Why the Writ of Mandamus declined in 19th century UK, but flourishes in 21st century India

The reason for revival and expansion of the scope of mandamus in India today lies in the dysfunctionality in the tribunals and the faith of the people in the High Courts and Supreme Court.
Vikram Hegde
Vikram Hegde

History of the Writ of Mandamus

The judicial writ of mandamus was born about four centuries ago out of a competition between common law and other parts of English law for primacy (One of the early expositions on the writ of mandamus, James Bagg’s case, sought to frame it in terms of the function of the court to intervene not only from judicial fora but also from non-judicial decisions).

But it was not until the celebrated judgments of Lord Mansfield (Rex v. Blooer, Rex v. Barker, Dr. Askew’s Case) that it would really come into its own.

Through these judgments, the writ of mandamus was framed as a writ to secure the right of a party who has no other specific legal remedy.

The obligation of the Courts to issue the writ of mandamus

For long, mandamus was primarily a tool for restoration of office or a right from which a person had been wrongly deprived. But in the present context, the very essence of a prayer for a writ of mandamus, to put it in the words of Stanley Alexander de Smith, is “an allegation of a Contempt of the Crown consisting in the neglect of a public duty”.

Mandamus being the mode of enforcement of a public duty, is also the definition that best fits the Indian conception of it. The Supreme Court in Hari Krishna Mandir Trust v. State of Maharashtra recently recapped the line of decisions to this effect and reaffirmed that a High Court, under Article 226 of the Constitution, not only has the power to issue the writ of mandamus, but also the duty to do so, where the government or a public authority has failed to exercise or has wrongly exercised discretion conferred upon it.

The decline of mandamus in the UK

Thomas Tapping’s famous treatise, The Law and Practice of the High Prerogative Writ of Mandamus, as It Obtains Both in England, and in Ireland, came during the heyday of the writ of mandamus in the UK in 1853. And like everything that has its heyday, the decline had already begun.

There is much scholarship on the reasons for its decline. Broadly speaking, reform, strengthening and reduced arbitrariness in institutions such as the municipal corporations, from where most of the writ petitions arose, was a major factor. There were also other curious changes such as the popularization of declaratory reliefs, which became an alternative to the writ of mandamus.

From writ courts to the tribunals and back

Coming back to India, there was some movement away from the writ courts as being the primary forum of remedy for those seeking the enforcement of various rights not covered under the ordinary civil laws.

A series of developments, such as the Shah Committee, the Administrative Reforms Committee, various Law Commission reports suggesting the setting up of various tribunals etc, all reached a crescendo with the judgment of a seven-judge bench of the Supreme Court in L Chandra Kumar. Though the Court ultimately held that the power of the High Courts to issue writs could not be curtailed, the tribunals were placed as the forum of first resort for service disputes that might have otherwise come to the High Courts as writ petitions.

After this, there were several tribunals, commissions and forums that cropped up. Some, as a result of specialized regulators for specific sectors (Eg. Airport Economic Regulatory Appellate Tribunal), some to comply with international obligations (Eg. National Green Tribunal), some hoping to harness the technical expertise required for understanding and adjudicating some kinds of disputes (Eg. Securities Appellate Tribunal), some hoping to provide a simple and inexpensive dispute resolution mechanism for common people (Eg. Consumer forums at various levels) and yet others to deal with large volumes of litigation of a given type [Eg. Debts Recovery Tribunals (DRTs)].

The unsatisfactory functioning of these tribunals, both in quality and in pace, has been long lamented. But in the last few years, the government and the Supreme Court have been forced to step in.

The Supreme Court in a series of judgments has been overseeing the criteria and process of selection of members and chairpersons of these tribunals (Rojer Mathew v. South Indian Bank and Ors.; Madras Bar Association v. Union of India, Finance Act 2017) The Tribunals Reform Act, 2021, first brought in as an Ordinance, confers powers of different tribunals under several different legislations upon the respective High Courts.

Separately, in State Bar Council of Madhya Pradesh v. Union of India, the Supreme Court had to request the respective High Courts to entertain matters falling within the jurisdiction of DRTs and DRATs as writ petitions under Article 226. Though this is an ad hoc measure, the direction and intent are unmissable.

We also see instances such as JK Tyre and Industries Ltd. v. Directorate of Enforcement where the High Courts have been taking up challenges to the adjudicating authority under the Prevention of Money Laundering Act, since the relevant Appellate Tribunal is not functioning.

Other obstacles in the exercise of mandamus of courts are also being removed. In State of Kerala v. MK Jose, the Court has held that even disputed questions of fact would not prevent the High Court from exercising its power to issue the writ of mandamus.

The decline of the writ of Mandamus in nineteenth century UK was because of the reduction in maladministration. The reason for revival and expansion of the scope of mandamus in India today lies in the dysfunctionality in the tribunals and the faith of the people in the High Courts and the Supreme Court as the right fora to solve their problems.

We may also thank innovations and adaptations, such as the concept of “continuing mandamus” and “certiorarified mandamus” for the continued popularity of mandamus.

Vikram Hegde is an Advocate on Record at the Supreme Court of India and Co-founder of VH Law Chambers.

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