Continuing Mandamus and Environmental Law in India

The right to a healthy environment being a Third Generation Human Right is neither a Fundamental right nor a Constitutional right enforceable by law. Though the Constitution of India imposes a duty on its citizens to protect and improve the natural environment including forests, lakes, rivers, and wildlife, and to have compassion for living creatures[1], it is not a right that could be enforced under the Indian Constitution. This is because of the Protection and improvement of environment and safeguarding of forests and wildlife[2] is a provision under Part IV of the Indian Constitution, i.e., Directive Principles of State Policy which is declaratory and not mandatory in nature.

Although legislations for the protection of the environment like The Environmental (Protection) Act, 1986, The Forest (Conservation) Act, 1980, Air (Prevention and Control of Pollution) Act, 1981, etc. were passed to strengthen the enforcement of environmental rights, one could still see a huge right-remedy gap regarding the same. The Supreme Court of India has been trying to bridge this gap with various judicial innovations like the relaxation of locus standi in public interest litigation cases and passing of various interim orders with delayed Judgements to ensure implementation of its orders. Amongst these, the Writ of Continuing Mandamus saw light as a tool to fructify the rights more effectively. This is a milestone in the concept of ‘remedial jurisprudence’.

Continuing Mandamus

Traditionally, the Court restricted itself to granting only declaratory orders, mandatory orders, and injunctive remedies and once they were passed, it marked the end of litigation, meaning the Court no longer had jurisdiction over the case. Since the administration was no longer accountable to the judiciary, it often led to the failure of follow up of the orders or lack of implementation of the, creating a right-remedy gap. This could be best witnessed in the Olga Tellis case where, though the Supreme Court ordered the implementation of the Slum Upgradation Programme, the slum dwellers were evicted without being given resettlement by the government.[3] Even a landmark judgement like this was not entirely successful due to a lack of proper implementation of the Apex Court’s orders. This paved way for a seminal remedial jurisprudential concept of ‘Continuing Mandamus’.

The writ of Continuing Mandamus is an approach adopted by the Court to keep a case on board over a long period of time to ensure the fructification of rights. It is a form of adjudication that enables the Supreme Court to ensure and supervise the implementation of its directions.[4] This technique is a procedural innovation, adopted by the Court to usurp the administrative powers by not delivering a conclusive judgement, thereby monitoring compliance by passing orders regularly.

The origin of such a practice in India could be witnessed in Hussainara Khtoon v. State of Bihar[5] where the Apex Court, in order to provide relief to the prisoners, kept passing regular orders instead of giving a conclusive verdict, thereby ensuring the implementation of those orders. Furthermore, in Bandhua Mukti Morcha v. Union of India,[6] the Supreme Court passed a remedial order after assessing the working conditions of the bonded labourers. Considering the severity of their condition, the Court directed the State to set up a Vigilance Commission to look into and ensure their rehabilitation, working conditions, minimum wages, etc.[7]

It was only in Vineet Narain v. Union of India that ‘Continuing Mandamus’ as a concept got a structure.[8] The hesitation of the Central Bureau of India to conduct a thorough investigation on high profile cases broke down the administrative machinery as corruption and political bias crept in.[9] To keep a check on this, the Supreme Court quashed the Directive[10]and adopted Continuing Mandamus as a tool for enforcement. This allowed the Court to ensure objectivity in the conduction of investigations by the CBI.

Continuing Mandamus in Environmental Law

As previously mentioned, the Right to a Healthy Environment is a Third Generation Human Right, making enforcement of the same extremely difficult. The heavy cost of litigation that the litigant has to incur in order to enforce the Environmental rights may, more often than not, overweigh the outcome. This dissuades a person from coming forward to maintain and protect the environment. Further, in cases related to pollution, it becomes difficult to determine liability as it is often difficult to pinpoint the polluter or polluters. Moreover, declaratory orders and judgments, without consequential directions to the state authorities, require acceptance by the State as to their binding nature under Articles 141 and 144 of the Constitution before implementation can follow. This birthed the genesis of procedural innovation by the judiciary. The Court started passing various interim orders instead of delivering a conclusive verdict to ensure the effective implementation of its orders by the enforcement agencies.  Another notable innovation would be the relaxation of locus standi in Public Interest Litigation cases which enables any aggrieved person to file a petition at the interest of the public at large. Despite the recognition of rights violations, mandatory orders and other judicial innovations, the Writ of Continuing Mandamus still saw application in Environmental Law.[11]

The Apex Court in the Bicchri case[12] issued an order in 1996, after six years of litigation and lack of implementation of its orders by the enforcement agencies. This order conclusively laid down the liability on the Respondents for operating an industrial unit and polluting the Bicchri village, in Rajasthan without a permit. The Court, using Continuing Mandamus, directed the Respondents to adhere to the order and instructed the agencies to enforce the law and to give detailed reports to the Court.[13]

Another instance where the Court used this practice was in the Vellore Citizen’s Welfare Forum case. The tanneries in Tamil Nadu let untreated effluents into the water, thus polluting it. A Writ Petition was filed for the same where the Apex Court not only directed the Central Government to set up a body to deal with this issue but also directed the Madras HC to set up a Green Bench to deal with the same.[14] This way, the Government would still be accountable to the Court until the issue was resolved.

The Supreme Court after noting that the enforcement agencies did not show satisfactory results despite being monitored by the Court for six years, took a slightly different approach in D.K. Joshi v. Chief Secretary, State of U.P. Here, the Court further directed the State to appoint a special monitoring body to ensure adherence by the enforcement agencies.[15]

Judicial Overreach in the name of Innovation?

Initially, the Supreme Court only used this tool to check compliance of its orders. However, as time passed by, the Court expanded the ambit of Continuing Mandamus under Article 32 of the Constitution by issuing directions to monitor compliance by enforcement agencies. What was once a substantive right, slowly grew to be a procedural one. This tool proved to be fruitful in dealing with issues like composts and land-fills,[16] solid waste management[17] etc. where non-compliance by the public authorities would attract penalties.[18]

The proceedings of T.N. Godavaraman v. Union of India started in 1996 and the Court is yet to give out its conclusive verdict, making it the longest standing Continuing Mandamus case so far.[19] A writ petition was filed pertaining to the protection of the Nilgiris forest land from unauthorized felling of trees and extraction of timber. Multiple orders and directions pertaining to the diversion and use of forest lands for non-forest use were issued. The Court also took into cognizance the supervision of day-to-day governance of the forests and monitored and controlled it regularly.[20] Thus, what started as a writ petition, slowly became an agenda for reforming the country’s forest policies.

Another such instance is the PIL filed by M.C. Mehta in the Delhi Vehicular Pollution Case in 1985 regarding vehicular pollution in Delhi and its surrounding areas that saw no action being taken until 1990.[21] From 1990, a number of directions were issued in the name of continuing mandamus. The Court has ordered periodic emission checks of vehicles, with the power to even cancel the registration of faulty vehicles. Around 30 reports were submitted to the Court between 1991 and 1997 by the expert committee established by the Ministry of Environment, acting on the directions of the Supreme Court.[22] Although the consequences proved to be fairly successful, it was criticized for having diluted the concept of separation of powers, since the Court did not push the executive enough to amend the existing policy or come up with a new one regarding the same.[23]


In light of the above-mentioned cases, one could notice the transition of Continuing Mandamus from a substantive right to a procedural one. The Court has even used ‘contempt’ in a few instances as a tool of deterrence for non-adherence of orders by the enforcement agencies, trying to bridge the gap between right and remedy. This judicial innovation has been fairly successful in moving the administration from the state of inertia.[24] However, this is done at the cost of overstepping its jurisdiction. I believe that contempt should be used as a last resort. Reasonable time should be given to the agencies to alter their policies and should they fail, contempt could be used as a deterrent tool. This way, the concept of separation of powers would not be compromised and also, inter-cooperation between the governmental agencies would be increased while reaching an effective and amicable solution.

[1] INDIA CONST. art. 51A, cl. (g).

[2] INDIA CONST. art. 48A.

[3] Olga Tellis v. Bombay Municipal Corporation, 1985 3 SCC 545.

[4] Mihika Poddar and Bhavya Nahar, ‘CONTINUING MANDAMUS’ – A JUDICIAL INNOVATION TO BRIDGE THE RIGHT-REMEDY GAP (May. 29, 2020, 10:43 PM),

[5] A.I.R 1979 S.C. 1360.

[6] Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.

[7] Id.

[8] Vineet Narain v. Union of India, (1998) 1 SCC 226.

[9] Dr.Subramniam Swamy v. Director, CBI, Writ Petition (Civil) No. 38 of 1997; Anukul Chandra Pradhan v. Union of India, 1996 3 SCC 354.

[10] Single Directive No. 4.7(3), Government of India.

[11] Mihika, supra note 4.

[12] Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 SCC 212.

[13] Id.

[14] Vellore Citizen’s Welfare Forum v. Union of India, (1996) 5 SCC 647.

[15] D.K. Joshi v. Chief Secretary, State of U.P., (1999) 9 SCC 578.

[16] B.L. Wadhera v. Union of India, (1996) 2 SCC 594.

[17] Almitra H. Patel v. Union of India, (1998) 2 SCC 416.

[18] Almitra H. Patel v. Union of India, (2000) 3 SCC 575.

[19] T.N. Godavaraman Thirumulpad v. Union of India, Supreme Court of India, Writ Petition No. 202 of 1995.

[20] Armin Rosencranz and SharachchandraLélé, Supreme Court and India’s Forest, ECONOMIC AND POLITICAL WEEKLY, (May. 30, 2020, 12:50 PM),

[21] M.C. Mehta v. Union of India, (1991) 2 SCC 353.

[22] Id.

[23] Gitanjali Nain Gill, Human Rights and the Environment in India: Access through Public Interest Litigation, 212 ENVIRONMENTAL LAW REVIEW 200, 218 (2013).

[24] Vineet Narain v. Union of India, (1998) 1 SCC 226.

Nidhi Ganesh from School of Law, Christ University

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