Juris-continuing Mandamus.docx

Analysing “Continuing Mandamus: A sufficient protector of socio-economic rights in India?” by Rohan J. Alva published in the Hong Kong Law Journal.

ACKNOWLEDGEMENT I would like to express my gratitude to Prof. Manvendra Kumar Tiwari for giving me the opportunity to work on a topic so relevant to the current decision making scheme adopted by the Supreme Court in securing socio-economic rights of individuals. I also express my sincere gratitude to my friends and family for supporting me.

This paper is an analysis of “Continuing Mandamus: A protector of socio-economic rights in India? by Rohan J. Alva published in the Hong Kong Law Journal. The paper will go on to analyse some of the issues essential to the complete understanding of Supreme Court’s selection of Continuing Mandamus and Comprehensive Mandatory Orders to secure the socio-economic rights of people in India. Post the Indira Gandhi era, the Supreme Court has been taking active measures to widen the scope of its adjudication especially when it comes to securing the socioeconomic rights of people. One of the very recent step has been to ensure compliance of its directions by way of issuing Continuing Mandamus. The judiciary while moving on the contours of the thin line demarcating the separation of powers has moved towards remedial jurisprudence. While some may argue that such a role is not adopted by the Judiciary falls outside the democratic framework emphasized by our Constitution makers and may prove harmful in the long run, in the present times its benefits seem to outnumber its harms especially when today, the executive recalcitrance is on its peak. Rohan J. Alva argues that for a better implementation of directory orders of the Supreme Court which tend to secure human rights of individuals and not just recognise them, the SC should hand over the implementation part to the National Human Rights Commission. The paper will focus on the benefits and limitations of this approach.

INTRODUCTION In the recent years, Supreme Court has adopted a legislative role by passing orders that can be said to be within the framework of the legislature and executive. Such a move has proved to be beneficial especially in the context of India because of the recalcitrance of the executive and legislative organs. The Supreme Court in many cases has tried to fill in the gap created by the legislative lacuna. An example of this is the decision in the Vishakha case when Supreme Court laid down details guidelines for sexual harassment bodies to be constituted in every public body. This was in the absence of or till the absence of legislation on this issue. The compliance of such orders was ensured initially by means of its power to punish people for contempt of Court when the Court order is not observed. Over the years, the Supreme Court has adopted better measures to ensure effective implementation of its decisions- going in the realm of the executive even further by passing Comprehensive Mandatory Orders and Continuing Mandamus as will be discussed in detail.The Supreme Court has more or less appealed to the people in India by way of such judgements as not only the Court gives a hope that justice will be served even when the issue is not just adjudicatory in nature but demands an imposition of positive rights of people that lies within the broader framework of the Constitutional principles. The Court has thus managed to alter its position from one of the least dangerous institution in Indian democracy to the most powerful one. Similar trends may be observed in other developing countries like South Africa and Tanzania. It is essential to look into how the Court has managed to adopt such a role to get a

better understanding of the separation of powers and how the judiciary has managed to circumvent through it. EVOLUTION OF PIL Post the emergency period, in what Upendra Baxi refers to as “judicial populism” the Supreme Court has significantly improved its image among the popular masses and given itself a role that is governed by none other but the judiciary. This move by the judiciary maybe to reclaim the trust that it lost by decisions like ADM Jabalpur v. Shivkant Shukla during the Indira Gandhi regime has now taken an altogether different direction by becoming a more and more powerful institution. Looking at whether the Supreme Court is right in adopting such a role or not seems not to be a question since the answer is purely dictated by the judiciary itself. A more practical observation would rather be to see what the further course of action of the Court shall be for the effective implementation of its decisions and how it may avoid the subjectivity in adjudicating upon a select few matters from a vast pool of issues. Post emergency, the Supreme Court on the lines of Social Action Litigation in US introduced the concept of Public Interest Litigation in India. A major change of events took place when the notion of locus standi was changed so that anybody identifying a violation of rights or procedural loophole could could come before the Supreme Court in a variety of ways arguing in public interest rather than for individual benefit. The second major step was the expansion and interconnection of the constitutional provisions on fundamental rights and directive principles of state policy to incorporate various civil, political and socio-economic human rights. The Supreme Court took a further step in implementing the positive rights of individuals by securing them by way of directing the public bodies to implement steps so as to grant individuals these rights or to prevent their violation. Also, earlier the fundamental rights could only be ensured against the State. Now the judiciary has expanded the scope of State to include more and more public bodies and private individuals. CONTINUING MANDAMUS Under the ambit of its judicial activism, the Indian Courts have evolved a new sort of litigation called Public Interest Litigation, where the requirements for locus standi were lowered in the interest of the public and the downtrodden and disadvantaged who could not avail of the rights available to them under the Constitution. The Courts have taken the advantage of the open wording of Article 32 and 226 of the Constitution. These articles allow the court freedom to mould the remedies and even invent new ones for the enforcement of rights. Traditionally writ jurisdiction was only meant for the stopping or preventing mischief, but now it has expanded its scope to include relief for mischief already done, as well and any other remedy to protect the

fundamental rights of any other people. Articles 32 and 226 of the Constitution of India thus give the courts the power to issue ‘directions, orders or writs’ to achieve the objective of the article. Under a PIL, the scope of the writ of mandamus has greatly increased, because it has been issued to compel the government to do what was within its (the governments’) discretion not to do. It thus allowed for an infringement into policy matters to a certain extent. An example of this would be when the court allowed a petition to ensure that the state provided education for the children of the children of prostitutes or when it allowed a petition impugning a provision in the jail manual for allowing a person to be left hanging for half an hour after death stating that this was against the basic human dignity. The Court has thus been increasingly allowing PILs to increase its scope and allowed itself to usurp the power of the executive and the legislature in certain cases where it believed that the other wings of governance were not functioning to the level that they should have. This can be seen in the case of VineetNarain v. Union of India1, where continuing mandamus is defined for the first time in India. Verma CJ held that in certain cases it was more advantageous to not hear the matter through and issue a simple a mandamus, leaving it to the authorities to comply with it, but instead, to keep the matter pending while investigations were being carried on and ensuring that this was done by monitoring them from time to time and issuing orders in this behalf. It was held that in certain cases the issuing of a writ of mandamus to the agencies would be futile and, therefore it was decided to issue directions from time to time and keep the matter pending, requiring the agencies to report the progress of investigation so that monitoring by the court could ensure continuance of the investigation. This act was thus termed as continuing mandamus. However, although this term has only be used in a very few cases, the means has been used very often, sometimes successfully, sometimes unsuccessfully by the Court to, according to the judges, ensure that justice is served to the common masses. In this case the scope of the writ was mandamus was extended, and monitoring was taken over only because the superiors to whim the investigating authorities were supposed to report to were themselves involved or suspected to be involved in the crimes that were to be investigated. In order for the court to make use of the remedy of a continuing mandamus, the same judges, or at least one of the judges would have to sit on the bench to monitor the case. This would normally be done by holding the case as part-heard, but this was not always necessary as the court could pass the matter on to another authority to deal with too. At the same time, although the term has been evolved only in the case of VineetNarain, the Court has extended its own functions through the writ of mandamus in a similar manner in several cases prior as well as subsequent to this case. In some cases, the Court refrained from issuing directions and only declared rights without remedies. In U.R. Sharma’s case, the court directed the High Court not to require continuing reports from the State to ascertain whether any action was taken on the road, the construction of 1

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which had been held to be a part of the right to life under Article 21. In the case of State of H.P. v. Parent of a Student of Medical College,21 the Supreme Court held that the Division Bench erred in directing the filing of an affidavit within 6 weeks, setting out the action taken by the State to implement the recommendations of the Anti-Ragging Committee constituted by the State at the direction of the court.

EXAMPLES OF CONTINUING MANDAMUS The first case, where such a principle evolved was in the BandhuaMuktiMorcha case2,where a writ petition was filed to improve the conditions of several workers who were working in inhumane conditions in certain mines in Faridabad. The Judge held that this was against the worker’s right to life and directed the state to ensure the welfare of the workers. The Court then continued to monitor the actions taken by the state. This was the first instance where the Court exercised its powers to issue a continuing mandamus against the state although it wasn’t called so. In the case of Indian Council for Enviro-Legal Action, a writ was filed in the Court to prevent the flouting of the acts passed by the government to prevent water bodies from getting polluted. This was because the authorities were not taking any action against the offenders. The Court held that the agencies should enforce the law and report to it for further clarifications. It passed several directions especially to the states asking them to submit management plans to control the pollution to both, the Central Government as well as the courts. The Court would go through the plans and the enforcement of the plans in another hearing which was set up. This was a clear case of continuing mandamus and the remedy seemed effective as it delegated any further cases to the respective High Courts and agreed to reconvene to ensure that all its other directions were complied with. The judges also discussed the merits of the judiciary performing an executive function, but finally held that this was not the case here and that the court was not usurping the function of the executive, but only discharging its judicial functions in ensuring that it rectified errors of the judiciary. In the case of Vellore Citizen’s Wellfare Forum v. Union of India3, a writ petition was filed against the tanneries in the State of Tamil Nadu since their untreated effluents were polluting all the ground water. The Supreme Court held that the Central Government should create an authority to deal with the above matter and that instead of the Supreme Court further monitoring the situation, the Chief Justice of the Madras High Court was directed to set up a Green Bench to deal with the case and to monitor the functioning of the committee and the tanneries in Tamil Nadu. Thus the Apex Court asked for a special bench to be set up to continuously hear all

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matters pertaining to this case and other environmental cases within the state in another show of continuing mandamus although it wasn’t called so then. Besides this, in the case of D.K. Joshi v. Chief Secretary, State of U.P4., a writ was filed before the court stating that in spite of several orders filed before these courts, the concerned authorities in Agra had been extremely lackadaisical and had been extremely slow in enforcing the various directions given by the court to ensure better living of the citizens in Agra. The Court thus held that since the case had been going on since 1992, there should be a special monitoring body set up which the authorities would be responsible to. This is a case where the remedy of continuing mandamus has not been very successful since even after 7 years of directions, the Court has been able to achieve a very limited level of cooperation from the authorities. In the case of M.C. Mehta v. Union of India5, a writ was filed due to the vehicular pollution in Delhi. The Supreme Court had passed directions for the phasing out of diesel buses and for the conversion to CNG. The directions were not complied with and the state pleaded that this was because there was shortage in supply of CNG. The Apex Court held that orders and directions of the Court could not be nullified or modified by State or Central governments. The problem that the court faced was that although they wanted to punish the offenders, they did not want to harm the public who relied on these buses. They therefore had to modify their order and charge all the buses that ran without CNG, a fixed amount with the government phasing out the unconverted buses. However, the Court did not give any means for collecting this fine, which was a problem. This is a case where, in spite of several directions by the Supreme Court, the government had been extremely slow in responding to the order. This was hence an extremely difficult case to implement although the pollution levels have gone down to an extent. In the case of T.N. Godavarman v. Union of India6, a writ was filed in the court to protect certain national forests since the government was still allowing mining and felling of trees to take place there. The court gave several directions and monitored the actions of the various state governments to ensure that they complied with the orders and made them report back to the court as to the action taken by them and the reasons for which they allowed certain actions to be taken. The court thus monitored the executive to ensure that they took care of the national forests. This could technically be called the executive’s role as it is up to them to implement legislation, but the court took over its function due to its inefficiency and made the governments periodically report back to the court periodically. Thus the Court has consistently used the writ of continuing mandamus to ensure that the governments and other bodies comply with their functions whether or not it is statutorily mandatory. Thus the Court has taken over the function of the executive, i.e., of monitoring 4

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institutions and other bodies to ensure that they comply with the orders of the Supreme Court whenever they are inefficient in carrying out orders that they are legally bound to do, or even when they have not carried on a discretionary function to the benefit of the public. However, the Court should be careful to only issue a writ of mandamus to state such relief such as is possible to implement, or is justiciable.This causes a slight problem in cases where the relief is impossible to act on since the only remedy against a person who disobeys a writ would be contempt of court. No other remedy is really possible and it would be impossible for the Supreme Court to hold a very large percentage of the population guilty of contempt and since a contempt petition would have to be filed in the Supreme Court, such a remedy would rarely be resorted to and the Court needs to come up with ways by which it can enforce the writs that it issues for the benefit of the public. This can be seen in the case of MurliDeora v. Union of India7, where the Supreme Court banned smoking in public places and held that the various authorities should report to it in 6 weeks time to give a report of their progress. In this case, the ban on public smoking does not seem to be very efficient and there is a great problem in the implementation. It was implemented very strictly in the first few days but the act soon lost steam and in most areas, the administration became lax in imposing fines and catching offenders. Besides this, the only remedy would be a contempt petition in the Supreme Court, which was not a feasible option for every violator. The Supreme Court also realised that there was poor response to the ban and tried to make the prevention more effective, but this has still not worked and the order is, although not completely futile, not implemented the way it should be. Hence the Courts should be very careful while issuing remedies and should ensure that these do not land up being superfluous and futile.

ANALYSIS OF THE DOCTRINE OF CONTINUING MANDAMUS

The doctrine of continuing mandamus serves several functions especially in a case where the executive does not carry out its functions effectively and either does not implement a statutory function or duty, or does not exercise its discretion wisely. The judiciary has been seen as an effective tool by the citizens to enforce the law and uphold justice when the executive has not done that. The remedy is often considered useful especially in the case of children’s rights where the executive has continuously failed to implement. Thus the only remedy left for the rights of

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children is the PIL. Although there is a lot of legislation in place, very little has been done to implement it. Thus the court can use its powers under continuing mandamus to address this issue. This is a situation where the Court should actually make use of the remedy. However, although it is useful in setting wrongs right, the court should still exercise extreme caution in making use of it because 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. Thus the courts should exercise some discretion in allowing the filing of and giving remedies to public interest litigation. Judicial activism is an active interpretation of existing legislature by a judge, made with the view to enhance the utility of that legislation for social betterment. Although taking an activist position is extremely useful in several cases, the courts have tended towards abusing this power and sometimes taken an extreme stand and have thus attracted a fair amount of criticism.

The Supreme Court itself has admitted that the Courts have to be extremely careful especially in the matter of infringing on the powers of the other organs as PILs tend to narrow the divide between the roles of the various organs and has invited controversy for mainly this reason. In the case of BandhuMuktiMorcha v. Union of India, Pathak J mentioned that the judiciary was appreciated and applauded when it decided a case rightly within its legitimate authority. He went on to caution the court stating that: “There is always the possibility, in public interest litigation, of succumbing to the temptation of crossing into territory which properly pertains to the legislature or the executive government….In the process of correcting executive error the court can so easily find itself involved in policy making of a quality and to a degree characteristic of political authority, and indeed run the risk of being mistaken for one.” 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 although the courts had a duty to protect individual rights by implementing the constitutional safeguards, they could not subvert the Constitution itself to do so.

Besides this, with the Courts taking such an active role in taking over the functions of the executive as with the doctrine of continuing mandamus, the traditional litigation would suffer and take a back seat as the judiciary would be too busy taking over the role of the executive. Another criticism of judicial over activism would be that the judges are not democratically elected, either directly or indirectly, and as such should not thus take over the functions of the appropriate body and besides this, the judiciary would lack the expertise required to solve many of the problems it attempts to solve.

SOCIO-ECONOMIC RIGHTS AND NHRC Rohan J. Alva in his paper has argued that for better implementation of Supreme Court’s mandatory orders for securing Human Rights, it should appoint NHRC to supervise and implement the direction of the Court. He argues that the constitution and the powers of NHRC make it the suitable agency for this task. Section 3 specifies that NHRC should comprise of former Chief Justice of Supreme Court, a Supreme Court judge, a former Chief Justice of High Court, two members excelling in Human Rights. Moreover, it has powers similar to that of a Civil Court and can thus investigate matters under Section 13 of the Human Rights Act. It also has a number of remedies available under Section 18 of the Act.

REFERENCES Rabindra K. Pathak, Constitutional Adjudication in India: A study with special reference to Basic Structure Doctrine, University of Burdwan (2013). Mihika Bhavya, Continuing Mandamus: A Judicial Innovation to Bridge the Right-Remedy Gap, 10 NUJS L. Rev (2017). Vasujith Ram and Sohini Chatterjee, DELHI HIGH COURT'S SOCIO-ECONOMIC RIGHTS ADJUDICATION: SOME INSIGHTS, NLSIR (2016). Madhav Godbole, Good Governance: A distant dream, Economic and Political Weekly 11, Vol. 39 (2004). Abhinav Chandrachud, The Insulation of India’s Constitutional Judiciary, Economic and Political Weekly 13, Vol. 45 (2010). Jayanth K. Krishnan, Lawyering Abroad, California Law Review (2006). Surya Dev, Public Interest Litigation in India, Civil Justice Quarterly (2009). N.V. Gadgil, Some Reflections on Administration, The Indian Journal of Political Science (1964).

Ramaswamy R. Iyer, Constitutional Dilemmas, Economic and Political Weekly 21, Vol. 41 (2006). Zachary Holladay, Public Interest Litigation as a Paradigm for Developing Nations, Indiana University Press (2012).