What is the writ of Mandamus? Against whom it cannot be issued?

Question: What is the writ of Mandamus? Against whom it cannot be issued? [RJS 2011]

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Answer

For the enforcement of the fundamental rights under Article 32 of the Indian Constitution, the Supreme Court is vested with the power to issue directions, order, writs including the writ in the nature of habeas corpus, Mandamus, prohibitions, quo-warranto, and certiorari. As with all writs, a writ of mandamus can only be issued by the Supreme Court and the various high courts—vested with them under Articles 32 and 226 of the Constitution of India respectively.

Mandamus literally means a command or an order. The writ of mandamus is used primarily for public purposes and to compel the performance of public duties. It is in the nature of command requiring any specific action to be done or not be done by any person holding office, permanent or temporary, or by a corporation or inferior court. Mandamus can serve both as a positive and negative order. That is, it can be used either to compel someone to do something or to not do something.

The writ of mandamus is also known as the awakening call. It tells the sleeping authority to wake up and perform its public duty. The person whose legal right is directly affected by the non-performance of the public duty may apply for a writ of mandamus. In India, the official or administrative body against whom the writ of mandamus is sought must have a statutory public duty to perform the command issued.

Moreover, the petitioner must have a right to demand enforcement of the duty, although exceptions to this rule have been evolved in Indian jurisprudence. In S.P. Gupta v. President of India, [AIR 1982 SC 149] Chief Justice P.N. Bhagwati delineated some of the certain restrictions on whom a court can issue a writ of mandamus.

• Under Article 361, a writ of mandamus cannot be issued against the president and the governors of the states.
• Generally, it can also not be issued against a private person or body.
• A writ of mandamus also cannot be issued against a sitting Chief Justice of India.
• Nor can it be issued against a legislative institution- parliament or the state legislative assemblies or its members.
• Restriction on issuing writs of mandamus, particularly when alternative remedies in the Civil Procedure Code or other laws are available.

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