which he has been prohibited by the concerned officials. The writ cannot be issued in a case where the discretion of passing any order has been left in the hands of the official. The duties which have to be performed under the writ of mandamus should arise out of statute or any other provisions of law, which should have been followed by the official in order to discharge their duties.
- the legal duty which should have been performed, but have not been performed due to any reason by the government body or official, should be related to the public obligations which have been imposed on the official.
- the right for which the writ is being filed should be in existence on the date of filing of the writ. if in case the writ is filed after the lawful termination of the right, the writ will not be entertained by the courts under article 32 of the Indian constitution.
- If the government official works in contravention of the statutory duties which have to be delivered by him during the course of his duties, the writ of mandamus can be filed by the person who have been aggrieved by the act of the government official.
Against whom the writ cannot be issued.
The writ of mandamus cannot be issued against the president of the country and the governor of the state, as per the constitution of India. Meanwhile, the provisions have been dealt with in constitution of India and other statues, if the fundamental rights of a citizen have been violated on the hands of the government of India or the government of a state. The constitution empowers the Supreme Court and high court to pass orders for the lower courts to carry out the duties which have been assigned to them, and have been neglected by them during the course of their duties. In short, we can say that the mandamus can be issued against the government officials and other concerned officials.
In case of Ram Prasad v. Bihar, A.I.R. 1953 S.C. 215, it was clearly held by the bench of the supreme court that, the writ of mandamus can be issued against the government of India or state, if the fundamental rights of the petitioner, have been violated on the hands of the government official or the specific duties which have been assigned to the officials are not been performed, due to which the petitioner is bearing the cost.
CONCLUSION:
The writ of mandamus can be issued under article 32 and 226 of the constitution of India, against any government official or any concerned authority, working under the government of India, and is not able to discharge the duties in the public interest and for the welfare of the society. The High Court and the Supreme Court can direct the lower courts to work upon the order and discharge their duties in public interest. The writ of mandamus is introduced to make sure, that the duties which have been allotted to the executive and administrators of the government of India are being duly fulfilled, and no misuse of powers is there. it is the way of safeguarding the public from the misuse of the power which is vested in the hands of the administrative bodies.
By Shradha Sharma
