I. Introduction: The Mandamus Mandate in Democratic Governance
A. The Genesis of Accountability
In modern democratic governance, the principle of accountability—that those in positions of public power must answer for their actions—is a cornerstone of the rule of law. The judicial system, through the mechanism of judicial review, serves as a crucial check on administrative and executive power. Among the most potent instruments available to the judiciary for this purpose is the writ of mandamus. This centuries-old remedy, derived from English common law, has evolved from a tool of royal prerogative into a fundamental constitutional safeguard in the legal systems of South Asian democracies.1
The historical trajectory of the writ is instructive. Originating in 13th-century England, the writ of mandamus was first devised by the Court of King’s Bench to enforce clearly established rights when other remedies were inadequate.1 Initially, it operated as a “prerogative writ,” an expression of the Crown’s authority to compel its subjects to perform their duties.3 Over time, its application narrowed, and by the American founding, it was primarily understood as a means to force public officials to perform non-discretionary duties.1
In South Asia, a similar common law tradition was inherited, but a profound transformation occurred during the post-colonial constitutional era. Instead of remaining a vestige of sovereign power, the writ of mandamus was enshrined in the supreme legal documents of the region, fundamentally transforming it into a constitutional remedy and a legal right for the citizen. This constitutional entrenchment placed the judiciary as a protector of the public against the state, not merely an extension of it. This re-conceptualization of mandamus underscores its vital role in reinforcing democratic norms and ensuring that public power is exercised lawfully and with responsibility.
B. Defining the “Command”
The term “mandamus” is Latin for “we command” or “we order”.4 As a judicial writ, it is a formal command issued by a superior court to a subordinate court, a government official, a public corporation, or a tribunal.2 The primary purpose of this order is to compel the recipient to perform a specific legal duty that is incumbent upon them by law.7 This includes compelling lower courts to rule on a motion they have improperly refused to consider or directing government officials to enforce compliance with statutory obligations.1
The writ is a positive remedy, designed to remedy wrongful inaction.10 It is sought when a public authority fails or refuses to perform a duty for which it is legally bound.4 This duty must be of a public or statutory nature and not a private or contractual one.5 The writ acts as a powerful lever for judicial oversight, ensuring that public officials fulfill their responsibilities and that the rule of law is upheld.
C. The South Asian Context
South Asian democracies—including India, Pakistan, Bangladesh, and Sri Lanka—share a common legal heritage rooted in the British colonial experience. This inheritance includes the system of prerogative writs, which have been adapted and codified in their respective constitutions. The entrenchment of mandamus in their constitutional frameworks is a testament to its perceived importance in controlling administrative operations and preventing the arbitrary use of authority.6
In India, this power is vested in the Supreme Court under Article 32 and in the High Courts under Article 226 of the Constitution.4 Similarly, Pakistan’s Constitution, through Article 199, empowers its High Courts to issue orders in the nature of mandamus, albeit without using the technical name.8 The Constitution of Bangladesh empowers its High Court Division under Article 102 to issue “mandatory orders” for the enforcement of fundamental rights and for any other purpose.5 Sri Lanka’s Constitution also provides for the power of its Supreme Court to issue writs of mandamus for the enforcement of rights.7 This shared legal foundation, coupled with distinct national interpretations, creates a rich and complex jurisprudential landscape for the writ of mandamus.
II. Foundational Principles and Jurisprudential Evolution
A. Historical Origins: From Prerogative to Constitutional Remedy
The evolution of the writ of mandamus is a narrative of its transformation from a tool of sovereign power to a mechanism for public accountability. Initially, the writ was used broadly to enforce even private rights.1 By the time it was adopted in the legal systems of South Asia, its function had narrowed to compelling public officials to perform non-discretionary duties.1
This re-conceptualization is a crucial aspect of its modern-day application. The legal systems in post-colonial democracies did not simply adopt the remedy; they re-imagined it. The writ of mandamus, once an exercise of the monarch’s power, was re-cast as a constitutional right of the citizen. This fundamental shift changed the power dynamic, placing the judiciary as a protector of the public against the state, not as an extension of it. This transformation is a powerful symbol of the maturation of democratic institutions in the region.
B. Core Purpose and Scope
The central tenet of mandamus is that it compels the performance of a duty. To be successful, a petition for mandamus must satisfy two primary criteria: the duty must be of a public character, and it must be non-discretionary.
The duty must be a public one, imposed by the Constitution, a statute, or common law.8 Mandamus is not an appropriate remedy to enforce private or contractual rights, a principle confirmed by the Indian Supreme Court in
Ramakrishna Mission v. Kago Kunya (2019).7
A core challenge for legal practitioners is the distinction between a ministerial duty (which a public official has a clear, legal obligation to perform) and a discretionary duty (which involves a degree of choice or judgment).1 While a mandamus petition cannot be used to compel a public official to exercise a discretionary power in a particular manner 9, it can be used to compel the exercise of that power if the official has refused to act at all. Furthermore, judicial interference is warranted if a discretionary power is exercised in bad faith (
mala fides) or based on “extraneous and irrelevant considerations”.9 This nuanced distinction provides a critical strategic entry point for a petitioner, allowing the court to compel an act where a public authority has abused or failed to apply its judgment appropriately.
C. Differentiating the Prerogative Writs
For a legal practitioner, understanding the distinctions between the various prerogative writs is essential for selecting the correct remedy. Mandamus, Certiorari, and Prohibition are often considered together, but they serve fundamentally different functions.
As noted by Professor Wade, mandamus deals with wrongful inaction, while certiorari and prohibition deal with wrongful action.10 Mandamus is a positive command to do something.5 Conversely, a writ of prohibition is a preventive remedy that forbids an inferior court or authority from continuing proceedings in excess of its jurisdiction.3 Similarly, a writ of certiorari is a corrective measure that quashes an unlawful order or decision made by a subordinate court or tribunal acting without or in excess of its jurisdiction or in contravention of the principles of natural justice.3
To address complex modern challenges, the judiciary has displayed significant innovation by creating hybrid remedies. For instance, the concept of a “Certiorarified Mandamus” has emerged in some jurisdictions.10 This remedy is employed when a court first uses certiorari to quash an unlawful decision and then issues a writ of mandamus to compel the public authority to decide the matter again, this time in accordance with the law.10 This judicial creativity illustrates a move beyond the rigid, historical definitions of the writs toward a dynamic jurisprudence designed to effectively enforce justice.
Furthermore, a critical development in South Asian legal systems is the liberalization of the doctrine of locus standi, particularly for Public Interest Litigation (PIL). Traditionally, a petitioner had to demonstrate a direct and personal injury to have standing.11 However, in cases of “public injury or public wrong,” any citizen or indigenous association may file a writ petition on behalf of the general public.18 This expands the function of mandamus from protecting an individual’s specific right to acting as a watchdog for collective public accountability. It transforms a legal remedy into a powerful tool for social justice and administrative oversight.
The table below provides a concise comparative guide to the most common prerogative writs in South Asia, offering a quick reference for practitioners.
| Writ Name | Latin Meaning | Primary Purpose | Primary Target | Key Function |
| Mandamus | “We command” | To compel the performance of a public duty. | Public official, corporation, tribunal. | Compels action. |
| Prohibition | “To forbid” | To prevent a court or authority from exceeding its jurisdiction. | Inferior court or tribunal. | Commands inactivity. |
| Certiorari | “To be informed” | To quash an unlawful order or decision. | Inferior court or tribunal. | Reviews and corrects action. |
| Habeas Corpus | “You have the body” | To secure the release of an unlawfully detained person. | Detaining authority, public or private. | Examines legality of detention. |
| Quo Warranto | “By what warrant” | To question the authority by which a person holds a public office. | Person holding a public office. | Challenges legitimacy of office-holding. |
III. The Constitutional Framework: A Comparative Analysis of South Asia
The writ of mandamus is not merely a legal tool; its power and scope are deeply intertwined with the constitutional provisions of each nation. A comparative analysis reveals both a shared commitment to accountability and distinct jurisdictional nuances.
A. India
In India, the power to issue writs is vested in the Supreme Court under Article 32 and in the High Courts under Article 226 of the Constitution.4 Article 32 is a fundamental right itself, guaranteeing citizens the right to move the Supreme Court for the enforcement of other fundamental rights.4 Article 226, however, provides a High Court with broader power to issue directions, orders, or writs not only for the enforcement of fundamental rights but also “for any other purpose”.17 This phrase gives the High Courts a wider writ jurisdiction, as it allows them to grant relief for violations of ordinary legal rights as well. This dual-track system ensures that citizens have both an extraordinary remedy for fundamental rights violations and a broader remedy for legal grievances against the state.
B. Pakistan
The jurisdiction of Pakistan’s High Courts to issue writs is established by Article 199 of the Constitution. While the article does not use the technical names of the writs, it authorizes the High Court to make an order “directing a person performing… functions… to do anything he is required by law to do”.8 This constitutional language effectively provides for the writ of mandamus. As a condition for its grant, a person invoking this jurisdiction must show a clear legal right, prove that a demand for justice was made and refused, and demonstrate that no other equally expeditious or efficacious remedy is available.23 These stringent procedural requirements are foundational to its application in Pakistan.
C. Bangladesh
The constitutional basis for the writ of mandamus in Bangladesh is Article 102, which empowers the High Court Division of the Supreme Court to issue orders, including mandatory orders.5 This power of judicial review is considered a “basic feature of the Constitution” and cannot be curtailed even by constitutional amendment.11 Article 102(2) specifically grants the High Court the power to direct a public authority “to do that which he is required by law to do”.13 The writ is thus a powerful tool for citizens to seek remedies against illegal or arbitrary administrative actions, ensuring that authorities fulfill their statutory obligations.
D. Sri Lanka
Sri Lanka’s Constitution also vests the power to issue writs, including mandamus, in its superior courts.7 This enables the judiciary to compel a public official or authority to perform a duty that they are legally bound to perform.7 As in other jurisdictions, the writ is a discretionary remedy, and its issuance is subject to the court’s discretion.25 For instance, a writ will not be granted if the court determines that it would be “futile” or that “no purpose will be served” by its issuance.25 The legal jurisprudence in Sri Lanka demonstrates the use of mandamus to enforce statutory requirements and uphold administrative legality.
The judicial philosophy underpinning the use of writs in these nations is worth noting. During a recent hearing in India, the Supreme Court asked if it could “sit idle if a constitutional functionary… failed to discharge duties”.26 This observation reveals a judiciary that views itself not as a passive arbiter but as an active “custodian of the Constitution,” a vital check on the executive and legislative branches. The judiciary in the region has asserted its role as a stabilizing force, a critical function in a political landscape often prone to instability.
IV. The Procedural Requisites for a Mandamus Petition
A successful mandamus petition is contingent upon the meticulous fulfillment of several procedural and legal prerequisites. A failure to comply with these requirements is a common reason for a petition’s dismissal.
A. The Applicant’s Standing
The petitioner must demonstrate a clear and subsisting legal right to the relief sought.1 The legal right must be one that can insist upon a “clear duty being performed by some public officer”.8 The writ is not a tool for satisfying “one’s ulterior and ambiguous motives”.4
However, the traditional requirement of a direct personal injury has been significantly relaxed in the context of Public Interest Litigation (PIL) in India, Pakistan, and Bangladesh.18 This allows a citizen or an association to file a writ petition in a representative capacity for a larger public interest, such as issues related to illegal immigration or failures in public services.18 This liberalization expands the writ’s function from protecting individual rights to serving as a powerful mechanism for collective public accountability.
B. The Essential Pre-condition: Demand and Refusal
A foundational requirement for a writ of mandamus is that the petitioner must have first made a demand for the public authority to perform its duty and that the authority must have refused or failed to comply.10 The purpose of this rule is to provide the authority with an opportunity to correct its non-action before judicial intervention is sought.9
While this is a strict requirement, there are crucial exceptions. A demand and refusal may be deemed unnecessary if the circumstances indicate that such a demand would be “futile” 5 or if the public duty affects the public at large, as in a public interest matter.10
C. The Doctrine of Alternative Remedies
Mandamus is considered an “extraordinary” or “last-resort” remedy.3 A court will generally not issue the writ if there is another “equally expeditious, in expensive and efficacious remedy available” to the petitioner.8 This principle prevents the writ from being used as a substitute for an appeal or to correct errors of law within a tribunal’s proper jurisdiction.14 The petitioner must demonstrate that the alternative legal remedy is not as effective or timely as a writ petition.
D. The Discretionary Challenge
For a legal professional, a central challenge in drafting a mandamus petition is to prove that the public authority’s inaction or refusal to act is not a matter of legitimate discretion but a dereliction of a clear legal duty. To overcome this hurdle, the petitioner must meticulously demonstrate that the authority’s refusal to act is arbitrary, driven by extraneous considerations, or vitiated by bad faith.9 Framing the petition to show that the public authority has failed to exercise a power it is legally bound to, rather than compelling how it should be exercised, is a critical strategic distinction.
In a recent and significant development, the Indian Supreme Court issued pan-India guidelines on demolitions, directing that authorities must create “digital portals” to document show-cause notices and demolition orders.28 This procedural reform, enforced through the judiciary’s writ jurisdiction, highlights a modern approach to accountability. The court is not just compelling action but also enforcing transparency through technological means, creating a digital trail that can be used for future legal recourse. This strategy attempts to counter the on-the-ground performance of legality by the state, where due process is superficially followed while the substance of justice is disregarded.29
V. Mandamus in Action: Landmark Cases and Recent Jurisprudence
The application of mandamus across South Asia is best understood through a study of key judicial decisions. These cases demonstrate the writ’s power to compel action, its limitations, and its evolving role in shaping public accountability.
A. India
- Compelling the Implementation of a Scheme: In Bombay Municipality v. Advance Builders (1972), the Supreme Court of India issued a writ of mandamus to direct the Bombay Municipality to implement a town planning scheme that had been approved by the government but not acted upon for a long time.7 This case established the principle that a writ of mandamus can be issued where an authority, vested with a power, improperly refuses to exercise it.7
- Reining in Executive Overreach: A recent and highly consequential case is the 2024 Indian Supreme Court judgment, In Re: Directions in the matter of demolition of structures.30 The court addressed the practice of punitive demolitions of properties belonging to criminal accused, issuing “pan-India guidelines” to regulate the process.28 The court’s central reasoning was that such demolitions, executed without due process and judicial oversight, violate the rule of law, the doctrine of public trust, and the constitutional separation of powers.31 This judgment reinforced that the executive cannot usurp the judiciary’s role as an adjudicator and that such actions infringe on fundamental rights, including the right to shelter.28 The case serves as a powerful example of the judiciary acting as a bulwark against administrative overreach, using its writ jurisdiction to compel the state to adhere to constitutional principles.
B. Pakistan
A notable case illustrating the strict procedural requirements in Pakistan is Hammad Hussain v. Federation of Pakistan (2021).23 In this case, the Islamabad High Court dismissed a writ petition for mandamus because the petitioners had failed to meet the essential pre-requisites of a prior “demand of justice and the refusal thereof”.23 This ruling serves as a valuable lesson for legal practitioners, emphasizing that a failure to comply with procedural formalities will result in the dismissal of the petition, regardless of the merits of the case.
C. Bangladesh
In Bangladesh, the writ of mandamus has been used to compel public authorities to perform their statutory duties. For example, a writ may be issued to compel RAJUK (a public authority) to mutate the name of a purchaser of land in its records.11 The judiciary has also used mandamus to uphold the “legitimate expectation” of a citizen in administrative matters, as seen in a case where the court ruled against the discontinuation of a school feeding program, citing the expectation not only of the contractual party but also of the children themselves.20
D. Sri Lanka
Sri Lankan jurisprudence on mandamus highlights the principle of futility. In the case of Selvamani v. Dr. Kumaravelupillai and others (2005), the court held that a writ of mandamus will not be issued if it would be “futile to do so and no purpose will be served”.25 The court refused to grant the writ to restore a petitioner to his former post because a prior order for vacation of the post had already been issued and had not been challenged.25 This demonstrates that the writ is not a tool to remedy a petitioner’s own negligence or to serve a purpose that has been rendered moot by a previous legal action.
The court’s decisions in these cases are not isolated legal rulings; they are part of a broader discourse on the judiciary’s role in the nation. The assertion by the Indian Chief Justice that the Indian Constitution is strong enough to withstand political tensions, referencing unrest in neighboring countries 26, indicates that judicial decisions on accountability are also about reinforcing the legitimacy of the entire democratic system. The judiciary, through its assertive use of writs, positions itself as a stabilizing force, a critical function in a region where democratic backsliding is a persistent concern.
VI. Strategic Considerations and Common Pitfalls for Practitioners
For legal practitioners, a profound understanding of mandamus extends beyond its definition to its strategic application. Navigating the complex procedural and jurisprudential landscape requires careful planning and an awareness of common pitfalls.
A. Navigating the Discretionary Nature of the Writ
The central strategic challenge is to convince a court that a public authority’s inaction is a failure of a legal duty rather than a legitimate exercise of discretion. Practitioners must meticulously document instances of administrative overreach, mala fides, or decisions based on “extraneous considerations”.9 The petition must be framed to show that the authority is not being asked to act in a specific manner, but simply to exercise a power it is legally obligated to use. A well-argued case can transform a seemingly discretionary matter into a clear legal duty that the court can compel.
B. The Perils of Delay
The doctrine of laches, or undue delay, is a significant impediment to a successful writ petition. The court may deny a petition if the petitioner has failed to approach the court without delay.11 For instance, a Sri Lankan court held that it would not grant a writ to relieve a petitioner of the consequences of their “own folly, negligence and laches”.25 Therefore, practitioners must not only act swiftly but also document any attempts to seek administrative remedies to justify any perceived delay.
C. Procedural and Jurisdictional Hurdles
A writ petition is an application to a superior court and is subject to strict procedural and legal requirements.33 A practitioner must ensure that the petition is filed in the correct court, that all supporting evidence is included, and that the cause of action is clearly articulated.33 The filing must include the petitioner’s name, the relief sought, a clear presentation of the issue, and supporting facts and evidence.34 A failure to meet these requirements can lead to the dismissal of the case. Furthermore, it is a common pitfall to attempt to use mandamus as a substitute for an appeal or to correct errors of judgment in an inferior court.14
D. Public Interest Litigation (PIL)
The symbiotic relationship between mandamus and Public Interest Litigation (PIL) is a key strategic consideration. The liberalization of locus standi through PIL allows lawyers to represent the broader public interest, bypassing the traditional requirement of a direct personal injury.18 This enables the use of mandamus to address systemic issues and administrative failures that affect the public at large, such as failures in public service delivery or human rights violations. Framing a petition as a matter of “public injury” and not a private grievance is a critical strategy for a successful PIL.
E. Ethical Dimensions
The practice of law in South Asia, particularly in cases involving public accountability, carries unique risks.36 Lawyers who advocate for human rights, environmental justice, or other sensitive causes may face harassment, threats, or even violence.36 This requires a practitioner to not only be skilled in legal procedure but also to be mindful of the broader socio-political context. The Indian Supreme Court’s directive on demolitions, which was met with the state adapting to judicial scrutiny by turning law into a “performance,” highlights the enduring challenge.29 While the judiciary can establish powerful legal principles, the ultimate effectiveness of mandamus relies on the political will of the executive to comply in substance, not just in form. The judiciary’s role is therefore one of constant vigilance, as the legal battle for accountability can extend far beyond the courtroom.
VII. Conclusion: The Enduring Role of Mandamus
The writ of mandamus is a powerful and indispensable instrument for ensuring public accountability in the democracies of South Asia. Its evolution from a tool of royal prerogative to a constitutional right of the citizen is a testament to the region’s commitment to the rule of law. It serves a vital function in compelling public authorities to perform their clear legal duties, acting as a direct and often expeditious check on administrative and executive power.1
As a definitive guide, this report has delineated the foundational principles, jurisdictional frameworks, and procedural requirements that govern the writ across India, Pakistan, Bangladesh, and Sri Lanka. It has examined key judicial precedents, from compelling municipal bodies to act to reining in executive overreach. The analysis has revealed that while the legal principles share a common heritage, their application is nuanced, reflecting the unique constitutional and political realities of each nation.
For legal practitioners, the successful use of mandamus requires a meticulous approach, from establishing a clear legal right and fulfilling procedural prerequisites to strategically navigating the complex line between ministerial and discretionary duties. The writ is not a panacea for all administrative failures, but it is a critical remedy when all other options have been exhausted. In a region where democratic institutions are constantly being tested, the writ of mandamus remains a formidable “weapon in the hands of the ordinary citizen” against administrative apathy, ensuring that those who hold public power are held to account for their actions.10
