Godavarman Case Criticism

‘CONTINUING MANDAMUS’ – A
JUDICIAL INNOVATION TO BRIDGE THE

RIGHT-REMEDY GAP
Mihika Poddar & Bhavya Nahar*
The sanctity and credibility of the democratic legal system is intrinsically
linked to the enforceability of rights, a task typically adjudged to the judi-
ciary. However, the constitutional court’s image as the defender of rights
has come into scrutiny due to its incapability of ensuring government
compliance, especially in cases requiring enforcement of positive state
duties. Socio-economic rights, for instance, propose a major challenge to
the judicial and legal system where coercing state action is at times an
insurmountable task. The Indian Supreme Court, tip-toeing around the
constitutional separation of powers, has devised the novel writ remedy of
‘continuing mandamus’ to prevent the failure of constitutional promises.
Instead of passing a final judgment that would end the litigation, it keeps
the case pending, entering into a dialogue with the political and adminis-
trative wing, prodding to alter government action, or inaction. This paper
discusses the Supreme Court’s procedural innovation in the backdrop of the
enforcement conundrum. Locating the need for the remedy in constitutional
and rights theory, the paper traces judicial trends, and extensively reviews
the use of the remedy by the Indian Supreme Court over the years. The
authors assess the effectiveness of how the remedy is being administered,
identifying reasons for the success of some interventions, vis-à-vis others,
trying to locate the shortcomings and roadblocks to the court’s approach.
I. INTRODUCTION
The transformation of the Supreme Court of India into a Supreme
Court for Indians,1 has been marked with remarkable strides towards bridg-
ing the right-remedy gap, a major cause of concern for constitutional schol-
ars. In the context of Social Action Litigation, Upendra Baxi remarked that the
‘fundamental issue of how the Court should make the state and its agencies
fully liable for deprivations or denials of fundamental rights still remains to be
*
4th and 3rd year students at the WB National University of Juridical Sciences (NUJS), Kolkata.
We would like to thank Aishwarya Gupta for her invaluable inputs. All errors, however, solely
remain ours.
1
See Upendra Baxi, Taking Suffering Seriously: Social Action Litigation in the Supreme Court
of India 107, 4 Third World Legal Studies (1985) (This refers to the people and right-centric
approach taken by the Supreme Court through its engagement in social action litigation).
556 NUJS LAW REVIEW 10 NUJS L. R ev. 555 (2017)
authoritatively answered.’2 The paper traces judicial trends thereafter, arguing

that with the phasing out of what Baxi famously identifies as ‘post-emergency
judicial populism’,3 there have been multifarious attempts by the appellate ju-
diciary to give fuller existential meaning to our rights. After the organic inclu-
sion of a relaxed locus standi in public interest cases, and then the trend of
significant interim orders with delayed decisions, the court commonly used
mandatory orders and other tools.4 We then see remedial jurisprudence reach
its crescendo in what is now called the ‘continuing mandamus’ – a form of ad-
judication that enables the SC to ensure and supervise the implementation of its
directions.5 This is a process by which the constitutional court instead of deliv-
ering a conclusive verdict, keeps the litigation ongoing, giving orders from time
to time, monitoring compliance through regular hearings. The Government and
administrative bodies are asked to submit affidavits with regard to compliance
status with justifications for delays and inaction. The court in many ways, as is
discussed throughout the paper, becomes the nodal point for change, facilitat-
ing and coordinating action to ensure rights-realization. It is a remedy crafted
to jettison uncertainties of constitutional adjudication by allowing the court
to oversee, intervene periodically and ensure the fulfilment of the particular
socio-economic right, to remedy administrative recalcitrance blocking realisa-
tion of rights. A full-blown manifestation of ‘creeping jurisdiction’,6 the court
here takes on the administrative role that political science text books would
ordinarily have recognised as typical of the executive. We have attempted to
contextualise the fashioning of the remedy and critically evaluate its use, func-
tioning, and standing in constitutional jurisprudence.
The first part of this paper delves into the inevitable right-remedy
gap in constitutional law, contextualising the jurisprudential premise of the
writ remedy, whereby we make a case for constitutional change, and justify
expansion of the law of remedies. The second part traces the trajectory of ad-
judicatory trends that led to the innovation of ‘continuing mandamus’, from
prolonged determination with elaborate interim orders to mandatory orders
and directions, and then the reporting back of the status of implementation.
The third part assesses the nature of the remedy in the context of different
areas where it has been widely used, how it has succeeded or failed to fashion
change, especially in as much as it has been able to address administrative
2
Id., 42.
3
The court’s intervention in social litigation has increased manifold after the Emergency, with
PILs gaining momentum, and the Supreme Court’s decisions becoming bolder and seemingly
more obtrusive. See Upendra Baxi, Taking suffering seriously: Social action litigation in the
Supreme Court of India, Third World Legal Studies 107 (1985).
4
S. Muralidhar, The Expectations and Challenges of Judicial Enforcement of Social Rights
available at http://www.delhidistrictcourts.nic.in/ejournals/Social_Rights_Jurisprudence.pdf
(Last visited on August 21, 2017).
5
Id.
6
A term coined by Upendra Baxi as he describes the “taking over the direction of administra-
tion in a particular arena from the executive.” See 29 I.C.J. R ev. 37 1982.
July - September, 2017

‘CONTINUING MANDAMUS’ 557
recalcitrance, particularly in areas of environmental protection, food security,

investigative independence and police reforms, human rights and other fields.
The fourth part analyses to what extent have these attempts failed while tack-
ling the criticism of no effective implementation, despite usurpation of admin-
istrative powers. The authors hypothesise that it is the nature of orders that have
been responsible for the failure in certain aspects, not the remedy itself. In the
last part, we argue that the ultimate issue of implementation, even under such
a framework of judicial intervention, can best be resolved not through some
procedural or constitutional innovation, rather, through effective use of exist-
ing contempt jurisdiction that the courts have been so reluctant to exercise in
social litigation. The limitations and the possible apprehensions to such use, we
illustrate, could be addressed through expansion of the scope of such jurisdic-
tion and its creative application.
II. THE RIGHT-REMEDY GAP – A BATTLE FOR

FRUITIFICATION OF RIGHTS
As per Blackstone’s popular formulation it is “a general and indis-
putable rule, that where there is a legal right, there is also a legal remedy, by suit
or action at law, whenever that right is invaded”.7 While seemingly a reiteration
of a basic premise of law, in practical terms, this may be impossible to uphold,
especially when it comes to enforcement of rights against the State. Although
there might be consensus on the ideal of vindication of every right in an effec-
tive remedy,8 some have acknowledged a right-remedy gap to be inevitable in
constitutional law.9
The Indian Supreme Court has, however, made valiant attempts

at bridging this unfortunate gap through non-adversarial litigation. Their adju-
dicatory leadership has often been seen as broadening the scope of remedies to
give better effect to the maxim restitution in integrum or restoration to original
condition/position.10 Described as a corollary to representative standing, the
courts take on an active role in investigation, removing barriers to access to
justice.11
7
William Blackstone, Commentaries on the Laws of England, Vol. 3, 21 (2nd ed., 1832).
8
Walter E. Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harvard Law
Review 8 (1972); See Marbury v. Madison, 2 L Ed 60 : 5 US (1 Cr) 137, 163 (1803) (The gov-
ernment of the United States has been emphatically termed a government of laws, and not of
men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for
the violation of a vested legal right); Akhil R. Amar, Of Sovereignty and Federalism, 96 Yale
L. J. 1425, 1427 (1987) (Governments acting unconstitutionally must in some way undo the
violation by ensuring that victims are made whole).
9
Id.
10
See Wouter Vandenhole, The Limits of Human R ights Law in Human Development in Facing
the Limits of the Law 359 (2009).
11
See Clark D. Cunningham, Public Interest Litigation in the Indian Supreme Court: A Study
in Light of the American Experience, 29 J. Indian L. Inst. (1987), 505, available at http://

While noting the limitations of American Constitutional Courts

to give a sweeping remedial relief (if the plaintiff is unable to show massive and
pervasive illegal conduct or if the necessary relief is available only from par-
ties who owe no duty to the plaintiff), Clark Cunningham, through a study of
cases in the Indian Supreme Court, observes, how unlike in the US, right and
remedy in India had become ‘thoroughly disconnected’.12 The judiciary had,
through practise fashioned adjudication of even ‘remedies without rights’ and
‘rights without remedies’, toying with the traditional understanding of rights
and remedies.13
The former category of cases, having kick-started the right-rem-

edy disconnect, refers to the practice of issuing interim orders with detailed
directions, while delaying the ultimate decision. Remedies were being granted
much before a conclusive determination of rights, in contrast to the traditional
model of injunctive relief that was limited to preserving status quo pending fi-
nal decision.14 The landmark case in this regard is Hussainara Khatoon v. State
of Bihar, where although the case remained pending before the Supreme Court
for more than 15 years, as many as seven orders were passed,15 with detailed
directions with regard to release of under trial prisoners languishing in jails
for want of expeditious disposal of pending cases.16 The trend started in this
case was similarly adopted in public interest cases, with the court meting out
sweeping affirmative interim relief addressing a pressing need, pushed the final
decision as to factual issues and liability determination to a much later date.17
However, a closer analysis would show that in most such cases, the relief has
been to compensate for grave and shocking effects of the alleged misconduct.
There are then multiple instances where the courts had declared
the rights but no remedy was given,18 constituting the second categorization
of ‘rights without remedies’. The court here, despite recognising the rights,
refrained from further issuing directions, which could have had a substantial
clarkcunningham.org/PDF/PublicInterestLitigationInIndia.pdf (Last visited on January 18,

2016); Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : AIR 1984 SC 802 at 815.
12
Clark D. Cunningham, Public Interest Litigation in the Indian Supreme Court: A Study in
Light of the American Experience, 29 J. Indian L. Inst. (1987), at 505, available at http://clark-
cunningham.org/PDF/PublicInterestLitigationInIndia.pdf (Last visited on January 18, 2016).
13
Id.
14
Id., 511.
15
Hussainara Khatoon (3) v. State of Bihar, (1980) 1 SCC 93 : AIR 1979 SC 1360; Hussainara
Khatoon (4) v. State of Bihar, (1980) 1 SCC 98 : AIR 1979 SC 1369; Hussainara Khatoon (5)
v. State of Bihar, (1980) 1 SCC 108 : AIR 1979 SC 1377; Hussainara Khatoon (6) v. State of
Bihar, (1980) 1 SCC 115 : AIR 1979 SC 1819; Hussainara Khatoon (7) v. State of Bihar, (1995)
5 SCC 326.
16
See Hussainara Khatoon (7) v. State of Bihar, (1995) 5 SCC 326.
17
Cunningham, supra note 11, 512.
18
See e.g. P. Nalla Thampy Thera v. Union of India, (1983) 4 SCC 598 : AIR 1984 SC 74.

bearing on budgetary resources of the State, stressing on the prerogative of the

executive to determine the manner of use of public resources.19
Some reluctance to exceed, what could be argued to be a conserv-

ative limitation of its mandate, and toe-tipping around the doctrine of separa-
tion of powers was seen in a few earlier decisions as well. In U.R. Sharma 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
which had been held to be a part of the right to life under Article 21.20 In 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.22
Krishna Mahajan, his work being a manifestation of popular dis-

content at these judgments, had argued – “If the court actually starts monitor-
ing the implementation of the poor’s right spelt out by it then there is some hope
of its credibility and respect for its judges … Why should people come to judges
at all if all they are to get only toothless fundamental right…?”23 Other scholars
also add to the consensus on enforceability of rights being crucial to the court’s
credibility and public perception.24 Even otherwise, remediation of violated
rights is grounded as a fundamental tenet of constitutional values, embodied,
even in the Indian Constitution as a ‘right to constitutional remedies’ in Article
32. The right to an effective remedy is an obligation placed upon nations under
international law as well,25 making judicial action obligatory.
19
Id., at 24.
20
State of H.P. v. Umed Ram Sharma, (1986) 2 SCC 68, ¶¶33-37.
21
State of H.P. v. Parent of a Student of Medical College, (1985) 3 SCC 169.
22
Id., 5 (The reasoning centred on the recommendation in the report of the Anti-ragging com-
mittee that required the Government to initiate legislation against ragging. It could thus be
argued that the court was wary of interfering in legislation-making and not per-se inquiring as
to steps taken for implementation).
23
See Sampat Jain, Public Interest Litigation 342 (2002).
24
S.K. Agarwala, Public Interest Litigation in India: A Critique 36 (1985) (credibility of the
court “depends wholly on the conviction that the relief granted by the Court is enforceable”
and that if it issues directions which are not enforceable, it does not act “within its judicial
role).
25
See The International Covenant on Civil and Political Rights, 1966 (‘ICCPR’), Art. 2(3);
See also Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, 1984 (‘CAT’), Art. 14; The Convention on the Elimination of All Forms of
Discrimination against Women, 1979 (‘CEDAW’), Art. 2; The Convention on the Elimination
of All Forms of Racial Discrimination, 1965 (‘CERD’), Art. 6; The European Convention on
Human Rights, 1950 (ECHR), Art. 13 (‘everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective remedy before a national authority not-
withstanding that the violation has been committed by persons acting in an official capacity’);
The EU Charter of Fundamental Rights, 2000, Art. 47 (Everyone whose rights and freedoms
guaranteed by the law of the Union are violated has the right to an effective remedy before a
tribunal in compliance with the conditions laid down in this Article).

The break-down of the strict right-remedy relation in private law

favours the oppressed or victimised in cases where the courts are willing to give
immediate remediation to sufferers without determination of liability. This lib-
eralization is however disastrous for the rule of law when the court makes peace
with recognising rights without any remedies. It has been argued that both as-
pects of the detachment of rights and remedies form part of constitutional law.26
However, the former gamut of cases, i.e., ‘remedies without rights’ need not be
justified based on the detachment of rights and remedies, as the court certainly
takes into account the rights of the beneficiaries of its orders, it is only the at-
tribution of fault that is mostly postponed. This should, rather, be seen only as
a liberal construct of the traditional interim relief, peculiar of social litigation.
As Chayes also points out, the attenuation of the tight linkage between rights
and remedy is a distinguishing characteristic of public law litigation, where the
dominant form of relief is prospective and affirmative, rather than compensa-
tory.27 The nature of the cases requires non-traditional forms of reliefs, as is
evident even from a study of Indian remedial trends.28 Pre-occupation with the
right-remedy linkage acts as a barrier to developing any other basis of effective
supervision of the court’s remedial discretion.29 The authors argue that the clas-
sification of cases that fall into ‘remedies without rights’ involve postponement
of fault determination, not abdication thereof. This cannot be used by the higher
judiciary to find doctrinal backing for recognizing rights whose fruitification
cannot be ensured. Rather than generalizing this as a category of right-remedy
attenuation, this should be looked at as expansion of injunctive relief, marking a
shift in constitutional adjudication ‘from reparation to reform’.30 ‘Right without
remedies’ and ‘remedies without rights’, thus cannot be seen as sides of the
same coin, the former being a means of constitutional reform in furtherance of
addressing changing nature of threats to constitutional goals, the latter being
nothing short of a direct attempt at hollowing constitutional guarantees. To
thus say that right-remedy gaps are inevitable is only to acknowledge that “the
law of remedies, as a body of doctrine not generalizable across all enforcement
26
Cunningham, supra note 11.
27
Abram Chayes, The Role of the Judge in Public Law Litigation, 89 H arv. L. R ev. 1281 (1976).
28
See generally Sampat Jain, Public Interest Litigation (2002).
29
But see Clark D. Cunningham, Public Interest Litigation in the Indian Supreme Court: A
Study In Light of the American Experience 505, 29 J. Indian L. Inst. (1987), available at http://
clarkcunningham.org/PDF/PublicInterestLitigationInIndia.pdf (Last visited on January 18,
2016).
30
See John C. Jeffries, The Right Remedy Gap in Constitutional Law, 109 Yale L.J. 87 1999-
2000, available at http://www.law.virginia.edu/pdf/faculty/hein/jeffries/109yale_lj87_1999.
pdf (Last visited on April 28, 2017) (The fighting issue in structural reform cases is not whether
a court should enjoin constitutional violations, but how far a court should go in regulating
structures and practices that are not unconstitutional. The justification for such regulation is
that certain structures and practices, though not in themselves unconstitutional, contribute to
an environment of constitutional risk. To the extent that injunctive remedies address anteced-
ent matters that are only strategically and probabilistically related to constitutional violations,
they may be said to have gone beyond the underlying rights).

mechanisms, exists.”31 This cannot be extended to justify the inevitability of

mere recognition of rights, incapable of enforcement.
A right to constitutional remedy is what legitimises writ courts

in the democratic set-up. Even practice of selective escapism is antithetical to
constitutional spirit. While executive recalcitrance and governmental reluc-
tance are realities that are difficult to eliminate; for the highest judiciary to bow
down to these in the name of selective use of the separation of powers, would
defeat the purpose of the system of ‘checks and balances’. The judiciary, post-
emergency, had eased into its role, and save a few exceptions here and there,
has been instrumental in aiding the development of a whole new dimension of
ensuring governmental accountability. We see that the courts have, save ex-
ceptions, mostly lived up to the tag of the ‘sentinel of the qui vive’,32 ensuring
the greatest fruitification of the writ remedy in recent times. We look at these
developments by tracing the origin and use of the newly fashioned writ of ‘con-
tinuing mandamus’, a tool devised to ensure enforcement of directions, a strike
at the misfortune of ‘rights without remedies’.
III. THE EVOLUTION OF ‘CONTINUING

MANDAMUS’ – ADDRESSING THE TRAGEDY
OF SOCIO-ECONOMIC RIGHTS IN REMEDIAL
JURISPRUDENCE
The misfortune of ‘rights without remedies’, as analysed in the
previous part, has not gone unheeded either by constitutional scholars, nor as
we see, by the judiciary, both in India and in other similar democratic set-ups.
Given the increasingly problematic limitations of declaratory, one-shot rem-
edies, it became imperative to craft new remedies tailored to be immune to
the limitations of the traditional approaches, for better fructification of rights.
Given the wide remedial discretion accorded to judges in constitutional set-ups,
the expansion of right remedies has been welcomed as a necessity.33 While an
extensive comparative analysis is beyond the scope of this paper, it is worth
31
Id., 113.
32
State of Madras v. V.G. Row, AIR 1952 SC 196 (Characterising the activist role of the court, it
is always ‘alert’ of constitutional violations).
33
Fose v. Minister of Safety and Security, (1997) 3 SA 786 (CC), at 19 & 69 (Appropriate relief
will in essence be relief that is required to protect and enforce the Constitution. Depending on
the circumstances of each particular case the relief may be a declaration of rights, an interdict,
a mandamus or such other relief as may be required to ensure that the rights enshrined in the
Constitution are protected and enforced. If it is necessary to do so, the courts may even have to
fashion new remedies to secure the protection and enforcement of these all-important rights....
Particularly in a country where so few have the means to enforce their legal rights through
the courts, it is essential that on those occasions when the legal process does establish that
an infringement of an entrenched right has occurred, it be effectively vindicated. The courts
have a particular responsibility in this regard and are obliged to ‘forge new tools’ and shape
innovative remedies, if needs be, to achieve this goal.);

noticing that similar tools have been adopted by constitutional courts in both,
South Africa and Canada, in combating executive inaction, limitations of sepa-
ration of powers, and the insufficiency of existing remedies, to effectuate con-
stitutional justice.34
While traditionally, a court order was supposed to be declaratory

in nature, identifying a right or violation thereof, in multiple jurisdictions, the
concept of ‘mandatory orders’, a step beyond mere declaratory relief, is not a
recent development, having been used fairly often to ensure obedience of the
positive obligations on the government under the constitution. ‘Declaratory’
and ‘mandatory’ have been described as two facets of an order.35 While declara-
tory judgments are without consequential directions to state authorities, and are
based in a good faith assumption of executive compliance, mandatory orders
are premised on the general apathy displayed by the executive to move to action
within a reasonable time period, with detailed directions to be followed by the
government.36 However, the increasing failure of both mandatory and declara-
tory reliefs has led courts in multiple jurisdictions to fashion newer remedies
including the retention of jurisdiction over a case to ensure compliance. This
dialogic-form of adjudication has evolved, as we see, somewhat similarly in
these constitutional set-ups, albeit peculiarities rooted in differences in histori-
cal and political experiences.
In South Africa for instance, even in the pre-constitutional era,

courts could give mandatory orders to the government, although limited as a
remedy in administrative law, and these were called ‘mandatory interdicts’.37
The Constitutional Court had made several mandatory orders requiring the
provincial Government to perform specific duties in furtherance of realisation
of rights concerned.38 It was with the court’s reluctance to monitor compliance
Nilabati Behera v. State of Orissa, (1993) 2 SCC 746 : AIR 1993 SC 1960, at 19; Lavoie v.
Nova Scotia, (1988) 84 NSR (2d) 393 (NS SC) at 400, 403 (Pursuant to §24 of the Charter, the
court has a duty, where it is just under the circumstances, to grant a remedy if Charter rights
have been infringed or denied. The Charter of Rights to be meaningful must be capable of
enforcement).
34
The ‘structural interdict’ in SA and the Charter remedy in Canada, See Kent Roach & Geoff
Bundlender, Mandatory Relief and Supervisory Jurisdiction: When Is It Appropriate, Just
and Equitable, 122 S. A frican L.J. 325 (2005), pp. 325-351.
35
S. Muralidhar, Implementation of Court Orders in the Area of Economic, Social and Cultural
Rights: An overview of the Experience of the Indian Judiciary, 2 International Environmental
Law R esearch Centre (2002), available at http://www.ielrc.org/content/w0202.pdf (Last vis-
ited on April 28, 2017).
36
Shivani Verma, The International Council on Human Rights Policy, Review Meeting Rights
and Responsibilities of Human Rights Organisations Geneva, 15 March 2005.
37
Lawrence Baxter, A dministrative Law 696-8 (1984).
38
For instance, Premier v. Assn. of State-Aided Schools, (1999) 2 SA 91 (CC) (mandatory or-
ders requiring a provincial government to resume payments of subsidies to certain schools);
August v. Electoral Commission, (1999) 3 SA 1 (CC) (directing the Electoral Commission
to make the necessary arrangements to enable prisoners to vote); and Dawood v. Minister
of Home Affairs (2000) 3 SA 936 (CC); Shalabi v. Minister of Home Affairs, 2000 ZACC 8;

with such orders that the dilemma of failure by successful litigants to benefit
from constitutional litigation emerged, portraying rights as hollow and illuso-
ry.39 This brought in the need for the ‘structural interdict’, which required “the
violator to rectify the breach of fundamental rights under court supervision”,40
enabling litigants to follow up on declaratory or mandatory orders.41 It has been
segregated into five elements,42 starting with a declaration of infringement by
the government then mandating compliance with constitutional responsibilities
requiring the submission of a comprehensive report to the court, with the action
plan for remedying the violation.43 This is followed by judicial evaluation of the
report to ensure the effectiveness of the proposed remedial plan, which even-
tually culminates into a final order after integrating the government plan and
any court mandated amendments.44 The failure of the government to adhere to
this plan would then amount to contempt of court.45 Through such structured
exercise of supervisory jurisdiction, a dynamic dialogue between the court and
other branches of the government on the intricacies of implementation may be
initiated.46 This mechanism thus permits the courts to refrain from political
action, while at the same time, provides for ample administrative flexibility.
First acknowledged as a valid remedy in 1998, the Constitutional

Court of South Africa affirmed that a litigant could obtain a court order direct-
ing the government body in question to take steps to eliminate the violation
and also to report back to the court.47 The remedy has thereafter been used,
although, sparingly, by High Courts48 and at times even by the Constitutional
Thomas v. Minister of Home Affairs, (2000) 3 SA 936 (CC) (ordering immigration officials to
exercise their discretion in a manner that takes account of the constitutional rights involved).
39
Dennis Davis, Socio -Economic R ights in South A frica: The R ecord after Ten Years, Vol. 2
(Issue 1, 2004).
40
Iain Currie & Johan de Waal, Remedies in The Bill of R ights H andbook 217 (5th ed.,
2005); See also Richard Moultrie, A Structural Interdict as the Appropriate Remedy for the
Constitutional Infringement, 7–8 (December, 2006) (unpublished manuscript developed for
Legal Resources Centre’s Constitutional Litigation Unit, on file with the New York University
Law Review) (describing basic characteristics of structural interdicts).
41
Mitra Ebadolahi, Using Structural Interdicts and The South African Human Rights Commission
to Achieve Judicial Enforcement of Economic and Social Rights in South Africa, 83 NYU Law
R eview 1565, http://www.nyulawreview.org/sites/default/files/pdf/NYULawReview-83-5-
Ebadolahi.pdf (Last visited on April 28, 2017).
42
Currie & de Waal, supra note 40, at 217–18.
43
Id.
44
Id.
45
Id., 218.
46
Marius Pieterse, Coming to Terms with Judicial Enforcement of Socio-economic Rights, 20
SAJHR 383, 414 (2004) (Often, even interested third parties may submit comments on the
proposed plan, requiring the government to reply to those comments); Moultrie, supra note
40, 8.
47
Minister of Health v. Treatment Action Campaign (No. 2), (2002) 5 SA 721 (CC) at 757; See
also City Council of Pretoria v. Walker, (1998) 2 SA 363 (CC) at 401.
48
Ebadolahi, supra note 41 (High Courts have used structural interdicts in cases involving both
socio-economic rights and even other cases involving ‘public interest’ in a broader sense. For
the kinds of cases that have involved such supervision).

Court.49 The courts’ reluctance to award structural interdicts has been severely
criticised,50 showing popular support for such remedy.
The rights’ struggle in Canada was a little different, given the

hurdle of the immunity of the crown from injunctive relief,51 that had to be over-
come. After the enactment of the Canadian Charter of Rights and Freedoms,
there was judicial and scholarly support for subjecting the Crown to manda-
tory relief.52 Despite the establishment of the validity of such injunctive relief,53
general declarations were preferred, with the faith that governments would
comply in good faith with general declarations of constitutional entitlement.54
However, soon the limitations of declaratory orders, such as ‘vagueness, inabil-
ity to monitor compliance an ensuing need for subsequent litigation to ensure
compliance’ becoming more and more apparent, and recurrent administrative
default, marked a change in trend.55 With the motto that systematic flaws re-
quire systematic remedies, Canadian law of remedies saw massive expansion
and innovation.56 The ‘suspended declaration of invalidity’, a novel remedy by
which the court makes space for legislative response, is characterised by the
49
August v. Electoral Commission, (1999) 3 SA 1 (CC) (the Court found the Electoral
Commission had violated South African prisoners’ right to vote. Conceding the Court lacked
the institutional competence to rectify the constitutional wrong, Judge Sachs directed the
Electoral Commission to do so itself, requiring the Commission “to furnish an affidavit set-
ting out the manner in which the order will be complied with” within two weeks).
Sibiya v. Director of Public Prosecutions (Sibiya 1), (2005) 5 SA 315 (CC) at 337-38; S v.
Makwanyane, (1995) 3 SA 391 (CC)) (The Constitutional Court had declared the death penalty
inconsistent with the interim Constitution and ordered the substitution of lawful punishments
for prisoners on death row. A decade later, finding that “the process of the substitution of sen-
tences has taken far too long,” the Court issued a structural interdict to exercise supervisory
jurisdiction over the sentence-conversion process).
50
Dennis Davis, Adjudicating the Socio-economic Rights in the South African Constitution:
Towards ‘Deference Lite’?, 22 SAJHR 301, 304–05 (2006) (By failing to issue structural in-
terdicts, “the Court has, in effect, surrendered its power of sanction of government inertia and,
as a direct result, litigants have not obtained the shelter or drugs that even a cursory reading
of the Constitutional Court decisions in Grootboom and TAC (No. 2)] promised in so clear a
fashion).
51
See Proceedings Against the Crown Act, RSO, 1990, Chapter P.27, §14.
52
Van Mulligan v. Saskatchewan Housing Corpn., (1982) 23 Sask R 66 (QB); Levesque v. Canada
(Attorney General), (1985) 25 DLR (4th) 184 (FCTD); See also Peter Hogg, Constitutional
Law of Canada 37.269, (3rd ed., 1992); Peter Hogg & Patrick Monahan, Liability of the
Crown 36, (3rd ed., 2001); R.J. Sharpe, Injunctions and Specific Performance, (3rd ed., 2000),
at 3.1030; K ent Roach, Constitutional R emedies in Canada (1994), at 13.90.
53
Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 : (2003) 3 SCR 3; See
also Marchand v. Simcoe Country Board of Education, (1986) 29 DLR (4th) 596 (Ont HC and
Marchand v. Simcoe County Board of Education (No. 2), (1987) 44 DLR (4th) 171 (Ont HC)
(Injunctive relief granted against local school board demonstrates willingness to use manda-
tory relief against local authorities).
54
See Mahe v. Alberta, (1990) 68 DLR (4th) 69 (SCC), at 106; Eldridge v. British Columbia,
(1997) 151 DLR (4th) 577 (SCC), ¶96; K. Roach, Remedial Consensus and Dialogue under
the Charter: General Declarations and Delayed Declarations of Invalidity 211, 269, 39
University of British Columbia Law R eview (2002).
55
Justice Iacobucci’s Dissent in Little Sisters v. Canada, (2000) 2 SCR 1120.
56
See Schachter v. Canada, (1992) 2 SCR 679.

court declaring that the law declared to be unconstitutional remain in force

temporarily, providing the legislature an opportunity to enact new legislation
before the unconstitutional legislation is struck down.57 This was first used to
prevent a breakdown of the rule of law which might have followed the declara-
tion invalidating most laws of Manitoba, having been enacted only in English
and not French.58 The court retained jurisdiction over the case for several years,
issuing follow-up judgments, relating both to the timing and extent of the trans-
lation process.59 This allows for the government to adopt more comprehensive
reforms, with courts retaining jurisdiction and enforcing declaration of invalid-
ity as the ultimate default remedy.60 A broad understanding of judicial review
has lent support to retention of jurisdiction over cases, in pursuit of ‘responsive’
and ‘effective remedies.61 This involves interpreting separation of powers to
mean not that courts may never exercise legislative or administrative functions,
but rather that it would be inappropriate ‘to leap into the kind of decisions and
functions for which its design and expertise are manifestly unsuited’.62
In India, the use of similar remedies is not only more frequent,

but also broader in its scope of application. While the evolutionary trend here
too, started with the coming into prominence of the failure of declaratory and
injunctive relief, the adoption of the writ of continuing mandamus into the
constitutional framework saw much less friction, and in ways more than one,
saw an organic inclusion in Public Interest Litigation.63 The Supreme Court
of India has for a long time now been giving mandatory orders to the govern-
ment, and has not limited its powers of adjudication to mere declaratory rem-
edies.64 Recognised as “the last resort for the oppressed and the bewildered”, it
is not hindered by traditional concepts of judicial detachment and objectivity
in seeking to compel the State to improve socio-economic conditions.65 Justice
Bhagwati went as far as to observe that the court may issue “whatever direc-
tion, order or writ may be appropriate in a given case for the enforcement of a
fundamental right.”66
57
Id.; Manitoba Language Rights, In re, (1985) 1 SCR 721.
58
Manitoba Language Rights, In re, (1985) 1 SCR 721.
59
Manitoba Language Rights, In re, (1985) 1 SCR 721, supp reasons (1985) 2 SCR 347, supp
reasons (1990) 3 SCR 1417, supp reasons (1992) 1 SCR 212.
60
Sujit Choudhry & Kent Roach, Putting the Past Behind Us? Prospective Judicial and
Legislative Constitutional Remedies, 21 Supreme Court Law R eview Second Series 205
(2003).
61
Id.
62
Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 : (2003) 3 SCR 3, ¶25,
per Iacobucci and Arbour JJ (emphasis in original) [Doucet-Boudreau], ABOA, Tab 7. 56, 57.
63
Rohan J. Alva, Continuing Mandamus: A Sufficient Protector of Socio-Economic Rights in
India 210, 44 Hong Kong L.J. 207, 230 (2014).
64
Id.
65
Upendra Baxi, The Indian Supreme Court and Politics 373 (1980).
66
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : AIR 1984 SC 802 at 813.

While, as noted in the previous section, this has not precluded

the court from at times refraining from ensuring fructification, this has been
mostly in cases where the court did not think a comprehensive order to be either
economically, politically or otherwise apt.67 These have not however been in
recognition of the limitations to the courts’ powers to accord further remedial
relief. Rather, with the growth of PILs, we have seen comprehensive mandatory
orders become the norm in writ courts. The courts have, more than often, gone
beyond merely declaring the existence or violation of a right, and with a view to
effectuate realisation, handed down detailed orders and directives, be it preven-
tive, regulatory or even curative in scope.68 In the landmark Olga Tellis case,
for instance, instead of merely recognising a right, the court ordered substi-
tute accommodation and implementation of a Slum Upgradation programme.69
Even in the CERC case,70 in addition to recognising the right of workers to
healthcare, it handed down far-reaching mandatory orders requiring regulation
of factories, documentation of health status and surveys.71
As with declaratory orders, even mandatory orders were not

wholly successful in combating the reluctance to enforce socio-economic
rights. Despite the hue and cry created over the ‘path breaking’ Olga Tellis
judgment, the resettlement never took place, and the government has repeat-
edly flouted the court’s dictum, carrying out evictions without resettlement.72
A detailed analysis of mandatory orders and their failure in terms of effective
compliance and enforcement in social litigation, however, is beyond the scope
of this paper, and thus we proceed on the informed premise that enforcement of
socio-economic rights, despite there being court directives, remains an issue in
the Indian administrative set-up.
The implementation challenge is partly attributable to the absence

of a follow-up mechanism, as a mandatory order signifies the end of litiga-
tion.73 Based thus on the understanding that one-time orders are not always
adequate to deal with situations of social deprivation, the court is required to
67
See also Assam Rifles Multi-Purpose Coop. Society Ltd. v. Union of India, (1987) 2 SCC
638 (SC refused to adjudicate on sensitive issues dominated by political concerns); Vincent
Panikurlangara v. Union of India, (1987) 2 SCC 165 (SC recognised that matters may arise
which involve a multiplicity of complex interests which cannot be appropriately disposed of in
court proceedings).
68
Alva, supra note 63.
69
Olga Tellis v. Bombay Municipal Corpn., (1985) 3 SCC 545.
70
Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42.
71
Id., 31.
72
See Olga Tellis, Thirty Years after a landmark Supreme Court verdict, slum dwellers rights’
are still ignored, The Scroll, December 21, 2015, available at https://scroll.in/authors/3404
(Last visited on April 28, 2017); Markandey Katju, The Peremptory Demolition of Slums is
a Violation of the Law, The Wire (Mumbai) December 14, 2015, available at https://thewire.
in/17279/the-peremptory-demolition-of-slums-is-a-violation-of-the-law/ (Last visited on
April 30, 2017).
73
Alva, supra note 63, 211.

issue directions from time-to-time to monitor compliance.74 This is the essential

premise of the writ of continuing mandamus. It is a remedy crafted to jettison
uncertainties of constitutional adjudication by allowing the court to oversee, in-
tervene periodically and ensure the fulfilment of the particular socio-economic
right, to remedy administrative recalcitrance blocking realisation of rights.75
One of the first instances of such practise can be seen in Hussainara

Khatoon case,76 discussed below, where relief was given to the prisoners as
orders and directives, without issuing dispositive judgments, in order to re-
tain jurisdiction over the matter.77 This set the trend for series of cases where
immediate, significant interim relief was followed by a long deferral of final
adjudication, distinguished from traditional preliminary injunctive relief due to
both extent of relief and lack of preliminary finding on probability of success.78
Furthermore, in the Mukti Morcha case, while assessing the inhumane condi-
tion of bonded labourers, the SC after ordering detailed assessments, issued
remedial orders asking the State to create a Vigilance Commission, to ensure
minimum wages, rehabilitation, etc.79
It was only in Vineet Narain v. Union of India,80 that this was

called a ‘continuing mandamus’, issued to ensure effective discharge of public
duty by the CBI and other governmental agencies, free from political bias and
influence. However, the Supreme Court clearly stated that ‘continuing manda-
mus’, was a new tool forged because of the peculiar needs of this matter.81
What followed was expansive use of the remedy not limited only
to supervision of investigative agencies, being used mainly for supervision of
implementation of socio-economic rights in the fields of environmental protec-
tion, rights read into Article 21, rehabilitation, labour exploitation, etc. We see a
trajectory of cases where courts issued directions, supervising enforcement and
even requiring periodic progress reports.82 It has now culminated into a full-
blown writ remedy that courts have adopted without reservations in cases that
involve systematic impairment of collective rights. What is notable that unlike
other writ remedies, a continuing mandamus is a procedural innovation, not a
substantive one, i.e., it only allows the court an affective basis to ensure that
74
D.Y. Chandrachud, Constitutional and Administrative Law in India, 36 International
Journal Of Legal Information 335 (2008), available at: http://scholarship.law.cornell.edu/
cgi/viewcontent.cgi?article=1142&context=ijli (Last visited on April 28, 2017).
75
Alva, supra note 63.
76
Hussainara Khatoon (3) v. State of Bihar, (1980) 1 SCC 93 : AIR 1979 SC 1360.
77
Manoj Mate, Two Paths to Judicial Power: The Basis Structure Doctrine and Public Interest
Litigation in Comparative Perspective 196, 12 San Diego Int’l L.J. 175, 222 (2010-2011).
78
Cunningham, supra note 11, 512.
79
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, ¶¶37, 38.
80
Vineet Narain v. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889.
81
Id., ¶21.
82
M.C. Mehta v. Union of India, (2001) 3 SCC 763; Manohar Lal Sharma v. Union of India,
(2014) 2 SCC 532.

the fruits of a judgment can be enjoyed by the right-bearers, and realization is

not hindered by administrative and/or political recalcitrance. Tip-toeing around
the constitutional separation of powers, it is a means devised to ensure that the
administration of justice translates into tangible benefits, beyond the law re-
porters. In the next section, we deal with categories of cases where the writ has
been used, and courts have monitored compliance, through continuous orders
and directions. While in several areas, effective enforcement still remains illu-
sory, significant strides have been made in some fields, and the paper attempts
to trace the reasons for the same. We hypothesise that it is not the failure of the
remedy, but, rather, the nature of orders, political co-operation and also public
reception, to some extent, that determine the fate of such social litigation.
IV. ANALYSIS OF COURT ORDERS IN

CONTINUING MANDAMUS PROCEEDINGS
In this part, we analyse instances of the use of continuing manda-
mus by the Supreme Court with the aim of deducing the success of the remedy,
and reasons for short-comings. We see that court orders and the approach has
varied significantly depending upon the nature of the subject matter of the case.
We have thus classified the cases into categories depending upon the nature of
the right involved, which, as we will see, mostly complements the form and
extent of judicial involvement.
A. INVESTIGATIVE AGENCIES AND POLICE REFORMS
The fashioning of the writ, although, in substance, used before,

took place in the Vineet Narain case,83 whereby the court retained jurisdiction
over the matter, granting a ‘continuing mandamus’. This, as we discuss below,
sparked a revolutionary trend of judicial oversight of investigative agencies to
guard against political influence and bias, with petitioners now being able to
seek court-monitored investigations. This section analyses the need, use and
success of the writ in this field, critiquing the methodology that prevents ulti-
mate convictions and possible ways to make it more effective.
1. Significance of Continuing Mandamus in the functioning of

CBI
The role of the Central Bureau of Investigation (‘CBI’)84 in in-

vestigations against government bureaucrats and dignitaries has often been
83
The CBI was established by the Special Police Establishment set up by the Government of
84
India in 1941. Its powers come from the Delhi Special Police Establishment Act (1946) and it’s
found in the Union List of the 7th Schedule of the Indian Constitution. Its aim is to maintain
the law of the land by ‘in-depth investigation and successful prosecution.’

considered as non-committal, if not undependable.85 Its transparency in

working has often been impugned - in the Bofors fraud case,86 and even the
Priyadarshini Mattoo case,87 amongst others, where either the charge sheet
had not been filed or even after its filing, no sensible conclusion was arrived
at. During the Janta Party’s rule, the CBI suffered a setback while investigat-
ing charges against Indira Gandhi, her son Sanjay Gandhi and their confeder-
ates.88 The independence of CBI was curbed by the Single Directive of 1988 of
the Government, making it compulsory to take the consent of the concerned
government department before initiating any investigation against ‘decision-
making level officers.’89 The Supreme Court noting Government’s control as a
reason for the CBI’s inertia in the agency’s investigation, quashed the politically
motivated directive in Vineet Narain v. Union of India, (‘Jain Hawala case’).90
Motivated by the need to fill this executive and legislative void, and guided by
its duty under the Beijing Principles,91 the court sought to intervene in the Jain
Hawala case and coined the term ‘continuing mandamus’. The alleged inaction
of the CBI in cases like Subramanian Swamy v. CBI92 and Anukul Chandra
Pradhan v. Union of India,93 against influential persons in the government, was
heeded, fuelling the court’s pursuit to fashion this new justice delivery mecha-
nism to curb growing corruption in the Indian polity.94
85
See generally N.K. Singh, The Politics of Crime and Corruption: a former CBI officer
speaks 105 (1999).
86
Union of India v. Prakash P. Hinduja, (2003) 6 SCC 195 : AIR 2003 SC 2612 (Allegation of
bribery in the contract entered into between the Government of India and M/s AB Bofors for
supply guns, ammunitions, vehicles, etc. The SC overruled the Delhi High Court judgment
(Prakash P. Hinduja v. Union of India, 2002 SCC OnLine Del 679 : (2002) 64 DRJ 34) which
quashed the FIR filed and asked the CBI to advance with investigations).
87
Santosh Kumar Singh v. State, (2010) 9 SCC 747 (Santosh Kumar Singh, the alleged murderer
of a 25-year-old law student, was acquitted for what the judge called “deliberate inaction” by
the investigating team. The accused was the son of a high-ranking officer in the Indian Police
Service, the reason for the CBI’s involvement. The 1999 judgment noted that “the influence of
the father of the accused has been there”).
88
Singh, supra note 85.
89
See Vineet Narain v. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889, ¶19 (Decision mak-
ing level officer includes- “Joint Secretary or equivalent of above in the Central government
or such officers as are or have been on deputation to a Public Sector Undertaking; officers of
the Reserve Bank of India of the level equivalent to Joint Secretary of above in the Central
Government, Executive Directors and above of the SEBI and Chairman & Managing Director
and Executive Directors and such of the Bank officers who are one level below the Board of
Nationalised Banks”).
90
91
In the Beijing Statement, the Objectives of the Judicial Organ have been laid down: (a) to
ensure that all persons are able to live securely under the Rule of Law, (b) to promote,
within the proper limits of the judicial function, the observance and the attainment of hu-
man rights; and (c) to administer the law impartially among persons and between persons and
the State.”; See Vishaka v. State of Rajasthan, (1997) 6 SCC 241 : AIR 1997 SC 3011, ¶11.
92
Subramanian Swamy v. CBI, (2014) 8 SCC 682.
93
Anukul Chandra Pradhan v. Union of India, (1996) 6 SCC 354.
94
Vineet Narain v. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889, ¶12.

The Jain Hawala case was, in ways more than one, a path-break-
ing decision. The Division Bench extrapolated the ambit of the writ of man-
damus by judicial application, and kept the matter sub judice to monitor the
CBI’s investigation.95 This was consequent of the CBI’s failure to conduct in-
vestigations against influential government bureaucrats, who were alleged to
be involved in financially supporting terrorist activities, using funds acquired
through ‘hawala’96 transactions. Perceiving the normative passivity of the CBI,
especially when the alleged offender was a powerful person, the court noted
the necessity “to take measures to ensure permanency in the remedial effect
to prevent reversion to inertia of the agencies in such matters.”97 In accordance
with this, the Court not only directed the appointment of a Central Vigilance
Commissioner98 and gave the Central Vigilance Commission statutory status
to supervise the CBI,99 but also inter alia, issued directions on strengthening
the investigation procedure and most importantly, monitored them.100 It had
also over a period of time, supervised the case and passed numerous orders to
ensure effective investigation.101 For instance, the Court asked the authorities
to submit a report with reasons if they close a case against anyone, and also not
make any kind of settlement without the leave of this Court.102 This procedure
of keeping the case pending and regularly monitoring it was, for the first time,
termed as ‘continuing mandamus.’ This, as we will see, saw the birth of the
now often demanded remedy of court monitored investigations, giving end vic-
tims of otherwise incomplete investigations at least a legal entitlement to seek
remedial judicial intervention.
Its practicability was further re-iterated in Union of India v. Sushil

Kumar Modi (‘Bihar Fodder Scam case’)103 where the Court used continuing
95
Id.
96
Hawala transactions take place by transferring money without actually moving it. An un-
dercover alternative banking method for global money transaction that is primarily based on
trust.
97
Vineet Narain v. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889, ¶15.
98
The Commissioner shall be selected by a committee comprising of the Prime Minister, Home
Minister and the Leader of the Opposition, from a panel of outstanding civil servants and oth-
ers with ‘uncorrupted integrity’.
99
The control over the CBI as per §4 of the Delhi Special Police Establishment Act, vests in the
central government. The Court directed that this superintendence should be exercised by the
CVC.
100
The Court’s directions included- the selection of the CBI Director (to be the same as Head of
the Enforcement Directorate of the Ministry of Finance), a Nodal Agency controlled by the
Union Home Secretary with Member (Investigation), Central Board of Direct Taxes, Director
General, Revenue Intelligence, Director, Enforcement, and Director, CBI as associates, shall
be formed for harmonized action in cases with a politico-bureaucrat-criminal relation and also
a panel of established lawyers to be formed to help the CBI in investigation, prosecution and
reviewing the cases without convictions.
101
Vineet Narain v. Union of India, 1996 (2) Scale (SP) 42; (1996) 2 SCC 199; 1996 (2) Scale (SP)
84; (1997) 4 SCC 778; 1996 (4) Scale (SP) 3; 1996 (4) Scale (SP) 56; (6) Scale (SP) 24; 1997 (5)
Scale 254.
102
Vineet Narain v. Union of India, (1996) 2 SCC 199.
103
Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661.

mandamus, owing to the similar nature of proceedings as in the Jain Hawala

case.104 The need for judicial intervention to ensure effective functioning of
such agencies had been recognised before. The court thus found support in
Lord Denning’s popular acknowledgement of the duty of investigative agencies
to enforce the ‘law of the land’ without any interference from the executive, and
the need of enforcing the duty using the writ of mandamus.105 A similar judg-
ment was also given in M.C. Mehta v. Union of India, (‘Taj Heritage Corridor
Project case’)106 where the Court intervened to contain the construction activi-
ties between the Agra Fort and Taj Mahal thereby diverting River Yamuna,107
and in pursuance thereof, adopted the procedure of continuing mandamus by
monitoring the functioning of the CBI. Even in the Taj Trapezium case108 where
the Taj Mahal was recognized as a world heritage site, the Supreme Court con-
stituted the Agra Mission Management Board followed by the Taj Trapezium
Zone Pollution Authority, to divert the construction work from that area to
avert air pollution. After passing regular orders, it enquired from the com-
mittee if any damage was foreseeable from the construction work,109 and in ac-
cordance with the responses, directed the CBI to file an FIR and make further
investigation.110
Plethora of arguments have been made against use of the writ in

monitoring investigations and directing the filing of FIRs, on grounds of it be-
ing violative of §6A of the Delhi Special Police Establishment Act (‘DSPE’),
1946 that requires the approval of the respective government department be-
fore initiating investigation against government officials, and in its absence, the
possibility of its misuse to harass such officials.111 However, the Court has been
keen on using the writ to preserve public confidence in the impartial function-
ing of the investigating agencies. It has countered these arguments apprising
§6A to not be an embargo to judicial involvement.112 It rather observes court
monitoring to be a reason why the investigating agencies may not misuse it.113
The Jain Hawala dictum was, thereafter, frequently used as a precedent by both
the Supreme Court114 as well as High Courts115 to do complete justice. Although
104
Id., ¶10.
105
Id., ¶4; See also R. v. Metropolitan Police Commr., (1968) 2 QB 118 : (1968) 2 WLR 893 :
(1968) 1 All ER 763.
106
M.C. Mehta v. Union of India, (2003) 8 SCC 706.
107
Id., ¶3.
108
109
M.C. Mehta v. Union of India, (2003) 8 SCC 696 : 2003 Supp (3) SCR 925, ¶6.
110
Id., ¶13.
111
Manohar Lal Sharma v. Union of India, (2014) 2 SCC 532; Centre for Public Interest Litigation
v. Union of India, (2000) 8 SCC 606.
112
Manohar Lal Sharma v. Union of India, (2014) 2 SCC 532, ¶38.
113
Id.
114
Sushila Devi v. State of Rajasthan, (2014) 1 SCC 269.
115
S. Seshaiah v. Govt. of A.P., 2003 SCC OnLine AP 941 : (2004) 1 ALD 307.

there is a mandatory CBI manual116 in relation to its investigative functions

like raids, seizure and arrests, it has evidently not been followed considering
the inaction of the agency in cases like the Jain Hawala Scam or the 2G scam,
inter alia. Thus, the court in public interest, using its extraordinary jurisdiction
under Article 32, extended the writ of mandamus in an attempt to enforce the
duties of the executive.117
Originally, it was the Court which used to extend the ambit of

the writ to check the compliance of its order in spite of the petitioners seeking
only further directions.118 Even in Vineet Narain, the Court considering the
uncommon nature of the facts and the seeming possibility of no direct remedy
issued the writ. However, with time, continuing mandamus has turned into a
procedural right, with the petitioners asking the Court to monitor the investi-
gating agencies with regular directions.119 Nevertheless, a party cannot seek
the investigation by an independent agency merely on suspicion or surmises
as held by the Supreme Court in State of Karnataka v. Arun Kumar Agarwal120
while overruling the High Court121 judgment where the High Court granted a
continuing mandamus on the basis of a report by the Comptroller and Auditor
General. The Supreme Court, differentiating the facts of this case from that of
Vineet Narain, said that crime should be committed and reported for there to
be a CBI enquiry monitored by the Court.122 Therefore, according to us, it is in
compelling circumstances like lack of interest in conducting the investigation,
apparent political interference in the agency’s functioning, unnecessary delays
and other such extreme cases, that the Supreme Court may use the writ.
2. Continuing Mandamus: An overarching solution in insulating

the CBI?
The moot question which arises is if the writ of continuing man-

damus is enough to insulate the investigating agencies from external influences
and at the same time expedite the investigating process. There have been doubts
about the whole process providing only a false sense of confidence in the in-
vestigations to the public. While there is no denying that court monitoring has,
116
Central Bureau of Investigation, Crime Manual (July 5, 2013), available at http://cbi.nic.in/
aboutus/manuals/crimemanual.php (Last visited on April 24, 2017).
117
See Vineet Narain v. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889.
118
Narmada Bai v. State of Gujarat, (2011) 5 SCC 79, State of Karnataka v. Arun Kumar Agarwal,
(2000) 1 SCC 210.
119
Sushila Devi v. State of Rajasthan, (2014) 1 SCC 269; O.M. Debara v. Govt. of A.P., 2014 SCC
OnLine AP 163.
120
State of Karnataka v. Arun Kumar Agarwal, (2000) 1 SCC 210.
121
Arun Kumar Agarwal v. State of Karnataka, 1998 SCC OnLine Kar 124 : (1999) 1 Kar LJ 603.
122
Compare Vineet Narain v. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889 (evidence was
collected by the CBI on a probe started long back) with State of Karnataka v. Arun Kumar
Agarwal, (2000) 1 SCC 210 (Here, the crime was neither reported nor was there reasonable
suspicion and thus the SC struck down the decision of the HC).

to some extent, helped in fighting against corruption by some commendable

investigations conducted by the CBI, the actual realisation of rights remains
controvertible. The Court simply ensures that investigation takes place and a
charge sheet is filed. However, charge sheets against government servants have
been ‘collapsing’ at many times, i.e., no case can be made from the same.123
There is no check on the content of charge sheet. For that matter, even the ami-
cus curiae has failed to look into the same, as in the Vineet Narain case, where
the charge sheet was filed, before the amicus curiae could tell if the investiga-
tion was being done in the right manner or not.124 Insofar as the investigation as
recorded in the charge sheet is concerned, Justice J. S. Verma shares the view
that the charge sheets are ‘half-baked’ and based on corroborative evidence.125
Further, the investigation is so inadequate, that framing charges by the courts
becomes impossible.
Recently, in Manohar Lal Sharma v. Union of India,126 where

allegations were levelled against unknown public officials for allocating coal
blocks for external considerations, conspiring with other businessmen and
agents, the Court cleared the contextual scope of ‘monitoring’, restricting it to
only ensure proper investigation by surveillance, without leading the ‘mode or
manner of direction.’127 While this would seem to provide ample flexibility to
specialised agencies, countering any ‘capability’ and ‘specialisation’ critiques,
it also seemingly limits the scope and nature of the courts’ powers.
The Supreme Court, at various other instances, has clarified the

limited extent of its power to monitor after a charge sheet is filed by the investi-
gating agency.128 By delimiting its scope to interfere, it has eschewed from cre-
ating any ‘imbalance in the criminal jurisprudence’, addressing scepticism in
this regard.129 It needs to abstain from saying anything on merits or otherwise
that can prejudice the decision of the court, competent to decide on merits, to
ensure a fair trial.130 Thus, it is beyond this Court’s jurisdiction to express any
123
See, e.g.,Vineet Narain v. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889.
124
Ashish Khetan, There is strange cohabitation between different political forces and CBI cases
are used for various collateral purposes, Tehelka, January 14, 2012, available at http://www.
tehelka.com/2012/01/there-is-strange-cohabitation-between-different-political-forces-and-
cbi-cases-are-used-for-various-collateral-purposes/2/ (Last visited on December 16, 2016).
125
Aloke Tikku, Given CBI past record, SC monitoring not enough, Hindustan Times (Delhi)
December 27, 2010, available at http://www.hindustantimes.com/delhi/given-cbi-past-record-
sc-monitoring-not-enough/story-uQWMo0w2klRR922UPBeOkN.html (Last visited on
December 16, 2016).
126
Manohar Lal Sharma v. Union of India, (2014) 2 SCC 532.
127
Id., ¶43.
128
Vineet Narain v. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889, ¶8; Narmada Bai v.
State of Gujarat, (2011) 5 SCC 79, ¶38.
129
Arun Jaitley, Minister of Finance, Corporate Affairs and Information & Broadcasting, 28th
I.B. Endowment Lecture (23 December, 2015), available at: http://pibphoto.nic.in/documents/
rlink/2015/dec/p2015122301.pdf (Last visited on December 16, 2016).
130
See supra note 118.

kind of view on the merits of the case considering facilitating fair investigation
as its ultimate goal.131
Furthermore, the Court has always adverted to how it was being

cautious, and made sure that it did not overstep its powers so as not to set up a
precedent which could be misused, keeping in light the principle of ‘presump-
tion of the accused’s innocence.’132 The purpose is to avert the lower courts
from considering such observations in trial, to avoid any impression of arbi-
trariness, bias and subjectivity against the accused.
This rule, however, is not absolute. Any aggrieved party, even

after the disposal of the case, can approach the Court asking for further direc-
tions.133 Now, while the jurisdiction of the Courts as under Articles 226 and 32
is not used to meddle with the progress of the trial or any other investigation
later, it can empower the court to duly look into matters involving mala fide or
colourable legislation, or any other undesired influence on fair investigation.134
Thus, if anything holds back or impedes the investigation because of extra-
neous influences, one may approach the Court even after the charge sheet is
filed.135
While there may be inclination towards inquisitorial proceedings

while using this doctrine, it does not dilute a fair trial. The Court does not
thwart any principles of jurisprudence like the presumption of innocence un-
less found guilty while scrutinizing the charge sheet without expressing a view
on the merits. The question of bias does not arise if the Court questions just to
ensure proper procedure was followed, what all was and should be done.136 It is
however because of this cautious approach of the Courts to ensure a fair trial
that the writ fails to be of benefit. It is argued that the Court should though not
comment as to prejudice but should examine the content of the charge sheet
131
See Jakia Nasim Ahesan v. State of Gujarat, (2011) 12 SCC 302 (The appellant filed a petition
asking the Court to direct investigation by an independent agency for her husband’s death.
She alleged the death to be caused by an influential person in the Government, thereby tying
the hands of the CBI to investigate. However, the Court rejected the plea after scrutinizing
this Court’s holdings in Vineet Narain, M.C. Mehta and the Narmada Bai case. It was held
that once a charge sheet is filed by the investigating agency, the Court has no further power to
monitor.)
132
Union of India v. Sushil Kumar Modi, (1998) 8 SCC 661, ¶1.
133
Narmada Bai v. State of Gujarat, (2011) 5 SCC 79, ¶38.
134
Manohar Lal Sharma v. Union of India, (2014) 2 SCC 532, ¶29.
135
See Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441 : AIR 2009 SC 984 (the offence
of fraud was committed in a organized manner in the selection process of the Panchayat
Secretaries, the Supreme Court upheld the direction given by the High Court to the CBI even
after the charge sheet was filed).
136
Vineet Narain v. Union of India, (1998) 1 SCC 226 : AIR 1998 SC 889 (The then Solicitor
General requested ‘in-camera’ proceedings to state certain material facts. The Court allowed
the same to the extent necessary while noting the importance of its secrecy, in the interest of
justice. Therefore, the Court to be satisfied with the content of the charge sheet may monitor
to the requisite scale.).

considering quod est necessarium est licitum. The Code of Criminal Procedure,
1973, defines investigation137 including the procedure requisite for collection
of evidence. Thus, while monitoring the investigation, it becomes the duty of
the Court to see to it that influential persons do not botch up the investigation
in any manner. The writ court should thus, exercising its powers, extend its
jurisdiction to look into cases even post filing of charge sheet where neces-
sary, to give effect to the ultimate objective of ensuring unbiased, meaningful
investigations, combating political corruption. Needless to mention, any such
intervention should be cautiously done, without prejudice to the presumption
of innocence.
3. Functionality and Practicality of the writ in CBI Cases
While the writ may have been effectual at some instances, there
is no guarantee of the CBI being insulated from political interference. For
instance, the orders and directions passed by the SC in the Jain Hawala case
and in Prakash Singh v. Union of India138 remain unimplemented till date. The
Vineet Narain of the Hawala case, who is an anti-corruption activist grieves,
“Despite SC monitoring, the case was never properly probed. I saw how CBI
and government’s top law officers played a dubious role to ensure the probe
was botched up.”139 There were no convictions because of lack of conclusive
evidence in the charge sheets. As for the Prakash Singh case,140 a decade has
passed since the judgment but still the police reforms remain unexecuted in
most states.141 The Court in this case had passed seven binding directions for
all the states to follow and monitored the same till 2008 after which it set up
a monitoring committee.142 A decade has passed and still nearly 16 states are
to fully implement the directives.143 The judge in the Bofors case called such
137
The Code of Criminal Procedure, 1973, §2(h).
138
Prakash Singh v. Union of India, (2006) 8 SCC 1.
139
Abhinav Gargi, Nothing has changed since 1997, Vineet Narain says, The Times of India (New
Delhi) May 10, 2013, available at http://timesofindia.indiatimes.com/india/Nothing-has-
changed-since-1997-judgment-Vineet-Narain-says/articleshow/19978247.cms (Last visited
on December 16, 2016).
140
(2006) 8 SCC 1.
141
Maja Daruwala, Ten Years and Waiting: A Decade after ‘Prakash Singh’ Judgment, police
reforms remain undone, Indian Express, September 22, 2016, available at http://indianex-
press.com/article/opinion/columns/model-police-law-supreme-court-prakash-singh-case-
india-police-3043093 (Last visited on December 20, 2016).
142
The directives were given to ensure functional accountability and responsibility of the po-
lice. They included forming a State Security Commission to avert extraneous influence in
selection process, to give them a minimum tenure, to set up a Police Establishment Board to
decide issues related to their services, to establish a Police Complaints Authority to look into
complaints against police personnel, to have a National Security Commission for appointment
of Chiefs of Central Police Organisations, etc.
143
Reforms in Police Force, Business Standard (Delhi) November 29, 2016, available at
http://www.business-standard.com/article/government-press-release/reforms-in-police-
force-116112900976_1.html (Last visited on December 10, 2016).

trials a ‘waste of public money’ because of the controversial role of the CBI.144
Even in the M. C. Mehta case,145 the Supreme Court had, after continuous mon-
itoring, ordered to replace heritage corridor project with forested greenbelt.
However, it only took place after nearly 8 years and that too when the same was
directed by the Minister of Culture.146 That it was nonetheless done, despite the
delay is also a huge feat.
Unlawful influence is inevitable in such political matters. Even

in the recent 2G Spectrum scam, the SC ordered court monitoring over the
functions of the CBI.147 This was after CBI’s inexplicable lethargy in inter-
rogating, freezing bank accounts and raiding the houses of the suspects.148 The
CBI along with the ED was required to submit a report to the Court. All efforts
in vain, it was only after the SC admonished the Government that the suspect
was jailed.149
The fact that the Court consciously retains jurisdiction of the case
and monitors the investigation agency neither safeguards the agencies from be-
ing affected by high level government servants and politicians, nor ensures an
honest investigation. The CBI generally circumvents a fair investigation, such
as when it dropped charges against Satish Sharma,150 or when the Samajwadi
Party supported the ruling party thereby getting the CBI to submit its report
against Mulayam Singh to the government instead of the court.151 Hence, it is
144
G.P. Joshi, The Central Vigilance Commission and the Central Bureau of Investigation: A
brief history of some developments, Commonwealth Human R ights Initiative, September
17, 2010, available at http://humanrightsinitiative.org/old/publications/police/cvc_cbi_some_
developments_a_brief_history.pdf (Last visited December 18, 2016); See Union of India v.
Prakash P. Hinduja, 2002 SCC OnLine Del 679 : (2002) 64 DRJ 34.
145
146
Aditya Dev, Forest department hurdle in Taj Heritage Corridor, The Times of India (Agra)
July 11, 2016, available at http://timesofindia.indiatimes.com/city/agra/Forest-department-
hurdle-in-Taj-Heritage-Corridor/articleshow/53159073.cms (Last visited on December 11,
2016).
147
Centre for Public Interest Litigation v. Union of India, (2011) 1 SCC 560.
148
Sankar Sen, CBI’s Credibility Crisis, The Tribune, July 21, 2016, available at http://www.trib-
uneindia.com/news/comment/cbi-s-credibility-crisis/268703.html (Last visited on December
20, 2016).
149
Press Trust of India, 2G spectrum scam: Former telecom minister A. Raja arrested, The Times
of I ndia, February 2, 2011, available at http://timesofindia.indiatimes.com/india/2G-spec-
trum-scam-Former-telecom-minister-A-Raja-arrested/articleshow/7411212.cms (Last visited
on August 6, 2017).
150
Captain Satish Sharma is a senior Congress leader against whom CBI had instituted cases
pertaining to alleged irregularities in allotment of petrol pumps and gas agencies during his
tenure as Petroleum Minister between 1993 and 1996. The cases were later closed.
151
The Supreme Court had directed the CBI in March 2007 to probe his assets. When Mulayam
Singh’s party was not part of the ruling coalition at the Centre, the CBI wanted to submit its
report to the Court and requested the Supreme Court in October 2007 to modify the earlier
order of producing it to the central government. But in a complete turnaround from its earlier
stance, it later sought the Supreme Court’s approval to submit the findings of its inquiry to the
government and not to the Court. This happened after the Samajwadi Party lent support to the
government during the Confidence Motion in the Lok Sabha on 22 July, 2008.

clear from the above examples that the CBI, just like the police forces in our
country, is open to be influenced by high level politicians and government serv-
ants, and there is hardly anything that the Court can do in this matter simply by
‘monitoring’ the case. Moreover, political parties at the Centre are always re-
luctant to strengthen the functioning of the CBI. Even recently, the Prevention
of Corruption (‘PC’) Bill, 2013, has been proposed by the Modi government
requiring the CBI to take sanction of the government before investigating as
under the DSPE.152
Keeping in mind social welfare and common good, a more prag-

matic and realistic approach adopted by the Courts, may help to tackle the issue
in a more effective manner. Continuing mandamus in investigations has not
proved to be a concrete solution to all evils. Factors such as the mettle of the
CBI officers, the nature of the cases and the persons involved and the guidelines
and directions given by the Court are all determining factors in the success-
ful implementation of the writ. However, to reduce the risk of political inter-
ference, a factor which may detriment the effect of the writ, there should be
thorough enquiry of the CBI’s functioning itself, i.e., a CBI like probe against
the CBI,153 by some notable individuals of unimpeachable integrity or a Joint
Parliamentary Committee. Moreover, the CBI in these kinds of cases should be
made more accountable to, if not the Court, then at least the amicus curiae or
any committee like the CVC as in the Hawala case. Since this jurisdiction is
yet evolving, blunders like filing of the charge sheet without corroborating with
the amicus curiae should be taken care of. The Courts need to form monitoring
committees, comprising of people more specialized and able to figure out the
constraints in the investigation, and such committees should be made directly
accountable to the Court.
The High Courts within their territorial jurisdiction and the SC

have vested powers to order an investigation by the CBI.154 The Courts should
rightfully use their discretion to get a case investigated by the CBI and monitor
the same if needed. Thus, continuing mandamus along with political disasso-
ciation of the CBI and the new police reforms (functional accountability with
limited political control and the internal check system), should be a more pro-
ductive approach.
152
Bosco Dominique, Don’t amend Prevention of Corruption Act: India against Corruption to
Centre, The Times of India (Puducherry) November 22, 2016, available at http://timesofindia.
indiatimes.com/city/puducherry/Dont-amend-prevention-of-corruption-Act-India-Against-
Corruption-to-Centre/articleshow/55559489.cms (Last Visited on December 11, 2016).
153
See generally Kaushal Shroff, The Curious Case of CBI, Business Standard (Delhi) October
31, 2015, available at http://www.business-standard.com/article/current-affairs/the-curious-
case-of-cbi-115103001651_1.html (Last visited on April 25, 2017) (Justice T.S. Thakur and
Justice C. Nagappan suggested “CBI probe against CBI” for not filling up vacancies in the
agency).
154
See Nirmal Singh Kahlon v. State of Punjab, (2009) 1 SCC 441 : AIR 2009 SC 984.

B. CONTINUING MANDAMUS IN ENVIRONMENTAL

LITIGATION
Judicial innovation has been the hallmark of the Indian environ-

mental litigation. While critics have referred to the Supreme Court as ‘Garbage
Supervisor’ or ‘Lords of Green Bench’,155 many have lauded its approach as
having pioneered procedural as well as substantive innovations for the realisa-
tion of environmental justice.156 Indian courts have been seen as leading the
way in enforcement of environmental laws through PILs, having their legal
basis in the constitutional right to a healthy environment.157 Procedural innova-
tions include admitting petitions on behalf of pollution victims and inanimate
objects, making spot visits, appointing expert committees and amicus curiae,
and other means that aid in expanding the scope and effectiveness of environ-
mental litigation.158 On the other hand, court decisions formulating, defining
or rejecting policies and governance structures for environmental protection,
determining how its directions should be implemented, etc., form part of the
substantive judicial innovations.159 Instituting new bodies and implementing
court orders through the writ of continuing mandamus has also been character-
ised as one such innovation,160 strengthening access to environmental justice.
Despite having given constitutional protection to environmental

rights,161 non-implementation of orders has been one of the main issues hin-
dering relief in environmental cases.162 Enforcement agencies have repeatedly
155
S.S. Prakash and P.V.N. Sarma, Environment Protection vis-à-vis Judicial Activism 56, 2
Supreme Court Journal (1998).
156
Shyami Fernando Puvimanasinghe, An Analysis of the Environmental Dimension of Public
Nuisance, with particular reference to role in India and Sri Lanka, 9 Sri lanka Journal
of I nternational Law 143-171(1997); Ayesha Dias, Judicial Activism in Development and
Enforcement of environmental Law: Some Comparative Insights from The Indian Experience,
6 J. Environmental Law (1994); See G.L. Perris, Public Interest Litigation in the Indian
Subcontinent: Current Dimensions, 40 (1) International and Comparative Law Quarterly
66 (1991); See also M.R. Anderson, Individual Rights to Environmental Protection in India,
Human R ights A pproaches to Environmental Protection 1 (1998).
157
Subhash Kumar v. State of Bihar, (1991) 1 SCC 598; Shantistar Builders v. Narayan Khimalal
Totame, (1990) 1 SCC 520 : AIR 1990 SC 630; Organization for Economic Co-operation
and Development [OECD], Environmental Compliance and Enforcement in India: Rapid
Assessment (December 5, 2006), available at https://www.oecd.org/env/outreach/37838061.
pdf (Last visited on April 25, 2017).
158
See Geetanjoy Sahu, Implication of Indian Supreme Courts Innovation for Environmental
Jurisprudence, 4/1 Law, Environmental and Development Journal (2008), available at http://
www.lead-journal.org/content/08001.pdf (Last visited on April 25, 2017).
159
Id.
160
Id.; Gitanjali Nain Gill, Human Rights and the Environment in India: Access through Public
Interest Litigation, ENV L REV 14 (2012) 200-218.
161
See Rural Litigation and Entitlement Kendra v. State of U.P., (1985) 2 SCC 431 : AIR 1985 SC
652; M.C. Mehta v. Union of India, (1986) 2 SCC 176 : AIR 1987 SC 965.
162
Rajesh Rangarajan, A Review of Implementation Gaps in the Enforcement of Environmental
Regulation in India, Institute for Financial Management and Research, Centre for Development
Finance, Environmental Policy: Citizens, Institutions & Implementation, Working Paper

failed to enforce court orders.163 In an attempt to address recalcitrance and in-

difference to environment and human problems, despite recognition of rights
violations and court mandates, the writ of continuing mandamus saw applica-
tion in environmental law.
1. Use of Continuing Mandamus in Environmental Protection
There have been several instances where the Supreme Court has
sought to initiate court monitored proceedings to ensure compliance in environ-
mental cases. In Vellore Citizens’ Welfare Forum v. Union of India,164 dealing
with a writ petition against tanneries in the Tamil Nadu polluting ground water
with untreated effluents, the Supreme Court directed the Central Government
to create an authority to deal with the above matter and directed the Madras
High Court 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 con-
tinuous monitoring was an acceptable practice in environmental cases, even
before it was called ‘continuing mandamus’.
A popular use of the writ was in Indian Council for Enviro-Legal

Action v. Union of India,165 or the Bichhri case, concerning an action to prohibit
pollution caused by several chemical industrial plants operated by respondents
in Bichhri village, Rajasthan, without permits. The court, after almost 6 years
of litigation and lack of compliance of its directions, through its order in 1996,
conclusively laid down the respondents’ liability for causing pollution, with
directions for remediation, instructing agencies to enforce the law and report-
ing to the court for further clarifications.166 It had ordered the constitution of a
(July 2009) available at http://environmentportal.in/files/Working%20paper_env%20enf%20

gaps_final.pdf (Last visited on August 8, 2017).
163
The Court directions in the Ganga river pollution case have also not been implemented. The
tanneries continue to operate even though strict action has been ordered by the Court against
the polluted industries both in the case of the Kanpur and Calcutta tanneries. See Praveen
Singh, ‘Bridging the Ganga Action Plan: Monitoring Failure at Kanpur’, 41(7) Economic and
Political Weekly 590 (2006); In the Oleum Gas Leak case, the Court has evolved the doctrine
of absolute liability, clarifying the principle of strict liability which was developed in Rylands
v. Fletcher, (1868) LR 3 HL 330. It has also developed the principle of claiming compensation
under the writ jurisdiction by evolving the public remedy. But ultimately, the victims of gas
leak have been left to the ordinary relief of filing suits for damages.; Similarly, in the Delhi
industrial relocation case, the Court while giving directions to close down industries or to
locate outside Delhi has made it clear that the workers should get whatever compensation
they deserve according to law and industries must be relocated from Delhi. The direction
of the Court, however, has not been implemented by the government on the ground of non-
availability of land to shift the industries and also workers’ right to compensation appeal has
not been given due attention in the subsequent Court hearings. M.C. Mehta v. Union of India,
(1996) 4 SCC 750 : AIR 1996 SC 2231. See also Nandini Dasgupta, Tall Blunders, Doten To
Earth, September 30, 1998, 22.
164
Vellore Citizens’ Welfare Forum v. Union of India, (1996) 5 SCC 647.
165
Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.
166

national authority and subsequent orders even required equi-proportionate rep-

resentation from different states, as well as from the non-governmental organi-
zations.167 States were asked to submit management plans for pollution control
to both, the Central Government and the courts.168 The SC however delegated
further proceedings to various high courts, and was to reconvene to ensure
that directions were complied with.169 Its orders stressed on taking into account
reports by experts, and most steps were directed to be taken in accordance
with such expert opinion.170 This case is different from most others discussed
in as much as the case was ongoing mostly because the respondents kept filing
interlocutory applications to escape liability imposed by the 1996 judgment,171
on one ground or the other. Both review and curative petitions were filed and
dismissed. Stressing on the need for finality of judgment and to discourage
constant filing of applications to avoid compliance, the court even imposed a
fine on the respondent industries vide its 2011 order.172 Compensation was ag-
gressively pursued with attachment of property and even interest payments for
delay.173 While ultimately termed successful, the delay in implementation and
the economic strength of corporations who are able to hold-out for longer has
been criticized.174
Another case in this regard is the Research Foundation for Science,

Technology and Natural Resource Policy v. Union of India,175 challenging
the authority of MoEF permitting import of toxic wastes from industrialised
countries, despite it being hazardous to environment and life. The petitioner
drew attention of the court to the non-conformity of MoEF with international
obligations as well as provisions of the Hazardous Wastes (Management and
Handling) Rules, 1989.176 The court asked for affidavits to show the extent of
implementation of provisions, and then appointed a High-Powered Committee
of experts to submit reports and recommendations on various aspects of
167
168
(1996) 3 SCC 212; Indian Council for Enviro-Legal Action v. Union of India, AIR 1999 SC
1502.
169
This involved regular follow-up and consulting the status of applications in the HC’s during
dismissal of many interlocutory applications. See e.g. Indian Council for Enviro-Legal Action
v. Union of India, (2007) 15 SCC 633.
170
Indian Council for Enviro-Legal Action v. Union of India, (2011) 12 SCC 739; Indian Council
for Enviro-Legal Action v. Union of India, (2011) 12 SCC 764.
171
172
Indian Council for Enviro-Legal Action v. Union of India, (2011) 12 SCC 764, ¶133.
173
See (1996) 3 SCC 212; Indian Council for Enviro-Legal Action v. Union of India, (2011) 12
SCC 768; Indian Council for Enviro-Legal Action v. Union of India, (2011) 12 SCC 752; Indian
Council for Enviro-Legal Action v. Union of India, (2011) 12 SCC 764; Indian Council for
Enviro-Legal Action v. Union of India, (2011) 12 SCC 766.
174
See Gitanjali Nain Gill, Environmental Justice in India: The National Green Tribunal 213-
216 (2012).
175
Research Foundation for Science, Technology and Natural Resource Policy v. Union of India,
(2012) 7 SCC 764.
176
Id.

hazardous waste management,177 and even entrusted with overseeing time-

bound implementation of the court’s directions.178 Importers who made illegal
imports of such waste were directed to be placed on record,179 failing which a
government inquiry was directed.180 After considering reports of committees
and experts, and international standards, directions were given to Central and
State Pollution Control Boards, and recommendations were made for legisla-
tion to address transboundary movement of hazardous wastes, with provisions
for punishing illegal trafficking.181 It directed recycling or destruction of waste,
depending upon its hazardous nature under supervision of the monitoring com-
mittee.182 If the reports showed non-compliance, contempt proceedings were
initiated suo motu by the Court. Finally disposing off the writ petition in 2012,
the court reasserted its various interim orders, directing the government to
bring its rules in conformity with international conventions and ban imports of
hazardous wastes as identified under the Basel Convention.183
Another case pertaining to waste management was Almitra H.

Patel v. Union of India,184 where the Supreme Court used continuing mandamus
to oversee the system of solid waste management in cities across India. The
court instituted a committee to examine aspects of solid waste management in
Class I cities,185 requiring authorities from the different cities to file responses
to its recommendations,186 failing which even penalties were imposed.187 Even
the Central Pollution Board was directed to submit a report regarding imple-
mentation of the committee’s recommendations.188
Bangalore authorities’ reports indicated the success of a door-to-

door waste collection scheme, following which, the court asked even other cit-
ies to implement similar schemes.189 Explanations were regularly sought for all
177
(1999) 1 SCC 224.
178
(2005) 10 SCC 510, ¶53.
179
(2000) 9 SCC 41, ¶42.
180
(2005) 13 SCC 658.
181
(2005) 10 SCC 510.
182
(2005) 13 SCC 671; Research Foundation for Science, Technology and Natural Resource
Policy v. Union of India, (2005) 13 SCC 186.
183
(2012) 7 SCC 769 ¶45.
184
Almitra H. Patel v. Union of India, (2000) 2 SCC 166.
185
186
Id.
187
188
Id.
189
Almitra H. Patel v. Union of India, (2000) 8 SCC 19, ¶5.

instances of non-compliance.190 Improvements were noticed due to implemen-

tation of suggestions even during the continuation of litigation.191
During the pendency of litigation, the court’s attention was

brought to non-implementation of its orders in B.L. Wadehra v. Union of
India,192 regarding issues such as composts and land-fills, to which there was
no satisfactory explanation.193 While addressing suggestions of issuing direc-
tions to MCD and NDMC to handle solid waste generated, it noted that it was
not competent to direct how municipal authorities should carry out their func-
tions, but only see to it that they must discharge their statutory duties and obli-
gations.194 In furtherance of this, they issued appropriate directions for proper
and scientific waste-management.195 Even when corporation sought to justify
privatisation of cleaning staff, the court noted that this would be within the
ambit of the Government, and not the court’s decision making powers.196 While
this to some extent shows the court’s consciousness of micro-management of
executive action being beyond the ambit of its powers, it has seldom kept acted
with such consciousness.
The approach of the court was a little different in D.K. Joshi v.

State of U.P.,197 where authorities in Agra had been extremely lackadaisical
and slow in enforcing the various directions given by the court to ensure bet-
ter living of the citizens in Agra. Despite noting that status reports submitted
by state authorities were not satisfactory, the court held that since the case had
been pending for 6 years, and there had been adequate monitoring, retaining
the matter would not be appropriate.198 Rather, it issued directions to the State
and directed the appointment of a special monitoring body to look into effec-
tive functioning of the responsible public authorities.199 This is in stark contrast
to most other cases of a similar nature where court has rigorously followed
through, and despite the cases, such as the Godavarman case, as discussed be-
low, being pending for decades, no similar apprehension has been noted.
a. The Delhi Pollution case
In the Delhi Vehicular Pollution Case,200 M.C. Mehta’s public in-

terest litigation filed in 1985 concerning air pollution in Delhi and the surround-
190
191
192
B.L. Wadehra v. Union of India, (1996) 2 SCC 594.
193
194
Id ¶15, 21.
195
Id ¶15, 21.
196
197
D.K. Joshi v. State of U.P., (1999) 9 SCC 578.
198
Id.
199
D.K. Joshi v. State of U.P., (1999) 9 SCC 578, ¶2.
200
M.C. Mehta v. Union of India, (2002) 4 SCC 356 : AIR 2002 SC 1696.

ing region saw no action being taken till 1990, until a series of directions were
passed as continuing mandamus.201 The court justified monitoring of the case to
ensure compliance with Article 21, making authorities realise their obligations
under statutory provisions and to prevent frustration of legislative intent.202
It has ordered periodic vehicle emission checks, with the power of cancella-
tion of registration certificates of faulty vehicles.203 It directed the Ministry of
Environment to establish an expert Committee to review technological, legal
and administrative solutions to curb pollution, to which around 30 reports were
submitted between 1991 and 1997.204 There were detailed directions on the use
of unleaded fuel in phases, to start in Delhi and encompassing the whole na-
tion by 2001,205 mandating conversion into compressed natural gas of all gov-
ernment vehicles,206 and even directing establishment of a body to oversee
implementation of the court’s orders,207 among many others. One of the most
significant orders was passed in July 1998, with details of systematic phasing
out of old vehicles, ban on certain types of fuel and replacement with greener
alternatives,208 all to be carried out within strict deadlines by authorities, who
were also required to bring to public notice the directions issued by the court
from time-to-time. Repeated reports and information had to be submitted be-
fore the court,209 and emission norms were laid down with strict standards.210
Despite criticisms, political backlash and implementation haz-

ards, the intervention was to some extent, successful, and sparked similar at-
tempt throughout the nation with multiple High Courts monitoring action plans
201
Gitanjali Nain Gill, Human Rights and the Environment in India: Access through Public
Interest Litigation , Environmental Law Review 14.3 (2012): 200-218, 211, available at http://
journals.sagepub.com/doi/pdf/10.1350/enlr.2012.14.3.158 (Last visited on August 8, 2017).
202
Order dated 23 March 2001, unreported, see http://journals.sagepub.com/doi/pdf/10.1350/
enlr.2012.14.3.158.
203
204
Id.
205
Orders dated 12 August 1994, 21 October 1994 and 14 February 1996 [M.C. Mehta v. Union
of India, (1998) 8 SCC 648].
206
Order dated 28 March 1995.
207
Order dated 27 April 1997.
208
It included the phasing out of all commercial vehicles and taxis which were more than 15 years
old as of October 1998; a ban on the supply of 2T oils at petrol stations by December 1998;
the increase of public transport to 10,000 buses by April 2001, the stoppage of leaded petrol
within NCT Delhi by September 1998; replacement of all pre-1990 auto rickshaws and taxis to
new vehicles on clean fuel by 31 March 2000; no eight-year-old buses to ply except on CNG or
other clean fuel by 1 April 2000; entire city bus ﬂeet (DTC and private) be steadily converted
to single fuel mode on CNG by 31 March 2001.
209
For instance, the Court asked for the information about the number of diesel and petrol driven
vehicles registered in NCR Delhi in three years: 1997, 1998 and 1999. The matter was ad-
journed to 29 April 1999.
210
On 29 April 1999, the Supreme Court imposed emission norms for vehicles registered in NCR
Delhi. All private vehicles registered after 1 June 1999 were to conform to Bharat I norms and
those registered after 1 April 2000 to conform to Bharat II norms. Restrictions were imposed
on the monthly registration of diesel driven vehicles. Also, diesel taxis were prohibited in
NCR Delhi unless they conformed to Euro II norms with immediate effect.

to curtail local vehicular pollution.211 However, despite its path-breaking role,

there were several limitations to the court’s approach that hindered full re-
alisation of the objectives and attracted unfavourable responses. Its failure to
push the executive to develop a composite plan to tackle the problem of air
pollution has been pointed out as being a major flaw.212 Given the fragmented
federal structure and involvement of multiple authorities and ministries that
lacked co-ordination, there was a confusing hierarchy, conflicting interests and
bureaucratic indifference.213 All actors were subject to extremely high cost of
compliance, with massive investments that needed to be made to follow the
court’s orders.214 These costs were seen as being higher than any projected cost
of defiance,215 making enforcement and even threat of penalties less effective.
However, the perseverance of the judiciary, NGOs and public-spirited citizens
such as the petitioner, both in and out of court along with the minimal, at least
at later stages, support of the Government led to improvement in air quality in
Delhi.216 The court’s continuous prodding has been recognised as having been
significant.217 A marked improvement in Delhi’s air quality has been noted.218
b. The Omnibus Forests Case – The Godavarman Case
One of the most drawn-out and longest standing continuing man-

damus issued is in T.N. Godavarman Thirumulpad v. Union of India, often
recognised as having started the second wave of environmental litigation, after
a host of pollution related cases.219 Started in 1996, the case is yet to be finally
decided. Here, a writ petition to protect the Nilgiris forest land from defor-
estation by illegal timber felling was expanded by the court, asserting jurisdic-
tion over all matters pertaining to diversion of forests for non-forest use, into
an undertaking to reform the entire country’s forest policy.220 For almost two
211
Interest Litigation, Environmental Law Review 14.3 (2012): 200-218, 211.
212
Id., 212.
213
Id., 212; A. Agarwal et al., The State of India’s Environment: Part 1 – The Citizen Fifth Report
(1999) Centre for Science and Environment, 192.
214
Special Correspondent, Euro-III emission norms recommended by 2005, The Hindu
(September 26, 2002) http://hindu.com/2002/09/26/stories/2002092604460900.htm.
215
Centre for Environmental Law (1999) ‘WWF – India, Strengthening Environmental
Legislation in India’, 216.
216
Interest Litigation, Environmental Law Review 14.3 (2012): 200-218, 214, available at.http://
journals.sagepub.com/doi/pdf/10.1350/enlr.2012.14.3.158 (Last visited on August 8, 2017).
217
Energy and R esources Institute R eport, Looking Back to Change Track: Strengthening
Transition Economies 19 (2006).
218
World Bank, For a Breath of Fresh Air - Ten Years of Progress and Challenges in Urban Air
Quality Management in India, June, 2005, available at http://documents.worldbank.org/cu-
rated/en/951561468051260427/pdf/350470PAPER0IN0Breath0of0fresh0air.pdf (Last visited
on August 30, 2017).
219
R itwick Dutta & Bhupender Yadav, Supreme Court on Forest Conservation xi (2005).
220
Writ Petition No. 202 of 1995, T.N. Godavarman Thirumulpad v. Union of India, Supreme
Court of India; Down to Earth, Interview Between T.N. Godavarman Thirumulpad and

decades, the Supreme Court passed numerous orders, taking over supervision
and control of the day-to-day governance of Indian forests.221 It has covered
issues ranging from logging,222 deforestation and mining,223 impacts of clear-
ing forest224 to even endangered species.225 The constitutional permissibility of
such vast assumption of powers has been seen with suspicion,226 with the court
going beyond mere interpretation of the law, becoming a policy-maker and an
administrator.227 Executive inaction, the deteriorating state of India’s forest
cover and the blatant flouting of legislations seemed to prompt the court to em-
bark on what was to become a massive undertaking, with the Supreme Court
becoming the court of first instance for forest matters for decades to come. All
matters relating to the Act and Indian forests were heard by the court as inter-
locutory applications in the case, and we attempt to give an overview of some
of the significant orders to illustrate their extent and nature. Reference can be
made to authors who have analysed the orders of the court it in some detail.228
In its first order in 1996, the court defined the previously ambigu-
ous scope of the Forest Conservation Act, 1980 and the meaning of ‘forest’ by
its dictionary meaning, broader than the restrictive interpretation given by mul-
tiple states.229 The 1996 order also imposed a nation-wide ban on tree felling,
non-forest activities such as mining and saw mills, except with the approval
of the Central Government.230 States were instructed to put in place multiple
expert committees, submit reports within prescribed deadlines, with differ-
ing guidelines for States of Jammu & Kashmir, Himachal Pradesh and Hilly
Areas of Uttar Pradesh & West Bengal, Tamil Nadu and the North-Eastern
Surendranath C., Aug. 31, 2002.

221
Armin Rosencranz & SharachchandraLélé, Supreme Court and India’s Forest, Vol. 43 No. 5,
Economic and Political Weekly (2008) 11-14, available at: http://www.environmentportal.in/
files/epw1.pdf (Last visited on August 20, 2016).
222
T.N. Godavarman Thirumulpad v. Union of India, (1996) 9 SCC 982.
223
T.N. Godavarman Thirumulpad (104) v. Union of India, (2008) 2 SCC 222, ¶19; Lafarge
Umiam Mining (P) Ltd. v. Union of India, (2011) 7 SCC 338 : 2011 INSC 597.
224
Noida Memorial Complex Near Okhla Bird Sanctuary, In re, (2011) 1 SCC 744 : 2010 INSC
1058, ¶66.
225
T.N. Godavarman Thirumulpad v. Union of India, (2012) 3 SCC 277 : 2012 INSC 114.
226
Armin Rosencranz, Edward Boenig & Brinda Dutta, The Godavarman Case: The Indian
Supreme Court’s Breach of Constitutional Boundaries in Managing India’s Forests, 37 ELR
1003.
227
Down to Earth, Deep in the Woods, Jan. 15, 2003, 1; Gitanjali Nain Gill, Human Rights and
the Environment in India: Access through Public Interest Litigation, ENV L REV 14, 200-218
(2012).
228
Astha Pandey, T.N. Godavarman Thirumulpad v. Union of India & Others: A Case Study,
Global Journal of Human-Social Science: B Geography, Geo-Sciences, Environmental
Science & Disaster Management Vol.15 (4) (2015); R itwick Dutta & Bhupender Yadav,
Supreme Court on Forest Conservation (2005); Armin Rosencranz, Edward Boenig &
Brinda Dutta, The Godavarman Case: The Indian Supreme Court’s Breach of Constitutional
Boundaries in Managing India’s Forests, 37 ELR 1003.
229
230
Id.

States respectively.231 Most of its orders were in furtherance of implementation

of various environmental statutes and dealt with the functioning of bodies like
Ministry of Environment and Forests. It directed formation of a quasi-execu-
tive body, the Central Empowered Committee (‘CEC’), that would exclusively
report to the court, keep a check on implementation of, and redress grievances
due to non-compliance with, any of the orders of the court.232 It relied heavily
on the CEC to assist in assessment of granting forest clearance permits and
recommending measures for restoration of degraded areas.233 Its 2005 order fo-
cused on compensatory afforestation, with the CEC making recommendations
to the scheme submitted by the MoEF.234 The court also laid down how funds
collected were to be utilised and constituted the Compensatory Afforestation
Fund Management and Planning Authority (‘CAMPA’) for managing the funds
collected for compensatory afforestation and laid down its working and con-
stitution.235 Subsequently, even State Governments and Union territories con-
stituted State CAMPA to facilitate activities for environmental preservation.236
One of the last orders dismissing interlocutory applications was in 2014,237
concerning the appointment of a national regulatory authority by the Central
Government, required under the EPA, that would be responsible for appraising
projects, enforcing environmental conditions for approvals and imposing pen-
alties on polluters.238 Noting the insufficiency and shortfall of the government
notification on environmental clearances, it directed the regulator to have as
many state branches as possible,239 to carry out an independent appraisal and
approval of projects for environmental clearances and monitor the implementa-
tion of the conditions laid down thereunder.240 High Courts have placed greater
responsibilities in terms of forests and environmental cases, placing reliance of
the Godavarman case.241
231
T.N. Godavarman Thirumulpad v. Union of India, (1997) 2 SCC 267; See Astha Pandey,
T.N. Godavarman Thirumulpad v. Union of India & Others: A Case Study, Global Journal
of Human-Social Science: B Geography, Geo-Sciences, Environmental Science & Disaster
Management Vol.15 (4) (2015).
232
Operating for more than a decade, since it constitution by a SC order on 9 May 2002, followed
by notification under the Environment (Protection) Act, 1986; it has gained near-institutional
status, having operated for more than a decade. After expiry of its statutory term of 5 years,
the court through its orders in Samaj Parivartana Samudaya v. State of Karnataka, (2013)
8 SCC 154, continued the CEC. See Shyam Divan, Public Interest Litigation, The Oxford
H andbook of the Indian Constitution 647 (Sujit Choudhry, Madhav Khosla & Pratap Bhanu
Mehta eds.).
233
Shyam Divan, Public Interest Litigation, The Oxford H andbook of the Indian Constitution
647 (Sujit Choudhry, Madhav Khosla & Pratap Bhanu Mehta eds.).
234
T.N. Godavarman Thirumulpad (87) v. Union of India, (2006) 1 SCC 1 : AIR 2005 SC 4256.
235
Id.
236
T.N. Godavarman Thirumulpad v. Union of India (2014) 6 SCC 150, ¶24.
237
238
T.N. Godavarman Thirumulpad v. Union of India, (2014) 4 SCC 61, ¶5.
239
Id., ¶8.
240
Id., ¶7; See also M. Sakthivel, Case Comment: T.N. Godavarman Thirumulpad v. Union of
India, MANU/SC/0028/2014.
241
Silver Cloud Estates v. Conservator of Forests, 1999 SCC OnLine Mad 151; Gram Panchayat,
Navlakh Umbre v. Union of India, 2012 SCC OnLine Bom 851.

The writ petition has not been dismissed. Even though establish-
ment of the National Green Tribunal in 2010 has seen some success contrary
to what was envisaged,242 the continuing mandamus in forests still continues.
However, even though the case is open, it is not under active hearing.243
The court’s orders have been under a lot of attack – the lack of
judicial foresight having wrecked the timber industry; the failure of its work-
ing plans and illegal felling of timber coupled with the proliferation of a black
market; constant interference with the functioning of the MoEF, entrusted with
the responsibility for managing forests and wildlife; constitution of new entities
leading to a confusion in co-ordination and the micro-management leading to
legislative and executive contentment in deferring to the SC’s forest manage-
ment rather than building their own capacity as well as leading to disruption
of livelihoods of forest dwellers and dependants.244 However, at the same time,
critics note the lack of alternatives, given the apathy of the government and the
inaction of the executive despite there being legislation, NGOs and activists
often prefer judicial direction of forest policy management over corrupt and
inefficient bureaucrats.245
What is criticised and perhaps not even constitutionally justified

is the extent of the court’s intervention, not the fact of intervention. In such
a case where dealing with environmental is concerned, monitoring of imple-
mentation becomes pertinent for there to be effective justice. When despite
legislation there is inaction, mere court restatement will seldom lead to change,
presenting us with the same conundrum of ‘rights without remedies’. However,
this need for effective judicial remedy is to mete out justice in the case before
the court. A petition against flouting of laws in a district being made the ba-
sis for the court to turn into the court of first instance, the administrator and
policy-maker for all such disputes nation-wide is and could never have been en-
visaged by the constitutional framework. Courts have neither the capacity and
the time, nor the expertise to deal with such issues. The change in the tenor of
orders from 1996 and 2000’s to 2010, 2012 and 2014 perhaps has been in recog-
nition of its constitutional and functional constraints. From micro-management
of policy decisions to mandating the Central Government to appoint a regulator
can be seen as a drastic change in the modus operandi. The institution of the
Green Tribunal in 2010, which is now credited as having effectively addressed
concerns of transparency and expertise in environmental disputes,246 could
242
R itwick Dutta, Supreme Court on Forest Conservation xiii (3rd ed. 2011).
243
P.K. Manohar & Praveen Bhargav, The architect of an omnibus forest-protection case, The
Hindu, July 5, 2016, available at http://www.thehindu.com/opinion/open-page/The-architect-
of-an-omnibus-forest-protection-case/article14470903.ece (Last visited on August 30, 2017).
244
See e.g. Armin Rosencranz, Edward Boenig, & Brinda Dutt, The Godavarman case: The
Indian Supreme Court’s breach of constitutional boundaries in managing India’s forests,
Environmental Law Reporter News and Analysis 37.1 (2007) 10032.
245
Id.
246
Gitanjali Nain Gill; A Green Tribunal for India, J Environmental Law 22 (3): 461-474 (2010).

also be one of the reasons for the change and the inactivity in the continuing
mandamus.
2. In Furtherance of Environmental Constitutionalism –

Effective Remedy, Defective Implementation
The success, albeit limited, of the writ in environmental matters

reinforces the need for such a judicial remedy to counter executive recalci-
trance. While seemingly unproductive for the Court to do what the govern-
ment is already obligated to do, areas like environmental concerns require such
duplication as such substitution of statutory commands with judicial orders
calls for contempt of court action and penalties in cases of disobedience.247
Contravention of a legislative mandate that invites judicial review requires the
petitioner to discharge the burden of proof, while non-compliance with a court
order shifts the burden on the government to justify its nonfeasance, removing
any presumption in its favour.248 Even from the perspective of say polluters,
unlike action taken by governmental authorities, the threat of non-compliance
with court orders attracting contempt orders cannot as easily be kept at bay with
political influence and corrupt practices. But, we see that court intervention can
push authorities to comply.249 Single time orders like conventional adversarial
litigation would have served little purpose in most cases discussed here. In a
PIL filed for pollution in Delhi, the court went into overhauling standards on a
national level, and micro-managing as much as the implementation of phases
of reform; instituting funds for all state and union territories in writ case when
the original allegation was of violation of forest laws in a particular district.250
This could be construed to be overstepping even the most liberal and expansive
standards of limitations to judicial excesses.
However, it is this manner of administering a continuing manda-

mus that is problematic, not the remedy itself. This is evident from its successful
adoption by courts even in foreign jurisdictions in environmental cases, albeit
limited to concerns presented before it. The Bangladesh court in Mohiuddin
Farooque v. Govt. of Bangladesh,251 where petitioners sought appropriate relief
for control of pollution from industries around Bangladesh, the court declared
that the writ would be treated as a continuing mandamus,252 issuing directions
to multiple authorities concerned and requiring them to submit regular progress
247
Shubhankar Dam & Vivek Tewary, Polluting Environment, Polluting Constitution: Is a
‘Polluted’ Constitution Worse than a Polluted Environment?, 17 J. Envtl. L. 383, 389 (2005).
248
Erin Daly & James M ay, Constitutional Environmental R ights and Liabilities 84 (2012).
249
See Urvashi Narain & Ruth Greenspan Bell, Who Changed Delhi’s Air? - The Roles of the
Court and the Executive in Environmental Policymaking, RFF DP 05-48 (December 2005),
available at http://ageconsearch.umn.edu/bitstream/10466/1/dp050048.pdf (Last visited on
August 30, 2017).
250
M.C. Mehta v. Union of India, (2002) 4 SCC 356 : AIR 2002 SC 1696.
251
Mohiuddin Farooque v. Govt. of Bangladesh, 2001 SCC OnLine Bang SC (HC) 59.
252
Id., 27.

reports.253 Even in Philippines, the globally famous judgment in the Manila bay
case,254 borrowing from the Indian Supreme Court’s jurisprudence, kept the
case open to ensure compliance with its orders,255 supervising the restoration
plan, issuing additional orders and requiring government agencies to complete
specific tasks within prescribed deadlines.256
Environmental law particularly requires co-ordination between

multiple actors, agencies, states, and even the public. Studying comparative en-
vironmental constitutionalism, it has been observed that despite acknowledg-
ing the limitations on its powers and resources, courts worldwide have engaged,
realising that facilitating dialogue with both the public and private sectors, it
can play a pivotal role in securing environmental rights.257 The continuing man-
damus is one such mechanism of dialogue facilitation that allows the courts
to be in constant touch with the multifarious actors. While most attempts by
Indian courts have been lauded, it has perhaps lacked in facilitating this much-
needed dialogue between the public and private fronts, falling short of the aim
of judicial engagement. Appointment of amicus curiae and expert committees
that accept reports from NGOs etc.; directions ensuring public awareness of
court orders, constant consultation with experts and asking governments to for-
mulate plans under supervision of court appointed committees, often of a rep-
resentative character etc., are steps in furtherance of this. However, there is still
a long way to go. Representation of private sectors, commercial operators and
environmental activists in these committees, of public feedback, etc., might
help counter a lot of backlash the courts face. We have seen such initiatives in
say, the Ganges River pollution case where the court published notices in news-
papers inviting industries and municipalities to enter appearance in the litiga-
tion.258 In the Bichhri case also, the court looked at representation from multiple
states and NGOs in the central body constituted.259 Even the CEC, consisting of
253
Id. (Among others, the Director General, Directorate of Environment, was directed to ensure
that the polluting industrial units and factories had to adopt adequate and sufficient measures
to control pollution within one year from the date of receipt of the judgment and report com-
pliance to this court within six weeks thereafter. The secretary, Minister of industries, was
directed to ensure that no new industrial units and factories were set up in Bangladesh without
first arranging adequate and sufficient measures to control pollution.)
254
Metro Manila Development Authority v. Concerned Residents of Manila Bay, G.R. Nos.
17194748 (S.C. Dec. 18, 2008), available at http://sc.judiciary.gov.ph/jurisprudence/2008/de-
cember2008/171947-48.htm (Last visited on August 30, 2017).
255
See Presbitero J. Velasco, Jr., Manila Bay: A Daunting Challenge in Environmental
Rehabilitation and Protection, 11 Or. R ev. Int’l L. 441 (2009).
256
See David R. Boyd, The Environmental R ights R evolution: A Global Study of Constitutions
168-169 (2011).
257
Erin Daly & James M ay, Constitutional Environmental R ights and Liabilities 84 (2012).
258
Jamie Cassels, Judicial Activism and Public Interest Litigation in India: Attempting the
Impossible?, The A merican Journal of Comparative Law 37.3, 495-519 (1989).. (But several
ex parte orders show that there was no effective participation. M.C. Mehta v. Union of India,
(1987) 4 SCC 463 : AIR 1988 SC 1037; (1997) 2 SCC 411).
259

three federal government officers, and two NGO representatives,260 is one such
hybrid regulatory bodies created by higher court edict seen as examples of the
institutional forms.261
Analysis of these cases shows that the courts have, through or-
ders, succeeded in involving municipal corporations, state and national agen-
cies, the government departments and made them work in tandem with private
offenders to alleviate the problem at hand. This is particularly witnessed in the
waste management cases, with cohesive orders, whose compliance was regu-
larly checked upon. Requiring municipal corporations to formulate plans based
on models successful in other cities, like in the Almitra case, is evidence of
such national co-ordination, essential for effective redressal of such system-
atic issues. Furthermore, popular support for actions will increase incidence
of compliance, enticing even political actors to encash fruits of such dialogue.
Another major hurdle to environmental litigation has been aban-

doned litigation, the plaintiffs not having enough incentive, resources or due
to other reasons not being able to pursue the matter, at times even after a fa-
vourable judgment.262 By appointing amicus curiae to assist the court with the
litigation, even without the plaintiff’s involvement has helped overcome this
problem.263 This too, we have seen invites its own set of problems when the
court takes too much onto its plate. But, the non-involvement of the plaintiff
is hardly justifiable as grounds for exceeding the scope of the original peti-
tion and related issues. The court’s approach in D.K. Basu264 sought to justify
dismissal on grounds of failure of its own monitoring initiatives. If directions
were not enforced under its supervision, expecting compliance post dismissal
by a committee, given the hurdles seen in other cases seems nothing short of
judicial abandonment. The apparent fallacy with its reasoning brings to the
fore the constitutional absurdity of violations without effective redressal and
mandates judicial intervention and supervision, such that the rights struggle
sees edification.
260
R itwick Dutta & Bhupender Yadav, Supreme Court on Forest Conservation 11-12 (2nd edn.,
2007).
261
K. Sivaramakrishnan, Environment, Law, and Democracy in India, 70 The Journal of Asian
Studies, No. 4, 905-928, 911 (November, 2011).
262
The history of environmental litigation, constitutional and otherwise, is littered with exam-
ples of abandoned litigation. Indeed, one commentator contends that the Oposa litigation was
never fulfilled because the original plaintiffs did not pursue the matter after the Philippine
Supreme Court’s remand: “The Supreme Court did not order the cancellation of the TLAs, but
ordered the case to be remanded for trial. Because the petitioners did not pursue the case after it
was remanded, no TLA was cancelled. Dante B. Gatmaytan. The Illusion of Intergenerational
Equity: Oposa v. Factoran as Pyrrhic Victory, Georgetown International Environmental
Law R eview 15.3 (2003): 457, 459.
263
In the Godavarman case for instance, Harish Salve was appointed as the amicus curiae. Even
after the petitioner died in 2016, the case continues. Even before, he was not actively involved.
264
D.K. Basu v. State of W.B., (1997) 1 SCC 416.

The courts’ interventions in environmental concerns in India

have led to Indian law being ‘infused with procedural environmental rights’.265
Continuing mandamus is easily characterised as one such remedial innovation,
that has helped overcome many obstacles that environmental litigation usually
faces. If limited to the writ as popularly envisaged, even by the court itself, it
has helped with co-ordination among actors and incentivising and prodding
action. However, using it as an excuse to indulge in micro-management and
exercising powers beyond even the legitimate expanses of the remedy have at-
tracted backlash, and rightly so.
C. OBSTACLES TO CONTINUING MANDAMUS IN

CASES CONCERNING FUNDAMENTAL FREEDOMS
Another lot of cases where the Judiciary has popularly used the
continuing mandamus is cases that deal with fundamental freedoms, and par-
ticularly the right to life, and all its concomitant entitlements. As is discussed in
this section, this has yielded varying degrees of success, with, again, the major
road block being Government inaction. However, more so than in other areas,
these involve issues that grab the public eye and we see that active involvement
of the populace and the administration can make judicial intervention yield
non-conventional positive results.
1. Labour Welfare
In a series of cases dealing with implementation of labour laws,

the court has had to adopt the means of monitoring implementation, even be-
fore the formulation of the remedy in Vineet Narain. This could primarily be
due to the nature of corrective action needed, which is mostly in terms of re-
habilitative measures or implementation of welfare legislation, that requires
an efficient state machinery as well as significant use of funds. Added to this
is often the escapist approach of private contractors and employers who opti-
mally exploit the lack lustre nature of the administrative machinery to bypass
labour laws. While ensuring realisation of labour rights is a humungous task,
the Court has attempted in several instances to undertake a tedious process of
overseeing fruitification of statutory rights, with mixed results.
Bandhua Mukti Morcha v. Union of India,266 marked the SC’s

initial efforts to oversee the implementation of its orders. This landmark con-
stitutional case that concerned the plight of labourers, dealt with gross viola-
tions of fundamental rights, bonded labour and inhumane working and living
265
Karen Hulme, International Environmental Law and Human Rights in Routledge H andbook
of I nternational Human R ights Law 291 (Scott Sheeran & Sir Nigel Rodley, 2013).
266
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.

conditions, with no access to necessities like clean water.267 The court had inter-
vened by issuing wide-ranging remedial orders, encompassing twenty one di-
rectives to the State Government, among other things, to constitute a Vigilance
Committees in order to implement the Bonded Labour System (Abolition) Act,
1976, in accordance with the court’s guidelines; to work in coordination with
District Magistrates for identification and release of bonded labourers; to draw
up a scheme for their rehabilitation within the prescribed time period and im-
plement the same; take steps to ensure payment of minimum wages within
six weeks; and various other directions to ensure safety standards and better
working and living conditions.268 A notable direction made, arguably to incen-
tivise implementation of the laws was that, if the Government failed to ensure
performance of statutory obligations by the employers within the prescribed
time periods, the Government would itself have to carry them out.269 What
ultimately makes this judgment a beginning point of discussion for ensuring
implementation of court orders and also continuing mandamus is the appoint-
ment of Joint Secretary in the Ministry of Labour as a Commissioner who was
entrusted with detailed duties to ensure compliance with court directives and
report back to the court.270 This was one of the first instances of such court ap-
pointments that would, as discussed below, become a characteristic feature in
cases under court supervision.
One of the objections put forth before the case, questioned the
court’s powers to appoint an inquiry commission that was to report to the Court
to exercise jurisdiction under Art. 32 of the Constitution.271 While the court
notably affirmed that, given the wide contours of powers vested in it under
Article 32 and in larger interests of administration of justice and further for en-
forcement of fundamental rights, such powers are implicit in its discretionary
powers.272 However, this dealt exclusively with fact-finding and to aid the court
in delivering its judgment. Nevertheless, no similar observation was made as to
post-decisional appointments of commissioners and seeking reports for imple-
mentation. This could arguably be gauged as being also within the contours of
Article 32 for the protection of constitutional safeguards though no discussion
along these lines ensued.
The next two decades saw two interventions by the court. A cou-
ple of years after the delivery of the judgment, contempt petitions were filed
alleging non-implementation of directives, which led the court to appoint mul-
tiple commissioners and even a Committee to conduct inquiries and report to
the court.273 Their findings revealed ineffective implementation and showed
267
Id., ¶5-6.
268
Id., ¶73.
269
Id.
270
Id., ¶74-75.
271
Id., ¶105.
272
Id., ¶115-116.
273
Bandhua Mukti Morcha v. Union of India, (1991) 4 SCC 174, ¶3.

that even though some steps had been taken by the Government, the majority
of the directives remained unimplemented.274 The Court went on to discuss the
multiple ways in which the Government could have taken steps, for instance,
by locating a police station or outpost nearby, a doctor could be appointed and
if say the workers were fewer in number, a visiting doctor could be hired.275
Noting however its inherent institutional and administrative limitations to
monitor and regulate such schemes, the responsibility to take such action was
said to vest upon the Government. Ultimately, the court hoped that “if a direc-
tion is issued to the Chief Secretary of the State to regulate these aspects the
reposing of trust by this Court would not turn out to be misplaced.”276 Without
making any specific orders upon the inaction, the Court only called upon the
Government to attend to the needs of the workmen,277 and directed the State to
ensure that the labourers identified by reports continued to work with the im-
proved conditions of service, as mentioned, and those wanting to return were
released from bondage and rehabilitated under the Centre’s scheme.278 Again,
after eight to nine years, violations of labour welfare statutes as well as the
court’s directives in the earlier two judgments were noted, especially in terms
of payment of minimum wages, and the Supreme Court suggested that the State
Government may consider cancelling the leases of the defaulting employers.279
In stark contrast to the decades of supervision still leading to flout-

ing of directions, the Salal Hydro-Electric Project case,280 where the court’s
directions were also aimed at implementation of labour regulations, albeit in a
State project, led to tangible success. In only a year, the court noted positive re-
sults, and affirmative action having been taken by the State, such as directives
being issued to contractors, and Engineers-in-Charge of the projects, and in-
structions to the Manager of the National Hydro-Electric Power Corporation to
ensure compliance, submitting to the court updates on the status of implemen-
tation of the labour laws.281 Dealing with similar plight of non-implementation
of rehabilitation schemes for released bonded labourers, the Court in Neeraja
Chaudhary282 directed intense surveys in bonded labour prone areas, supervi-
sion over officers and release and rehabilitation of bonded labourers.283
274
See Id., ¶7-10.
275
Id.
276
Id., ¶13.
277
Id., ¶14
278
Id., ¶17.
279
Bandhua Mukti Morcha v. Union of India, (2000) 10 SCC 104.
280
Salal Hydro-Electric Project v. State of J&K, (1984) 3 SCC 538 : 1984 SCC (L&S) 577.
281
Salal Hydro-Electric Project v. State of J&K, (1984) 3 SCC 538 : 1984 SCC (L&S) 577.
282
Neeraja Chaudhary v. State of M.P., (1984) 3 SCC 243 : AIR 1984 SC 1009.
283
Id., See also Bachpan Bachao Andolan, Status of Rehabilitation of Rescued Bonded Labourers
- Analysis of Data with Bachpan Bachao Andolan, (2015), available at http://bba.org.in/sites/
default/files/Rehab-of-Bonded-Child-Labour.pdf (Last visited on August 21, 2017).

Judicial intervention in labour welfare was relatively successful

even in the Rickshaw Puller case,284 where the Delhi High Court declared sev-
eral governmental mandates such as the arbitrary cap on the number of rick-
shaws plying in the city to be violative of Articles 14 and 21. Noting the matter
to be a fit case for issuing a continuing mandamus, the court sought to supervise
and ensure compliance with its directions. It formulated a special task force, to
explore all issues pertaining to road traffic in Delhi, particularly addressing
concerns of congestion, pollution and equitable access to all classes of vehicles.
The constitution of the task force was specified, with budgetary allocations for
the same to be made by the Government, and was given a mandate of review-
ing all existing policies and regulatory measures, make recommendations and
formulate plans.285 The Court issuing a continuing mandamus, directed the pe-
titions to be listed before the Division Bench,286 and a Special Leave Petition
against the order was dismissed by the Supreme Court.287 The task force, and
the various authorities worked towards introducing several new policies that
were debated in court.288 Finer considerations such as the scope and identifica-
tion requirements for the scheme for licences and registration of rickshaws,289
of the practicalities relating to separate lanes for non-motorised vehicles,290
and objections to plans permitting cycle rickshaws in particular areas,291 were
dealt with at length. The court’s attention while dealing with various propos-
als was drawn to the issue of traffic management in particular areas, such as
Chandni Chowk, and intervention materialised into the construction of a multi-
level parking facility, and the court later went on to the extent of regulating
permission to the organising committee to access the Parade ground used for
parking for Ram Leela celebrations.292 This humungous task that started out
as a petition for labour welfare went on to regulate significant portions of the
road traffic in Delhi and saw the court dealing with and facilitating coordina-
tion amongst various developmental and municipal authorities, including the
MCD, the DDA, the Delhi Municipal Corporation and even the Delhi Police.
Even though the success has not been materially measured, the positive light
in which the court’s role is discussed,293 and the fact that subsequent orders
seldom referred to non-compliance by authorities, unlike in other cases, may
be traced back to the comparative specificity of orders, the flexibility given to
authorities to work out their own plans, or to the cooperation of the authorities
concerned.
284
Manushi Sangathan v. Govt. of Delhi, 2010 SCC OnLine Del 580 : (2010) 168 DLT 168.
285
Id., ¶74.
286
Id.
287
MCD v. Manushi Sangathan, (2012) 12 SCC 483.
288
Id.
289
Manushi Sangathan v. Govt. of Delhi, 2012 SCC OnLine Del 6097.
290
Manushi Sangathan v. Govt. of Delhi, 2013 SCC OnLine Del 2162.
291
Manushi Sangathan v. P.K. Panda, 2014 SCC OnLine Del 1836.
292
Id.
293
See e.g. V. Venkatesan, Licence to Live, 27 Frontline, (5) (2010), available at http://www.
frontline.in/static/html/fl2705/stories/20100312270509900.htm (Last visited on August 5,
2017).

2. Violations of the Right to Life
The trilogy of the Upendra Baxi cases is a striking example of the

failure of the judicial institution to ensure implementation of its orders, and a
fitting precursor to the evolution of the continuing mandamus. The court was
looking into violations of the right to live with dignity enshrined in Article 21,
due to despicable conditions of protective home in Agra. The Supreme Court’s
intervention was aimed at curbing the unregulated release of residents,294 en-
suring professional medical care295 and access to necessary facilities like
latrines,296 in addition to schemes for vocational training and rehabilitation.297
Despite the court’s supervision over implementation of its directions, and a
judicial officer being given the responsibility of inspecting the protective home
and inform the Court of developments; the Court in Upendra Baxi (2) v. State
of U.P.,298 had to deal with the state government, without informing the Court,
having relocated the home into a place unfit for habitation.299 While the Court
considered this to be a challenge to its authority,300 it also observed that despite
repeated directives, the home had not formulated a rehabilitation scheme.301
After having supervised the matter for multiple years, the court thought it best
to vest the responsibility to the NHRC, directing reports to be sent instead to
the NHRC, giving it the powers to issue directions.302
Even in Upendra Baxi v. State of U.P.,303 almost two decades after

the first judgment, the Court was still attempting to ensure the regulation of the
release of residents and remediation of the shortcomings of the home.304 It has
been noted that despite serious abuses and omissions in the functioning of the
protective home, the court, albeit monitored the case for several years, it never
implemented a concrete decision to punish the responsible persons.305 There
was no visible movement in the legal status of the inmates.306 The abject failure
is not just institutional, but can also be traced to an inherent unwillingness even
in the court’s part to ensure accountability. While the lines between holding
the Government actors accountable and interfering with policy are blurred, the
294
Upendra Baxi (1) v. State of U.P., (1983) 2 SCC 308, ¶8-18.
295
Id., ¶20-26.
296
Id., ¶27.
297
Id., ¶28.
298
Upendra Baxi (2) v. State of U.P., (1986) 4 SCC 106.
299
Id., ¶2.
300
Id.
301
Id., ¶8.
302
Upendra Baxi v. State of U.P., (1998) 9 SCC 388.
303
(1998) 8 SCC 622.
304
Id., ¶1.
305
Kumar Regmi, Trafficking into Prostitution in India and the Indian Judiciary, 1 Intercultural
Hum. Rts. L. R ev. 373 (2006).
306
R ajeswari Sunder R ajan, The Scandal of the State: Women, Law, and Citizenship in
Postcolonial India 256 (2003).

Supreme Court has seldom remained shy of walking on edges or even entirely
crossing over.
In a PIL concerning violations of constitutional and statutory

rights of children in custodial restraints in various parts of the country, the
Supreme Court gave numerous directions to different State Governments,
prison authorities, State Legal Aid Board, and made several recommendations
to the legislature to formulate a central legislation.307 The directions went to the
extent of requiring judicial officers to visit the police lock-ups periodically and
report to the High Court as to whether directions of the Supreme Court were
being carried out.308 Justifying its monitoring, the Court noted:
“Indeed as the relief is positive and implies affirmative-action

the decision are not “one-shot” determinations but have on-going implications.
Remedy is both imposed, negotiated or quasi-negotiated. Therefore, what cor-
responds to the stage of final disposal in an ordinary litigation is only a stage
in the proceedings.”309
On the withdrawal of the original petitioner, the Supreme Court

directed the Supreme Court Legal Aid Committee to prosecute the petition.310
After almost a decade, the responsibility of monitoring the cases was given
to the High Courts, who were to be assisted by the High Court Legal Aid and
Advice Board, empowering them to even pass appropriate orders.311
In Hussainara Khatoon,312 the court dealt with the plight of under

trial prisoners who were behind bars for years awaiting trial, sometimes longer
than the maximum punishment for the offences they were charged with, or
at times without any charge at all. The Court directed the State Government
as well as the High Court to furnish relevant records, data and statistics on
both under trial prisoners and on the administrative set-up of the lower judici-
ary.313 Drawing inspiration from the US prison reform cases such as Gates v.
Collier,314 where courts took an active participatory role, issuing several direc-
tions, the Indian SC also took on an activist approach.315
307
Sheela Barse (1) v. Union of India, (1986) 3 SCC 632.
308
Id.
309
Sheela Barse, (1988) 4 SCC 226, ¶12.
310
Sheela Barse v. Union of India, (1988) 4 SCC 226 : AIR 1988 SC 2211, ¶17.
311
Sheela Barse v. Union of India, (1995) 5 SCC 654, ¶¶6-7.
312
Hussainara Khatoon (4) v. State of Bihar, (1980) 1 SCC 98.
313
See e.g., Id., ¶1, ¶10.
314
Gates v. Collier, 349 F Supp 881 (ND Miss 1972).
315
Hussainara Khatoon (4) v. State of Bihar, (1980) 1 SCC 98, ¶10.

3. Food Security and Draught Relief
In a writ petition filed in the backdrop of a declaration of draught

in districts of nine States, several prayers for draught relief and alleviation
were pleaded before the court, with the states as respondents. The directions of
the Supreme Court was directed towards enforcement of various schemes and
policies and in particular, the Disaster Management Act, 2005, as well as the
National Food Security Act, 2013, for the implementation of whose provisions
no mechanism had been set up or rules and regulations formulated.316 The
judgment was delivered in four stages,317 with directions to various State and
Central Governments, dealing with matters ranging from payment under em-
ployment guarantee schemes, restructuring and waiver of loans, etc., requiring
the authorities to report back to the court.318 However, these directions saw little
success, as even in March 2017, the court berated the Chief Secretaries of States
for not following mandates of the court as well as the Act.319
However, having started way back in 2001, PUCL’s Right to Food

case has been not only one of the most complicated litigations, but has also seen
a comparatively responsive administration, with judicial supervision making
an actual difference.
D. RIGHT TO FOOD – THE SUCCESS STORY OF COURT

MONITORING
Most socio-economic rights’ struggles in the Indian polity revolve

around recognition of some form of legal entitlement to the non-enforceable
tenets enshrined in Part IV of the Indian Constitution. The activist judiciary
has often done this by reading into fundamental rights, particularly Article 21,
and many socio-economic rights.320 A legal entitlement though is a battle only
half-won, effective enforcement is what defines the actual success of the move-
ment or struggle. The Supreme Court in People’s Union for Civil Liberties v.
Union of India had undertaken this herculean task of, after recognising right to
316
Swaraj Abhiyan v. Union of India, (2016) 7 SCC 498.
317
Swaraj Abhiyan (1), (2016) 7 SCC 498; Swaraj Abhiyan (2), (2016) 7 SCC 498; Swaraj Abhiyan
(3), (2016) 7 SCC 498; Swaraj Abhiyan (4), (2016) 7 SCC 498.
318
Id.
319
Livelaw News Network, SC Summons Chief Secretaries of Drought-Hit States, March 23,
2017, available on http://www.livelaw.in/sc-summons-chief-secretaries-nine-drought-hit-
states/ (Last visited on August 21, 2017); The Wire, Supreme Court Pulls Up Ten States For
Non-Implementation of Drought Relief Measures, March 23, 2017, available at https://thewire.
in/118496/supreme-court-pulls-ten-states-non-implementation-drought-relief-measures/
320
People’s Union for Civil Liberties v. Union of India, (2007) 12 SCC 135; Shantistar Builders v.
Narayan Khimalal Totame, (1990) 1 SCC 520; Murli S. Deora v. Union of India, (2001) 8 SCC
765 : AIR 2002 SC 40.

food as a part of Article 21, to oversee its effective realisation.321 Standing out
from most similar struggles, the device of continuing mandamus used in the
PUCL case, coupled with cooperation from civil society, led to tangible success
of the drawn-out litigation.322 In 2001, the PIL filed by PUCL brought to the fore
the issue of starvation death in various parts of the country while food stocks
reached unprecedented levels.323 The massive litigation has been expanded to
cover a wide range of related issues including implementation of schemes, ur-
ban destitution, the right to work, starvation deaths, maternity entitlements and
even broader issues of transparency and accountability.324
Recognising that prevention of starvation and hunger is one of the

Government’s primary responsibilities,325 the court, to ensure fulfilment of the
obligation, gave numerous orders over the course of more than a decade, and
monitored compliance by various authorities and agencies.326 Existing schemes
and policies were turned into legal rights, and minimum allocation of food
grains and supplemental nutrients set out in detail.327
The systematic oversight of compliance was aided by appoint-

ment of commissioners who were to monitor the implementation of interim
orders with the help of assistants and nodal officers appointed by the State
Governments.328 They were empowered to inquire into any violations and de-
mand redressal, and required to submit reports to the courts regularly, contain-
321
Lauren Birchfield & Jessica Corsi, Between Starvation and Globalization: Realizing the Right
to Food in India, 31 Mich. J. Int’l L. 691, 718 (2010).
322
Social R ights Judgments and the Politics of Compliance: M aking It Stick 297 (Malcolm
Langford, César Rodríguez-Garavito & Julieta Rossi, 2017).
323
Right to Food Campaign, Supreme Court Orders on the Right to Food - A Tool for Action, 6
(August 2008) available at http://www.sccommissioners.org/CourtOrders/tool_for_action.pdf
324
Id., 7.
325
Supreme Court Order dated 20th August, 2001 [People’s Union for Civil Liberties v. Union of
India, WP (C) No. 196 of 2001, order dated 20-8-2001 (SC)].
326
A repository of the court’s orders can be found at Right to Food Campaign, Supreme Court
Orders, available at http://www.righttofoodcampaign.in/legal-action/supreme-court-orders
327
For a detailed description of court orders, see - Right to Food Campaign, Supreme Court
Orders on the Right to Food - A Tool for Action, 6 (August 2008) available at http://www.sc-
commissioners.org/CourtOrders/tool_for_action.pdf (Last visited on August 21, 2017).
328
Id. (Also on 29th October 2002 [People’s Union for Civil Liberties v. Union of India, (2011)
12 SCC 675], the Supreme Court directed the state governments to appoint “assistants to the
Commissioner’s”. The mandate of the assistants is simply to “render such assistance to the
Commissioner’s as the Commissioner’s may require”. In addition, each state government is
to appoint a “Nodal Officer” for the purpose of “ensuring the due implementation” of food-
related schemes. The nodal officers are expected to “provide to the Commissioner’s full ac-
cess to relevant records and provide relevant information”. The Commissioners have also
nominated their own “Advisor” in each state. The order of 8th May 2002 [People’s Union for
Civil Liberties v. Union of India, (2011) 12 SCC 673] allows the Commissioners “to take the
assistance of individuals and reliable organisations”, adding that all officials are directed to
fully cooperate with such persons/organizations. The Advisors essentially serve as a bridge
between the Commissioner’s, the State Government, and various citizens’ groups.)

ing detailed recommendations, functioning of various schemes and status of

implementation of orders.329 Unlike court officers though, their work was to
be directly funded by the Government of India.330 Chief Secretaries of states
were to be held responsible for persistent default in compliance,331 and Gram
Sabhas were empowered to conduct audits of schemes and help in their imple-
mentation with all related information made available to them.332 Court orders
were directed to be widely publicised through the radio, television and perma-
nent displays.333 Although, not free from shortfalls, even the work of the court
appointed commissioners has been successful to a huge extent, having been
key in co-ordinating even policy schemes with and ensuring accountability of
Central and State Governments, with states even actively soliciting their inter-
vention and advice on specific policy issues.334
The court also appointed a High-Powered Committee that sub-

mitted multiple reports dealing with the lacunas of the system and recommen-
dations on reforms, visiting states and reviewing the local conditions of the
distribution public system.335 States were also asked to respond to observations
and recommendations in the reports.336 Thus, the court set up a parallel network
of officers who would work in tandem with the court and governments, chan-
nelising all efforts and initiatives towards reaching the ultimate goal of ensur-
ing food security. This coupled with the effective monitoring of compliance
and clarity, specificity and practicality of the court orders has helped avoid the
high rhetoric and low impact of many ill-fated social litigation.337
329
On 8th May 2002 [People’s Union for Civil Liberties v. Union of India, (2011) 12 SCC 673];
Supreme Court Order dated 29th October, 2002, [People’s Union for Civil Liberties v. Union
of India, (2011) 12 SCC 675]; order dated 9th May 2005, [People’s Union for Civil Liberties v.
Union of India, (2009) 16 SCC 614].
330
Order dated 29th October 2002 [People’s Union for Civil Liberties v. Union of India, (2011)
12 SCC 675]: “Adequate funds shall be made available to the Commissioner’s by the Union of
India to enable them to perform [their] functions.”
331
Supreme Court Order dated 29th October 2002 [People’s Union for Civil Liberties v. Union of
India, (2011) 12 SCC 675].
332
Supreme Court Order dated 8th May 2002 [People’s Union for Civil Liberties v. Union of
India, (2011) 12 SCC 673].
333
Supreme Court Order dated 29th October 2002 [People’s Union for Civil Liberties v. Union
of India, (2011) 12 SCC 675]; orders dated 28th November, 2001 [People’s Union for Civil
Liberties v. Union of India, (2007) 1 SCC 728] and 8th May, 2002 [People’s Union for Civil
Liberties v. Union of India, (2011) 12 SCC 673]; See also Supreme Court Order dated 2nd May,
2003 [People’s Union for Civil Liberties (PDS Matters) v. Union of India, (2013) 2 SCC 688].
334
Right to Food Campaign, Supreme Court Orders on the Right to Food - A Tool for Action, 12-
13 (August 2008) available at http://www.sccommissioners.org/CourtOrders/tool_for_action.
pdf (Last visited on August 21, 2017).
335
People’s Union for Civil Liberties v. Union of India, (2013) 2 SCC 682.
336
People’s Union for Civil Liberties (PDS Matters) v. Union of India, (2013) 2 SCC 663.
337
Langford, César Rodríguez-Garavito & Julieta Rossi 2017).

The case has been called the most spectacular case of a court pro-
tecting the ‘right to food.’338 Active litigation saw the right to food struggle take
on the shape of a massive national movement that remains an active initiative.
It is an informal network of organizations and individuals, with its origins in
the 2001 petition, and has played a pivotal role in seeing advocating a right to
food, acting as petitioners and activists, and having filed numerous interlocu-
tory applications with detailed, concrete and quantifiable requests that have
considerably shaped court orders.339 The Campaign has helped in publicising
the initiative, maintaining an online repository of court orders, carrying out
public meetings, etc. to mobilize collective action and empowering people at
grassroots level, while also interacting directly with government officials and
agencies.340 The campaign, the commissioners and the court functioned like a
well-oiled machine, working tirelessly to make the now justiciable right to food
an effective and realisable entitlement.
The increased media attention to the issue of food security during

the pendency of the litigation has been identified as reflecting a broader shift in
public opinion in India, and the court’s approach in the PUCL case has been rec-
ognised as serving an important dialogic function, facilitating compliance.341
As discussed later, public opinion plays a key role in incentivising government
action, especially in such cases that involve long-term policy decisions.
The issue was soon adopted by the Government. The National

Food Security Ordinance was passed in 2013, followed by introduction of
the Food Security Bill which was enacted as the National Food Security Act
in September 2013.342 While debates over its sufficiency and effectiveness
continue,343 it is at least a huge leap in addressing the issue of food security.
While this is seen as a largely successful judicial project, it is in the minority.
We have seen however that the tool of continuing mandamus is capable of ef-
fective utilisation.
V. ULTIMATE COMPLIANCE – IS THE WRIT

EFFECTIVE?
In this part, we thus assess the effectiveness of the writ remedy
assessing what an ideal model of such a judicial engagement could look like.
338
General Assembly, Interim report of the Special Rapporteur on the right to food, A/68/288
(August 8, 2013) ¶23.
339
See Lauren Birchfield & Jessica Corsi, Between Starvation and Globalization: Realizing the
Right to Food in India, 31 Mich. J. Int’l L. 691, 719-723 (2010).
340
Id., 723-726.
341
Social R ights Judgments and the Politics of Compliance: M aking It Stick 307-310 (Malcolm
Langford, César Rodríguez-Garavito & Julieta Rossi 2017).
342
National Food Security Act, 2013.
343
See e.g. Ajinkya Tanksale, & J.K. Jha, Implementing national food security act in India:
Issues and challenges, British Food Journal 117, no. 4, 1315-1335 (2015).

The authors opine that the use of the sturdy jurisprudence on the court’s pow-
ers to punish for its contempt is a practicable solution to add to the sanctity of
court orders by making the threat of sanction on non-compliance by public of-
ficers more credible. We also see how the nature of judicial intervention in such
cases are substantially different from the regular brand of adversarial litigation,
visualizing the process as a grand societal dialogue that nudges at ineffective
functioning and lack of coordination to bring about tangible social change.
A. CONTEMPT AS THE LAST RESORT
The scrutiny of the writ and its application in the abovementioned

catena of cases makes it discernible that continuing mandamus cannot act as
a stand-alone remedy in the existing mechanism of administration of justice,
considering the limited progressive outcome. The remedy, as discussed, is used
only in cases with exceptional circumstances where relentless executive re-
calcitrance is acting as an impediment in dispensing justice. A follow-up of
orders becomes mandatory in accordance with the court’s constitutional and
moral duties to preserve the Rule of Law. Despite the conventional belief of
interdependency between the three government organs, lack of mutual respect
and no deference to check the same, especially between the judiciary and the
executive, has led to flouting of court orders by executive bodies.344 Bearing in
mind the principle of separation of powers and the court’s chary approach in
micro-managing the cases, it is argued that the courts in cases of extraordinary
circumstances should use the tool of Contempt to prevent further dereliction
and create a fear in the minds of the officials to avert them from transgressing
their duties. We, by doing so, would manifest that the ineffectiveness is not a
structural flaw in the remedy but in its execution, because of the Court’s cau-
tious approach to use contempt.
Article 142 of the Indian Constitution read along with Article 129
confers power on the Supreme Court to not only compel obedience of its or-
ders but also punish for contempt of its authority. Contempt under the Indian
jurisdiction has been categorised into two types, civil and criminal contempt.345
Civil contempt primarily refers to the non-compliance of court orders whereas
criminal contempt refers concerns the obstruction of administration of justice
either by criticising the judges or the court process publicly or scandalizing the
court in any other manner.346 The discussion in the parts before makes it appar-
ent that civil contempt of court is significant in the current analysis, especially
in light of the court orders being flouted by the government officials. Thus, in
this part of the paper, we will be first discussing the importance of contempt
as a tool of deterrence to prevent non-compliance of orders, followed by an
344
345
The Contempt of Courts Act, 1971, §2(a).
346
The Contempt of Courts Act, 1971, §2(b) & §2(c).

analysis of the Court’s existing attitude towards using contempt against the
government officials as compared to how it should ideally be.
The concept of contempt was developed by the kings as a measure

to ensure compliance of orders.347 One of the essentials to hold one liable for
contempt is that the disobedience should be wilful and deliberate.348 However,
the courts seldom resort to contempt for enforcement of orders due to the dif-
ficulty in proving wilful contempt by government officials.349 It is argued that
indisposed approach of the court has made the government officials indifferent
towards court orders. While the purpose of civil contempt is to be coercive in
nature,350 it is important to understand that force and not morality is the de-
finitive deterrent from omission of compliance of orders.351 Besides, punishing
in this regard cannot be considered as inconsistent with the intention of the
provision.352 It is the duty of the judiciary to ensure that the executive and the
legislature act according to the law which also includes upholding the authority
of the court by following its orders.353
While the number of contempt petitions has been multiplying in-

definitely, the courts have been reluctant to hold government servants guilty.
Revision of orders, extension of deadlines and in some instances, threaten-
ing with punishments has been the approach of the Court without actually de-
termining duties and forcing those individuals to look into the same.354 For
instance, even in D.K. Basu v. State of W.B.355, the SC warned the officials of
contempt in case of failure to comply with the orders, years passed by without
the Court taking/being able to charge anyone with contempt. The courts are au-
thorized to hold officials guilty for non-compliance of their orders.356 However,
even at instances where they choose to do the same, it becomes difficult to prove
mala fide intention due to pretexts like red-tapism, delay in getting sanctions,
inter alia. It thus becomes impossible for the Court to distinguish the genuine
cases, and it thus ends up revising the orders without any punitive measures.
This conventional approach followed by the Courts has indirectly confided the
officials of the impunity they enjoy and led to alarming disregard of the court
orders. Similar overlooking of orders is also seen by the States. For instance,
in the Prakash Singh case357 where the Court used continuing mandamus to
347
Shodhganga, Concept and Genesis of Contempt Law, available at http://shodhganga.inflibnet.
ac.in/bitstream/10603/3570/10/10_chapter%202.pdf (Last visited on August 21, 2017).
348
Manish Gupta v. Gurudas Roy, (1995) 3 SCC 559 : AIR 1995 SC 1359.
349
Subrata Roy Sahara v. Union of India, (2014) 8 SCC 470.
350
Keegan v. de Burca, 1973 IR 223 at 227.
351
Veena Tomapi, Textbook on Jurisprudence 76 (2011).
352
Flood v. Lawlor, (2002) 3 IR 67.
353
Vinay Chandra Mishra, In re, (1995) 2 SCC 584.
354
355
(1997) 1 SCC 416.
356
The Contempt of Courts Act, 1971, §12.
357

redevelop police reforms, the Supreme Court expressing its helplessness de-
clined the contempt petition, because of non-obedience of orders from most of
the states.358 While the Courts have tried to intimidate the officers with penal
actions at several occasions,359 its inability in determining the liability of the
individual(s) and hold them responsible has abetted in the breakdown of the
constitutional machinery.
Non-compliance of court orders due to a bona fide reason cannot

be punishable.360 The government officials may try to use this to their advantage
and cite reasons like clarification in order required, keep it pending because of
some budgetary reason, lack or resources, no proper technical knowledge, inter
alia. The Courts have abashed at individuals asking them to approach the Court
in advance for any confusion or clarifications.361 Contemnors have been asked
to file appeals and get stay orders for any foreseeable delay in executing the
order.362 In such cases, where ascertaining specific liability is not an issue, the
courts need to become more stringent and punish for contempt.
The fundamental issue arises when the order is directed towards

a State(s). The vagueness of such orders and no fixed responsibilities has made
it impossible for the courts to identify relevant officials. Rationalizing this,
Justice Louis said, “If the Government becomes a law breaker, it breeds con-
tempt for the law; it invites every man to become a law unto himself it invites
anarchy.”363 Even in the current Cauvery water dispute case, sceptics deliber-
ated the jeopardy of the fundamental structure of our democracy.364
This antagonistic behaviour of the government to court orders has

pressed the courts to be more solicitous with contempt petitions. Justice N.
Kirubakaran had rightfully noted that a “step by step procedure for dealing
with the court matters and compliance of court orders in time” is required.365
He suggested of forming a Special Cell to only see the compliance of court
orders.366 Some officers may think that the Court is needlessly interfering in
358
Tarun Upadhyay, Police bill not similar to AFSPA, Hindustan times (New Delhi) February 28,
2013.
359
Abhinav Gargi, Nothing has Changed since 1997 judgment, Vineet Narain says, The Times
of I ndia (May 10, 2013) available at http://timesofindia.indiatimes.com/india/Nothing-has-
changed-since-1997-judgment-Vineet-Narain-says/articleshow/19978247.cms (Last visited on
June 6, 2017).
360
Indian Oil Corpn. Ltd. v. Sheo Shankar Mishra, 1995 SCC OnLine Pat 358 : (1995) 2 PLJR
875.
361
S.K. Samsudin v. Ravikant, 1996 SCC OnLine Cal 417 : 1997 Cri LJ 1603; K.A. Ansari v.
Indian Airlines Ltd., (2009) 2 SCC 164.
362
Balai Krushna Tej v. Inspector of Schools, 1990 SCC OnLine Ori 165 : (1990) 70 CLT 402.
363
Olmstead v. United States, 1928 SCC OnLine US SC 131 : 72 L Ed 944 : 277 US 438 (1928).
364
See Special Reporter, Cauvery row: Supreme Court to Continue Hearing Water Dispute Case
Today, Indian Express (New Delhi) July 26, 2017.
365
A.P. Abbu Gounder v. D.K. Goel, 2013 SCC OnLine Mad 688, ¶12.
366
Id., ¶22.

their duties and therefore be impervious to their directions. Therefore, it is im-

perative for the Court to suo motu or through Commissions, fixed personal
responsibilities on specific officials.
Time and again, the court orders have been become subjects of re-
buke without any successful results. The officials do not fear contempt because
of the reluctance shown by the Courts in using contempt against government
servants and the difficulty in determining the liability because of no specifica-
tion of duties.
In E.T. Sunup v. CANSS Employees Assn.,367 the Court noted, “it

has become a tendency with the government officer to somehow or the other
circumvent the orders of Court and try to take recourse to one justification or
other.” Thus, the courts should realize the importance of fixing duties and of
a hierarchical set-up which may acts as a deterrent on to officers absconding
from their duties.368 Evasion of contempt petitions because of the inability of
the Court to actually penalise someone has set up a bad precedent before the
officials giving them impunity. Thus, the courts should not accept excuses like
ignorance, official delays, etc. If there is prima facie lethargy or absence of
motivation, the same should be used to hold them liable.369 In case of severe
delays, the court can form Commissions or appoint Court Commissioners to
look after the reason of delays. If there are precedents set up punishing the
indolent and corrupt officials, the fear of the same would compel them to work
effectively. Hence, the writ of continuing mandamus along with the aid of the
doctrine of contempt of court can help achieve socio-economic justice, if en-
forced effectively.
B. THE INITIATION OF A SOCIAL DIALOGUE –

INCENTIVISING CHANGE
In a political society, especially a democracy, there exists a
strong correlation between public opinion and government action or inaction.
Empirical research has shown that transparency facilitates compliance, while
367
E.T. Sunup v. CANSS Employees Assn., (2004) 8 SCC 683.
368
The First Law Commission constituted after coming into force of the Constitution observed,
“It is now increasingly necessary to abandon the lingering fiction of a legally indivisible state,
and a federal conception of the crown, and to substitute for it the Principle of legal liability
where the state, either directly or through incorporated public authorities, engages in activi-
ties of a commercial, industrial or managerial character. The proper test is not an impractical
distinction between government and nongovernmental function but the nature and form of the
activities in question.” Law Commission of India, Liability of the State in Tort, Report No.1,
(May 1956), available at http://lawcommissionofindia.nic.in/1-50/report1.pdf (Last visited on
August 22, 2017).
369
See Anil Ratan Sarkar v. Hirak Ghosh, (2002) 4 SCC 21.

non-compliance is common where issues do not receive media coverage.370

Publicising decisions, especially in monitoring programmes, have demon-
strable effects on compliance with orders.371 The courts in these Social Action
Litigation cases, especially the PUCL case and the environmental cases, have
directed authorities to publicise its orders and increase public awareness.372 The
‘elite bias’ and lack of focus on ‘blind spots’ of social and developmental fail-
ures, Dreze and Sen argue plague Indian media.373 The public apathy is not a
generational flaw, as popular rebukes would point out, but a result of systematic
elimination of information from the public fora, be it a non-independent media
or even an over-enthusiastic censor board. The court’s attempts at creation of
legal entitlements, engaging the whole social community and requiring publi-
cisation of results is not just a cry for better PR, rather, it has been shown to
increase transparency and create pressures on public actors, increasing trans-
parency and awareness. However, awareness generation and monitoring share a
symbiotic relation. Greater visibility is not in itself sufficient to ensure compli-
ance. It requires other supporting conditions to be met, such as the credibility
of the court’s commitment to monitor and publicise compliance, whether the
public officials ascribed value to their reputation, if the responsiveness of bu-
reaucrats to pressures, and the significance that the public attaches to executive
compliance.374 Despite routine media coverage of starvation deaths in Orissa,
there was no significant effect.375 This has been traced to how the courts in
Orissa, unlike the SC in the PUCL case, never adopted any robust compliance
monitoring strategy, which, coupled with lack of political will, prevented any
significant policy change.376 Contrasting the failure of the SC’s approach in ear-
lier cases and the success of the PUCL litigation, in addition to external factors,
the robust monitoring and institutional mechanism of supervision as well as
engagement with key allies in civil society through the right to food campaign
have been seen to be determinative of its success.377
Another key variable in the success of such cases is the support

and cooperation of several other players, the executive branch and the civil
370
Jeffrey K. Staton, Judicial Power and Strategic Communication in Mexico, Cambridge
University Press (2010).
371
See Varun Gauri, Jeffrey K. Staton, & Jorge Vargas Cullell, public strategy for compliance
monitoring, The World Bank Policy Research Working Paper 6523 (2013).
372
Id.
373
Jean Dreze & A martya Sen, A n Uncertain Glory (2013); See Jean Dreze & Amartya Sen,
Inequalities and the Media, August 2, 2013, available at http://www.thehoot.org/media-watch/
media-practice/inequalities-and-the-media-6940 (Last visited on August 21, 2013).
374
See Varun Gauri, Jeffrey K. Staton, & Jorge Vargas Cullell, public strategy for compliance
monitoring, The World Bank Policy Research Working Paper 6523 (2013) as cited in Social
R ights Judgments and the Politics of Compliance: M aking It Stick 309 (Malcolm Langford,
César Rodríguez-Garavito & Julieta Rossi, 2017).
375
Dan Banik, India’s Freedom from Famine: Case of Kalahandi, Contemporary South Asia 7(3),
265-281 (1998).
376
377
Id.

society organisations in ensuring compliance with court orders.378 Allying it-

self with key interest groups and garnering popular support while addressing
popular causes can thus play a vital role in influencing compliance.379 NGOs
and other civil groups can act as watch dogs, ensuring that non-implementation
leads to legal action.380 In most environmental matters, as discussed above,
the court acted through a combination of Monitoring Committees, spot vis-
its by officers and central and state pollution control boards. Appointment of
amicus curiae to aid in its proceedings without active involvement of the peti-
tioner ensured that the proceedings could continue. While most court-formed
committees were seen to have NGO representation, the courts should ideally
try to encourage more participation from environmental pressure groups and
organisations. Similarly, in the PUCL case also, the institutionalised frame-
work of commissioners was aided by the parallel right to food campaign, which
amassed nation-wide support and brought the court’s attention to instances of
non-compliance. These cases are in stark contrast with the failure and criticism
in other cases where the court orders have been more isolative in nature, and
failed to adequately engage all stakeholders. This is seen in the court’s ap-
proach in Godavarman, especially prior to its 2014 orders, which were in com-
plete ignorance of rights of traditional forest dwellers, and in disregard of the
importance of engaging the local community in forest conservation.381 We can
now see that this contrast exists due to the nature of court’s intervention, and
its failure to engage and incentivise actors. Where however, proceedings have
turned into a continuing mandamus, and the court has adopted coordinated
means of civil cooperation, roped in all stakeholders, with precise orders that
reflect pragmatic concerns of the government, it has seen reasonable success.
The continuing mandamus enables the court in cases where a

declaratory judgment or even a mandatory order will make little change in
isolation, to initiate a purposive dialogue in public society. Acting more like a
mediator than an adjudicator, the court gets all the different actors, stakehold-
ers and even the public to be a part of this dialogue. First, it creates pressure
on the public-opinion sensitive governments to move from the state of inertia,
and second, aids even inter-cooperation among governmental departments and
agencies to reach more effective solutions. The power of contempt as a credible
threat addresses administrative reluctance. The necessity for a tool like contin-
uing mandamus becomes unambiguously clear when one tries to assess a hypo-
thetical parallel – if say, in the Research Foundation case, instead of the court’s
378
C. Rodriquez-Garavito, Beyond the Courtroom: The Impact of Judicial Activism on
Socioeconomic Rights in Latin America, Texas Law R eview 89(7), 1669-1698, 1692 (2011).
379
Courting Social Justice: Judicial Enforcement of Social and Economic R ights in the
Developing World 1-37 (V. Gauri & D. Brinks 2008); Staton (2010).
380
See C.R. Epp, The R ights R evolution: Lawyers, Activists and Supreme Courts in Comparative
Perspective (1998); J. Spriggs, Explaining Federal Bureaucratic Compliance with Supreme
Court Opinions, Political Research Quarterly, 50(3), 569-593, 567 (1997).
381
Armin Rosencranz & Sharachchandra Lélé, Supreme Court and India’s forests, Economic and
Political Weekly, 11-14 (February, 2008).

continues monitoring of dumping, destruction and import of hazardous waste,

there was only one declaratory judgment; or if in the PUCL case, if the court
restricted itself to recognising the violation of Article 21 and instructing the
government to effectively implement food and employment related schemes. If
despite court monitoring, progress was slow, then in its absence, there would be
no threat in case of non-compliance. To start a separate set of compliance pro-
ceedings requires a lot of effort, will and resources on part of the petitioners,
who in most of these cases, in the absence of activist and organizational agen-
das would have no voice. The procedural innovation in one way shoulders the
burden taken upon by such agencies and aids social mobilization, by making
the whole process participative, engaging even a reluctant government. While
contempt always remains a key option, attribution of fault for policy lapses
or ineffective planning is almost impossible. Political actors need motivation,
often beyond obligatory responsibilities to comply. Judicial engagement, de-
spite the treacherous constitutional waters it may be said to navigate through,
becomes essential to prod action. This at times is the only effective redressal of
rights violations that arise from the presence or absence of political motivation
and the practical impossibility of coordination due to the presence of a highly
fragmented and isolated administrative set-up. However, effective, but limited
use of the court’s contempt powers is necessary when abdication of duty is
evident, to ensure that it remains a credible threat.
VI. CONCLUSION
The manifestation of the right-remedy gap has been seen in the
form of entitlements on paper with no functional means of enforcement, with
even the mightiest guars of the constitutional rights being helpless. Especially
when alleviation of impending injustice requires a change in societal machin-
ery, an unresponsive State seldom can be incentivised to take affirmative ac-
tion. We have seen how the Apex judiciary has grasped at straws to remedy this
tragedy of rights, and has culled out the writ remedy of continuing mandamus.
Dealing with a lackadaisical administrative set-up in social action litigation
cannot, especially when remediation involves budgetary expenditure, be done
via mere court orders. These are more often than not flouted or blatantly ig-
nored. The model of continuing mandamus facilitates a process of constant
judicial nudging and prodding, to overcome inaction. Instead of the case ending
with a singular judgment, the case being kept open gives a follow-up mecha-
nism to effect implementation.
Not strictly adhering to our common parameters of the court’s

role, we have seen that it has been used with caution, and a study of the sample
space of Supreme Court cases compliments this. It is only when one-shot reme-
dies are most obviously seen as futile and where some blatant injustice needs to
be remedied on a larger scale, that cases are made into a continuing mandamus.

While this has also not always yielded success, and repeated or-
ders have fallen on deaf years, we have seen that at least limited, and in some
cases even drastic change has been facilitated. An analysis aimed at assessing
the reasons for varied success stories led us to conclude that the problem mostly
emanates not from the structure or form of the remedy in itself. Rather, fault in
most cases can be attributed to the nature of judicial orders themselves, which
may be either too vague, or detached from practical considerations and an in-
sight into the mechanics of administrative functioning. On the other hand, we
see that specificity of directions, an understanding of how the state machinery
functions, and an involvement of interested parties and stakeholders in the pro-
cess throws up better results.
An alteration in the nature of directions and orders needs to be

buttressed by making the threat of contempt proceedings more credible. While
it becomes impossible at times to trace the source of inaction, especially when
there is overlap with alteration in policy considerations, the system of account-
ability ought to be developed whenever practicable and possible. This will be-
come imperative especially in cases where flouting directives is more due to
recalcitrant inaction than the use of budgetary coffers with greater political
underpinnings.
The whole process can be visualised as a broader social dialogue,

where all key actors, the state, interest-groups, stake-holders and the citizenry
are involved, with the judiciary acting as a facilitator. A niche sub-class of
the breed of social action litigation, this brand of judicial involvement has the
potential to move even what might have been seen as lost causes of non-fruiti-
fication of rights. While the judiciary should jump in with caution, and only as
an extreme measure, fruitful involvement will necessitate closer attention to
the nature of such involvement and an understanding of the practical modali-
ties involved.
In another sense, the fashioning of the writ remedy to address

enforcement of entitlements can in itself be seen as the creation of a fresh en-
titlement to redress such unenforceability. Lending credence to the judiciary’s
position as the ultimate defender of our rights, it puts in place a structural set-
up that seeks to compensate for some inherent flaws in the separation theory
that impedes a robust system of checks and balances. The trade-off between a
conservative Blackstonian notion of minimal judicial role and remedying the
right-remedy gap draws legitimacy in a post-modern democratic set-up, espe-
cially in light of the broader goal of strengthening our constitutional mandate
and giving teeth to constitutional rights.

Godavarman Case Criticism

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‘CONTINUING MANDAMUS’ – A

JUDICIAL INNOVATION TO BRIDGE THE

authoritatively answered.’2 The paper traces judicial trends thereafter, arguing

July - September, 2017

recalcitrance, particularly in areas of environmental protection, food security,

II. THE RIGHT-REMEDY GAP – A BATTLE FOR

The Indian Supreme Court has, however, made valiant attempts

July - September, 2017

While noting the limitations of American Constitutional Courts

The former category of cases, having kick-started the right-rem-

clarkcunningham.org/PDF/PublicInterestLitigationInIndia.pdf (Last visited on January 18,

July - September, 2017

bearing on budgetary resources of the State, stressing on the prerogative of the

Some reluctance to exceed, what could be argued to be a conserv-

Krishna Mahajan, his work being a manifestation of popular dis-

July - September, 2017

The break-down of the strict right-remedy relation in private law

July - September, 2017

mechanisms, exists.”31 This cannot be extended to justify the inevitability of

A right to constitutional remedy is what legitimises writ courts

III. THE EVOLUTION OF ‘CONTINUING

July - September, 2017

While traditionally, a court order was supposed to be declaratory

In South Africa for instance, even in the pre-constitutional era,

July - September, 2017

First acknowledged as a valid remedy in 1998, the Constitutional

July - September, 2017

The rights’ struggle in Canada was a little different, given the

July - September, 2017

court declaring that the law declared to be unconstitutional remain in force

In India, the use of similar remedies is not only more frequent,

July - September, 2017

While, as noted in the previous section, this has not precluded

As with declaratory orders, even mandatory orders were not

The implementation challenge is partly attributable to the absence

July - September, 2017

issue directions from time-to-time to monitor compliance.74 This is the essential

One of the first instances of such practise can be seen in Hussainara

It was only in Vineet Narain v. Union of India,80 that this was

July - September, 2017

the fruits of a judgment can be enjoyed by the right-bearers, and realization is

IV. ANALYSIS OF COURT ORDERS IN

A. INVESTIGATIVE AGENCIES AND POLICE REFORMS

The fashioning of the writ, although, in substance, used before,

1. Significance of Continuing Mandamus in the functioning of

The role of the Central Bureau of Investigation (‘CBI’)84 in in-

July - September, 2017

considered as non-committal, if not undependable.85 Its transparency in

July - September, 2017

Its practicability was further re-iterated in Union of India v. Sushil

July - September, 2017

mandamus, owing to the similar nature of proceedings as in the Jain Hawala

Plethora of arguments have been made against use of the writ in

July - September, 2017

there is a mandatory CBI manual116 in relation to its investigative functions

Originally, it was the Court which used to extend the ambit of

2. Continuing Mandamus: An overarching solution in insulating

The moot question which arises is if the writ of continuing man-

July - September, 2017

to some extent, helped in fighting against corruption by some commendable

Recently, in Manohar Lal Sharma v. Union of India,126 where

The Supreme Court, at various other instances, has clarified the