A Writ means a command of the Court to another person or authority by which such person/authority has to do or abstain from doing certain act in a prescribed way. Thus, writs are special power of Court.
The Supreme Court and the High Courts have been provided with many powers which they exercise to provide justice to people. One of the most important tools or power which is provided to the Court by the Constitution is to issue writs.
Habeas Corpus
The Writ of Habeas Corpus is issued by the Courts in those cases where a person is illegally detained. Habeas Corpus means ‘to have the body’ and it is one of the most effective remedies available to a person detained. The writ of Habeas Corpus can be issued by District, High and Supreme Court.
By this Writ, the Court commands the person or authority to present the detained or restrained person before the Court. The Court asks the detaining person to provide the reasonable ground on which the person has been detained and if he fails to provide any reasonable ground, the person who has been detained will be released by the Court immediately.
Example: A is wrongfully detained by B. Here B is a police officer. A writes to the High Court regarding the same. The High Court summons B with A and asks the grounds for detaining A. If B fails to provide a reasonable ground or justification for A’s detention, A will be released by the order of the Court.
Importance of Writ of Habeas Corpus
This Writ of Habeas Corpus is very important for the personal freedom of the citizens because if this Writ is not provided by the Constitution as fundamental rights then any person can be unlawfully restrained or detained easily by any authority and which will be a serious violation of the fundamental rights of freedom of the citizens.
Rules for Writ of Habeas Corpus
- The applicant should be in custody of another.
- Writ of Habeas Corpus is applied by any person on behalf of the detained person.
Note:- Usually, the detained person and his family members are allowed to file an application for habeas corpus but the court has also allowed such application by strangers if it is done in public interest.
Exception: The purpose this Writ is to prevent a person from being detained but it will be applicable only when the detention or restraint is unlawful. If the Court finds the grounds for detaining to be justified then this Writ cannot be issued. Also, if the Court orders the detention of a person then it does not amount to unlawful detention and this Writ cannot be issued.
Mandamus
Mandamus is another important Writ which is provided for by the Nepalese Constitution to Supreme Court and High Court. In the Writ of Mandamus, the superior courts order the Inferior Courts to do an act or to abstain from doing an act. This order can also be issued to an Inferior Tribunal, Board, Corporation or any other type of administrative authority.
In Nepal, the Supreme Court is the final court, therefore it has the power to issue the Writ of Mandamus even against the High Court. Similarly, High Courts have also been provided with the power to issue such Writs to District Court and tribunal under Article 144 of the Constitution of Nepal.
Note:- Writ of Mandamus is issued against only public or government organization but it cannot be issued against a private person.
Example: A is a public servant who has a duty towards B which A has to fulfil according to the law but he doesn’t fulfil the duty. B is aggrieved by this non-performance and therefore approaches the High Court for demanding the fulfilment of the duty by A. Here the High Court on being satisfied that the case of B is bona fide and there is a duty which should be fulfilled, will issue the Writ of Mandamus and A will be bound to fulfil the duty he has avoided until now.
Certiorari
The Writ of Certiorari is corrective in nature which means the purpose of this Writ is to correct an error which is apparent on the records.
Certiorari is a Writ which is issued by a higher court to an lower court. This can be issued when the higher court wants to decide a matter in the case itself or if there is an excess of jurisdiction by the lower court.
Example: There is a case in the District Court and the court has no jurisdiction to decide such cases. Still, the District Court Judge tries the case and gives his decision and an application is made by A (the aggrieved party by such decision) to the High Court. Hereby the power of issuing Writs, the High Court will issue a Writ of Certiorari on the order of the District Court, as a result, the order of the District Court will be quashed.
Quo Warranto
The Writ of Quo Warranto is issued by the courts against a private person when he assumes an office on which he has no right. Quo Warranto literally means ‘by what authority’ and it is an effective measure to prevent people from taking over public offices.
Example: A who is a private citizen and has no qualifications for the post of sub-inspector assumes such office. Here a Writ of Quo Warranto can be issued against A to call into question his authority on which he has taken the control of the office of sub-inspector.
Prohibition
The last Writ which can be issued under the Constitution is the Writ of Prohibition. This Writ is not issued often and is an extraordinary remedy which a Superior Court issues to an inferior court or tribunal for stopping them from deciding a case because these courts do not have right to decide such case under their jurisdiction.
Example: if a District Court is hearing an appeal against the judgement of the High Court, such an act is bound to be prohibited because the District Court does not have the power to hear such an appeal. So, a Writ of Prohibition will be issued against such an act of District Court.
In Conclusion:
The Constitution of Nepal has provided the power to issue different types of writ to the Court. The Supreme Court and High Court has power to issue all types of writ but the District Court has power to issue Writs of Habeas Corpus and Prohibition only. The Supreme Court, High Court and District Court have power to issue writs under Article 133, 144 and 151 respectively.