I. Introduction
A writ is a formal legal instrument issued by a court, directing an individual or entity to perform or refrain from performing a specific act. Rooted in the common law tradition, writs serve as powerful procedural tools that uphold the rule of law, enforce judicial authority, and protect individual rights. They are particularly significant when a person seeks to challenge state action or public authority in circumstances where fundamental rights have been violated or where no effective alternative remedy exists.
Under the Constitution of Nepal, 2072 (2015), the Supreme Court and High Courts hold broad writ jurisdiction. Articles 133(3) and 144(2) authorize the issuance of writs, including habeas corpus, mandamus, certiorari, prohibition, and quo warranto, for the enforcement of fundamental rights and other legal purposes.
Similarly, Article 151(1) empowers District Courts to hear petitions such as habeas corpus and prohibition unless otherwise restricted by law.
Thus, writ jurisdiction forms a cornerstone of constitutional accountability and procedural justice in Nepal.
II. General Principles of Writ
The general principles of writ are set out below:
a) Existence of a Prima Facie Violation
There must be a clear and apparent infringement of a legal or fundamental right.
b) No Detailed Examination of Evidence
Courts generally do not engage in extensive evidence evaluation during writ proceedings.
c) No Detailed Examination of Evidence
The writ may only be issued if no effective alternative legal remedy is available.
d) Petitioner Must Approach with Clean Hands Petitioner Must Approach with Clean Hands
The applicant must act fairly, honestly, and in good faith to seek equitable relief.
e) Invoking the Court’s Extraordinary Jurisdiction
Writs are issued under the court’s extraordinary jurisdiction, not as a matter of routine.
f) Directed Primarily Against Public Authorities
Writs are usually issued against government bodies, public officials, or entities performing public duties.
III. Types of Writ
Types of writs are as given below:
a) Habeas Corpus
“Habeas Corpus” is a Latin term that literally means “you may have the body.” This writ is issued when a person is detained without legal authority or beyond the scope of legal powers. Its primary objective is to secure the release of an individual from unlawful detention. If the court finds the detention to be illegal, it orders the immediate release of the detainee.
b) Mandamus
“Mandamus” is a Latin term meaning “we command.” This writ is issued to compel a public officer or authority, who is legally obligated to perform a certain duty but fails to do so, to carry out that duty. For example, if a police officer refuses to register a complaint and, despite the filing of a prior grievance, the complaint remains unregistered, the court may issue a writ of mandamus directing the officer to register the complaint.
c) Certiorari
The term “Certiorari” literally means “to be certified.” This writ is issued by a higher court to quash or annul a decision made by a government or public authority that is unlawful or beyond its jurisdiction. To obtain a writ of certiorari, it must be evident that the principles of natural justice were violated or that the decision lacked proper legal authority. Judicial review is an important aspect of the writ of certiorari. It refers to the judiciary’s power to examine whether laws passed by parliament are consistent with the Constitution. If a law is found unconstitutional, the court may declare it void or invalid.
In Nepal, judicial review began under the Constitution of the Kingdom of Nepal, 2047 (1990). Although that Constitution did not explicitly create a constitutional bench, special benches of the Supreme Court adjudicated writ petitions involving constitutional matters.
A notable example is the case of Man Bahadur Bishwakarma, where the Supreme Court examined whether Nepal’s legal system, while constitutionally prohibiting caste-based discrimination, could still adhere to certain pre-existing civil law traditions without violating constitutional principles.
d) Prohibition
The writ of prohibition literally means “to forbid” or “to prevent.” It is invoked when a public officer, authority, or agency is about to take an unlawful action or make a decision that may infringe upon someone’s rights or interests. Since the action has not yet been finalized, the writ seeks to restrain the officer or agency from proceeding further, thereby preventing potential harm.
e) Quo Warranto
The term “Quo Warranto” means “by what warrant?” or “what is your authority?” This writ challenges the legal authority of an individual occupying a public office. If it is shown that the individual has exceeded their tenure, lacks required qualifications, or is otherwise unauthorized to hold the position, the court may issue this writ to prevent them from continuing in the office.
IV. Court Adjudication Procedures and Writ Jurisdiction
The procedure for court adjudication is as given below:
a) General Court Procedures
Courts in Nepal follow general, special, or summary procedures for adjudicating rights and obligations under statutory laws.
b) Fundamental Rights
Rights guaranteed by the Constitution of Nepal fall directly within writ jurisdiction when violated.
c) Writ Proceedings
Writs are typically used when:
- fundamental rights have been violated, or
- no adequate remedy is available under ordinary legal processes.
d) Courts Empowered to Issue Writs
- District Courts
- High Courts
- Supreme Court
These powers are derived from Articles 133, 144, and 151of the Constitution.
e) Regulatory Framework
Each court conducts writ procedures as outlined by its respective regulations.
V. Classification of Writ Procedure
The writ procedure is generally divided into:
- Procedure for the Writ of Habeas Corpus
- Procedure for Other Writs
1) Procedure for the Writ of Habeas Corpus
| Steps | Procedure | Description |
| I. | Filing the Petition | Generally, the petitioner should file the writ petition personally. If the petitioner is unable or it is unsuitable, the petition may be filed by the petitioner’s relatives, friends, or legal representatives. The petition can be filed in the District Court, High Court, or Supreme Court. No fee is required for filing a habeas corpus petition. Such writ petitions are processed expeditiously and given priority by the court. |
| II. | Details in Petition | The petition must include all known details about the detained individual. |
| III. | Preliminary Hearing | The court may either dismiss the petition or issue a show cause order along with any other necessary interim orders. |
| IV. | Response and Appearance | If the detention is suspected to be illegal, the court may set an early hearing date. Otherwise, the respondent must submit a written reply within 3 days. The court typically requires the detained person to appear and justify why they should not be released. The detaining authority must provide reasonable justification for the detention. Failure to provide such justification results in the detention being declared illegal and the prisoner’s release. |
| V. | Final Hearing | The final hearing usually takes place in the District Court before a joint bench, except during court vacations. During leaves of 3 consecutive days or more, the court remains open specifically to hear habeas corpus petitions. In Kathmandu Valley, the Supreme Court, High Court, or their benches remain open, while in other districts, the District Court remains open. |
| VI. | Extension of Deadlines | The Mayad Tarekh (deadline) for habeas corpus proceedings may be postponed for a maximum of 7 days. In special circumstances such as Kiriya, childbirth, or other divine calamities, this extension can be further extended by 15 days after the event concludes. |
2) Procedure for other writ (Certiorari, Mandamus, Prohibition, Quo-Warranto)
| Step | Procedure | Description |
| I. | Filing and Jurisdiction | These writs can be filed only in the Supreme Court. A writ for judicial review can be filed only by a Nepalese citizen in the Supreme Court. Judicial review challenges the constitutionality of laws enacted by the Parliament, State Parliament, or local bodies. |
| II. | Constitutional Bench | Preliminary and final hearings for such writs are held before the Constitutional Bench. The bench consists of 5 members: the Chief Justice and four judges appointed on the recommendation of the Judicial Council. |
| III. | Petition Requirements | The writ petition must clearly state the grounds for filing and the court’s jurisdiction (Articles 46, 133 of the Constitution; Rules 40 and 41 of Supreme Court Regulation, 2074). It must describe the events leading to the violation of rights and specify the respondent’s actions or inactions. An electronic copy of the petition is mandatory. If the petition exceeds three pages, a summary of up to two pages must be attached. |
| IV. | Preliminary Hearing | Conducted by a single bench. If the petition has merit, the court issues a show cause order requiring the respondent to appear and explain. If the petition lacks merit or the respondent’s actions comply with law and constitution, the writ may be dismissed. The petitioner must specify if an interim order is sought. |
| V. | Public Interest Litigation (PIL) | The petitioner must demonstrate no personal interest and that the issue affects the public or a community. Must show efforts to resolve the issue by other means have failed. Should cooperate with the court, even if the case proceeds despite delays (Mayad/Tarekh). The writ deadline (Mayad/Tarekh) can be extended once for up to 15 days, and in special cases (Kiriya, childbirth, calamities), an additional 15 days extension is possible. |
| VI. | High Court Writs | Writs can also be filed in the High Court, governed by Article 144 of the Constitution and Rule 41 of the High Court Regulation, 2073. PILs at the High Court require prior application to relevant authorities showing attempts to resolve the matter |
| VII. | Injunction Applications | The High Court and District Courts may hear applications for injunctions to prevent unlawful obstruction of legal rights enforcement. Such applications are special petitions, similar but not identical to writ petitions. |
| VIII. | Nature of Certiorari | Issued to halt suspected unlawful actions under the Civil Rights Act, 2012 (1955). Primarily used where there is suspicion of harm or illegality. Certiorari protects existing rights but does not decide ownership disputes; the status quo is maintained until final judgment. |
| IX. | Maintaining Status Quo | Petitioners may seek orders to maintain the status quo in district or high courts, especially concerning civil rights violations under the National Civil (Code) Act, 2074 (2017). |
Disclaimer: This article is for general informational purposes only and does not constitute legal advice, advertisement, personal communication, solicitation or inducement. No attorney-client relationship is created through this content. Gandhi & Associates assumes no liability for any consequences resulting from actions taken based on information contained herein.
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