Authored, Reviewed and Edited by Prabin Kumar Yadav

A writ petition, distinct from a case proceeding under the ordinary jurisdiction of the court in the traditional manner, is a legal instrument whose origins trace back to countries that have adopted the ‘Common Law’ system. Initially, it appears to have evolved from the act of petitioning or appealing to the sovereign authority, often the king, and seeking redress. A writ petition is a formal request presented under the extraordinary jurisdiction of the Court, a jurisdiction not covered by ordinary proceedings. This is especially relevant in cases involving the violation of fundamental rights as stipulated in the constitution or when there is no other viable remedy, or if alternative remedies prove ineffective.

Introduction of Writ

General Principles of Writ

• A Prima facie right must appear to have been violated

• Evidence evaluation is usually not done

• There should be no alternative solution
• Approach with Equitable Clean Hands
• Extra-ordinary Jurisdiction of Court
• To be issued against a government agency

A Prima facie right must appear to have been violated

The right of the concerned person to file a writ petition and the issue of being denied that right should be considered prima facie. A writ petition cannot be filed when there is uncertainty about whether the party in question has the right.

Evidence evaluation is usually not done

In a writ petition, comprehending the evidence is usually not required. In a writ petition of public interest, there is no rule that prohibits searching for funding or understanding the impact or other issues. Although there is no need to delve into the evidence in a writ petition, prima facie, it should be observed that there is a right and that the right has been violated.

There should be no alternative solution

A writ petition cannot be filed unless other options have been exhausted or proven ineffective in protecting the rights of the petitioner. For instance, if a university erroneously promotes an individual who does not meet the qualifications for a professorship, before initiating a writ petition in court asserting one’s right to promotion, the petitioner should utilize any available complaint or appeal mechanisms. Only if redress is unattainable through those channels should the petitioner resort to filing a writ.

Approach with Equitable Clean Hands

The petitioner filing a writ petition must submit the petition to the court in good faith, without concealing any facts. One should not approach the court with a testing attitude, nor in a manner akin to the common Nepali proverb, ‘Aaye Aap Gaye Jhataro.’

Extra-ordinary Jurisdiction of Court

In General, the court has the extra-ordinary jurisdiction to issue a writ or not. The court may refuse to issue a writ even if the opponent’s actions are found to be flawed if the justification for the writ has already been exhausted. In the case of a petition for direct detention, if illegal detention is found, the court has no extra-ordinary jurisdiction and should order the prisoner’s release.

To be issued against a government agency

Writ petitions are generally only filed against government agencies. In addition to government agencies, opposition can also be filed against individuals, but writ petitions cannot be filed against individuals only. An exception to this is the writ of Habeas corpus. If a person has taken control of a person illegally, only such person can be made an opposition. The court may issue a writ in cases where there is a disagreement between parents about who the child should be with.

Types of Writs

• Habeas Corpus
• Mandamus
• Certiorari
• Prohibition
• Quo-warranto

Habeas Corpus

“Habeas Corpus” is a Latin term that literally means “you may have the body.” In this writ, if the respondent detains the petitioner without legal authority or beyond their authority, the petitioner is released from such detention. As the primary objective of the writ is to secure the release of the prisoner from unlawful detention, once the court orders the release, the Supreme Court has established a principle in the case of Bablu Aggarwal that there can be no appeal against it in a higher court.

Mandamus

“Mandamus” is a Latin word that means “We command.” In this writ, if the officer or body assigned a duty by the law fails to comply with that duty, they are compelled to perform the specified task. For instance, if a police officer refuses to register a complaint and, even after filing a complaint against it, the complaint remains unregistered, the higher court, where a writ of mandamus has been filed, can issue a writ of mandate instructing the police officer to register the complaint.

Certiorari

Literally, “Certiorari” means to be certified. An appeal is a request to annul such a decision if a government or public body has made an unlawful decision. writ to be issued, it must be evident that the principles of natural justice have not been adhered to, and the decision has been made beyond the jurisdiction.

Judicial Review is an under the Certiorari. Judicial review is the right of the judiciary to determine whether laws enacted by the parliament are compatible with the constitution, and if found incompatible, the court can declare them void or invalid. Judicial review was also established in the Constitution of the Kingdom of Nepal, 2047. While the Constitution does not explicitly provide for a constitutional bench, such writ petitions were adjudicated by a special bench.

The Supreme Court applied the principle of judicial review in Man Bahadur Bishwakarma’s petition. In this writ petition, there is an extensive discussion about judicial review. The central dispute revolved around whether the legal system, which asserts that the constitution prohibits discrimination on any basis, including caste, and yet allows adherence to pre-existing traditions in civil law without considering it as discrimination, is compatible with the constitution or not.

Prohibition

The Writ of prohibition means to forbid or to stop. In this writ, it is invoked when any officer or agency is on the verge of making a decision that goes against the law and could harm someone’s rights and interests. If the decision has not yet been finalized, the Writ of Prohibition is sought to prevent the decision from being made.

Quo-warranto

The term “Quo-Warranto” literally means “by what warrants?” or “What is your authority?” In this writ, the question is posed regarding the authority of an individual occupying a public position. If it is found that the person performing the duties has an expired tenure or lacks the necessary qualifications, the writ is issued to restrain such an official from continuing in their role. The more prevalent writs in Nepal are habeas corpus, mandamus, and certiorari.

Writ Procedure

A court may adjudicate in several matters as per the general procedure, special procedure and summary procedure. These procedures are generally used by the court to adjudicate in matters relating to the legal rights of individuals guaranteed by law (usually legislations/Acts). Apart from legal rights guaranteed by the laws, there are some legal rights that have been provided/guaranteed to the citizens by the nation. These legal rights guaranteed by the nations are encapsulated within the Constitution of Nepal, 2072.

The rights guaranteed under the constitution are referred to as the fundamental rights. In case of violation of fundamental rights, or if there is no adequate remedy for the enforcement of legal rights, the courts may exercise/practice a different type of procedure. These procedures are known as writ procedures.

Writ procedures are only followed by the judiciary (District Courts, High Courts and the Supreme Court). Each court mentioned herein has the authority to adjudicate different writs as provisioned by Article 133, Article 144 and Article 151 of the Constitution of Nepal.

The procedures followed by the relevant courts for adjudication of writs are as mentioned in their respective regulations (for example, Supreme Court Regulations, 2074 in case of writ petition registered at the Supreme Court).

Writ procedures generally comprise the following steps:

1. Filing/registration of writ petition,

2. Preliminary hearing,

3. Show cause order/interim order,

4. Notice to the respondent,

5. Filing/registration of written reply,

6. Final hearing and decision.

There might be several hearings and orders in between these processes as deemed necessary by the relevant court.

The procedure of the writ can be divided into two parts, the procedure of the Writ of Habeas Corpus and the procedure of the other writ.

The procedure of the Writ of Habeas Corpus

While it is generally expected that the petitioner personally submits the writ petition, it is permissible for the petitioner’s relatives, friends, or legal professionals to file the petition on their behalf if the petitioner is unable to do so correctly, it is unsuitable, or it is not possible. The petition can be filed in the district, high, or supreme court. There is no fee for filing the petition, and the court speedily processes such writs, giving them priority.

When submitting the writ, include all details about the prisoner that are known. In the preliminary hearing, the writ may be either dismissed or an order to show cause, along with any other necessary orders, may be issued.

If the detention of the prisoner is deemed to be illegal by the court, and if the court finds it necessary, it will schedule an earlier date. Otherwise, a written response must be submitted within 3 days. The court will typically require the prisoner to appear and provide reasons why they should not be released. In the event of such a court order, the detaining party must present a reasonable justification for the detention. If a reasonable justification cannot be provided, the detention should be considered illegal, and the prisoner should be released.

The final hearing takes place in the district court, usually in a joint bench, except in the case of a vacation. If there is a leave for 3 consecutive days or more, the court remains open specifically for the purpose of hearing the writ of Habeas Corpus. In the Kathmandu Valley, the Supreme Court, the High Court, or its bench or temporary bench are open in the district, while in other districts, the district court is open.

If the Mayad Tarekh for the writ of Habeas Corpus has to be delayed, it can be postponed for a maximum of seven days. In special situations such as Kiriya, the deadline can be extended for an additional 15 days from the date of the conclusion of Kiriya, childbirth, or other divine calamity.

 

Other Writs procedure

Writ of certiorari, mandamus, prohibition, and writ of Quo-warranto can be registered in the Supreme Court. A writ for judicial review can only be filed by a Nepalese citizen in the Supreme Court. Judicial review means that any law enacted by the Parliament, State Parliament, or local level is in conflict with the Constitution. In such cases, a petition can be filed in the Supreme Court to declare the law or any part of it as unconstitutional. The preliminary hearing and the final hearing of such writs are also held in the Constitutional Bench. The Constitutional Bench is a 5-member bench headed by the Chief Justice, with 4 other judges of the Supreme Court appointed by the Chief Justice on the recommendation of the Judicial Council.

The writ petition must disclose the grounds for filing, as well as specify the jurisdiction under which the writ is being sought. Articles 46 and 133 of the Constitution of Nepal, along with Rules 40 and 41 of the Supreme Court Regulation 2074, have been cited in support of the application to the Supreme Court.

When submitting a writ petition, it is imperative to elucidate the events leading to the violation of the right, specifying the actions or inactions of the opposing party. Additionally, an electronic copy of the writ must be furnished. In cases where the writ petition exceeds three pages, a concise summary, limited to a maximum of two pages, should be included along with the petition.

A preliminary hearing is conducted by a single bench. Following the hearing, if the bench finds grounds for issuing a show cause order in response to the petitioner’s writ, such an order is issued, necessitating the respondent’s appearance to provide reasons opposing the requested order. If the petitioner’s writ lacks merit, or if the respondent’s actions align with the constitution and the law, the writ may be dismissed. The petitioner is required to address whether to seek or grant an interim order in the writ.

In the case of public interest disputes, it is necessary to show that there is no meaningful relationship, no personal interest, trying to solve the problem by other means but it is not effective. The petitioner has to cooperate with the court, even if the Tarekh, the matter will proceed. If the writ Mayad, Tarekh can be stopped once and for a maximum of 15 days.

Article 144 of the Constitution of Nepal and Rule 41 of the High Court Regulation, 2073 should also be mentioned while filing a writ in the High Court.

In a writ petition pertaining to a public interest dispute, it should be filed after thorough research to identify the actions taken or not taken by the relevant authority and the resulting impact on any particular class or community. It must be stated that the matter has not been brought before the court previously. Initially, an application should be submitted to the relevant individual or agency for addressing the issue at hand, and this procedural step should also be disclosed in the writ petition.

In the petition submitted to the relevant agency, it should also be mentioned that the petitioner has informed the pertinent individual or agency about the unfair delay or ineffectiveness in addressing the matter, and the reason for resorting to filing a petition in court.

There should be a basis for believing that the applicant has a meaningful relationship with the subject matter and is capable of representing the relevant community. When submitting the petition, the applicant must declare that they have no personal benefit or private interest. Although there is no provision in the High Court Rules, as in the Supreme Court Rules, regarding petitions of public concern, it is not appropriate to file petitions that involve the petitioner’s personal interest when initiating such a writ.

If the Mayad Tarekh has passed, it can be delayed for a maximum of 15 days once. In case of special circumstances such as Kiriya, the period can be postponed for another 15 days from the Mayad Tarekh of Kiriya, childbirth or other divine calamity. Even if the date passes or there is a death, the dispute of public concern should be settled.

Supreme Court Regulation 2074, High Court Regulation 2073 and District Court Regulation 2075 have detailed provisions in this regard. The High Court and the District Court have the right to hear an application for an injunction if there is a suspicion that someone is unfairly obstructing the enforcement of legal rights. The petition is not a writ petition but a special type of petition that is similar to a writ petition.

The nature of the certiorari petition has been made as follows by the Supreme Court in its judgment.

Under the Civil Rights Act, 2012, a certiorari order may be issued by the court to halt a suspected action as per sub-section (2) of section 17 of the Civil Rights Act, 2012, in cases where there is a suspicion of harm caused by another person under the same Act. Yes, prohibition orders are primarily issued when there is a suspicion of action.

If certiorari is to be issued only when an indisputable right exists, and if the question of entitlement to the disputed land arises with a dispute between the two parties in court, the action suspected to be taken by the defendant on the disputed land shall be allowed until a final decision is reached by the court. The status quo should be maintained until the pending case is resolved. If there is a refusal to issue an injunction order, the injunction order will be ineffective. It is not a matter of taking away the right by the order of injunction, but rather it is to maintain the status quo and follow the legal path.

The petition can be submitted to the relevant district court or high court to maintain the status quo, especially in cases where there is suspicion that someone is infringing upon the rights outlined in Part 1, Chapter 3 of the National Civil (Code) Act, 2074 which pertain to civil rights.