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During the hearing of the writ petition filed in the court demanding the issuance of various writ orders, various theories have been developed that apply to those writs.
These principles, developed by the judiciary, serve to discredit the judiciary, which has the authority to hear such petitions. Some of the principles are as follows:
Principle of Locus Standi: The right of the person whose rights have been violated should be brought to the petition for the exercise of rights. According to this principle, it is not possible to apply for the rights of others.
However, in the case of habeas corpus and prosecution petitions, this principle is loose, and even a person who has not been afflicted can enter the court.
In the case of detainees, other persons can also come with a petition.
The Principle of Laches or unreasonable delay: This principle is based on the victim, whose rights have been violated, should became at the court for remedy in time. Delay losses the justice. The court cannot help those who do not seek treatment in time.
Therefore, the principle that a person should enter the court without undue delay for the exercise of rights is the principle of unreasonable delay.
Principle of Clean Hands: A person entering the court to assert his rights must show all the facts related to the subject while presenting his case. No facts should be hidden.
This principle holds that the court does not provide any assistance to those who come to the court by lying about the facts.
Principle of Alternative Remedy: In the provision of each right, if that right is violated, remedy is also provided for it.
The person who has been denied the right should establish the right through the same means, in this case the principle of alternative treatment is that the writ does not provide treatment.
Principle of Natural justice: The decision-maker must have followed the minimum principle of fair judgment. There is a belief that if these principles are not followed, even if the decision is fair, it cannot be considered as justice.
The principle against prejudice: The principle against prejudice is that the decision-maker should not be biased for any reason while making any decision.
Decisions in disputes involving people related to one’s relatives, departmental interests or financial interests are more likely to be biased due to human weakness.
Therefore, it is a principle against the prejudice that such interests should not be involved in the decision-making process.
Principle of Fair Trial: The principle of a fair trial or fair hearing is that in making a decision against a person, the decision should not be made without listening to him.
Principle of Reasoned Decision: It is believed that the decision should be made on the basis of reasons and those affected by the decision should know the basis on which the decision was made.
It is believed that the writ petition will be drawn against the administrative decisions that have gone against the principles of natural justice mentioned above
Principle of Maturity: This principle states that the dispute must have matured before it can come before the judiciary.
This principle holds that the work or decision that is being challenged must be completed in its entirety or that the decision must be made at the final level, and that the work or decision cannot be challenged without completion.
Principle of Inevitability of Dispute: In the absence of a dispute, the court should not have to decide. The dispute in the petition for a decision in the court should be real, not imaginary.
Such a dispute must be between the petitioner and the person he has nominated. And, in case the order demanded by the petitioner has been issued, the treatment sought by him should be addressed. In the absence of these conditions, the order cannot be issued as per the demand.
The principle of the criterion of judicial adjudication: This principle denies that the only way to resolve all disputes is judicial adjudication. Some issues are not resolved by the judiciary.
It is the recognition of this principle that the court is not the place to settle disputes arising out of policy matters of the state, clearly issues within the executive and the legislature. However, it is up to the court to decide whether a case falls within the criteria of judicial adjudication.
Principle of political subject matter: This principle holds that political disputes cannot be resolved by the courts. The judiciary is the body that decides whether a dispute is political or not. Explaining the controversy over political issues, the Supreme Court said that if a constitutional question is linked to it, the court is the body to resolve it.
Principle of Necessity: The law is made by imagining the general condition. If there is a situation where the law cannot address the situation due to an abnormal situation, then the principle of necessity is attracted.
The belief that the law cannot force the impossible to be accomplished is linked to this principle. If a disability is created out of a situation beyond one’s capacity, the principle of necessity helps such a disability. On the basis of this principle, the state and the government can also claim the legitimacy of their work.
Principle of Surrender: The principle of surrender is that a person who enjoys the benefits or benefits derived from an action or decision does not have the right to complain against those actions or decisions. Similarly, after participating in the process of work done by a body, the validity of that body or its jurisdiction cannot be questioned in case the result of that work is not in their favor.
Principles of Public Interest: The principle of public interest has been developed along with the development of the belief that anyone who has a right to come to court for treatment should come to court for treatment. The Supreme Court of Nepal has stated that in order to file a petition on a matter of public concern, the petitioner must have a meaningful relationship with the subject matter of the petition.
The writs that have been issued against the decisions of public bodies or lower courts are linked to the practice of fundamental rights in Nepal.
The Constitution of Nepal has already provided for the issue of the writ petition as a fundamental right. The issue of writ should not be considered as a matter of fundamental rights even in Nepal.
