ADMINSTRATIVE LAW:WRITS

LL.B 3YEAR MORNING (3RD SEM)ROLL NO.221

The Role Of Writs In The Administrative Law

Administrative law has greatly demarcated the checks, balances and permissible
area of an exercise of power, authority and jurisdiction over administrative actions
enforced by the any State, Governmental agencies and instrumentalities defined
under Article 12 of the Constitution of India. And the judiciary is dynamically
carving the principles and exceptions, while making the judicial review of
administrative actions.
The administrative law is that branch of law that keeps the governmental actions
within the bounds of law or to put it negatively, it prevents the enforcement of
blatantly bad orders from being derogatory.
The Courts have constantly tried to protect the liberties of the people and assume
powers under the Constitution for judicial review of administrative actions. The
discretionary powers have to be curbed, if they are misused or abused. The sociopolitic Institution need not cry, if the courts do justice and perform the substantial
role. That is the essence of justice. It is submitted, the trend is to read the social
justice and to translate in reality. The welfare State has to discharge its duty fairly
without any arbitrary and discriminatory treatment to the people in the country. If
such powers come to the notice of the Courts, the courts have raised the arms
consistently with the rule of law. Today the Government is the provider of social
services; new form of property like jobs, quotas, licenses and mineral rights etc.
The dispenser of special services cannot therefore act arbitrarily. Courts laid the
standard of reasonableness in Governmental action.
# ORIGIN OF WRIT
The origin of writs can be drawn from the English Judicial system and were
created with the development of English folk courts-moots to the common law
courts . The law of writs has its origin from the orders passed by the Kings Bench
in England. Writs were issued on a petition presented to the king in council and
were considered as a royal order. Writs were a written order issued in the name of
the king which acted as groundwork for the subsequent proceedings. However,
with different segments writs took various forms and names. The writs were issued
by the crown and in the interest of the crown but with the passage of time it

became available for ordinary citizens also. However a prescribed fee was charged
for it and the filing of these writs were known as Purchase of a writ.

# HISTORICAL BACKGROUND
The origin of writs in India goes back to the Regulating Act, 1773 under which
Supreme Court was established at Calcutta. The charter also established other High
courts and these High Courts had analogous power to issue writs as successor to
the Supreme Court. The other courts which were established subsequently did not
enjoy this power. The writ jurisdiction of these courts was limited to their original
civil jurisdiction which they enjoyed under section 45 of the Specific Relief Act,
1877.
CERTIORARI
Certiorari is a Latin term being in the passive form of the word Certiorare
meaning to inform. It was a royal demand for information. Certiorari can be
described as one of the most valuable and efficient remedies. Certiorari is one of
the five prerogative writs adopted by the Indian Constitution under Article 226
which would be enforced against the decisions of the authority exercising judicial
or quasi judicial powers. Such powers are exercised when the authorities have
failed to exercise the jurisdiction though vested in it or failed to exercise the
jurisdiction though vested on him or to correct the apparent error on the face of
record or there is violation of the principle of natural justice. An instance showing
the certiorari powers was exercised by the Honble Supreme court in A.K.Kraipak
v. Union of India , where the selection was challenged on the ground of bias. The
Supreme Court delineated the distinction between quasi judicial and administrative
authority. The Supreme Court exercising the powers issued the writ of Certiorari
for quashing the action.
PROHIBITION
The writ of Prohibition is issued by the court exercising the power and authorities
from continuing the proceedings as basically such authority has no power or

jurisdiction to decide the case. Prohibition is an extra ordinary prerogative writ of a

preventive nature. The underlying principle is that prevention is better than cure .
In East India Commercial Co. Ltd v. Collector of Customs , a writ of prohibition is
an order directed to an inferior Tribunal forbidding it from continuing with a
proceeding therein on the ground that the proceeding is without or in excess of
jurisdiction or contrary to the laws of the land, statutory or otherwise.
MANDAMUS
Mandamus is a judicial remedy which is in the form of an order from a superior
court to any Government agency, court or public authority to do or forbear from
doing any specific act which that body is obliged to do under the law . The writ of
mandamus is issued whenever the public authorities fail to perform the statutory
duties confirmed on them . Such writ is issued to perform the duties as provided by
the state under the statute or forbear or restrain from doing any specific act. The
first case reported on the writ of mandamus was the Middletone case in 1573
wherein a citizens franchise was restored. The writ of mandamus can be issued if
the public authority vested with power abuses the power or acts mala fide to it. In
Halsburys Laws of England , it is mentioned that,
As a general rule the order will not be granted unless the party complained of has
known what it was required to do, so that he had the means of considering whether
or not he should comply, and it must be shown by evidence that there was a distinct
demand of that which the party seeking the mandamus desires to enforce and that
that demand was met by a refusal.
QUO WARRANTO
Quo Warranto means by what warrant or authority. Quo Warranto writ is issued
against the person of public who occupies the public seat without any qualification
for the appointment. It is issued to restrain the authority or candidate from
discharging the functions of public office. In University of Mysore v. Govinda
Rao,2012 the Supreme Court observed that the procedure of quo Warrato confers
the jurisdiction and authority on the judiciary to control executive action in making
the appointments to public offices against the relevant statutory provisions; it also
protects a citizen being deprived of public office to which he may have a right.

HABEAS CORPUS
The Latin term Habeas Corpus means have the body. The incalculable value of
habeas corpus is that it enables the immediate determination of the right of the
appellants freedom . The writ of Habeas Corpus is a process for securing liberty
to the party for illegal and unjustifiable detention. It objects for providing a prompt
and effective remedy against illegal restraints. The writ of Habeas Corpus can be
filled by any person on behalf of person detained or by the detained person
himself. It is a judicial order issued by Supreme Court or High Court through
which a person confined may secure his release. The writ of Habeas Corpus can be
filed by any person on behalf of the other person. In Icchu Devi v. Union of India ,
the Supreme Court held that in a case of writ of Habeas corpus there are no strict
observances of the rules of burden of proof. Even a post card by any pro bono
publico is satisfactory to galvanize the court into examining the legality of
detention. In A.D.M. Jabalpur v. Shivakant Shukla , it was observed that the
writ of Habeas Corpus is a process for securing the liberty of the subject by
affording an effective means of immediate relief from unlawful or unjustifiable
detention whether in prison or private custody. By it the High Court and the judges
of that court at the instance of a subject aggrieved command the production of that
subject and inquire into the cause of his imprisonment. If there is no legal
justification for that detention, then the party is ordered to be released.

# CONSTITUTIONAL PROVISIONS
The makers of the Constitution have adopted the English remedies in the
Constitution under Articles 32 and 226. There has been specifically made
provisions in the Constitution which empowers the Supreme Court and High
Courts to issue writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo
Warranto and Certiorari. The fundamental rights which are inalienable sacrosanct
in nature and character which were conceived in national and public interest could
be illusory if there is no constitutional machinery provided for its enforcement.
Unless such constitutional remedies for its enforcement is not provided the rights
guaranteed by part III of the Constitution cannot be ever implemented by the
citizens. Article 32 contained in Part III is itself a fundamental right given to the

person under the Constitution. Similarly Article 226 of the Constitution is

conferred on the High Courts to exercise its prerogative writs which can be issued
against any person or body of person including the government. The distinction
between the two remedies is very negligible. The remedy under Article 32 is
confined to enforcement of fundamental rights whereas Article 226 is available not
only against the enforcement of fundamental rights but also for any other purpose.
Thus the constitution provides the discretionary remedies on the High Court and
the Supreme Court. In the absence of the provisions of such remedies no one can
enforce its rights given. Thus wherever there is a right there must be a remedy for
it. Thus it should satisfy the maxim, ubi jus ibi remedium.
One of the principle makers of the constitution, Dr. Ambedkar has given the prime
importance to Article 32 among all other articles from the Indian Constitution. He
has referred that, It is the very soul of the Constitution and the very heart of it .
In
Devilal
v.
STO,
it
has
been
marked
that,
There can be no doubt that the Fundamental Rights, guaranteed to the citizens are
a significant feature of our Constitution and the High Courts under Article 226 are
bound to protect these Fundamental Rights.
Justice Subbarao in the case of Basheshwar Nath v. Commissioner, Income
Tax ,stated that,
A large majority of people are socially poor educationally backward and
politically yet not conscious of their rights, cannot be pitted against the state or the
institution or they cannot be put on equal status with the state or large
organisations. The people are requires to be protected from themselves. It is
therefore the duty of the court to protect their rights and interests. Fundamental
rights are therefore transcendental in nature and created and enacted in national
and public interest and therefore they cannot be waived.
In Daryao v. State of U.P. , it was held that the right to obtain a writ must
equally be a fundamental right when a petitioner presents the case. Thus, it cannot
merely be considered as an individuals right to move the Supreme Court but it is
also the duty and responsibility of the Supreme Court to protect the fundamental
rights.

# ROLE OF WRITS IN ADMINISRTATIVE ACTIONS

Now as far as the role of the writs is concerned, let us go by illustration over the
cases on discretion. Conferment of discretionary powers has been accepted as
necessary phenomena of modern administrative and constitutional machinery. Law
making agency legislates the law on any subject to serve the public interest and
while making law, it has become indispensable to provide for discretionary powers
that are subject to judicial review. The rider is that the Donnie of the discretionary
power has to exercise the discretion in good faith and for the purpose for which it
is granted and subject to limitations prescribed under the Act. The Courts have
retained their jurisdiction to test the Statute on the ground of reasonableness.
Mostly, the courts review on two counts; firstly whether the statute is substantively
valid piece of legislation and, secondly whether the statute provides procedural
safeguards. If these two tests are not found, the law is declared ultra vires and void
of Article 14 of the Constitution.
Beside this, Courts control the discretionary powers of the executive government
being exercised after the statutes have come to exist. Once they come into
existence, it becomes the duty of the Executive Government to regulate the powers
within limitations prescribed to achieve the object of the Statute. The discretionary
powers entrusted to the different executives of the Government play substantial
role in administrative decision making and immediately the settled principles of
administrative law trap the exercise of powers. If these discretionary powers are
not properly exercised, or there is abuse and misuse of powers by the executives or
they take into account irrelevant consideration for that they are not entitled to take
or simply misdirect them in applying the proper provision of law, the discretionary
exercise of powers is void. Judicial review is excluded when it is found that
executives maintain the standard of reasonableness in their decisions. Errors are
often crept in either because they would maintain pure administrative spirit as
opposed to judicial flavour or that they influence their decisions by some irrelevant
considerations or that sometimes, the authorities may themselves misdirect in law
or that they may not apply their mind to the facts and circumstances of the cases.
Besides, this aspect, they may act in derogation of fundamental principles of

natural justice by not conforming to the standard or reasons and justice or that they
do not just truly appreciate the existence or non existence of circumstances that
may entitle them to exercise the discretion.
The Executive have to reach their decisions by taking into account relevant
considerations. They should not refuse to consider relevant matter nor should they
take into account considerations that are wholly irrelevant or extraneous. They
should not misdirect themselves on a point of law. Only such a decision will be
lawful. The courts have power to see that the Executive acts lawfully. They cannot
avoid scrutiny by courts by failing to give reasons. If they give reasons and they
are not good reasons, the court can direct them to reconsider the matter in the light
of relevant matters though the propriety adequacy or satisfactory character of these
reasons may not be open to judicial scrutiny. Even if the Executive considers it
inexpedient to exercise their powers they should state their reasons and there must
be material to show that they have considered all the relevant facts.
The role of writs is also sensibly laid down in a famous Padfields case:
In England in earlier days the Courts usually refused to interfere where the
Government or the concerned officer passed what was called a non-speaking order,
that is, an order which on the face of it did not specify the reasons for the orders.
Where a speaking order was passed the Courts proceeded to consider whether the
reasons given for the order or decision were relevant reasons. Where there was a
non-speaking order they used to say that it was like the face of the Sphinx in the
sense that it was incurable and therefore hold that they could not consider the
question of the validity of the order. Even in England the Courts have travelled
very far since those days. They no longer find the face of the Sphinx inscrutable.

# APPLICATION OF WRIT OF CERTIORARY

The writ of Certiorari is basically issued against the statutory bodies exercising
judicial or quasi judicial powers. Such writ is issued against the authorities namely
the government and the courts or other statutory bodies who have power to
determine and decide the lis between the parties. In deciding such issues if the

decision making order is passed without any authority or has passed the order in
exercise of such authority or has committed an error of law and facts the high court
is empowered to correct such error of the lower court or government authorities.
Certiorari may apply when the administrative or executive authority fails to
observe their duty to act fairly with respect to the administrative functions. The
writ of Certiorari may also be issued against a subordinate tribunal even if the
decision impugned is pronounced. A leading case of Ryots of Garabandho v.
Zamindar of Parlakimedi , was the first decision on the writ of Certiorari.

#APPLICATION OF WRIT OF MANDAMUS

The writ of mandamus is ordered when the statutory authorities who entrusted with
the duties fail to discharge its obligatory duty. It may be applied when the
government authorities vested with absolute powers fail to perform their
administrative and statutory duties. In Ratlam Municipal Council v.
Vardichand, on account of the public nuisance created in the area by the
corporation in not maintaining the drainage system and the dirty water stinking had
clogged around which obviously created nuisance at the hands of municipality for
not discharging the duties under the act. As a result the residents of Ratlam
municipality moved the Sub-divisional magistrate under section 133 of Code of
Criminal Procedure, 1973 for abatement of nuisance and the court issued the
directions that, Judicial discretion when facts for its exercise are present has a
mandatory import. Therefore when the Sub-Divisional Magistrate, Ratlam, has
before him information and evidence which disclose the presence of public
nuisance, considers it lawful to remove such obstruction. This is a public duty
implicit in the public power to be exercised on behalf of the public and is pursuant
to public proceeding.

LORD DENNINGS observedIn my opinion every genuine complaint which is

worthy of investigation by the committee of investigation should be referred to that
committee. The Minister is not at liberty to refuse it on grounds which are arbitrary
or capricious. Not because he has a personal antipathy to the compliant or does not
like his political views. Nor on any other irrelevant ground... It is said that the

decision of the Minister is administrative and not judicial. But that does not mean
that he can do as he likes, regardless of right or wrong. Nor does it mean that the
Courts are powerless to correct him. Good administration requires that complaints
should be investigated and that grievance should be remedied. When parliament
has set up machinery for that very purpose, it is not for the Minister to brush it on
one side. He should not refuse to have a complaint investigated without good
reason... But it is said that the Minister is not bound to give any reason at all. And
that, if he gives no reason, his refusal cannot be questioned. So why does it matter
if he gives bad reason? I do not agree. This is the only remedy available to a person
aggrieved Else why did it set up a committee of investigation? Minister would
at least have good reasons for refusal; and if asked, he should give them. If he does
not do so, the court may infer that he has no good reasons. If it appears to the Court
that the Minister has been, or must have been, influenced by extraneous
considerations which ought not to have influenced him or, conversely, has failed,
or must have failed, to take into account considerations which ought to have
influenced him. The court has power to interfere; it can issue a mandamus to
compel him to consider the complaint properly.
# APPLICATION OF WRIT OF PROHIBITION
The writ of Prohibition is issued essentially against the government or its
authorities when they are not conferred with the power or jurisdiction to decide the
dispute. The court by virtue of this power restrains the authority to exercise such
powers which are not given to the authority.

# APPLICATION OF WRIT OF QUO WARRANTO

The high Court would exercise the power of Quo Warranto against the public
authority or government who acts contrary to the provisions of the statute and
restrains the authority or public servant from usurping the public office on account
of lack of qualification. It is a means of asserting sovereign right. In Sonu Sampat
v. Jalgaon Borough Municipality , If the appointment of an officer is illegal,
everyday that he acts in that office, a fresh cause of action arises and there can be
therefore no question of delay in presenting a petition for quo warranto in which
his very, right to act in such a responsible post has been questioned.

# APPLICATION OF WRIT OF HABEAS CORPUS

The writ of Habeas Corpus is a writ issued in order to protect the liberty and
freedom which is conceived to be very vital. It is issued against the wrongful
detention or confinement through the police authority. By virtue of this writ the
police authorities or other such statutory authorities are empowered to bring the
custody of the person who has been wrongfully detained by the court of law. In the
case of State of Bihar v. Kameshwar Singh it was stated that, the writ of Habeas
Corpus is in the nature of an order for calling upon the person who has detained or
arrested another person to produce the latter before the court, in order to let court
know on what ground he has been confined and to set him free if there is no legal
justification for the imprisonment . One of the telling ways in which the violation
of that right can reasonably be prevented and due compliance with the mandate of
article 21 secured, is to mulct its violators in the payment of monetary
compensation.
Conclusion
The prerogative powers of writ jurisdiction conferred by the constitution for
judicial review of administrative action is undoubtedly discretionary and yet
unbounded in its limits. The discretion however should be exercised on sound legal
principles. In this respect it is important to emphasis that the absence of arbitrary
power is the first essential of the rule of law upon which the whole constitution
system is based. In a system governed by rule of law when discretion is conferred
upon the executive authorities it must be based on clearly defied limits. Thus the
rule of law from this point of view means that the discretion or the decision must
be based on some principles and rules. In general the decision should be
predictable and citizens should know where he is. If a decision is taken not on the
basis of any principle or rules then such decision is arbitrary and is taken not in
accordance with the rule of law.
The law has reached its finest moments stated Duglas, C.J. in United States v.
Wunderlich when it has freed man from the shackles of unlimited discretion. The

man has suffered on account of absolute discretion. The decision should be guided
by rule of law and it should not be based on whims, fancy and humour.
The Constitution is the law of the laws and nobody is supreme. Even the judges of
Supreme Court are not above law and they are bound by the decisions which are
the law of the land declared by them under the writ petitions. Thus, the
constitutional remedies provided under the constitution operate as a check and
keeps the administration of government within the bounds of law.

#Analysis Of Writ Of Mandamus

In India Article 32 and 226 of the Constitution gives power to the Supreme Court
and High Court to issue writs in case of breach of Fundamental rights of any
citizen by the state. By such writs the Judiciary can control the administrative
actions and prevent any kind of arbitrary use of power and discretion.

Definition
Mandamus according to Black's law dictionary, Ninth Edition
"A writ issued by a court to compel performance of a particular act by lower court
or a governmental officer or body, to correct a prior action or failure to act."
Mandamus according to Wharton's Law Lexicon, 15th Edition, 2009
"A high prerogative writ of a most extensive remedial nature. In form it is a
command issuing in the King's name from the King's Bench Division of the High
Court only, and addressed to any person, corporation, or inferior court of judicature
requiring them to do something therein specified, which appertains to their office,
and which the court holds to be consonant to right and justice. It is used principally
for public purposes, and to enforce performance of public duties. It enforces,
however, some private rights when they are withheld by public officers."
The order of mandamus is of a most extensive remedial nature, and is in form, a
command issuing from the High Court of Justice, directed to any person,

corporation or inferior tribunal, requiring him or them to do some particular thing

therein specified which appertains to his or their office and is in nature of a public
duty. Mandamus is not a writ of right, it is not consequently granted of course, but
only at the discretion of the court to whom the application for it is made; and this
discretion is not exercised in favour of the applicant, unless some just and useful
purpose may be answered by the writ. A writ of mandamus or remedy is pre
-eminently a public law remedy and is not generally available against private
wrongs. It is used for enforcement of various rights of the public or to compel the
public statutory authorities to discharge their duties and to act within the bounds. It
may be used to do justice when there is wrongful exercise of power or a refusal to
perform
duties5.
Mandamus
in
Indian
Law
prior
to
the
Constitution
Mandamus was introduced in India by the Letters Patent creating the Supreme
Court in Calcutta in 1773. The Supreme Courts in the Presidency towns were
empowered to issue the writ. In 1877, the Specific Relief Act substituted an order
in the nature of mandamus in the place of the writ of mandamus for the purpose of
"requiring any specific act to be done or forborne within the local limits of its
ordinary civil jurisdiction by any person holding a public office.6
Under the Specific Relief Act, 1963, which replaced the earlier Act, this provision
has been omitted. This omission must have been because such a provision under
the Specific Relief Act became redundant since the Constitution of India contains a
similar and more efficacious provision for the enforcement of public duties. The
Constitution empowered all High Courts to issue directions, orders or writs
including writs in the nature of mandamus for the enforcement of any of the rights
conferred by Part III and for any other purpose.7 The Supreme Court can also issue
mandamus
for
the
enforcement
of
fundamental
rights.8

FRAMEWORK OF LAW
The Supreme Court has the power to issue writs under the Constitution of India,
art. 329. The Supreme Court has the power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, certiorari, prohibition

and quo warranto, whichever may be appropriate for the enforcement of any right
conferred by this part. It is an important part of the constitution. Art. 32 guarantee
to every person the right to move the Supreme Court directly for enforcement of
fundamental rights. It provides an inexpensive and expeditious remedy. In
Ambedkar's memorable words: 'If I was asked to name any particular Article in the
Constitution as the most important - an Article without which this Constitution
would be a nullity- I could not refer to any other Article except this one. It is the
very soul of the Constitution and the very heart of it'13. This provision states that
there must be a clear breach of fundamental right not involving disputed questions
of fact. It also states that government policy may not be enforced by writ under the
article. With regard to mandamus, art. 32 states that it may be issued where a
fundamental right is infringed by a statute. It may be a statutory order or an
executive order. However, according to some decisions it is discretionary10. The
aforesaid provision also mentions continuing mandamus where a mere issue of
mandamus would be futile against a public agency guilty of continuous inertia and
thus continuing mandamus' may be issued. This continuous mandamus has become
the most commonly issued mandamus. Although the framework of law clearly
states where a mandamus may be issued, the courts have not found it easy in many
cases whether to issue a mandamus and it has become an important question of
law.

INTERPRATION OF PUBLIC RIGHT AND MANDAMUS

Mandamus lies against authorities whose duty is to perform certain acts and they
have failed to do so. Under following circumstances mandamus can be issued :
(i) The applicant must have a legal right to the performance of a legal duty11. It
will not issue where to do or not to do an act is left to the discretion of the
authority12. It was refused where the legal duty arose from an agreement which
was in dispute13. The duty to be enforced by a writ mandamus could arise by a
provision of the Constitution14 or of a statute15 or of the common law16.
(ii) The legal duty must be of a public nature. In The Praga Tools Corporation
v. C.V. Imanual, A.l.R. 1969 S.C. 1306& Sohanlal v. Union of India, A.I.R.
1957 S.C. 529: (1957) S.C.R. 738 the Supreme Court stated that mandamus

might under certain circumstances lie against a private individual if it is established

It will not issue against a private individual to enforce a private right such as a
contract17.Even though mandamus does not lie to enforce a contract inter partes, it
will lie where the petitioner's contractual right with a third party is interfered with
by the State18. Mandamus will not issue to enforce departmental manuals or
instructions not having any statutory force which do not give rise to any legal right
in favour of the petitioner as in the cases of Raman & Ramanv. State of
Madras, A.l.R. 1959 S.C. 694; State of Assam v. Ajit Kumar, A.l.R. 1965
S.C.1196.
However if the authority were under law obliged to exercise discretion, mandamus
would lie to exercise it in one way or the other. Mandamus can be issued to compel
an income-tax officer to carry out the instructions issued by income-tax appellate
tribunal exercising its appellate power19. Again it can be issued to a municipality
There are however exceptions to this rule. Where there is no statutory provision,
executive instructions fill in the gap and are capable of conferring rights on the
citizen imposing obligations on the authorities. In appropriate cases the courts may
even compel the performance of such a duty21. Mandamus is not available where
the order upon which the alleged right of the petitioner is founded is itself ultra
vires22. Similarly it was held that the grant of dearness allowance at a particular
rate is a matter of grace and not a matter of right and hence mandamus cannot issue
to compel the Government to pay dearness allowance at a particular rate.23 Article
320 (3) of the Constitution which provides that before a government servant is
dismissed, the Union Public Service Commission should be consulted, does not
confer any right on a public servant and hence failure to consult the Public Service
Commission does not entitle the public servant to get mandamus for compelling
the government to consult the Commission24. Where provisions are merely
directory, non-compliance with them does not render an act invalid and hence no
mandamusissues.
(iii) The right sought to be enforced must be subsisting on the date of the petition.
If the interest of the petitioner has been lawfully terminated before that date

(iv) As a general rule, mandamus is not issued in anticipation of injury. There are
exceptions to this rule. Anybody who is likely to be affected by the order of a
public officer is entitled to bring an application for mandamus if the officer acts in
contravention of his statutory duty. Thus an intending bidder at an auction is
entitled to apply if the authority holding the auction acts contrary to the statute
under which the auction is held or fails to perform his statutory duties in
connection with the auction. A person against whom an illegal or unconstitutional
order is made is entitled to apply to the court for redress even before such order is
actually enforced against him or even before something to his detriment is done in
pursuance of the order. For, the issue of such order constitutes an immediate
encroachment on his rights and he can refuse to comply with it only at his peril.
AGAINST WHOM MANDAMUS IS NOT ISSUED
In England, mandamus does not lie upon the Crown. In India, it will not lie upon
the President and the Governor of a State in their personal capacities. However, the
Constitution expressly provides that appropriate proceedings may be brought
against the Government of India and the Government of a State. Further the
Constitution empowers the courts "to issue to any person or authority, including in
appropriate cases any Government" any of the writs mentioned there in.
Mandamus
is
therefore
issued
against
the
government.
No mandamus will lie against an officer or member of parliament or an officer or
member of the legislature of a State In whom powers are vested by or under the
Constitution for regulating procedure or the conduct of business or for maintaining
order in Parliament or the State legislature. Mandamus will not issue to a
legislature to forbid it from passing legislation repugnant to the fundamental rights.
Mandamus was issued to a municipality to forbid collection of a tax ultra vires the
Municipalities Act, to a University directing it to forbear from giving effect to an
order made in violation of its own rules. Article 329 of the Constitution precludes
any law courts from entertaining electoral matters such as the validity any law
relating to the delimitation of constituencies or the allotment of seats to such
constituencies, made or purporting to beside underarticle327 or article 328 and
provides that no election to either House of Parliament or to the House or either

House of the legislature of a State shall be questioned except by an election

petition presented as provided by Parliament. Election includes everything from
the issue of the notification to the announcement of the result. It is not therefore
possible to obtain mandamus against officials conducting the various stages of an
election, ft was refused against a returning officer who rejected a nomination
paper37. This ban however applies only in respect of elections to Parliament and
State legislatures. Mandamus was issued upon the Deputy Commissioner
compelling him to hold municipal elections within a month and a half38.
Mandamus lies to secure the performance of a public duty. If the petitioner has
sufficient legal interest in the performance it will issue even if the body against
which it is claimed is not a statutory body. Thus it was issued against the Sanskrit
Council; which was constituted by a resolution of the state government to. compel
it to hold the examination and publish the results

ALTERNATIVE REMEDY
Mandamus is not refused on the ground that there is an adequate alternate remedy
where the petitioner complains that his fundamental right is infringed41. The
courts are duty bound to protect the fundamental rights and therefore mandamus is
issued. It is only when mandamus is issued "for any other purpose" that the
existence of an alternate remedy bars its issuance42.Mandamus will not, however,
be refused when ordinary civil proceedings or administrative appeals or revision do
not provide an equally effective and convenient remedy. Thus if the alternative
remedy imposes a heavy financial burden on the petitioner, it will not be regarded
as
a
ground
for
refusing
mandamus43.
Conclusion
Hence the writ of mandamus is to protect the interest of the public from the powers
given to them to affect the rights and liabilities of the people. This writ makes sure
that the power or the duties are not misused by the executive or administration and
are duly fulfilled. It safeguards the public from the misuse of authority by the
administrativebodies.

Although there are certain conditions also which were discussed in the project like
all the alternative remedies should be exhausted and it should be a statutory duty
and not discretionary in nature. Hence it forms one of basic tool in the hands of the
common people against the administrative bodies if they do not fulfil the duties
which by statutes they are bound to perform.