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Updated: Dec 13, 2020

- Krishi R. Shah

The Directive Principle of State Policy enshrined under Article 48A [[i]] of the Indian Constitution endows upon the State the responsibility to conserve the environmental wellbeing of the nation while the fundamental duty envisaged under Article 51A (g) [[ii]] mandates the citizens to protect and improve the natural environment and wildlife. However, these provisions are declaratory and not enforceable in nature. Despite the fact that certain statutes were passed to reinforce the requirement of ecological rights, these legislative attempts have proved to be perfunctory.

The Indian judiciary has thrived on the principles of judicial activism and moved beyond age-old fetters of the legal postulate for the amelioration of the citizenry whenever necessary. It is the result of this approach that ‘Environmental Justice’ has developed as a concept in India. The right to a healthy, wholesome and pollution-free environment has been recognised as an integral element of right to life under Article 21. [[iii]] To fructify this right more viably, the Courts have introduced legal advancements like the unwinding of maintainability in Public Interest Litigations and devices such as the writ of Continuing Mandamus. This article explains the concept of Continuing Mandamus in the light of environmental jurisprudence and attempts at highlighting the importance of such procedural departures for effectuating needful changes in society.

The Writ of Continuing Mandamus

A writ of mandamus is issued by a court of superior jurisdiction and is directed to a private or municipal, executive, administrative or judicial officer, or to an inferior court, commanding the performance of a particular act therein specified to correct a prior action or failure to act. [[iv]]

However, in certain cases, merely issuing a writ of mandamus proves to be futile. The need for judicial intervention to ensure the effective functioning of such Courts and authorities was realised. In Vineet Narain v. Union of India[[v]] it was decided that,“…it is best to issue directions from time to time and keep the matter pending, requiring the agencies to report the progress of investigation so that monitoring by the Court could ensure continuance of the investigation. This act is known as Continuing Mandamus…” This led to the formal emergence of the writ in India.

The evolvement of this judicial remedy opened floodgates for its usage in not only environmental cases but also in cases demanding supervision of investigative bodies like the CBI, assertion of socio-economic rights, child rights, rehabilitation, labour exploitation, etc.

The Writ of Continuing Mandamus in Environmental Litigation

The judicial system has played a pivotal role in discharging environmental justice by introducing procedural and substantive innovations such as taking suo moto cognisance of matters, appointing experts from the field as amicus curiae, directing the setup of new under the State bodies for surveillance and enforcement etc.

In order to address contumacy to environmental issues by private and public bodies alike, despite infringing of Article 21 [[vi]], the Writ of Continuing Mandamus saw application in environmental law. The writ allows Courts to ensure effective implementation of its directions by keeping a check on the respondent while vesting it with the power to issue further directions from time-to-time to monitor compliance and attain maximisation of the goal.

A landmark case where this writ was applied was the Enviro-Legal Action or Bichhri case [[vii]] which called for action against factories operating for discharging pollutants without requisite permits in 1996. The Court issued detailed guidelines to the Centre and States to come up with comprehensive plans to combat such hazardous pollution. The Court also promulgated several collateral directions to various authorities over time, till it pronounced a final judgment in 2011 upon satisfaction that no further monitoring was essential. [[viii]]

Another popular environmental case involving the discharge of toxic material was the Research Foundation for Science, Technology and Natural Resource Policy case [[ix]] where the Apex Court applied this writ to ensure that various ministries ban the import of perilous material in accordance with the Basel Convention.

B.L. Wadhera v. Union of India [[x]] addressed the non-compliance of Court orders by the Municipal Corporations of Delhi for solid-waste management without any reasonable explanation. In course of the proceedings, the Court issued rules for scientific waste management as well.

In a one of its kind judgment, the Rajasthan High Court disseminated a set of unique directions pertaining to traffic, road safety, parking and removal of encroachment in Mahendra Lodha[[xi]] which lasted for about half a decade.

Hence, the Courts have been instrumental in laying the foundation for environmental justice in the country, an aspect which Indian legislation has failed to constructively cover. Via a plethora of its judgments, this organ has fulfilled the paramount duty of the Indian welfare state by endorsing environmental rights.

Impediments to the Implementation of Continuing Mandamus

In the aforementioned cases, the Courts took it upon themselves to ensure compliance for the furtherance of the constitutional obligation of promoting a safe and healthy environment. Lack of adherence to court orders and the inertia shown by officials while implementing directions in environmental cases have often foiled these efforts made by the judiciary. The laxity of the government to discharge its functions satisfactorily has all but compelled Courts to overstep their jurisdiction while entertaining such cases. Resultantly, they have been burdened with the additional onus to address matters which have arisen solely due to inability of the executive to act obediently and discharge its duties diligently. These proceedings are arduous and exorbitant, often disallowing plaintiffs to pursue them further, leaving them up to the Courts. They also bring out the inability of the legislature to amend archaic legislation and replace them with holistic, pro-environment laws.

On the other hand, critics have pointed out that the issuance of the writ often dilutes the doctrine of separation of powers with Courts opining on policy matters. This not only leaves open the possibility of the judicial organ acting in excess of its warrant but also equips it with powers wider than the other two organs are vested with.

The timeframe of matters where a writ of Continuing Mandamus is issued is overwhelming. These matters span for years or even decades. The failure to give conclusive judgments in certain cases and extending the pendency of proceedings often leads to the Court deviating from the main objective of the matter. For instance, in T.N. Godavarman [[xii]], environmental justice has been delayed for over two decades and a final judgment has yet to be delivered because a simple petition for protection of the Nilgiris forest has been converted to a policy-making process by the Court. It has assumed responsibility to protect forests across the country via this matter, making it India’s longest-standing case.


The success, albeit limited and often collateral, of the writ in environmental matters reinforces the need for such a judicial remedy to counter executive recalcitrance. [[xiii]] The writ allows the judiciary to engage in discourse with multifarious actors and encourage various state instrumentalities to work in tandem with private wrongdoers while alleviating environmental issues. However, there are a multitude of facets surrounding this writ that makes it novel and a work in progress concept in the Indian scenario, despite being etched in legal philosophy for years. The Supreme Court has been the flag-bearer of revolution in the efforts aimed at asserting the rights of its citizens. The sheer dedication and remarkable capacity to devise innumerable methods to prevent constitutional failure are rooted in its very essence making it a bastion for socio-economic rights. In matters of the environment, a pressing global issue which can have dire consequences in the near future, Continuing Mandamus, despite its flaws, is a prodigious step towards safeguarding the best interests of the Indian polity.

Krishi R. Shah is a fourth year student at Pravin Gandhi College of Law, Mumbai.

[[i]]Indian Const. art 48A. [[ii]] Indian Const. art 51A, cl. g. [[iii]] Charan Lal Sahu v. Union of India, (1990) 1 SCC 613; Subhash Kumar v. State of Bihar, (1991) 1 SCC 598; M.C. Mehta v. Union of India & Ors., (2004) 12 SCC 118; Municipal Corporation of Greater Mumbai & Ors. v. Kohinoor CTNL Infrastructure Company Private Limited & Ors., (2014) 4 SCC 538, etc. [[iv]] Henry Campbell Black, Black’s Law Dictionary 1113 (4 ed. West Publishing Co. 1968). [[v]] Vineet Narain v. Union of India, (1998) 1 SCC 226. [[vi]] Indian Const. art 21. [[vii]] Indian Council for Enviro-Legal Action & Ors. v. Union of India & Ors., (1996) 3 SCC 212. [[viii]] Indian Council for Enviro-Legal Action & Ors. v. Union of India & Ors., (2011) 12 SCC 764. [[ix]] Research Foundation for Science, Technology and Natural Resource Policy v. Union of India, (2012) 7 SCC 764. [[x]]B.L. Wadhera v. Union of India, (1996) 2 SCC 594. [[xi]]Mahendra Lodha v. State of Rajasthan, (2001) 1 RLW 463. [[xii]] T.N. Godavarman v. Union of India, (1997) 2 SCC 267. [[xiii]] Mihika Poddar and Bhavya Nahar, ‘Continuing Mandamus’ – a Judicial Innovation to Bridge the Right-Remedy Gap, 10 NUJS Law Review 2, 27 (2017).

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