Authored By Prabin Kumar Yadav

A writ petition is different from a regular court case and comes from countries using the ‘Common Law’ system. Its history goes back to times when people would appeal directly to the king for justice. Today, a writ petition is a formal request to the court’s extraordinary jurisdiction, usually when basic rights are violated or no other remedy is effective.

General Principles of Writ

1. Prima Facie Right Violation: A clear right must seem to have been violated.
2. Evidence Evaluation: Detailed evidence review is not required.
3. No Alternative Solution: All other solutions must have been tried and failed.
4. Equitable Clean Hands: The petitioner must approach the court honestly.
5. Extraordinary Jurisdiction of Court: The court decides whether to issue a writ.
6. Against Government Agency: Usually filed against government agencies, but sometimes against individuals, like in habeas corpus cases.

Detailed Principles

Prima Facie Right Violation: There must be an obvious right that appears to have been denied. If it’s unclear, a writ petition cannot be filed.

Evidence Evaluation: In writ petitions, evidence is not usually deeply examined. The focus is on whether a right is clearly violated.

No Alternative Solution: A writ petition is a last resort. For example, if a university wrongly promotes someone, the petitioner must first use all complaint processes within the university before filing a writ petition.

Equitable Clean Hands: The petitioner must be honest and transparent, without hiding any facts.

Extraordinary Jurisdiction of Court: The court has special power to issue writs. It may refuse a writ even if there are mistakes, unless it’s a case of illegal detention.

Against Government Agency: Writ petitions are generally against government bodies. For example, a writ of habeas corpus can be filed against a person illegally detaining someone.

Types of Writ

1. Habeas Corpus: Means “you may have the body.” This writ is used to release someone from illegal detention. Once ordered, no higher court appeal is possible.
2. Mandamus: Means “we command.” This writ compels a government officer or body to perform a duty they are legally required to do. For example, if a police officer refuses to register a complaint, a writ of mandamus can force them to do so.
3. Certiorari: Means “to be certified.” It’s an appeal to cancel a decision made without following the law or beyond someone’s authority. Judicial review, which allows courts to declare laws unconstitutional, is part of this writ.
4. Prohibition: Means “to forbid.” This writ stops an officer or agency from making a decision that could harm someone’s rights if that decision hasn’t been finalized yet.
5. Quo-Warranto: Means “by what authority?” It challenges the legality of a person holding a public office. If their authority is found invalid, they can be removed from the position.

Popular Writ in Nepal

In Nepal, the most common writs are habeas corpus, mandamus, and certiorari. These writs help protect individual rights against illegal actions by the authorities and ensure that public duties are performed correctly.