Aeltemesh Rein, Advocate, Supreme Court of India v Union of India (1988)

Parliament often passes an Act but leaves it to the Government to decide when it, or a particular section, comes into force. Can a court compel the Government to bring it into force? This case gives the answer in labour law as much as anywhere: no mandamus lies to compel the Government to enforce a statute whose commencement is left to its discretion — but the court can direct the Government to consider, within a time, whether the time has come.

For labour law students the case matters for two reasons. First, the Court itself pointed to s. 36(4) of the Industrial Disputes Act as an example of a law restricting lawyers' appearance before Labour Courts and Tribunals. Second, it is cited in State of U.P. v Jai Bir Singh (2005) on the Union's failure to enforce the amended definition of "industry": the explanation offered there — that no alternative machinery had been provided for redressal of the disputes of employees in the excluded categories — was accepted as a sound justification, and no mandamus lies to compel enforcement of an Act.

The petitioner, a practising advocate, filed a writ petition under Article 32. It raised two matters on which the Court issued notice to the Union:

1. the alleged handcuffing of an advocate practising in Delhi, contrary to law, while he was being taken to the Metropolitan Magistrate's court after arrest on a criminal charge. It was said the Union and the Delhi Administration had not issued instructions to the police in line with Prem Shankar Shukla v Delhi Administration [1980] 3 SCR 855; and
2. why the Union should not be directed to consider bringing s. 30 of the Advocates Act 1961 into force, more than 25 years after the Act was passed.

The Advocates Act received the President's assent on 19 May 1961. Section 1(3) lets the Central Government bring it into force by notification, with different dates for different provisions. Other parts had been brought into force between 1961 and 1969, but s. 30 — the right of every advocate on a State roll to practise as of right in all courts, before any tribunal or person legally authorised to take evidence, and before any other authority — had not.

1. Should the Union be directed to issue guidelines on handcuffing in line with Prem Shankar Shukla?
2. Can the Supreme Court issue a mandamus directing the Central Government to bring s. 30 of the Advocates Act into force, when the Act leaves the date to the Government?
3. If not, can it direct the Government at least to consider the question?

The writ petition was disposed of with two directions.

Handcuffing

The Attorney General "very fairly conceded" that it was for the Union to issue instructions. The Court directed the Union "to frame rules or guidelines as regards the circumstances in which handcuffing of the accused should be resorted to" in conformity with Prem Shankar Shukla, and to circulate them to all States and Union Territories within three months.

No mandamus to bring a provision into force

The Court noted that laws still restricted advocates' appearance. It gave the Industrial Disputes Act as its first example: under s. 36(4) a party before a Labour Court, Tribunal or National Tribunal may be represented by a legal practitioner only with the consent of the other parties and the leave of the forum. It also referred to s. 13 of the Family Courts Act 1984 and to land tribunals where advocates cannot appear at all. It observed: "We have travelled a long distance from the days when it was considered that the appearance of a lawyer on one side would adversely affect the interests of the parties on the other side." Prima facie there appeared "to be now no justification for not bringing into force section 30 of the Act."

But s. 1(3) laid down no objective standard for fixing the date. Following the Constitution Bench in A.K. Roy v Union of India [1982] 2 SCR 272, the Court held that "it is not open to this Court to issue a writ in the nature of mandamus to the Central Government to bring a statute or a statutory provision into force when according to the said statute the date on which it should be brought into force is left to the discretion of the Central Government."

But a mandamus to consider does lie

The Court held that A.K. Roy "does not come in the way of this Court issuing a writ in the nature of mandamus to the Central Government to consider whether the time for bringing section 30 of the Act into force has arrived or not." Its reason: "Every discretionary power vested in the Executive should be exercised in a just, reasonable and fair way. That is the essence of the rule of law." Nearly 27 years had passed; lawyers' conferences had repeatedly asked for s. 30; and it was not clear the Government had applied its mind at all. If on consideration the Government felt s. 30 should not yet be enforced, "it is a different matter. But it cannot be allowed to leave the matter to lie over without applying its mind to the said question."

The Attorney General did not seriously dispute this jurisdiction. The Court therefore issued "a writ in the nature of mandamus to the Central Government to consider within a period of six months whether section 30 of the Act should be brought into force or not."

Where a statute leaves the date of its commencement, or of a provision's commencement, to the discretion of the Central Government without objective norms, the court cannot by mandamus compel the Government to bring it into force. But because every executive discretion must be exercised justly, reasonably and fairly, the court may by mandamus require the Government to apply its mind and decide, within a reasonable time, whether to bring it into force.

• Can a court compel the Government to enforce the amended definition of "industry" in s. 2(j) of the Industrial Disputes Act? Answer with this case: no mandamus to enforce, following A.K. Roy; at most a direction to consider. Add that Jai Bir Singh (2005) relied on it and accepted the Union's reason — no alternative machinery for the excluded employees — as sound.
• Discuss the right of legal representation before Labour Courts and Tribunals. Use the Court's reference to s. 36(4), and its observation that the old fear of a lawyer on one side harming the other side belongs to the past.
• Distinguish carefully in your answer between a mandamus to act (refused) and a mandamus to consider (granted). That distinction is the whole case.