Continuing Mandamus, Committees and the Amicus Curiae
Chapter Seventeen
Syllabus topic 1, "General Laws on Environmental Concern"
Pages 65 to 68 of 913
In one line
A continuing mandamus is an order that never ends: the court decides nothing finally and keeps the case alive to supervise what happens next.
In the wording a student can write in an examination: continuing mandamus is a technique by which a constitutional court, instead of disposing of a writ petition by a final order, keeps the petition pending and issues a succession of interlocutory directions over months or years, monitoring compliance through affidavits and through committees appointed for the purpose, frequently with the assistance of an amicus curiae appointed to assist the court rather than to represent a party.
Why the technique was invented
An ordinary mandamus tells an authority to do a thing. It works when the thing is single and can be done at once: decide this application, issue this order, remove this structure.
Environmental duties are not like that. Cleaning a river, converting a bus fleet, closing a thousand unauthorised units or preparing a coastal zone management plan are programmes. A single order commanding a programme is either disobeyed or complied with in form, and the petitioner then has to bring contempt proceedings, in which the only question is whether the specific order was breached.
Continuing mandamus solves that by refusing to make a final order at all. The court holds that the duty exists, and then directs step one. When step one is reported it directs step two. Nothing is ever finally decided, so the court's grip never loosens.
The three parts of the machinery
The pending petition. The court declines to dispose of the matter. It lists it periodically, sometimes for decades. The Godavarman forest case has been listed since 1995; the Delhi vehicular pollution case since 1985.
The committee. Where the court needs facts it cannot get from affidavits it appoints a body to find them. This has taken every form: a committee of experts, a monitoring committee, a court-appointed commissioner, an empowered committee, and in one instance a body with continuing statutory-style functions.
Facts. In T.N. Godavarman Thirumulpad v. Union of India, AIR 1997 SC 1228, a writ petition about illegal felling in the Nilgiris led the Court to consider the meaning of forest under the Forest (Conservation) Act 1980. Held. The word forest must be understood according to its dictionary meaning and covers all statutorily recognised forests whether designated as reserved, protected or otherwise, and irrespective of ownership; all ongoing activity within any forest in any State without the prior approval of the Central Government must cease forthwith. The Court retained the petition and has issued directions in it ever since. Why it matters here. It is the largest continuing mandamus in Indian law, it redefined a statutory term for the whole country by an interlocutory order, and it is the standard example of both the reach and the criticism of the technique.
Continuing Mandamus, Committees and the Amicus Curiae
The amicus curiae. Literally a friend of the court: a senior advocate appointed to assist the court impartially rather than to represent a party. In a case that runs for twenty years the original petitioner may lose interest, change position or die, and the amicus supplies the continuity and the independence.
Worked example
A High Court is hearing a petition about a municipal landfill that has been burning for four years.
A final order would say: the corporation shall stop the burning, cap the site and remediate it within twelve months. The petition is disposed of.
What would happen. In twelve months nothing would have been done. The petitioner would file contempt. The corporation would file an affidavit saying that tenders had been floated and that land for a new site was being identified. The contempt would be adjourned.
A continuing mandamus would say: the corporation shall within four weeks file an affidavit stating the quantity of waste received daily, the land available, and the sanctioned scheme; a committee of three, including an engineer and a person nominated by the Board, shall inspect and report in six weeks; list after eight weeks. And at every listing a further step.
Why the second works better. Because there is never a moment at which the corporation has satisfied the court and been released. And because the court is not asked to decide, on day one and without information, what the whole programme should be.
Its cost. Judicial time, indefinitely. And a corporation that plans its solid waste management by reference to the next date before the court rather than by reference to its statutory duty.
Distinctions
| Ordinary mandamus | Continuing mandamus | |
|---|---|---|
| The order | Final, disposing of the petition | Interlocutory, the petition kept pending |
| What it commands | A specific act | The first of an unspecified series of steps |
| Enforcement | Contempt for breach of the order | The next listing |
| Information | What the parties file once | Committees, reports, affidavits over years |
| Ends when | It is made | The court chooses |
| Risk | Formal compliance and no change | Indefinite judicial administration |
What it does NOT mean
It does not mean the court is exercising an appellate power. Each direction is made in aid of the enforcement of a legal duty. That the directions are many does not change their nature.
It does not mean the committee decides. A court-appointed committee reports; the court directs. Where a committee has been given decision-making functions, that has been criticised as a delegation of judicial power to an unaccountable body.
It does not mean the technique is confined to environmental cases. It has been used in prison reform, in police reform and in food security. Environmental law is simply where it is most visible.
Continuing Mandamus, Committees and the Amicus Curiae
Limits and criticism
Four criticisms, and they are the sharpest form of the general objection to judicial activism.
Indefinite jurisdiction. A case that never ends is a jurisdiction with no limit, and the parties before the court on the fiftieth listing are frequently not the parties who began.
Decisions by interlocutory order. In Godavarman the meaning of forest for the whole of India was settled by an order in a pending petition, made after hearing the Attorney General and counsel on the point but without any final judgment in the case, and the consequences of that order for millions of people were worked out afterwards.
Delegation to committees. A body appointed by a court, funded by the executive and accountable to neither has, in some of these cases, exercised effective power over projects.
Regulatory displacement. The strongest objection, and it applies to this technique above all others: a Board supervised by a court for twenty years does not become a better Board.
The answers are the familiar ones. The technique was adopted because single orders were not complied with. The National Green Tribunal now carries much of this load, with a statutory basis, expert members and a limitation period, which is the institutional answer to the objection.
Quick revision
- Continuing mandamus: the petition is kept pending and directions are issued in series.
- Three parts: the pending petition, committees to find facts, and an amicus curiae for continuity and independence.
- Godavarman (1997) is the largest instance and redefined forest for the whole country by an interlocutory order.
- The Delhi vehicular pollution orders and the Ganga cases are the other standard examples.
- Its strength is that the court's grip never loosens; its cost is indefinite judicial administration.
- The National Green Tribunal is the institutional answer to the objection.
Test yourself
1. What problem does continuing mandamus solve that an ordinary mandamus does not? The problem of a duty that is a programme rather than an act. A single final order commanding a programme is either disobeyed or complied with formally, and the only remedy then is contempt, in which the question is narrowly whether that order was breached. By keeping the petition pending and directing one step at a time, the court never releases the authority and never has to specify the whole programme in advance on inadequate information.
2. What is an amicus curiae, and why does a long environmental case need one? An advocate appointed to assist the court impartially rather than to represent a party. A case that runs for years outlives the interest, and sometimes the life, of the original petitioner, whose position may also change; the amicus supplies continuity, independence and a person the court can ask for a view that is not a party's view.
Continuing Mandamus, Committees and the Amicus Curiae
3. State the strongest objection to the technique. That it displaces the regulator. Where a court supervises a Board or a municipality for twenty years, the institution learns that its own default will be corrected by somebody else, and the statutory machinery Parliament built is never made to work. The result is that the harm is abated in the cases that reach the court and the system that ought to abate all of them is left as it was found.
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.