Mandamus is a judicial remedy in the form of an order from a superior court, to any
government subordinate court, corporation, or public authority—to do some specific
act which that body is obliged under law to do—and which is in the nature of public
duty, and in certain cases one of a statutory duty.
It cannot be issued to compel an authority to do something against statutory provision.
For example, it cannot be used to force a lower court to reject or authorize applications
that have been made, but if the court refuses to rule one way or the other then a mandamus
can be used to order the court to rule on the applications.
Mandamus may be a command to do an administrative action or not to take a particular action,
and it is supplemented by legal rights.
In the American legal system it must be a judicially enforceable and legally protected
right before one suffering a grievance can ask for a mandamus.
A person can be said to be aggrieved only when he is denied a legal right by someone
who has a legal duty to do something and abstains from doing it.
Legal requirements The applicant pleading for the writ of mandamus
to be enforced should be able to show that he or she has a legal right to compel the
respondent to do or refrain from doing the specific act.
The duty sought to be enforced must have two qualities: It must be a duty of public nature
and the duty must be imperative and should not be discretionary.
Furthermore, mandamus will typically not be granted if adequate relief can be obtained
by some other means, such as appeal.
Purpose The purpose of mandamus is to remedy defects
of justice.
It lies in the cases where there is a specific right but no specific legal remedy for enforcing
that right.
Generally, it is not available in anticipation of any injury except when the petitioner is
likely to be affected by an official act in contravention of a statutory duty or where
an illegal or unconstitutional order is made.
The grant of mandamus is therefore an equitable remedy; a matter for the discretion of the
court, the exercise of which is governed by well-settled principles.
Mandamus, being a discretionary remedy, the application for that must be made in good
faith and not for indirect purposes.
Acquiescence cannot, however, bar the issue of mandamus.
The petitioner must, of course, satisfy the Court that he has the legal right to the performance
of the legal duty as distinct from mere discretion of authority.
A mandamus is normally issued when an officer or an authority by compulsion of statute is
required to perform a duty and that duty, despite demand in writing, has not been performed.
In no other case will a writ of mandamus issue unless it be to quash an illegal order.
Types There are three kinds of mandamus:
Alternative Mandamus: A mandamus issued upon the first application for relief, commanding
the defendant either to perform the act demanded or to appear before the court at a specified
time to show cause for not performing it.
Peremptory Mandamus: An absolute and unqualified command to the defendant to do the act in
question.
It is issued when the defendant defaults on, or fails to show sufficient cause in answer
to, an alternative mandamus.
Continuing Mandamus: A mandamus issued to a lower authority in general public interest
asking the officer or the authority to perform its tasks expeditiously for an unstipulated
period of time for preventing miscarriage of justice.
In various countries Parliamentary democracies
Australia Under the Australian legal system, mandamus
is available through section 75(v) of the Australian Constitution.
England and Wales In England and Wales, mandamus was originally
known as a writ of mandamus and more recently as an order of mandamus.
This procedure was renamed by the Civil Procedure Order 2004 to become a mandatory order.
India In India, the sine qua non for mandamus is
the existence of a statutory public duty incumbent upon the person or body against whom the mandamus
is sought.
There must equally co-exist a corresponding right in the petitioner entitling him to claim
the enforcement of such public duty.
These two preconditions form the foundation for the issue of mandamus.
The primary scope and function of mandamus is to "command" and "execute" rather than
to "enquire" and "adjudicate".
It cannot be issued to change the decision of a body so as to suit the petitioner.
Obligations which are not of statutory nature cannot be enforced by mandamus.
The writ petition is not maintainable when a remedy provided for under the Code of Civil
Procedure is available.
For example, the High Court cannot entertain writ petitions for mandamus to the Government
who fails to deposit and pay in the requisite time an enhanced compensation account as ordered
by a lower Court.
The petitioners in this case would be directed to approach the executing Court for appropriate
relief.
Only the Supreme Court and High Courts are empowered to exercise Writ Jurisdiction, under
Art.
32 and 226 of Constitution.
No other courts are empowered to issue writ.
United States
In the administrative law context in the United States, the requirement that mandamus can
be used only to compel a ministerial act has largely been abandoned.
By statute or by judicial expansion of the writ of mandamus in most of the U.S. states,
acts of administrative agencies are now subject to judicial review for abuse of discretion.
Judicial review of agencies of the United States federal government, for abuse of discretion,
is authorized by the U.S. Administrative Procedures Act.
Federal courts In modern practice, the Court has effectively
abolished the issuance of writs of mandamus.
In the context of mandamus from a United States Court of Appeals to a United States District
Court, the Supreme Court has ruled that the appellate courts have discretion to issue
mandamus to control an abuse of discretion by the lower court in unusual circumstances,
where there is a compelling reason not to wait for an appeal from a final judgment.
This discretion is exercised very sparingly.
It is exercised with somewhat greater frequency, although still sparingly, in the context of
discovery disputes involving privileged materials, since a district court order erroneously forcing
the disclosure of privileged material may never be remediable through a later appeal.
Recently, in In Re Electronic Privacy Information Center, privacy advocates sought a writ of
mandamus directly from the Supreme Court to halt the National Security Agency's bulk phone
record collection program.
The Supreme Court denied the petition.
The authority of the United States district courts to issue mandamus has been expressly
abrogated by Rule 81(b) of the Federal Rules of Civil Procedure, but relief in the nature
of mandamus can be had by other remedies provided for in the Rules, where provided by statute,
or by use of the District Court's equitable powers.
State courts In some state court systems, mandamus has
evolved into a general procedure for discretionary appeals from non-final trial court decisions.
In some U.S. states, such as California, the writ is now called mandate instead of mandamus,
and may be issued by any level of the state court system to any lower court or to any
government official.
It is still common for Californians to bring "taxpayer actions" against public officials
for wasting public funds through mismanagement of a government agency, where the relief sought
is a writ of mandate compelling the official to stop wasting money and fulfill his duty
to protect the public fisc.
The writ of mandate is also used in California for interlocutory appeals.
In this context, the party seeking the writ is treated on appeal like a plaintiff, the
trial court becomes the defendant, and the opponent is designated as the "real party
in interest."
In Virginia, the Supreme Court has "original jurisdiction" under the state constitution
for mandamus involving the Virginia courts.
Other states, including New York, have replaced mandamus with statutory procedures.
In New York, this is known as an Article 78 review after the civil procedure law provision
that created the relevant procedure.
In still other states, such as Illinois, the state court of last resort has original jurisdiction
in mandamus actions.
In North Carolina State courts, mandamus is authorized as one of the Extraordinary Writs,
under Rule 22 of the North Carolina Rules of Appellate Procedure.
The writ of mandamus may be issued in instances where, for instance, the lower court fails
to timely issue a written order after rendition.
The North Carolina Court of Appeals has spoken on the possible course of action in such situations,
and confirmed that petitioning for a writ of mandamus is the only available route.
McKyer v. McKyer, 202 N.C.App.
771 at *4 In McKyer, the lawyer who was unable to persuade the trial court judge to enter
an order for about a year, tried to remedy the problem by asking the trial court judge
to hold another hearing.
Disapproving of the attempted resolution via a new hearing, the Court of Appeals, citing
to the Supreme Court case In re T.H.T. 362 N.C. 446, 665 S.E.2d 54 explained that a party
seeking recourse where the trial court has not entered its orders timely should petition
for writ of mandamus.
Similarly, the writ may issue where the trial court fails or refuses to timely dispose with
the litigants' business.
In North Carolina, as elsewhere, the writ is an action against the official, meaning
that the petition must be styled "In RE Public Figure X" or "In RE Judge Y."
Thus, the a mandamus petition not only brings the strife of optically making the officer
or judge the defendant, but also in theory requires the official / judge to respond "within
ten days" "with supporting affidavits."
Curiously, Rule 22(c) provides that "any party" may respond to the petition for writ.
The North Carolina Court of Appeals has interpreted this to mean that where, for instance, one
litigant demands that the judge enter a previously rendered order, the other litigant in the
same case is free to respond instead if the judge that presides over both of the litigants.
See also Judicial review
Administrative law Habeas corpus
References