Mandamus: Who May Ask, Against Whom, and What Bars It
Chapter Thirty-Seven
Syllabus topic 3, "Jurisdiction"
Pages 112 to 114 of 430
In one line
Mandamus goes to a public duty, so the applicant must have a right to its performance and the respondent must owe it.
In the wording a student can write in an exam: mandamus may be sought by a person whose legal right to the performance of a public duty has been infringed, and, in a public interest matter, by a person acting bona fide for those who cannot come to court; it lies against the State, statutory authorities, local bodies, public corporations, and private bodies on whom a statute imposes a public duty, but not to enforce a purely contractual obligation.
Who may ask
A person aggrieved. The ordinary rule. He must show a legal right, not a mere expectation, and the right must be his own.
Any member of the public, for a public duty owed to the public. Where the duty is owed to the public at large rather than to an individual, a member of the public with a genuine interest may apply. This is the older exception, and it grew into public interest litigation.
A person acting for those who cannot come. S.P. Gupta v. President of India, AIR 1982 SC 149, worked in [Public Interest Litigation and Judicial Review].
Not a busybody. Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305, holds that the relaxation of standing does not turn the courts into a forum for a meddlesome interloper or a person with a personal, political or oblique motive.
Against whom it lies
The Union and the States, through their officers.
Statutory authorities and local bodies, on duties imposed by their Acts.
Public corporations and instrumentalities, on public duties. Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331, matters here because it holds that regulations framed under a corporation's constituting Act have the force of law, so a breach of them is a breach of a legal duty and not merely of an internal rule.
Private bodies discharging a public duty. Zee Telefilms Ltd. v. Union of India, decided on 2 February 2005, held that a body which is not the State under Article 12 may still be reached under Article 226 in respect of a public duty.
Officials of a society or a company where a statute imposes the duty. Praga Tools says this in terms.
Against whom it does not lie
A purely private person on a private obligation.
On a contract. Praga Tools Corporation v. C.A. Imanual, AIR 1969 SC 1306, worked in [The Writ of Mandamus], is the authority, and the point survives even where the Government holds most of the shares.
The President and the Governors, in respect of the exercise of the powers and duties of their office, having regard to Article 361.
Mandamus: Who May Ask, Against Whom, and What Bars It
A person who has ceased to hold the office, because a command to him would be futile.
To enforce a departmental instruction that is not law, though such an instruction may found a legitimate expectation, which is a different remedy.
Two practical rules
The demand and refusal rule. The applicant must have called on the authority to perform and been refused, expressly or by conduct. It is dispensed with where a demand would obviously be refused, or where the duty is to act without being asked.
Mandamus does not lie to compel a legislature to legislate, nor to compel an authority to make a rule, because rule-making is a legislative function; but it does lie to compel the performance of a statutory duty to consider whether a rule should be made where the Act imposes one.
A worked example
A private unaided school affiliated to a State board refuses to issue a school leaving certificate to a student whose fees are paid, because his father criticised the management. A second student complains that the board itself has not published the results of an examination held eight months ago.
Against the school: the affiliation regulations impose a duty to issue the certificate, which is a public duty connected with the board's statutory functions, so mandamus lies under Article 226 even if the school is not the State under Article 12, which is the Zee Telefilms point. Against the board: it is a statutory authority with a duty to declare results, and eight months of silence is a refusal by conduct, so mandamus lies without any further demand.
Distinctions that carry marks
| A duty enforceable by mandamus | An obligation not enforceable by mandamus | |
|---|---|---|
| Source | Constitution, statute, statutory rules or regulations, common law | A contract, an internal instruction, a policy without statutory force |
| Nature | Public | Private |
| Example | To decide a pending application under a licensing Act | To pay for goods supplied under a purchase order |
| Remedy if it fails | None under mandamus | Suit for damages or specific performance |
What this does NOT mean
It does not mean a contractual claim against the State can never reach a writ court. Where the contract is entered into in the exercise of a statutory power and the complaint is of arbitrariness in the process rather than of breach, Article 14 supplies the public law element: Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628.
It does not mean an instruction is worthless. A published policy can create a legitimate expectation, which is enforced under Article 14 rather than as a duty.
Mandamus: Who May Ask, Against Whom, and What Bars It
It does not mean standing is now unlimited. Janata Dal and the guidelines in State of Uttaranchal v. Balwant Singh Chaufal, AIR 2010 SC 2550, control it.
Quick revision
Who may ask: a person aggrieved; a member of the public where the duty is owed to the public; a bona fide person for those who cannot come; not a busybody. Against whom: the State, statutory authorities, local bodies, instrumentalities, private bodies on a public duty, officials of societies where a statute imposes the duty. Not against: a private obligation, a contract, the President or a Governor, a person out of office, or a non-statutory instruction. Demand and refusal are required unless futile.
Test yourself
1. Can mandamus issue against a private school? Yes, in respect of a public duty arising from affiliation regulations or a statute, because Article 226 reaches any person or authority discharging a public duty: Zee Telefilms.
2. Why does mandamus not lie on a contract with a government company? Because the duty must be public in character, and government shareholding does not convert a contractual obligation into a public duty: Praga Tools.
3. When is the demand and refusal rule dispensed with? Where a demand would obviously be refused or would be futile, and where the duty is one the authority must perform without being asked.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.