Continuing Mandamus: Productive or Deleterious Overreach?

Mandamus is a type of writ issued by the court to direct a public body to do something that the law requires it to do. The doctrine of ‘continuing mandamus’ has been derived from the writ of mandamus, which means that the matter is not disposed of even after the court has given directions, instead it remains pending while the court assumes a supervisory role to prevent any mischief in question and makes repeated orders to ensure compliance and enforcement of its directions within a stipulated period of time, without delay.

The doctrine of continuing mandamus is said to have originated in the case of Vineet Narain v. Union of India, (1998) 1 SCC 226, wherein the Supreme Court of India, while dilating upon and granting the prayers of the petitioners, deployed the canon of continuing mandamus to ensure that the investigation by the Central Bureau of Investigation (CBI) was handled correctly. The court kept the matter pending for a long time and demanded continuous reports, between reasonable intervals, to ensure compliance with its orders. The following was stated in the Vineet Narain case:

“Having regard to the direction in which the investigations were leading, we found it necessary to direct the CBI not to report the progress of the investigations to the person occupying the highest office in the political executive this was done to eliminate any impression of bias or lack of fairness or objectivity and to maintain the credibility of the investigations. In short, the procedure adopted was of “continuing mandamus.”[1]


“… During the monitoring of the investigations, the Solicitor General/Attorney General, from time to time, reported the progress made during the course of investigation, in order to satisfy us that the agencies were not continuing to drag their feet and the “continuing mandamus” was having the effect of making the agencies perform their statutory function.”[2]

In Pakistan, the doctrine was used in the case of Asim Farooq v. Federation of Pakistan[3] wherein Justice Jawad Hassan explained it in the following words:

“Continuing Mandamus is a writ of mandamus issued to an authority by the High Court under Article 199 of the Constitution in general public interest asking the officer of the authority to perform its task expeditiously for an unstipulated period of time for preventing miscarriage of justice. The Doctrine of continuing mandamus, at times also referred to as structural interdict or structural injunction, in other words, is a relief given by a Court of law through a series of ongoing orders over a long period of time, directing an authority to do its duty or fulfill an obligation in general public interest, as and when a need arises over the duration a case lies with the Court, with the Court choosing not to dispose the case off in finality.”[4]

The case also reiterated how the court assumed a monitoring role in ensuring compliance with its directions, in the following words:

“With this procedural innovation of the writ of mandamus or a mandatory order, the Court monitors compliance of its orders, seeking periodic reports from authorities on the progress in implementing them.”[5]

The doctrine was successfully applied in the case to ensure the achievement of the objective of plantation of trees and conservation and the granting of relief to the petitioner.

Similarly, in a recent case titled Tahir Jamal v. GOP,[6] the court kept the petition pending until satisfactory compliance with its orders had been achieved and directed the departments, present before the court, to produce weekly reports about the work being done. Furthermore, the court cited the case of Sawaraj Abhiyan v. Union of India, AIR 2016 SC 2953 in which the concept of continuing mandamus had been elaborated in the following words:

“31. We are firmly of the view that the principle of continuing mandamus is now an integral part of our constitutional jurisprudence. There are any number of public interest petitions in which this Court has continued to monitor the implementation of its orders and on occasion monitor investigations into alleged offences where there has been some apparent stonewalling by the Government of India…”[7]

The doctrine of continuing mandamus seems to be an effective device to maintain check on public departments and ensure compliance with court orders. It also helps the petitioner who has been awaiting justice and been left to the mercy of such departments. The doctrine essentially helps in upholding the rule of law and making the ends of justice meet by curbing the unwise and arbitrary discretion of public departments. It may be characterized as a new remedy established by the courts in case the already available declaratory relief fails. Instead of declaring what the rights of a party are, the court can make directions to attain the effect of such rights.

The consequences of not complying with continuing mandamus may result in the contempt of court or even criminal prosecution.

Criticism

The doctrine also attracts criticism which shall be discussed and weighed against its advantages. This is similar to when a doctor who, before prescribing medicine, assesses the side-effects of the medicine and ascertains whether the benefits outweigh the side-effects. It is up to you and your conscience to decide which side of the argument will uphold the sanctity of the courts, maintain the rule of law and make the ends of justice meet without pushing the constitutional principle of separation of powers off the cliff. Judicial activism gets invited where the executive is found to be sleeping or too busy with other matters, has lost interest to regulate, or just needs a pat on the back and be reminded of doing some multitasking. However, such activism may be fatal to certain constitutional principles (such as the separation of powers) which serve as the pillars of democracy.

The doctrine of continuing mandamus is often criticized for depicting a lower sanctity of courts. Why would the highest courts of law “need to ensure” compliance with their directives and orders? Shouldn’t they naturally be respected, without giving repeated directions? Non-compliance by the executive, followed by repeated calls by the court can give the impression that the executive has been disrespectful throughout the process, thereby invoking the need for sanctions. As a lawyer, one has been taught to be respectful of the courts as they are the ones pronouncing justice for people. The sanctity attached to a court of law cannot be denied.

The separation of powers is a constitutional principle enshrined in the Constitution of Pakistan 1973[8] which stipulates that the organs of the state shall work independently of each other and without an overlap of powers. The doctrine of continuing mandamus is criticized to overreach this constitutional principle. The courts, by issuing a writ of continuing mandamus, step into the domain of the legislature and the executive as they order/direct them to compulsorily make changes to their policies or laws, which is strictly the domain of the legislature and the executive and deemed to be an encroachment upon their powers and duties.[9] In such instances, the courts are to employ extreme caution in using the doctrine, as has been highlighted in the following words:

“…this may set a dangerous precedent and allow the court to arbitrarily take over the function of the other organs of governance without any fetters binding its authority.”[10]

Furthermore, by actively using this canon, the judiciary can get too busy in taking decisions that the executive is supposed to oversee, which may cause the case in court to suffer. In this regard, the Supreme Court of India in the case State of Himachal Pradesh v. Umed Ram Sharma[11] stated the following:

“It is necessary to bear in mind that interference with the administration cannot be meticulous in our Constitutional system of separation of power. It is not necessary to express our opinion in this case whether our Constitution is truly based on Montesquien system of separation of power. We accept the position that court cannot usurp or abdicate, and the parameters of judicial review must be clearly defined and never exceeded.”[12]

This was said with regard to the order of the court whereby it had directed an authority to repeatedly appear before it and produce reports of the work that had been done (in other words, the court had issued a writ of continuing mandamus).

The court further stated the following:

“…interpreting separation of powers to mean not that courts may never exercise legislative or administrative functions, but [sic] rather that it would be inappropriate ‘to leap into the kind of decisions and functions for which its design and expertise are manifestly unsuited’.”[13]

According to this, the judiciary may not be properly suited to take decisions that fall within the mandate of the legislature and the executive, therefore, the doctrine of the continuing mandamus is to be utilized with extreme caution and perhaps only in cases of extreme public importance (such as public interest litigation (PIL) involving constitutional issues or fundamental rights, or matters involving irreparable loss). It is submitted that matters of public importance may make it justifiable for the courts to interfere in the work of legislative or executive departments in order to ensure that the public does not suffer from the lax attitude of these departments.

Another criticism relates to judicial activism. It is clear that judges do take part in law-making and there are several precedents backing this statement. There must be limits to judicial activism to prevent it from turning into judicial ‘adventurism’ which may have fatal consequences.

“Former Chief Justice Dr. A.S. Anand, also commented on the dangers of judicial activism and remarked that judicial activism should not become judicial adventurism and to ensure this the courts should limit its role to its legitimate authority….”[14]

This statement correctly explains the position that continuing mandamus, being a direction, can sometimes involve excessive judicial activism which is not appreciated. The doctrine is to be used cautiously and only in cases of extreme public importance.

Conclusion

The doctrine of continuing mandamus, despite essential benefits, needs to be utilized or deployed with great caution as it carries with it some harmful side-effects as well.

It is, without doubt, an effective remedy in cases of extreme public importance. However, it should be used with great caution as it is capable of conflicting with certain constitutional principles, as described above. The doctrine of continuing mandamus is appreciated for equipping the courts with a supervisory role, which ensures the effective working of the organs of the state and in turn gives effect to the orders/directions of the court, resulting in speedy relief for parties who have rights at stake.


References

[1] Vineet Narain v. Union of India, (1998) 1 SCC 226
[2] Vineet Narain v. Union of India, (1998) 1 SCC 226
[3] Asim Farooq v. FoP, PLD 2019 Lahore 664
[4] Ibid, at para 23
[5] Ibid, at para 23
[6] PLD 2020 Lahore 407
[7] Ibid, at para 31
[8] See Article 175 of the Constitution of Pakistan, 1973
[9] Vani Kaushik, Continuing Mandamus – A Boon or Bane? (RMLNLU Constitutional Law and Public Policy Blog), retrieved from https://seclpp.wordpress.com/2019/03/29/continuing-mandamus-a-boon-or-bane/
[10] Shreemanshu Kumar Dash, Write of Continuing Mandamus in matters of PILs: A Step towards Development of Environmental Jurisprudence (IOSR Journal of Humanities and Social Science – Vol. 22 – Issue 8: 2017) at pp. 26-35
[11] 1986 AIR 847
[12] Himachal Pradesh v. Umed Ram Sharma, 1986 AIR 847
[13] Mihika Poddar & Bhavya Nahar, Constinuing Mandamus – A Judicial Innovation to Bridge the Right-Remedy Gap (NUJS Law Review – 10 NUJS L. Rev; 2017), while citing the case of Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62.
[14] Shreemanshu Kumar Dash, Write of Continuing Mandamus in matters of PILs: A Step towards Development of Environmental Jurisprudence (IOSR Journal of Humanities and Social Science – Vol. 22 – Issue 8: 2017) at pp. 26-35

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Talha Rehman

Author: Talha Rehman

The writer is an LL.B (Hons) (London) graduate and is an Associate at Tareen Chambers.

1 comment

A balanced Artcle. I am of the view that separation of power is very necessary for a developed democratic society where rule of law is the law of land but countries like Pakistan where practically rule of law is almost invisible and public office holders acting ultra vires and committing misfeasance and nonfeasance on daily basis, the continuing mandmus must be made part of the constitution. Apart from that continuing mandamus is a non issue in Pakistan to be discussed as we are living in a law and order situation 24/7 since the inception of Pakistan and circumstances are deteriorating with each passing day and courts are the only hlpe for people to some extent.

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