Need To File Writ Petition Responsibly

The legal system incorporates a variety of judicial and quasi-judicial bodies designed to alleviate the burden on courts and provide specialised expertise. Despite the availability of alternative remedies, there is a growing tendency to bypass these channels and directly file writ petitions.

The judiciary, particularly the Supreme Court (SC), has extraordinary powers to intervene in matters of public interest or constitutional questions when necessary. However, the misuse of this power for trivial matters threatens the efficiency and credibility of the legal system.

The written petition to make the work done by the ruler of the state by the law also takes action both in the form of scriptures and weapons. But for some time now, writ petitions have been filed only for the sake of intellectual luxury and cheap popularity. Increasing writ petitions in court is not a problem, but filing a writ petition for personal gain without using alternative remedies is also unfair to other parties.

Remedy

Provisions in the Article 133, Article 144 and Article 151 of the Constitution of Nepal have been made regarding the rejection of writ petitions. The rights provided in these articles are not limited rights. If the ruler and anybody governed by him/her commits an illegal act, these articles are used to keep that act as it is, to cancel such act and for other purposes as well. If there is no provision for remedy for the fundamental rights or if there is a provision but such remedy is found to be insufficient or ineffective, if there is any dispute of public rights or concern for the enforcement of such legal right, or if there is any dispute of public right or concern, or if there is any necessary order for the determination of legal or constitutional question, providing appropriate remedy, courts, especially the SC, have the extraordinary right to exercise such rights or settle disputes. Such extraordinary jurisdiction of the court is writ.

Several judicial and quasi-judicial bodies have been created to provide subject expertise and reduce the increasing burden on the courts, among other reasons. It has also been mentioned in several judgments of the SC that writs should not be used until alternative remedies are available. Yet the trend of trying to register a writ in the SC is increasing day by day ignoring   the SC's judgement. Although there is a hearing in the Administrative Court regarding several disputes of employees working in the civil service of Nepal Government, Nepal Federal Parliament Service, or public institutions, writs are filed regardless of the jurisdiction. 

Similarly, the Companies Act, 2063 provides that the registrar will hear the proceedings of the company registrar's office (CRO). Although the law provides that a complaint can be filed before the registrar at the CRO, a writ is filed against the order made by the CRO without submitting an application to the registrar. The remedy is sought through the process of writ even on tax assessments made by other tax assessment agencies including the Customs Office. Writ remedy is sought on the subject of assessment of tax for the purpose of remedy without going to the Revenue Tribunal.

The tendency of filing writs – by both common people and law professionals – to show themselves as famous and intellectual in front of the world is increasing. Studying the number of writs filed in the SC in the last date, it seems that there is a group of legal professionals who always stand ready to file a writ in the SC. Many wits have been filed by legal professionals on the same issue. Once the writ is registered, if an interim order is demanded in the writ, the court spends a lot of time on the writ, discussing it, informing the opponent, listening to the arguments of parties and opposition, etc. Even though the hearing of the petitions filed concerning legitimate demands and enforcement of rights takes years, that period cannot be considered as a waste of court time. But the hearing of the writ petitions filed only for the sake of intellectual luxury and cheap popularity has caused injustice to the parties of other cases as well, pushing legitimate cases deserving timely resolution to the back burner.

Legal processes frequently extend over extended periods, and when a case reaches its resolution, the urgency of the presently raised matter may have diminished. Societal perspectives and priorities can change, resulting in a reduced focus on the concerns initially raised in the writ. Public attention may shift towards new challenges, overshadowing the urgency of previous issues. Delays within the legal system, whether caused by backlog or procedural complexities, can diminish the core impact of the writ, making the relief less effective. Additionally, the emergence of new issues tends to be overshadowed by persistent old ones, creating a loop where unresolved past issues overlap with present concerns. As proceedings unfold for these lingering issues, their significance often dwindles, perpetuating a cycle where the essence of each issue fades over time. This ongoing loop contributes to the accumulation of caseloads in the SC. 

Responsible advocacy

The importance of judicial discretion in addressing writ petitions deserves emphasis, given the need for critical evaluation of each case's merits and the use of court time. Judicial intervention should be reserved for matters of genuine public interest or constitutional significance, not for cases driven by personal motives. Establishing a code of ethics and guidelines for responsible advocacy can help curb the misuse of writs and maintain the sanctity of the legal profession. Intellectual freedom should be balanced with a sense of responsibility. Legal professionals are urged to consider the broader implications of their actions and prioritise the pursuit of justice over personal recognition. Writ itself is a beautiful subject. Just because the number of writs increases in the court, it cannot be considered as a misuse. But its wrong use has made it ugly. To prevent the misuse of writs, legal practitioners and court administration should play an important role and prevent filing the writ for the sake of intellectual luxury.  

 (Bhattarai is a student at the Kathmandu school of law)