Writ Procedure in Nepal: Types, Steps, and Constitutional Rights

Introduction

A writ is a formal legal order issued by a court directing an individual, organization, or government authority to perform or refrain from performing a specific act. Writs are essential tools for ensuring justice, protecting fundamental rights, and maintaining the rule of law.

In Nepal, the Supreme Court and High Courts have the power to issue writs under Articles 133 and 144 of the Constitution. The five main types of writs—Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto—help prevent illegal detention, enforce duties, and correct judicial errors. Writs play a crucial role in upholding constitutional rights and legal accountability.

Types of Writ

1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo Warranto

1. Habeas Corpus

Habeas Corpus, meaning "produce the body", is a fundamental writ used to protect an individual's right to liberty. It is issued by a court to compel authorities to present a detained or imprisoned person and justify their detention. If the detention is found to be unlawful, the court orders their immediate release.

In Nepal, Article 133(2) of the Constitution empowers the Supreme Court to issue this writ, while Article 144(2) grants the same power to High Courts. Habeas Corpus prevents arbitrary arrests, illegal detentions, and enforced disappearances.

For example, if a person is detained without legal justification, their family or representative can file a petition. The court will then summon the detaining authority to prove the legality of the detention. If unlawful, the detainee is freed. This writ is a powerful safeguard against human rights violations and ensures fair treatment under the law.

2. Mandamus

Mandamus, meaning "we command", is a writ issued by a court to direct a public official, government authority, or lower court to perform a duty they are legally required to fulfill. This writ ensures that public officials do not neglect their responsibilities and helps in the enforcement of legal rights.

In Nepal, Article 133(2) of the Constitution grants the Supreme Court the power to issue a Mandamus writ, while Article 144(2) extends this power to High Courts. Mandamus cannot be issued against private individuals, the President, or Governors.

For example, if a government office refuses to issue a passport despite fulfilling all legal requirements, the affected person can file a Mandamus petition. If the court finds the refusal unlawful, it will order the official to issue the passport. This writ is crucial in preventing administrative inaction, ensuring good governance, and upholding citizens’ rights.

3. Prohibition

The Prohibition writ is issued by a higher court (such as the Supreme Court or High Court) to a lower court, tribunal, or public authority, preventing them from exceeding their jurisdiction or acting against the law. This writ ensures that judicial and quasi-judicial bodies operate within their legal limits and prevents the abuse of power.

In Nepal, Article 133(2) of the Constitution empowers the Supreme Court to issue this writ, while Article 144(2) grants similar powers to High Courts. The writ of Prohibition is preventive in nature, stopping an authority from continuing an unlawful proceeding.

For example, if a lower court starts hearing a case that falls outside its jurisdiction, an affected party can file a Prohibition writ in the High Court or Supreme Court. If found valid, the higher court will restrain the lower court from proceeding further. This writ helps maintain judicial discipline and prevents misuse of power.

4. Certiorari

The Certiorari writ is issued by a higher court (such as the Supreme Court or High Court) to review and quash an order or decision made by a lower court, tribunal, or public authority if it is found to be illegal, beyond jurisdiction, or violates principles of natural justice. This writ ensures that judicial and administrative authorities act within their legal powers and follow fair procedures.

In Nepal, Article 133(2) of the Constitution empowers the Supreme Court to issue this writ, while Article 144(2) grants similar powers to High Courts. Certiorari is a corrective writ, meaning it is issued after an order has already been passed.

For example, if a lower court delivers a decision without proper jurisdiction or violates due process, the affected party can file a Certiorari petition. If the higher court finds an error, it nullifies the decision. This writ helps maintain judicial accountability and fairness.

5. Quo Warranto

The Quo Warranto writ, meaning "by what authority", is issued by a court to question the legal validity of a person holding a public office. This writ ensures that only legally qualified individuals occupy public positions and prevents unauthorized appointments.

In Nepal, Article 133(2) of the Constitution empowers the Supreme Court to issue this writ, while Article 144(2) grants similar powers to High Courts. Quo Warranto is used when a person wrongfully holds a public office without meeting the legal qualifications.

For example, if a person assumes the position of a government official without proper appointment, any concerned individual or group can file a Quo Warranto petition. If the court finds the appointment illegal, it orders the removal of that person. This writ protects public administration from corruption, ensures transparency, and upholds legal integrity in governance by preventing misuse of public positions.

Writs play a vital role in ensuring justice, accountability, and protection of fundamental rights in any democratic society. They empower courts to safeguard individuals from illegal actions, administrative negligence, and judicial overreach. The five primary writs; Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto, each serve distinct purposes, ranging from preventing unlawful detentions to ensuring that public offices are held by qualified individuals.

In Nepal, the Supreme Court and High Courts have the authority to issue these writs under Articles 133 and 144 of the Constitution. Their enforcement strengthens good governance, prevents misuse of power, and upholds the rule of law. Writs not only protect citizens' rights but also ensure that government institutions function within legal boundaries.

Thus, the writ jurisdiction of courts is an indispensable tool for maintaining justice, fairness, and constitutional order, making them essential to a well-functioning legal system.

Writ procedure

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.

Conclusion

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.