Continuing Mandamus and Judicial Guidelines

In one line

Two techniques, both invented because a single order would have changed nothing: the court keeps the case open and supervises until the job is done, and where there is no law it writes rules binding until Parliament makes one.

In the wording a student can write in an exam: continuing mandamus is the practice of not disposing of a writ petition after issuing a direction, but retaining the matter, requiring the authority to report progress and passing further orders until the duty is performed. Vineet Narain v. Union of India called such a proceeding "continuing mandamus", "a new tool forged because of the peculiar needs of this matter". Judicial guidelines are directions laid down under article 32 read with article 142 to fill a legislative vacuum until the legislature acts. Vishaka v. State of Rajasthan laid down guidelines "until a legislation is enacted for the purpose", adding that this "would be treated as the law declared by this Court under Article 141."

Why the law needed these

An ordinary writ of mandamus is a single command: do your duty. It is issued, the petition is disposed of, and the court is done. That works where the authority is willing. It fails in two situations, and each produced one of these techniques.

The authority will not move. If an investigating agency has done nothing for years because the suspects are powerful, a command to investigate changes nothing: the agency can accept the order and continue doing nothing, and the petitioner must start again. What is needed is not a stronger order but a court that stays in the case.

There is no law to enforce. If working women are being harassed and no statute defines the wrong, imposes a duty on the employer or provides machinery, a court can declare the constitutional right and still leave the woman where she was. The right exists; the remedy does not.

Both answer the same point, that a right without an effective remedy is not a right, and both raise the same difficulty.

The provisions relied on

Article 32(2) is the source: the Supreme Court "shall have power to issue directions or orders or writs", of the five named kinds, "whichever may be appropriate, for the enforcement of any of the rights conferred by this Part." The words "directions or orders" do the work, because a continuing supervision is not a writ at all.

Article 142(1) supplies the reach: the Supreme Court "may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it". Note "pending before it", which is exactly what a continuing mandamus keeps a case.