Article 32 and 226 of the Indian 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 executive actions and stop any quite arbitrary use of power and discretion.
There are 5 types of writs in the Indian Constitution
4. Quo warranto
5. Habeas corpus
A writ of mandamus or mandamus (which means “we command” in Latin), or sometimes mandate, is that the name of one of the prerogative writs within the common law, and is “issued by a court to compel an inferior court or a government officer to perform mandatory or purely ministerial duties correctly”. It can’t be issued to compel an authority to try and do something against the statutory provision. For example, it can’t be wont to force an inferior court to reject or authorize applications that are made, but if the court refuses to rule a method or the opposite then a mandamus is often wont to order the court to rule on the applications.
Definition of Mandamus
Mandamus according to Black’s law dictionary:
“A writ issued by a court to compel performance of a specific act by an inferior court or a governmental officer or body, to correct a previous action or failure to act.” Mandamus is consistent with Wharton’s Law Lexicon, 15th Edition, 2009 “A high prerogative writ of a most extensive …
Mandamus according to Wharton’s Law Lexicon, 15th Edition, 2009
“A high prerogative writ of a most extensive remedial nature. In form, it’s a command issuing within the King’s name from the King’s Bench Division of the supreme court only and addressed to a 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 the performance of public duties. It enforces, however, some private rights once 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 supreme court of Justice, directed to a person, corporation or inferior tribunal, requiring him or them to try to some particular thing therein specified which appertains to his or their office and is in nature of public duty. Mandamus isn’t a writ of right, it’s not consequently granted in fact, but only at the discretion of the court to whom the appliance for it’s made; and this discretion isn’t exercised in favor of the applicant unless some just and useful purpose could also be answered by the writ. A writ of mandamus or remedy is pre-eminently a law remedy and isn’t generally available against private wrongs. It is used for enforcement of the varied rights of the general public or to compel the general public statutory authorities to discharge their duties and to act within the bounds. It may be wont to do justice when there’s wrongful exercise of a power or a refusal to perform duties.
Mandamus in Indian Law prior to the Constitution
Mandamus was introduced in India by the 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 precise Relief Act substituted an order within the nature of mandamus within the place of the writ of mandamus for the aim 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.
Under the precise Relief Act, 1963, which replaced the sooner Act, this provision has been omitted. This omission must are because such a provision under the precise Relief Act became redundant since the Constitution of India contains an identical and more efficacious provision for the enforcement of public duties. The Constitution empowered all High Courts to issue directions, orders or writs including writs within the nature of mandamus for the enforcement of any of the rights conferred by Part III and for the other purpose. The Supreme Court also can issue mandamus for the enforcement of fundamental rights.
The framework of law concerning Mandamus
The Supreme Court has the power to issue writs under the Constitution of India, art. 329. The Supreme Court has the facility to issue directions or orders or writs, including writs within the nature of habeas corpus, mandamus, certiorari, prohibition, and hearing, 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 each person the proper to maneuver the Supreme Court directly for enforcement of fundamental rights. It provides an inexpensive and expeditious remedy. This provision states that there must be a transparent breach of the 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’s going to 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 discretionary. 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’ could also be issued.
Alternative Remedy: A Bar to Mandamus isn’t refused on the bottom that there’s an adequate alternative remedy where the petitioner complains that his fundamental right is infringed. The courts are duty-bound to guard the elemental rights and thus mandamus is issued. It is the only mandamus is issued “for the other purpose” that the existence of an alternate remedy bars its issuance. Mandamus will not, however, be refused when ordinary civil proceedings or administrative appeals or revisions do not provide an equally effective and convenient remedy. Thus if the choice remedy imposes an important financial burden on the petitioner, it’ll not be considered a ground for refusing mandamus.