Passage Based Questions: Legal Aptitude - 24
Direction: Read the passage carefully and answer the given questions.
Mandamus is among the "prerogative writs" in English common law - meaning the extraordinary writs or orders granted by the Sovereign when ordinary legal remedies are inadequate. These are habeas corpus, mandamus, prohibition, certiorari, and quo warranto.
In India, the Supreme Court can issue prerogative writs under Article 32 of the Constitution, and the High Courts under Article 226.
Mandamus literally means 'we command'. When issued to a person or body, the writ of mandamus demands some activity on their part. It orders the person or body to perform a public or quasi-public duty, which they have refused to perform, and where no other adequate legal remedy exists to enforce the performance of that duty.
The writ cannot be issued unless the legal duty is of public nature, and to whose performance the applicant of the writ has a legal right.
The remedy is of a discretionary nature - a court can refuse to grant it when an alternative remedy exists. However, for enforcing fundamental rights, the alternative remedy argument does not hold as much weight, since it is the duty of the Supreme Court and the High Courts to enforce fundamental rights.
When a public officer or government does an act that violates the fundamental right of a person, the court would issue a writ of mandamus against such authorities so that the person's rights are not infringed.
In the 1951 case of Venkataramana vs State of Madras, a five-judge bench headed by then CJI Harilal Kania issued the writ of mandamus when the petitioner was not selected to the Subordinate Civil Judicial Service owing to the operation of a 'Communal Rotation Order' that infringed fundamental rights guaranteed under Article 16(1). The bench ordered the State of Madras "to consider & dispose of the petitioner's application for the post after taking it on file on its merits & without applying the rule of communal rotation."
The writ can also be issued against inferior courts or other judicial bodies when they have refused to exercise their jurisdiction and perform their duty.
Under Article 361, mandamus cannot be granted against the President or Governor of a State, "for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties". The writ also cannot be issued against a private individual or body, except where the State is in collusion with the private party for contravening a provision of the Constitution or a statute.
Try yourself: A civil servant directly approached the court for mandamus against wrongful denial of promotion, but his application was struck down. Did the court act in contravention of the rule of Mandamus?
Try yourself: X had presented a bill in the parliament which had passed from all the houses and was pending only the presidential assent which had been pending from 4 months. The matter in the bill was extremely important for the growth and development of the country. X finally decided as a last measure to approach the supreme court and thereby filed an application of mandamus. What should the court do?
Try yourself: A has applied for renewal of license for practicing medicine but the local licensing authority failed to give him the license or any reply after repeated attempts, as a last resort he wants to file a writ of Mandamus. Do you think his application will stand?
Try yourself: A had entered into a contract with B a government servant, for construction of B’s sisters house in consideration of which B was supposed to pay A one crore rupees, B failed to do so even after repeated calls and notices, A was in dire need to the money and thus as a the last resort filed an application for Mandamus. This application was accepted by the court, was the decision of the court correct?
Try yourself: In an auction a Sale Tax Deputy Commissioner told Y, one of the bidders in an auction of Indian made foreign liquor that such liquor will be exempted from tax whereas, such exemption was not granted by the States Government. A writ of Mandamus was filed to the Supreme Court. The Court accepted the application, was the court correct?
