Table of Contents
Introduction
Writ means a formal order in writing issued in the name of a sovereign, government, court, or other authority commanding an officer or other persons to whom it is issued to do or refrain from doing some act specified therein. Writ has been an effective means for the enforcement of fundamental rights and the legal rights that have no remedy available or where the remedy is not effective. The absence of an effective alternative remedy is essential for invoking the writ jurisdiction for enforcement of legal rights.
There are five types of writs namely habeas corpus, mandamus, quo warranto, certiorari, and prohibition. Supreme Court under the extraordinary jurisdiction conferred by Article 133 of the Constitution of Nepal may issue any of the writs mentioned above or any other appropriate order for the protection of fundamental rights and legal rights without effective remedy. Likewise, the High Court has been empowered by Article 144 of the Constitution to issue any of the above-mentioned writs. The District Court also has the right to issue a writ of habeas corpus and order of injunction.
Writ procedure has a special type of case proceeding which provides quick remedy to the parties. Through writ jurisdiction, the judiciary controls the governmental arbitrariness. It has been an effective means to check the executive and legislature to cross the constitutional limits by reviewing the executive and legislative actions. The procedure of writ can be discussed as follows:
1) Registration of Writ Petition
Whenever the fundamental right of any citizen is violated, and in case there is no alternative way or remedy or the existing remedy is insufficient, the party can file a writ petition in court. The different types of writ are habeas corpus, mandamus, writ petition prohibition, and quo warranto. Article 151 of the Constitution of Nepal has defined the jurisdiction of the district court to settle the writ of habeas corpus. Article 144 of the Constitution of Nepal has defined the jurisdiction of the high court and Article 133 of the Constitution of Nepal has defined the jurisdiction of the Supreme Court to settle all types of writs. A party must file a writ petition in the prescribed format explaining which and what act of the respondent has violated his/her fundamental right. So, the very first step of the writ procedure is the registration of the petition in the concerned court.
2) Preliminary hearing
After the registration of the writ petition, a hearing date is given to the applicant by the court. In this hearing, the respondent is not given any notice and only the pleading of the applicant is heard by the court. Depending upon the nature of the case, a hearing date is given to the applicant. In the writ of habeas corpus, a hearing might be done on the same day publishing cause list by the court administration. However, a hearing date is scheduled for the following day of registration in the context of other writs. The applicant may request for issuance of a show cause order or stay order against the respondent.
3) Show cause order/ Stay order
In the course of the preliminary hearing, the applicant puts his/her facts and argument trying to convince the court which and what act of the respondent has caused harm to the fundamental right of the applicant. After hearing the pleading of the applicant, the court may issue an order in the name of the respondent. The court might ask the respondent whether there is any reason or cause not to issue an order as per the claim of the applicant.30 Such issued order is known as a show cause order. It's a kind of notice to the respondent that is issued when the court thinks it reasonable to issue any interim order after hearing both sides.
If there is a condition that the final remedy will have no meaning unless the act of the respondent relating to the subject matter of the writ is not stopped the petitioner may request for issuance of a stay order against the respondent. It is a temporary remedy to keep any activities of the respondent in the status quo. The court might issue an interim order based on the principle of balance of convenience. A stay order is not the final order, however, the aggrieved party i.e. applicant will feel that his/her claim is addressed by the court till the final adjudication of the petition. The court may issue a stay order along with the show cause order too against the respondent.
4) Notice to the respondent
According to the principle of natural justice, no person shall condemn unheard. The court issues the notice with the time limit of 15 days in the name of the respondent. The respondent is supposed to be present in court within the defined time limit with the written statement. However, the time limit can be extended up to the next 15 days in case of force majeure. The time limit of notice given to the respondent in the petition of habeas corpus is 3 days to the maximum. The time limit can be extended up to the next 7 days in case of force majeure.
5) Written response
After receiving notice from the court, the respondent must file a written statement in the court within the time limit. The written statement must be prepared in the prescribed format. The written statement of the respondent must include facts and proof to convince the court that there is no reason to issue a writ order as per the claim of the applicant.
6) Final hearing and Order
After the registration of the written statement of the respondent, the court gives the hearing date to both parties. In the final hearing, the pleading of both parties is heard by the judge. After hearing the pleading of both parties, analyzing the writ petition, written statement, and other documents along with other evidence, the court will give its verdict. The court may issue the writ order as per the claim of the applicant or quash the writ petition.
The writ procedure serves as a crucial mechanism for safeguarding fundamental rights and ensuring legal remedies where alternative solutions are inadequate or ineffective. By enabling individuals to seek judicial intervention against governmental or administrative actions, writs uphold the principles of justice, fairness, and accountability. The structured process, from the registration of a petition to the final court order, ensures transparency and adherence to the rule of law. Moreover, the judiciary plays a vital role in reviewing executive and legislative actions, preventing arbitrary use of power. Thus, the writ procedure remains an essential tool for the protection of constitutional rights and the maintenance of justice in Nepal.
Conclusion
The writ procedure in Nepal is a cornerstone of constitutional justice, empowering individuals to challenge violations of their fundamental and legal rights. With provisions under Articles 133, 144, and 151 of the Constitution, writs like habeas corpus, mandamus, certiorari, prohibition, and quo warranto serve as direct tools for redressing governmental and administrative injustices. This special jurisdiction ensures speedy relief, especially where no other effective legal remedy exists. It also reinforces the checks and balances within the democratic structure by allowing the judiciary to review executive and legislative actions. From registration to final verdict, the writ process is streamlined and rooted in the principle of natural justice. By holding authorities accountable and defending constitutional boundaries, writs help maintain rule of law, promote transparency, and ensure fair treatment of individuals. In a developing democracy like Nepal, the availability and use of writs remain critical to upholding rights, justice, and public trust in the legal system.