A call for responsible legal practice

Published On: February 10, 2024 09:00 AM NPT By: Saroj Bhattarai

The legal system incorporates a variety of judicial and quasi-judicial bodies designed to alleviate the burden on courts and provide specialized expertise. Despite the availability of alternative remedies, there is a growing tendency to bypass these channels and directly file writ petitions. This article emphasizes the extraordinary powers of the judiciary, particularly the Supreme Court, 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 in accordance with the law also takes action both in the form of scriptures and weapons. The writ is mainly used for enforcing and enjoying the rights according to the law. But for some time now, writ petitions have been filed only for the sake of intellectual luxury and cheap popularity. Again and again, various newspapers have raised questions about the writ petition and the petitioner as a dummy writ petitioner. The increase in the number of writ petitions in the court is not a problem, but filing a writ petition for personal gain and without using  alternative remedies means doing injustice to other parties as well.

Definition of Writ

Article 133, Article 144 and Article 151 of the Constitution of Nepal have provisions regarding the rejection of writ petitions. The rights provided in these articles of the Constitution of Nepal are not limited rights. These articles are utilized to either uphold, annul, or address any illegal actions committed by the ruler or individuals under their governance, among other purposes. The study of legal remedies has assumed an important place in any legal system. If a right has been granted under any law, legal remedies are provided to enforce that right or if the right is violated. It is within the ordinary jurisdiction of the court to provide for the remedy itself and to enforce the remedy or to provide the remedy to the aggrieved party. However, if there is no provision for remedy for the fundamental rights guaranteed by the constitution 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, courts, especially the Supreme Court, have the extraordinary right to exercise such rights or settle disputes. Such extraordinary jurisdiction of the court is writ.

Alternative treatment without experiment

A number of judicial and quasi-judicial bodies have been created to provide subject expertise and reduce the increasing burden on the courts and for many other reasons. These bodies serve as alternative avenues for dispute resolution. It has also been mentioned in several judgments of the honorable Supreme Court that writs should not be used until alternative remedies are available. But, the trend of trying to register a writ in the Supreme Court is increasing day by day, while the judgments of the respected Supreme Court are not taken into consideration. Although there is a hearing in the Administrative Court regarding several disputes of employees working in the civil service of the Government of Nepal, Federal Parliament, 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. Although the law stipulates that a complaint can be filed before the registrar at the company registrar's office, a writ is filed against the order made by the company registrar's office 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.

Difficulty of lawyers to file a writ

The tendency of filing writs to show themselves as famous and intellectual in front of the world is increasing day by day not only by common people but also by law professionals. Studying the number of writs filed in the Supreme Court, it seems that there is a group of legal professionals who are ready 24 hours a day to file a writ in the Supreme Court. Ten legal professionals have filed writs on the same issue. The number of writ petitions filed in political cases is not counted. 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 in relation to legitimate demands and enforcement of rights takes years, that period cannot be considered as a waste of court time. But the hearing of writ petitions filed only for the sake of intellectual luxury and cheap popularity has caused injustice to the parties of other cases as well.

The repercussions of indiscriminate writ petitions extend beyond the immediate cases in question. When a multitude of writ petitions is filed, each demanding attention and resources, the strain on the courts becomes palpable. Legitimate cases, deserving timely resolution, are inevitably pushed to the back burner. The very purpose of the writ system, designed to provide swift justice, is undermined when misused for frivolous matters.

Personal Recognition vs prolonged proceeding

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 than if it had been promptly delivered. 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 Supreme Court as people prefer to file in the Supreme Court instead of the other possible administrative courts.

Role of legal practitioners and responsible advocacy

Legal professionals bear a significant responsibility in shaping the trajectory of the legal system. The article contends that the legal community must collectively reflect on its practices and discourage the filing of writ petitions solely for personal gain or recognition. 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.

While the courts hold the power to address writ petitions, the article emphasizes the need for judicial discretion and discernment. A critical evaluation of the merits of each case and the nature of the dispute is crucial in ensuring that the court's time is utilized judiciously. Judicial intervention should be reserved for matters of genuine public interest or constitutional significance, not for cases driven by personal motives.

The article recognizes the intellectual allure of engaging with the writ system but cautions against its misuse. Intellectual freedom should be balanced with a sense of responsibility. Legal professionals are urged to consider the broader implications of their actions and prioritize the pursuit of justice over personal recognition.

Finally, writ in itself is a beautiful subject. Just because the number of writs increases in the court, it cannot be considered as a misuse. Its wrong use has made it ugly. "Though our inclination often leans towards paths bathed in limelight, wisdom reminds us that brilliance isn't solely defined by the spotlight."

Despite the existence of an alternative system, the writ is being misused for the sake of intellectual luxury. To prevent the misuse of writs, legal practitioners and court administration should play an important role. A writ sought to be filed only for personal gain should be filed at the initial level. Not only that, but the bench should also study the petitions.

Leave A Comment