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Monday, August 10, 2020

SC says can’t issue mandamus for job promotions quota: What is mandamus?

Under Article 361, mandamus cannot be granted against the President or Governor of a State.

By: Explained Desk | New Delhi | Published: February 9, 2020 8:58:18 pm
supreme court, reservation in promotions, supreme court on promotion reservation, mandamus, what is mandamus, indian express, express explained In India, the Supreme Court can issue prerogative writs under Article 32 of the Constitution.

The Supreme Court has ruled that reservation in the matter of promotions in public posts is not a fundamental right, and a state cannot be compelled to offer the quota if it chooses not to.

“There is no fundamental right which inheres in an individual to claim reservation in promotions. No mandamus can be issued by the court directing state governments to provide reservations,” the bench of Justices L Nageswara Rao and Hemant Gupta said.

What is ‘mandamus’?

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”.

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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.

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