[B] The State Government had failed to take measures for the enforcement of Compulsory

Payment of Honorarium to Housewives Act.

Mandamus is a high prerogative writ usually issuing out of the highest court of general
jurisdiction in the name of the sovereign directed to any natural person, corporation or inferior
court within the jurisdiction requiring them to do some particular therein specified and which
appertains to their office or duty.1

In a claim for mandamus it must invariably be shown that the statute has imposed a legal duty on
the authorities and that the petitioner has a legal right under the statute to enforce its
performance.2 Mandamus being a discretionary remedy is issued, inter alia to compel
performance of public duties which may be administrative, ministrial or statutory in nature. In
case of Destruction of Public and Private properties, In Re v State of A.P.3 the Supreme Court
quoted

It is stated that the purpose of an order of mandamus is to remedy defects of Justice; and
accordingly it will issue, to the end that justice may be done, in all cases where there is specific
legal right and no specific legal remedy for enforcing that right; and it may issue in cases where,
although there is an alternative legal remedy, yet that mode of redress is less convenient,
beneficial and less effectual.

Where a law has vested a discretion in the government, it is the duty of the government to
exercise that discretion is just, reasonable and fair manner. Long inaction on the part of
government may justify the court issuing a writ in the nature of mandamus directing the
government to consider within a reasonable time whether it should bring particular provision of
law into force or not.4

In the case of Swaraj Abhiyan v. Union of India & Ors.5, the petitioner had made the prayer of
implementation of the National Food Security Act, 2013. The Honble Supreme Court had in the

1
See Bouviers Law Dictionary.
2
State of U.P. v U.P. Rajya Khanij Vikas Nigam Sangharsh Samiti, (2008) 12 SCC 675
3
(2009) 5 SCC 212
4
Aeltemesh Rein v Union of India, AIR 1988 SC 1768
5
Writ Petition (C) No. 857 of 2015.
case issued writ of mandamus directing the state governments to effectively implement the NFS
Act, 2013 in all the drought hit areas. The Honble Supreme Court had also held that failure on
part of state to implement the Act results in the violation of fundamental rights of all the
beneficiaries under the Act.

In Municipal Council, Ratlam v. Vardichan6 this Honble Court had held that a plea of financial
inability or other such inability cannot be an excuse for disregarding the statutory duties.

Even in the present case it could be clearly seen from section 4 of the Act 7 that housewives are
entitled for honorarium payment.8 The statute had provided housewives with the fundamental
right of getting honorarium from her husband as recognition of their work9, in correspondence
with this legal right the state government have the legal duty to constitute an appropriate
enforcement agency to determine the quantum of honorarium under section 410 to be paid to
housewives. The Act had mandated state governments to constitute an enforcement agency for
the purpose of deciding upon the quantum of honorarium within three months from the
commencement of this Act11 which the state government has failed in their respective even after
the completion of 6 months from the commencement of the Act.

The inaction on part of the state government had resulted in the infringement of the fundamental
right of the Steffi as she could not get the honorarium from her husband, which she was entitled
to under section 4 of the Act.12

So, it is hereby submitted that there has been violation of fundamental right of Steffi by the state
government, which had the legal duty. So, the mandamus should be issued to the State
Government directing the State Government to constitute enforcement agency under section 5 of
the Act.

6
(1980) 4 SCC 162.
7
Section 4, Compulsory payment of Honorarium to Housewives Act, 2017.
8
Para 7, Moot Proposition IUMCC, 2017.
9
Objectives, Compulsory payment of Honorarium to Housewives Act, 2017.
10
Section 4, Compulsory payment of Honorarium to Housewives Act, 2017.
11
Section 5, Compulsory payment of Honorarium to Housewives Act, 2017.
12
Section 4, Compulsory payment of Honorarium to Housewives Act, 2017.
ISSUE: 3 WHETHER THE PENALTY CLAUSE IN CASE OF A DEFAULT UNDER
THE ACT CAN BE ADDED BY THE HONBLE COURT?

It is humbly submitted before this Honble Court that this Honble have clear mandate under
Article 3213 to fill the vacuum in any law, and it is the constitutional obligation of this Honble
Court to pass guidelines or directions in case of any vacuum in law till the time the legislature
addresses the issue.

It is the duty of the Executive to secure the vacuum, if any, by executive orders because its field
is coterminous with that of the legislature and where there is inaction even by the Executive, for
whatever reason, the Judiciary must step in, in pursuance of its constitutional obligation to
provide solution in any case till the time the legislature addresses the issue. The absence of law
and a vacuum can always be supplied by judicial dictum. In some cases where jurisdiction is
invoked to protect the fundamental rights and their enjoyment within the limitation of law, the
court has even stepped in to pass orders which may have the colour of legislation, till an
appropriate legislation is put in place.14

The Supreme Court of India have clear mandate under Article 32 of the Constitution to protect
the Fundamental Rights of the citizens. Infringement of rights would certainly invite the courts
assistance. The absence of statutory law occupying the field formulating effective measures to
check breach of rights is the true scope of proper administration of justice. 15 The same is held in
case of Vishaka v. State of Rajasthan16 a three judge bench of the Supreme Court gave several
directions to prevent sexual harassment of women at the workplace. Taking into account the the
absence of enacted law to provide for effective enforcement of the right of gender equality and
guarantee against sexual harassment, Verma, C.J. held that guidelines and norms given by the
court will hold the field until legislation was enacted for the purpose. It was clarified that the

13
Article 32, Constitution of India, 1950.
14
Amarnath Shrine, In Re (Court on its own motion) v. Union of India, 2013 (3)SCC 247.
15
Daulat Ram Prem & R.G. Chaturvedi, Law of Writs and Other Constitutional Remedies, 5-14.3 (4th Edition,
2016), Thomson Reuters, Jaipur.
16
AIR 1997, SC 3011 para 16.
Supreme Court was acting under Article 32 of the Constitution and the directions would be
treated as the law declared by the court under Article 141 of the Constitution.17

In the case of Laxmi Kant Pandey v. Union of India18 the Supreme Court had issued directions
regarding the procedure and the necessary precautions to be followed in the adoption of Indian
children by foreign adaptive parents. While there was no law to regulate inter-country, Bhagwati
J. formulated an entire scheme for regulating inter-country and intra-country adoptions. This is
an example of the judiciary filling up the void by giving directions which are still holding the
field.

In the case of Central Railways Workshop, Jhansi v. Vishwanath19 this Honble Court had held
that all legislation in welfare state is enacted with the object of promoting general welfare but
certain types of enactment are more responsive to some urgent social demands, and it is the duty
of the state to effectively enact such legislations.

In the present case also there is no provision in the Act which provides for the penalty in case of
default by the husband in payment of honorarium to housewives, which renders the objective of
the Act useless. As the absence of default clause in the statute will render the implementation of
the Act useless.

Hence, it is pleaded before this Honble Court that it shall pass such orders as it deem necessary
for the effective implementation of the Act.

17
M.C. Mehta v. Union of India, (1987) 1 SCC 395.
18
AIR 1984 SC 469.
19
AIR 1970 SC 488.