This article will lead you through the process of filing a writ in Nepal.
Introduction to Writ Petition
A writ petition is a legal remedy that allows an individual or an organization to seek relief or protection from the courts when their fundamental rights have been violated or threatened. In simple words, writ means a written order issued by the superior court to an inferior court or public authority to act or stop them from doing something. sometimes it is also called written order.
It is one of the Products given by the Common legal system. Writs are extraordinary legal orders issued by the higher courts to lower courts, public officials, or any other authorities to protect the rights of the petitioner.
According to Article 133(2) of the Constitution of Nepal, the supreme court has the power to issue the writ for the enforcement of the fundamental rights of the citizens or the legal rights for which there is no remedy or adequate remedy.
There are two conditions for invoking writ jurisdiction which are :
- Violation of fundamental rights,
- Violation of legal rights for which no other remedies have been provided or provided remedy is inadequate or ineffective.
The writ jurisdiction is commonly known as extra ordinary jurisdiction of the Court.
Article 133 of the Constitution has empowered the Supreme Court to issue writs (applicable to the respective issues) such as the writs of habeas corpus, mandamus, certiorari, quo warranto, and prohibition. The writs are issued particularly in the following conditions:
- If any illegal restriction is made against the fundamental rights of the people.
- If any legal remedy is not available under any law or the remedy available under the law is inadequate or ineffective.
- If any issue relating to public rights or interest requires constitutional or legal resolution.
Types of Writ
- Habeas Corpus: This writ is used up to date to guard the personal liberty of a person and seeks the production of a detained or imprisoned character earlier than the courtroom. This writ is issued when the person is detained illegally.
- Mandamus: This writ is issued to public officers, authorities, or lower courts directing them up-to-date perform their official duties or responsibilities.
- Prohibition: This writ is issued to prevent lower courts or tribunals from exceeding their jurisdiction or appearing beyond the scope of their authority.
- Certiorari: This writ is issued to quash the order or decision of a lower court or tribunal when it has acted without jurisdiction or contrary to the law.
- Quo Warranto: This writ is used up to date impeach the authority or legitimacy of a person holding a public office.
Process of Filing a Writ in Nepal
- Identify the Jurisdiction: Determine which court has the authority to hear your writ petition based on the nature of the violation. The Supreme Court of Nepal and the respective High Courts have the jurisdiction to entertain writ petitions.
- Draft the Petition: Prepare a writ petition setting out the facts, the violation of fundamental rights, and the relief you seek from the court. It is advisable to seek legal assistance to draft the petition correctly.
- Attach Supporting Documents: Gather all the relevant documents and evidence supporting your case and attach them to the petition.
- Pay the Filing Fee: Pay the required court filing fee along with the submission of the petition.
- Submit the Petition: Submit the writ petition and all the supporting documents to the relevant court.
- Hearing on benefit: If the court finds merit in the petition, it will schedule a hearing where both parties present their arguments and evidence.
- Court Order: After considering the arguments and evidence, the court will issue an appropriate order whether it may be interlocutory order or interim order or any other direction.
It’s important to note that filing a writ petition is a serious legal matter, and it’s recommended to seek advice and assistance from an experienced lawyer to ensure that the petition is filed correctly and effectively. Laws and procedures may change over time, so it’s best to consult with a legal expert who is up-to-date with the latest developments in Nepali law.