What is a writ petition? The five writs and how they work in Nepal

This article is general information, not legal advice for any person or case. Consult a lawyer before acting on your own matter.

Most cases in Nepal begin in a district court. But where a fundamental right has been violated, or a legal right needs protecting and there is no other effective remedy, a person can apply directly to the Supreme Court or a High Court. This is called the courts’ extraordinary jurisdiction, and the application is a writ petition (rit nivedan).

What the Constitution provides

Article 46 gives every person the right to a constitutional remedy under Article 133 or Article 144 to enforce the fundamental rights in Part 3 of the Constitution.

• Article 133(2): gives the Supreme Court extraordinary power to enforce fundamental rights; to enforce legal rights where no other remedy exists or the available remedy is inadequate or ineffective; and to settle constitutional or legal questions in disputes of public right or interest.
• Article 133(3): for these purposes, the Supreme Court may issue appropriate orders, including writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.
• Article 144: gives the High Courts similar power to issue writs within their territory.
• Article 133(1): any Nepali citizen may petition the Supreme Court to strike down a law that is inconsistent with the Constitution.

Because the Constitution says “including”, the five named writs are examples, not a closed list. The court may issue any other appropriate order needed to do justice.

The five writs

Habeas corpus (bandi pratyakshikaran)

Used when someone is held in unlawful detention. The court orders the detainee to be produced so that the legality of the detention can be examined, and orders release if the detention is not lawful. Because a detained person often cannot file the petition, family members or others may file on their behalf.

Mandamus (paramadesh)

An order directing a public body or official to perform a duty the law requires of it. For example, if an Act empowers the government to make regulations and it fails to do so, the court may order it to make them. The Supreme Court did this in its recent order on regulating cannabis cultivation.

Certiorari (utpreshan)

Sought to quash a decision taken without authority, in excess of authority, or in breach of the principles of natural justice. Most writs against government decisions are for certiorari.

Prohibition (pratishedh)

An order stopping a body from going ahead with action beyond its jurisdiction. Certiorari undoes a decision already made; prohibition stops one that is about to be made.

Quo warranto (adhikarprichchha)

A writ asking, in effect, “by what authority do you hold this office?” If a person holds public office without the required qualifications or legal basis, the court may order that they cannot remain in it.

Public interest litigation

Because Article 133(2) allows the court to hear disputes “of public right or interest”, a person with a genuine concern may file a writ on a matter affecting the public even if their own rights have not been violated. Many important cases on the environment, consumer protection, public property and good governance have reached the court this way.

Points to keep in mind when filing

• Be clear about which right was violated, and by which body or official’s decision or failure to act.
• If the law provides another effective remedy, such as an appeal, the court will usually expect you to use it first.
• Attach a copy of the decision being challenged and the relevant documents.
• The format, fees and registration rules are set out in the Supreme Court Regulations, 2074 BS (2017). Check with a lawyer or the court’s registration section before filing.

What happens after filing

Once a writ is registered, the court may issue a show-cause order asking the respondents to explain themselves in writing, an interim order to preserve the position while the case is pending, or, after hearing, a final judgment. These are separate stages. An interim order does not decide the case, and a show-cause order means only that the court wants the respondents’ answer.

Sources

Primary sources

• Constitution of Nepal (Nepali, official text) — Nepal Law Commission
• Constitution of Nepal (English translation) — Constitute Project

Other reporting

• Example of a Supreme Court decision published in the Nepal Kanoon Patrika — Nepal Kanoon Patrika (official law reports)