Law drafting is the technical process of preparing the text of a proposed law (a bill or draft legislation) in clear, precise and legally consistent language so that it expresses the intended policy of the government and can be enacted, interpreted and enforced without ambiguity. It is done by legal experts (drafters) in the ministry concerned, in consultation with the Ministry of Law, Justice and Parliamentary Affairs.

General stages of bill drafting:

1. Identification of need and policy decision — The concerned ministry identifies the social, economic or administrative problem and decides that legislation is necessary; the policy is approved by the Council of Ministers.

2. Preliminary study and research — Study of the existing laws on the subject, the Constitution, court decisions, and the laws of other countries; collection of facts and opinions of stakeholders.

3. Preparation of the draft (instructions to the drafter) — The ministry sends written instructions (drafting instructions) to the legal drafter, who prepares the first draft of the bill.

4. Consultation and revision — The draft is circulated to the Ministry of Law, Justice and Parliamentary Affairs and other concerned bodies; their comments are incorporated and the draft is revised.

5. Approval by the Council of Ministers — The revised draft is submitted for the decision of the Council of Ministers; after approval it becomes a government bill ready for introduction.

6. Introduction in the legislature — The bill is introduced in the relevant House (in Nepal, generally in the House of Representatives) by the concerned minister, along with a statement of objects and reasons.

7. Discussion, clause-by-clause consideration and amendment — The House holds general and clause-wise discussions; the bill may be sent to a committee, amended and reported back.

8. Passing — The bill is passed by the House; if it is a finance bill or there is disagreement, the constitutional procedure between the two Houses is followed.

9. Authentication and publication — The passed bill is submitted to the President (or Head of State) for authentication; after authentication it is published in the Nepal Gazette and comes into force as an Act.

10. Implementation and review — The Act is implemented through rules and regulations, and its working is reviewed from time to time for necessary amendment.

कानुनी परामर्श (Legal Opinion) लिँदा ध्यान दिनुपर्ने विषयहरू:

1. विषयको स्पष्टता (Clarity of subject matter): परामर्श माग्नुअघि समस्याको तथ्य, पृष्ठभूमि र विवादको विषय स्पष्ट रूपमा पहिचान गरी लिखित रूपमा प्रस्तुत गर्नुपर्दछ।

2. सक्षम र योग्य परामर्शदाताको चयन: सम्बन्धित विषयमा विशेषज्ञता र अनुभव भएको, इजाजतपत्र प्राप्त (licensed) वकिल वा कानुनी सल्लाहकारबाट मात्र परामर्श लिनुपर्दछ।

3. सान्दर्भिक कानुन तथा नजिरको अध्ययन: प्रचलित कानुन, ऐन, नियम, विनियम तथा सर्वोच्च अदालतका पूर्वनिर्णय (नजिर) को आधारमा परामर्श दिनुपर्दछ।

4. तथ्यको पूर्ण र सत्य प्रस्तुतीकरण: अपूर्ण वा भ्रामक तथ्यका आधारमा दिइएको परामर्श त्रुटिपूर्ण हुने हुँदा सबै सान्दर्भिक तथ्य अझै पेश गर्नुपर्दछ।

5. क्षेत्राधिकार (Jurisdiction) को विचार: परामर्श दिने निकाय वा अधिकारीको क्षेत्राधिकार भित्रको विषय हो वा होइन भनी सुनिश्चित गर्नुपर्दछ।

6. समयसीमा (Limitation) को जाँच: मुद्दा दायर गर्ने वा कारबाही गर्ने हदम्याद बितिसकेको छ वा छैन भनी हेर्नुपर्दछ।

7. लिखित रूपमा परामर्श लिनु: मौखिक परामर्शको सट्टा लिखित परामर्श लिनुपर्दछ, जसले भविष्यमा प्रमाणको रूपमा काम गर्दछ।

8. निष्पक्षता र स्वतन्त्रता: परामर्शदाता पक्षपातरहित र स्वतन्त्र हुनुपर्दछ; स्वार्थ बाझिने (Conflict of Interest) अवस्था हुनु हुँदैन।

9. गोपनीयता (Confidentiality): परामर्शको विषय र सामग्री गोपनीय राख्नुपर्दछ।

10. व्यावहारिक कार्यान्वयनयोग्यता: परामर्श सैद्धान्तिक मात्र नभई व्यवहारमा लागू गर्न सकिने, स्पष्ट र कार्यान्वयनयोग्य हुनुपर्दछ।

11. संस्थागत प्रक्रिया तथा अधिकार: संस्थामा कानुनी सल्लाहकार नियुक्त भएको अवस्थामा तोकिएको प्रक्रिया र अधिकारक्षेत्रभित्र रही परामर्श लिनुपर्दछ।

12. परामर्शको अभिलेखीकरण: प्राप्त परामर्श, त्यसको आधार र लिइएको निर्णयको अभिलेख व्यवस्थित रूपमा राख्नुपर्दछ।

निष्कर्ष: कानुनी परामर्श लिँदा तथ्यको सत्यता, कानुनी आधार, परामर्शदाताको योग्यता, क्षेत्राधिकार, हदम्याद तथा गोपनीयतालाई प्रमुख रूपमा विचार गर्नुपर्दछ।

Things to Be Considered While Drafting a Written Statement (Memorandum of Response)

A written statement (प्रतिवाद–ज्ञापन / memorandum of response) is the formal reply filed by the defendant/opposite party to the plaint or application of the plaintiff/petitioner. Under the Civil Procedure Code, 2074 (Sec. 22) and the Administrative Procedure Act, 2076 (Sec. 20), the opposite party must file the written statement within the prescribed period (generally 30 days). The following matters should be considered while drafting it:

1. Preliminary/Technical Matters

• Whether the written statement is being filed within the limitation period prescribed by law; if delayed, attach a petition for extension of time with sufficient reasons.
• Mention the name and address of the court/body, case number, and names and addresses of both parties correctly.
• Verify the jurisdiction of the court/body and raise objection to jurisdiction if it lacks competence.
• Check whether the court fee and other procedural requirements have been fulfilled.

2. Formal Structure of the Statement

• Begin with the subject (विषय) and the reference of the plaint/application.
• Include a preliminary objection section (प्रारम्भिक आपत्ति) and a reply on the merits section (तथ्यगत जवाफ).
• End with a prayer/request (निवेदन) stating what order the party seeks, and sign with name, designation, date and address.

3. Reply to Each Claim

• Deal with each paragraph/claim of the plaint separately — admit what is true, deny what is false, and state what is not within knowledge.
• Do not make vague or evasive denials; a claim not specifically denied may be deemed admitted.
• Present the defendant's own version of facts clearly and in chronological order.

4. Legal and Factual Grounds

• Raise all legal defences (limitation, res judicata, estoppel, non-joinder/mis-joinder of parties, lack of cause of action, etc.) at the earliest stage.
• Cite the relevant laws, sections, precedents and evidence in support of the defence.
• Attach supporting documents (receipts, agreements, notices, evidence list) as annexures.

5. Counter-Claim and Set-Off

• If the defendant has a claim against the plaintiff, include it as a counter-claim (प्रतिदाब) in the same written statement, with its own facts and prayer.

6. Language and Presentation

• Use simple, clear, unambiguous and legally precise language; avoid emotional, abusive or irrelevant statements.
• Keep the statement to the point, well-organised and free from contradictions.
• Ensure correct spelling of names, dates, amounts and legal terms.

7. Verification and Submission

• Add a verification clause (सत्यता प्रमाणित) confirming the facts stated are true to the best of knowledge and belief.
• File the required number of copies (one for the court and one for each opposite party) and obtain the receipt/date stamp of the court or body.

Conclusion: A well-drafted written statement must be timely, complete, specific, legally sound and properly verified, so that the defendant's case is not weakened by procedural defects or unintended admissions.

Substantive Law vs. Procedural Law

Conclusion: Substantive law gives the right; procedural law gives the remedy. Both are complementary — substantive law is the soul and procedural law the body of the legal system.

Differences among Judicial, Quasi-Judicial and Administrative Bodies

1. Judicial Bodies

• These are the courts established by the constitution or law to administer justice (e.g., Supreme Court, High Court, District Court).
• They decide disputes between parties by interpreting the law and applying legal principles.
• They follow a strict, formal procedure (pleadings, evidence, cross-examination, judgment).
• Their decisions are binding, create precedents, and are generally final, subject only to appeal in a higher court.
• They are independent of the executive and enjoy security of tenure; they exercise full judicial power, including contempt power.
• Their main function is adjudication of legal disputes, not policy implementation.

2. Quasi-Judicial Bodies

• These are administrative authorities vested with some judicial or semi-judicial powers to decide certain matters (e.g., Revenue Tribunal, Public Service Commission in disciplinary cases, Labour Court-type bodies, departmental committees).
• They decide disputes or cases but are not full courts; they are created by statute and exercise only the powers given by that statute.
• They follow a procedure that is partly judicial and partly administrative — often simpler, with no strict rules of evidence.
• Their decisions are binding on the parties but do not create general legal precedents; they are subject to appeal or review by courts (judicial review).
• They are usually part of the executive or an independent statutory authority and may also perform administrative functions.
• Their main function is to settle specific disputes or claims arising under their governing law.

3. Administrative Bodies

• These are organs of the executive that implement laws, policies and programmes (e.g., ministries, departments, district administration offices).
• They perform mainly executive or managerial functions — rule-making (subordinate legislation), service delivery, licensing, inspection, etc.
• They do not adjudicate disputes as their primary function; any decision-making is administrative in nature.
• Their actions are subject to judicial review, but they do not exercise judicial power as such.
• They are subordinate to the executive and work under the direction and control of the government.
• Their main function is administration and policy execution, not settlement of legal disputes.

Summary of Differences

Thus, judicial bodies exercise full judicial power, quasi-judicial bodies exercise limited adjudicatory power within statutory limits, and administrative bodies mainly implement laws and policies.

Matters to be Clarified When Submitting the Statement of Defense of a Claim

In the statement of defense (प्रतिवाद) submitted in response to a claim (दाबी), the following matters must be clearly clarified:

1. Whether the claim is admitted or denied — Each and every allegation made in the claim must be separately and specifically admitted or denied; a general denial of the whole claim is not sufficient.

2. Grounds of defense — The legal and factual grounds on which the claim is being opposed must be clearly stated, along with the reasons why the defendant is not liable.

3. New facts relied upon — Any additional facts (such as payment already made, limitation, fraud, coercion, or discharge of obligation) which the defendant intends to rely upon must be expressly pleaded.

4. Set-off or counter-claim — If the defendant has any amount to be set off against the claim, or any separate counter-claim against the plaintiff, this must be clarified with its basis and amount.

5. Jurisdiction and maintainability — Objections regarding the jurisdiction of the court, limitation period, non-compliance with legal notice, or the claim being time-barred should be raised at this stage.

6. Relief sought — The specific relief or order the defendant seeks (dismissal of the claim, set-off, counter-claim, etc.) must be clearly mentioned.

7. Verification and supporting documents — The statement of defense must be verified as required by law, and the list of documents and witnesses relied upon must be attached.

8. Time limit — The statement of defense must be submitted within the prescribed time limit (generally within 30 days from the date of receipt of the notice of claim, or as extended by the court), and the date of receipt of the claim notice should be clarified.

Conclusion: A statement of defense must be specific, clear, and complete — admitting what is true, denying what is false, and raising all legal and factual grounds of defense, set-off, and counter-claim, so that the court can frame the issues properly.

Attorney (अधिवक्ता)

An attorney is a legal practitioner who is licensed to give legal advice and to represent a party before a court or other judicial body. In Nepal, he or she is a person whose name is enrolled in the roll of the Nepal Bar Council, which is entitled to plead on behalf of a client. The main functions are to give legal advice, draft legal documents (plaints, petitions, deeds, agreements), represent clients in court, and help the court in the administration of justice.

Qualifications to become an attorney

Under the Nepal Bar Council Act, 2050 and the rules made under it, a person must:

1. be a citizen of Nepal;
2. have completed 21 years of age;
3. hold at least a Bachelor's degree in Law (LL.B.) from a recognised university;
4. complete the training prescribed by the Bar Council;
5. pass the licence examination conducted by the Nepal Bar Council;
6. have his or her name enrolled in the roll of advocates and obtain a licence; only then can he or she practise;
7. be of good moral character and not have been convicted of an offence involving moral turpitude, and not be disqualified by any other law.

Conclusion: an attorney is a licensed lawyer of the Nepal Bar Council. To become one, a Nepali citizen of at least 21 years must hold a law degree, complete the training, pass the licence examination and be enrolled in the roll.

Section 3 of the Evidence Act, 2031 provides that a court may take notice of certain matters on its own, without requiring a party to prove them by evidence (the principle of judicial notice). Such matters include:

1. Laws: the laws in force in Nepal, including the Constitution, Acts, rules and notices published in the Nepal Gazette.
2. Public and official acts: matters shown by the Gazette and official notices of the Government, and the seals and signatures of the courts and public officials.
3. State and territory: the sovereignty and territorial divisions of Nepal, the national symbols, and the existence and status of the State and recognised foreign States.
4. Common knowledge: facts which are so well known that they cannot reasonably be disputed, such as the calendar, public holidays, natural events and the ordinary course of nature.
5. Customs and practice of the court: the court's own jurisdiction, procedure and past decisions, and rules of the Supreme Court.

Facts so recognised need not be proved. The court may refer to appropriate books or documents for its own information, and if it is not satisfied about a matter, it may require the party to present proof.

Differences between the warrant for detention and the warrant for imprisonment

Conclusion: In short, the warrant for detention relates to custody during the pre-trial stage of an accused whose guilt is not established, whereas the warrant for imprisonment relates to custody after conviction, for the execution of the sentence passed by the court.

Responsibilities of a Clerk (Peskar)

In the Nepali civil service structure, the Peskar (Clerk) is a non-gazetted, Level 4 (Kharidar-level) post that forms the base of the administrative machinery. The Peskar works directly under the Nayab Subba (Section Officer) and performs routine, day-to-day office work. The main responsibilities are:

1. Correspondence and Record Keeping

• Receiving, registering (darta) and dispatching (chalan) letters, files and documents.
• Maintaining the darta–chalan register, file register, and other office registers.
• Keeping files, records and documents safe and in proper order.

2. Drafting and Typing

• Drafting simple letters, notices, reminders and replies as instructed.
• Typing and preparing fair copies of official letters, reports and statements.
• Photocopying, scanning and preparing required copies of documents.

3. File Management

• Placing letters and documents in the concerned files (milan).
• Taking files to the concerned officer for decision and returning them to the record section.
• Assisting in tracing and retrieving old files and records when required.

4. Assistance in Office Administration

• Assisting the Nayab Subba/Section Officer in daily administrative work.
• Preparing agendas, notices and minutes of meetings as directed.
• Maintaining stationery, office supplies and their stock register.

5. Service Delivery to the Public

• Receiving applications and queries from service seekers and forwarding them to the concerned authority.
• Providing information on the status of applications and services.
• Helping in the registration of applications and issuance of receipts.

6. Accounts and Miscellaneous Duties

• Assisting in preparing simple bills, vouchers and financial statements.
• Maintaining attendance, leave and other personnel records of the office.
• Performing any other duty assigned by the immediate superior or the head of office.

Conclusion: The Peskar is the backbone of the office's routine functioning. Although the duties are of a supporting nature, the efficiency of the whole office largely depends on the promptness, accuracy and discipline with which the Clerk performs them.

Differentiated Case Management (DCM) System — Features, Importance and Suggestions

Introduction

Differentiated Case Management (DCM) is a case-flow management technique under which cases filed in a court are screened at the time of registration and, on the basis of their nature, complexity, urgency and the time legally required for their disposal, are divided into different tracks (for example, fast track, standard track and complex track). Each track is then given its own timetable, judge, and procedural treatment. In Nepal, this concept has been introduced through the case management reforms of the Supreme Court and is reflected in the Court Management Strategic Plan and the periodic plans of the judiciary, with the aim of reducing case backlog and ensuring timely justice.

Features of the DCM System

1. Early screening and triage of cases: Every case is examined at the filing stage and classified into a track according to its type and complexity.
2. Differentiated time limits: Fast-track cases (e.g. bail, remand, small claims, cheque cases) get short time limits, while complex cases (e.g. land acquisition, company disputes) get longer limits.
3. Individual case calendar: Each case is given a definite date and time for hearing, avoiding the practice of listing many cases on the same day.
4. Continuity of the judge: As far as possible the same judge hears the case from beginning to end, which prevents repetition of evidence and argument.
5. Active role of the court: The bench or the registrar monitors the progress of the case instead of leaving it to the parties and their lawyers.
6. Limited and controlled adjournments: Adjournments are granted only on reasonable grounds and are recorded, so that delay is discouraged.
7. Settlement-oriented approach: Cases suitable for mediation and conciliation are referred to mediation under the Mediation Act, 2065 and the rules made thereunder.
8. Use of information technology: Case information, cause lists, and hearing dates are managed through the Case Management Information System (CMIS) and the e-court system.
9. Periodic monitoring and reporting: The performance of each track is reviewed through statistics on disposal rate, pendency and average case life.
10. Flexibility: Tracks and time limits can be revised according to changes in the volume and nature of cases.

Importance of the DCM System

1. Reduces case backlog: By disposing of simple cases quickly, it prevents the accumulation of pending cases.
2. Ensures speedy and timely justice: It gives effect to the constitutional right to speedy trial and to the concept of justice within a reasonable time.
3. Optimum use of limited resources: Scarce judicial time, staff and courtrooms are used according to the priority of cases.
4. Reduces unnecessary cost and hardship to litigants: Fewer hearings mean less expense, travel and loss of income for the parties and witnesses.
5. Improves quality of adjudication: Complex cases get adequate time and attention, so reasoned and reliable judgments result.
6. Increases predictability and transparency: Litigants know in advance when their case will be heard, which strengthens public trust in the judiciary.
7. Promotes mediation and alternative dispute resolution: Minor and relational disputes are settled amicably, reducing the burden on regular courts.
8. Supports good governance and rule of law: An efficient justice system is a precondition for investment, economic activity and accountability.
9. Helps in evidence preservation: Early and continuous hearings reduce the risk of witnesses forgetting facts or becoming unavailable.
10. Enhances accountability of judges and court staff: Clear time limits make performance measurable.

Constructive Suggestions for Effectiveness

1. Legal backing: Give DCM a clear statutory basis through amendment of the Administration of Justice Act, 2073 and the Supreme Court Rules, so that tracks and time limits are binding.
2. Scientific screening criteria: Prepare objective criteria for classifying cases and entrust screening to trained court officers under judicial supervision.
3. Adequate human resources: Fill vacant posts of judges and court staff, and provide regular training on case management and information technology.
4. Strengthen mediation: Expand mediation centres, train and certify mediators, and provide incentives so that suitable cases are actually referred and settled.
5. Improve infrastructure and IT: Ensure reliable power, internet and full implementation of the Case Management Information System in all courts, including district courts.
6. Strict adjournment policy: Limit adjournments by rule, impose costs for unnecessary adjournments, and publish data on adjournments granted.
7. Performance monitoring: Publish periodic reports on pendency, disposal rate and average duration of cases by track, and link promotion and transfer of judges partly to these indicators.
8. Coordination with stakeholders: Hold regular consultations with the Nepal Bar Association, the Attorney General's office, the Public Prosecutor's office and the police to reduce unnecessary delays at the pre-trial stage.
9. Pilot and gradual expansion: Test the system in selected courts, learn from the results, and then expand it in a phased manner.
10. Public awareness: Inform litigants about their hearing dates through SMS, notice boards and websites so that absence of parties does not cause delay.

Conclusion

The DCM system is an effective tool of judicial reform that classifies cases according to their nature and urgency and disposes of them within fixed time limits. It reduces backlog, saves the time and money of litigants, and enhances the credibility of the judiciary. However, its success depends on statutory backing, adequate resources, trained manpower, strong information technology and continuous monitoring. If these conditions are fulfilled, DCM can make the justice system of Nepal speedy, accessible and trustworthy.

Constitutional Role of the Chief Attorney

The Chief Attorney (मुख्य न्यायाधिवक्ता) is the chief legal adviser to the Provincial Government. The institution of Chief Attorney is provided in the Constitution of Nepal, 2072 under Part 12 (Provincial Executive) — specifically Article 160.

Constitutional provisions relating to the Chief Attorney:

1. Appointment (Art. 160(1)): The Chief Minister of the Province appoints the Chief Attorney on the recommendation of the Provincial Minister of Law.

2. Qualification (Art. 160(2)): The person to be appointed as Chief Attorney must possess the qualifications of a Judge of the High Court.

3. Tenure and Removal (Art. 160(3)): The Chief Attorney holds office during the pleasure of the Chief Minister. He/She may be removed by the Chief Minister at any time.

4. Functions and Duties (Art. 160(4)): The Chief Attorney gives legal advice on constitutional and legal matters to the Provincial Government; and performs other legal duties as specified by the Provincial Government or the Provincial law.

5. Appearance in Court (Art. 160(5)): The Chief Attorney or a legal practitioner designated by him/her may plead on behalf of the Provincial Government in any court or judicial body.

6. Status and Facilities (Art. 160(6)): The Chief Attorney is entitled to the salary and facilities equivalent to that of a Provincial Minister.

7. Other conditions of service: Determined by the Provincial Government (Art. 160(7)).

In short: The Chief Attorney is the constitutional legal adviser and advocate of the Province, appointed by the Chief Minister, holding a rank equivalent to a Provincial Minister, and removable at the pleasure of the Chief Minister.

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Required Qualifications for Appointment as Chief Attorney

As per Article 160(2) of the Constitution, a person must possess the qualifications of a Judge of the High Court as laid down in Article 149 of the Constitution. Accordingly, the required qualifications are:

1. Citizenship: Must be a citizen of Nepal.

2. Legal Qualification and Experience: Must have obtained a Bachelor's degree in Law from a recognized university and have at least eight years of experience as a Judge, Government Attorney, or legal practitioner; OR

3. Must have served at least eight years as an officer of the Judicial Service in the post of Gazetted First Class or above, or in a higher post; OR

4. Must be a renowned jurist having at least fifteen years of experience as a teacher of law or legal practitioner of high reputation.

5. Age: Must have completed 35 years of age.

6. Disqualifications: The person must not be disqualified under Article 149(4) — i.e., he/she must not:

   • be convicted of a criminal offence involving moral turpitude;
   • be a defaulter of government dues;
   • be blacklisted for failing to clear government dues;
   • hold any office of profit;
   • be a member of any political party;
   • be disqualified by any other law.

Conclusion: The Chief Attorney is a constitutional office of the Province whose holder must be a Nepali citizen of at least 35 years of age, possessing a Bachelor's degree in Law with eight years of relevant legal experience (or equivalent service/teaching experience), and free from the disqualifications mentioned in Article 149(4).

The Higher Government Attorney Office works in the jurisdiction of each High Court under the Attorney General, and the Joint Attorney is a senior gazetted officer who assists the Higher Government Attorney. Under the Attorney General Act and the Government Cases Act, 2049, the functions, duties and powers are as follows.

1. Conduct of cases: prepare, plead and defend cases in which the Government of Nepal is a party before the High Court, and handle appeals, revision and writ petitions of the Government.
2. Opinion on filing: study the files sent from district government attorney offices, and give an opinion on whether an appeal should be filed against a decision.
3. Supervision and direction: under the Higher Government Attorney, supervise and give directions to the district government attorney offices in their jurisdiction on the conduct of cases.
4. Legal advice: give legal advice to government offices and bodies on matters referred to the office.
5. Review and monitoring: monitor the progress of cases, the enforcement of judgments and the recovery of fines and compensation, and report to the Attorney General.
6. Legal documents: examine and vet agreements, notices and other legal documents sent for opinion.
7. Delegated duties: perform the functions and use the powers delegated to him or her by the Higher Government Attorney, the Attorney General or the Government of Nepal.

Salient features of the Muluki Civil Code, 2074

The Muluki Civil Code, 2074 (in force from Bhadra 1, 2075, i.e. August 2018) replaced the civil provisions of the old Muluki Ain, 2020. Its salient features are:

1. Codification of civil law: it brings together the law on persons, family, marriage, property, succession, contract and civil wrongs in one Code, ending scattered and conflicting provisions.
2. Uniform and non-discriminatory: it applies to all citizens alike, without discrimination on the ground of religion, caste, sex or community, and abolishes caste-based untouchability and discriminatory practices.
3. Gender equality: sons and daughters have equal rights in ancestral property, and a woman's own property (stridhan) is protected.
4. Marriage and family: the minimum age of marriage is 20 years for both men and women; polygamy is prohibited; marriage and divorce are regulated and registered; maintenance of spouse and children is secured.
5. Property and ownership: it defines ownership and possession, partition of joint family property, and the registration and transfer of immovable property.
6. Contract and obligations: it contains rules on formation, performance and breach of contract, and compensation for civil wrongs.
7. Succession and will: it provides for intestate succession and for wills, with limits on the portion that can be disposed of by will.
8. Adoption and guardianship: it sets conditions for adoption and for the guardianship of minors and their property.
9. Persons: it provides for missing persons and their property, and recognises juristic persons.
10. Limitation: it fixes the time limits for civil claims, giving legal certainty.

In short, the Code is a modern, uniform and rights-based civil law that supports equality and protects civil rights in Nepal.

Under the Criminal Offences (Sentencing and Execution) Act, 2074, the court must consider the following matters while determining the punishment:

1. The nature and gravity of the offence.
2. The motive and intention of the offender.
3. The circumstances in which the offence was committed.
4. The degree of participation of the offender, and the part played by each offender.
5. The age of the offender.
6. The offender's physical and mental condition.
7. The offender's previous conduct and criminal record.
8. The condition of the victim, and the harm and loss caused.
9. Whether the offender has compensated or made good the harm to the victim.
10. Other relevant matters (mitigating and aggravating factors).

The punishment given must be within the limits set by the law for that offence, and the court must state the reasons for the punishment it gives.

Weaknesses in Government Plaintiff Criminal Cases and Measures for Improvement

Introduction

In Nepal, criminal cases are classified into government plaintiff cases (सरकारी वादी) and private plaintiff cases. In government plaintiff cases — such as murder, rape, trafficking, corruption, drug offences and offences against the State — the State itself is the plaintiff, and the case is investigated by Nepal Police and prosecuted by the Government Attorney (Sarkari Wakil) under the Office of the District Attorney. The conviction rate in such cases has remained low, with a large share ending in acquittal. This is largely due to weaknesses at three stages: investigation, prosecution and defense.

Weaknesses in Investigation

1. Delay in investigation — Late registration of the First Information Report (FIR), delayed visit to the crime scene and slow collection of evidence allow evidence to be destroyed or tampered with.
2. Failure to secure the crime scene — Lack of proper sealing, photography, sketching and sample collection; outsiders contaminate the scene.
3. Weak forensic capacity — Only a central forensic laboratory in Kathmandu, shortage of DNA, ballistics and cyber-forensic experts, and long delays in obtaining expert reports.
4. Broken chain of custody — Exhibits are not properly labelled, sealed, stored or handed over, so their evidentiary value is lost in court.
5. Over-reliance on confession and oral testimony — Physical, documentary and scientific evidence is neglected; statements are recorded without following the procedure of the Criminal Procedure Code.
6. Lack of trained manpower and technology — Insufficient investigators, poor use of CCTV, call detail records, bank statements and digital evidence.
7. Negligence, corruption and political pressure — Weak supervision, no accountability for faulty investigation, and influence in sensitive cases.
8. Poor police–prosecution coordination — Incomplete case files, late submission to the District Attorney, and the investigating officer often unavailable for cross-examination.

Weaknesses in Prosecution

1. Weak screening of cases — Cases are filed without sufficient, admissible evidence, resulting in acquittal.
2. Overburdened government attorneys — Too many cases per legal officer, inadequate supporting staff and legal researchers.
3. Frequent transfers and lack of continuity — The attorney who prepares the case is often transferred before the trial concludes.
4. Failure to produce witnesses and exhibits — Witnesses turn hostile due to threats, inducement or long adjournments; exhibits are not presented on time.
5. Weak examination and cross-examination — Lack of preparation, poor use of scientific evidence and expert witnesses.
6. Delay in appeal — Acquittals are not appealed within the limitation period, or appeals are filed without proper grounds.
7. Corruption and political interference — Decisions to prosecute or not to prosecute are sometimes influenced improperly.

Weaknesses in Defense

1. Inability to afford competent counsel — Most accused persons are poor and depend on legal aid.
2. Weak legal aid system — Legal aid lawyers are overburdened, underpaid and lack time and resources; aid is generally available only at the trial stage, not during interrogation.
3. Unawareness of rights — The accused is often not informed of the right to counsel and the right against self-incrimination.
4. No independent defense investigation — Defense witnesses, expert opinions and rebuttal evidence are rarely collected.
5. Weak presentation in court — Poor cross-examination and inadequate presentation of the defense version.
6. Weak government defense in appeal/revision — The State's own follow-up and defense of its case in higher courts is often careless and delayed.

Measures for Improvement

In investigation:

• Establish regional forensic laboratories with modern equipment and sufficient experts; ensure timely reports.
• Develop specialized units for cyber, financial and forensic investigation, with regular training.
• Make crime-scene preservation and chain-of-custody documentation mandatory.
• Strengthen use of technology — CCTV, GPS, digital evidence and database systems.
• Introduce performance evaluation and disciplinary action for negligent investigation.
• Ensure police–prosecution coordination from the beginning through joint case review.

In prosecution:

• Strengthen evidence screening so that only evidence-backed cases go to court.
• Increase the number of government attorneys and support staff; allow specialization by case type.
• Ensure stability of posting and continuity of the same attorney through trial and appeal.
• Introduce a witness protection programme and victim–witness support services.
• Provide continuous training, legal research support and digital case management.
• File and monitor appeals against acquittals within time; keep political interference out.

In defense:

• Strengthen the legal aid system with adequate budget, more lawyers and fair remuneration.
• Extend legal aid to the investigation and interrogation stage through duty counsel at police stations.
• Promote awareness of legal rights and pro bono practice; use law school legal aid clinics.
• Provide access to expert evidence and investigation support for indigent accused.

Conclusion

The low conviction rate in government plaintiff criminal cases is not the failure of any single agency but of the whole chain — weak investigation, weak prosecution and weak defense. Professionalisation, scientific investigation, stable and well-resourced prosecution, and effective legal aid, supported by accountability and freedom from political interference, are essential to improve the success rate and to deliver justice to both the victim and the accused.

Procedural Law

Procedural law (कार्यविधि कानून) is that branch of law which prescribes the procedure — the manner, method and steps — by which substantive rights and duties are enforced through the courts or other legal bodies. It lays down how a case is to be filed, heard, tried, evidenced and decided. It does not create or define rights and duties themselves; it only provides the machinery for their enforcement. For example, the National Civil Code (Muluki Civil Code) defines rights of ownership (substantive law), while the Civil Procedure Code prescribes how a suit for ownership is to be filed and decided (procedural law).

In short, substantive law tells us what the law is; procedural law tells us how the law is applied and enforced.

Basic Principles of Procedural Law

1. Principle of Natural Justice — No person shall be a judge in his own cause (nemo judex in causa sua), and both parties must be given a fair opportunity to be heard (audi alteram partem).

2. Right to Fair Hearing / Opportunity of Being Heard — Every party must get a reasonable chance to present his case, evidence and arguments before a decision is made against him.

3. Impartial and Independent Adjudicator — The deciding authority must be neutral, unbiased and free from personal interest in the dispute.

4. Rule of Equality of Parties — Both the plaintiff and the defendant (or the parties in any proceeding) are treated equally; no party is given undue advantage over the other.

5. Principle of Natural Justice in Evidence — A party must be informed of the evidence and materials brought against him and must be allowed to rebut or cross-examine them.

6. Reasoned Decision — The decision must be based on the evidence and legal provisions, and should ordinarily be supported by reasons so that it can be tested on appeal or review.

7. Right to Appeal and Review — A party aggrieved by a decision must have the right to appeal or seek review before a higher authority, as provided by law.

8. Speedy and Inexpensive Justice — Proceedings should be simple, less costly and completed within a reasonable time so that justice is not delayed or denied.

9. Presumption of Innocence — In criminal proceedings, the accused is presumed innocent until the charge is proved beyond reasonable doubt by the prosecution.

10. Burden of Proof on the Claimant — The party who asserts a fact must prove it; generally, the plaintiff or the prosecution bears the burden of proof.

11. Publicity and Transparency — Trials and proceedings should generally be open and transparent, except where the law provides for closed proceedings.

12. Finality of Judgment — Once all legal remedies are exhausted, the decision becomes final and binding on the parties.

These principles ensure that procedural law works as a handmaid of justice, not as a hurdle, and that every person gets fair, equal and impartial treatment in legal proceedings.

Judicial and administrative bodies differ fundamentally in their nature, purpose, and procedure. The basic differences between their functions are as follows:

1. Nature of Function

• Judicial bodies: Perform judicial functions — they adjudicate disputes between parties and declare what the law is. Their function is essentially adjudicatory and declaratory.
• Administrative bodies: Perform executive/administrative functions — they implement laws, formulate policies, and manage public affairs. Their function is primarily regulatory, managerial, and discretionary.

2. Purpose

• Judicial bodies: Aim to settle legal disputes, punish offenders, and enforce rights and liabilities according to law.
• Administrative bodies: Aim to achieve the objectives of the government, maintain public order, and promote public welfare through policy execution.

3. Initiation of Proceedings

• Judicial bodies: Generally act only when a case is brought before them by an aggrieved party (passive/reactive role). They do not initiate proceedings suo motu except in rare cases.
• Administrative bodies: Can act on their own initiative (suo motu) to enforce laws, conduct inspections, or take policy decisions.

4. Procedure

• Judicial bodies: Follow a strict, formal, and rigid procedure prescribed by law (e.g., Civil Procedure Code, Criminal Procedure Code). Principles of natural justice and evidence law are strictly applied.
• Administrative bodies: Follow a flexible, informal, and less rigid procedure. They are not bound by strict rules of evidence and procedure, though they must observe fairness and natural justice.

5. Discretion

• Judicial bodies: Have limited discretion; they are bound by precedent and statutory provisions. Their decisions must be based on law and evidence.
• Administrative bodies: Enjoy wide discretionary powers in policy-making and implementation, subject to constitutional and legal limits.

6. Decision-Making

• Judicial bodies: Decisions are binding and enforceable; they create precedents (in common law systems) and have res judicata effect.
• Administrative bodies: Decisions are generally administrative orders or rules; they may be reviewed by courts or appellate authorities. They do not create binding precedents in the strict sense.

7. Accountability

• Judicial bodies: Accountable through judicial review, appeals, and constitutional provisions; independent of the executive.
• Administrative bodies: Accountable to the executive, legislature, and ultimately to the people through political and administrative mechanisms.

8. Independence

• Judicial bodies: Enjoy independence and impartiality; judges have security of tenure and fixed salaries.
• Administrative bodies: Work under the control and direction of the executive; their members serve at the pleasure of the appointing authority.

9. Finality of Decision

• Judicial bodies: Decisions are generally final and conclusive, subject only to appeal or review.
• Administrative bodies: Decisions are subject to appeal, revision, or judicial review; they lack finality in the same sense.

10. Examples

• Judicial bodies: Supreme Court, High Court, District Courts, tribunals exercising judicial functions.
• Administrative bodies: Ministries, departments, commissions, boards, and other executive agencies.

In summary, judicial bodies are independent, adjudicatory, and bound by strict legal procedure, while administrative bodies are executive in nature, policy-oriented, discretionary, and subject to executive control and judicial review.

By-laws

By-laws (विनियम) are the rules and regulations framed by an organisation itself — a company, cooperative, society, bank or local body — for the internal management of its own affairs. They are made under the authority given by the main law (the parent Act) and are approved by the prescribed authority. By-laws are subordinate legislation: they must not conflict with the parent Act or the Constitution, and they apply only within the organisation concerned.

Matters generally included in by-laws

1. Name, address and objectives of the organisation, and the area of its operation.
2. Membership — qualifications for membership, procedure of admission, rights, duties, fees and termination of membership.
3. Governing body / board — its size, composition, manner of election or nomination, term of office and powers.
4. Meetings — types of meetings (general assembly, board meeting), notice period, quorum, agenda and decision-making procedure.
5. Officials and employees — appointment, duties, powers, remuneration, leave and conditions of service of the chief executive and other staff.
6. Financial matters — sources of income, capital, share or subscription, budget, accounts, audit and financial discipline.
7. Property and funds — acquisition, use, protection and disposal of property and reserve funds.
8. Functions and duties of the organisation and the procedure of its day-to-day business.
9. Amendment of by-laws — who may propose and which authority approves the amendment.
10. Dissolution — procedure for winding up and settlement of liabilities and assets.
11. Miscellaneous — seal of the organisation, records and registers to be kept, and penalties for breach of by-laws.

In short, by-laws lay down the organisational structure, working procedure and code of conduct of an institution, and thereby make its internal administration orderly, transparent and accountable.

Writ (Rit)

Introduction

A writ is a formal written order issued by a court of record — in Nepal, by the Supreme Court or a High Court — commanding a person, authority or body to do or refrain from doing a certain act. It is the principal procedural means through which courts exercise judicial review over the actions of the executive and other public authorities.

In Nepal, writ jurisdiction is a constitutional power. Article 133 of the Constitution of Nepal (2072) empowers the Supreme Court to issue writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto for the enforcement of fundamental rights and for other legal rights. Article 144 gives the High Courts similar writ jurisdiction within their respective territorial areas. The Supreme Court has the final authority to interpret the Constitution and to settle constitutional disputes, and writs are the principal instrument for that purpose.

The five writs and their nature:

Writs are thus the "prerogative writs" inherited from English common law, adapted in Nepal as constitutional remedies. They are extraordinary remedies — available only when ordinary remedies are inadequate or absent — and are discretionary in nature. The court may refuse a writ if there is an alternative remedy, if the petitioner has no legal standing, or if the matter is academic or premature.

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Check List of Matters to be Considered while Preparing a Memorandum of Response

A memorandum of response (jabab patra) is the written reply filed by the respondent (opposite party) in a writ petition. The following matters should be considered while preparing it:

1. Preliminary matters

• Whether the writ petition is maintainable at all (locus standi of the petitioner, existence of a legal right, availability of alternative remedy).
• Whether the petition is barred by limitation, res judicata, or the doctrine of waiver/acquiescence.
• Whether the proper respondent has been impleaded and whether the court has territorial and subject-matter jurisdiction.

2. Facts of the case

• Correct and complete statement of facts, correcting any misstatement or suppression of facts by the petitioner.
• Chronological narration of events with dates, reference numbers and documents.
• Admission of facts that are true, and specific denial of facts that are false — vague or evasive denial is not enough.

3. Legal grounds

• Jurisdiction and legal authority under which the respondent acted.
• Relevant constitutional provisions, statutes, rules, regulations, precedents and circulars.
• Whether the impugned action is administrative, quasi-judicial or judicial, and the appropriate standard of review.

4. Merits of the case

• Whether any fundamental right of the petitioner has actually been violated.
• Whether the action was taken in good faith, in the public interest, and in accordance with the principle of natural justice (audi alteram partem, no bias).
• Whether the petitioner has come with clean hands and whether the petition suffers from suppression or misstatement of material facts.

5. Relief and prayer

• Clear prayer for dismissal of the writ petition with costs.
• Any alternative or subsidiary prayer (e.g., remand, modification, or conditional relief).

6. Procedural and drafting requirements

• Compliance with the Supreme Court Rules, 2074 (format, court fee, number of copies, service on the petitioner).
• Verification/authentication of the memorandum and annexures.
• Signature of the authorized officer or advocate with registration number.
• Filing within the time allowed by the court and obtaining the dated receipt of filing.

7. Supporting documents

• Copies of the impugned order/decision, notices, correspondence, office records, and evidence relied upon.
• List of annexures in serial order, each marked and referred to in the body of the memorandum.

8. Language and presentation

• Clear, precise and respectful language; no argumentative or scandalous matter.
• Paragraph-wise reply corresponding to the paragraphs of the writ petition.
• Consistency between the facts stated and the documents annexed.

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Conclusion

A writ is a constitutional remedy issued by the Supreme Court or High Court to enforce fundamental and legal rights and to keep public authorities within the bounds of law. A memorandum of response must therefore be prepared carefully — covering maintainability, facts, legal grounds, natural justice, documentary support and procedural compliance — so that the respondent's case is presented fully and effectively before the court.

Differences between Evidence and Proof

Evidence is the raw material — facts, documents, statements or objects — placed before a court or authority to establish or disprove a disputed fact. Proof is the final result: the conviction in the mind of the adjudicating authority that the fact has been established to the required standard. In short, evidence is the means; proof is the end.

Examples:

1. Murder case — The blood-stained knife, the fingerprint report, the eyewitness's statement and the post-mortem report are evidence. When the court, after weighing all this, holds that the accused did commit the murder, that finding is proof.

2. Loan dispute — The promissory note signed by the debtor and the bank statement are evidence. The court's decree that the debt is due and recoverable is proof.

3. Weak evidence, no proof — If the prosecution produces only a witness who contradicts himself and no other material, there is evidence on record but no proof of guilt; the accused is acquitted.

4. Documentary example — A citizenship certificate produced to show age is evidence; the authority's satisfaction that the applicant is indeed of the claimed age is proof.

Conclusion: Evidence is the instrument, proof is the product. Good evidence generally leads to proof, but evidence alone does not guarantee proof — the court must be satisfied that the evidence is sufficient, relevant and credible.

Warrant for detention (thunuwa purji)

It is a written order of the court, issued during the investigation or trial of a criminal case, directing that the accused be kept in custody and not released until the court decides otherwise. It is issued when the accused has been produced before the court and, on the evidence, there are grounds to believe the accused committed the offence and may flee or tamper with evidence. The accused is still presumed innocent. The person is kept in a jail or other lawful custody until the case is decided or the court allows release on bail or tarekh.

Warrant for prison (kaidi purji)

It is a written order of the court, issued after the accused is convicted and sentenced to imprisonment, directing the jail authorities to receive and keep the convict in prison for the term fixed in the judgment. It states the offence, the term of imprisonment and its start date, and it is the authority by which the jail holds the convict. The person is now a convicted offender serving a punishment.

Differences

Conclusion

Both warrants authorise loss of liberty, but the detention warrant is a preventive, temporary measure before judgment, while the prison warrant is a punitive order after judgment.

The section officer (shakha adhikrit) heads a section of a court office, such as the case registration, decision-execution, accounts or records section, and works under the Registrar or the court's administrative head. The duties are fixed by law, court regulations and the orders of the judges or Registrar.

Functions and duties

1. Case work: receive petitions, plaints and applications, check that they are complete, correctly stamped and with the fee paid, and register them in the case register.
2. Date and notice management: fix hearing dates (tarekh) as ordered, prepare cause lists, and issue summons, notices and warrants for service.
3. Record keeping: keep case files, registers, exhibits and documents safe and in order, and prepare certified copies (naqal) of records.
4. Preparation for hearing: put case files before the judge with a short note of the facts, previous orders and any defects.
5. Orders and judgments: record orders, prepare judgments for signature and send copies to the parties and offices concerned.
6. Execution: follow up the execution of judgments, such as recovery, handing over of property and sending convicts to prison.
7. Accounts and administration: keep money, fees, fines and deposits accurately and report them as required, and handle correspondence, leave and attendance of the staff.
8. Supervision: supervise and guide the Nayab Subba, clerks and other staff, and give the Registrar periodic reports on the work, pending cases and problems.
9. Discipline and honesty: maintain secrecy, act without bias, and treat service seekers politely and fairly.

Powers

• To return a petition or document for correction of defects and to refuse to register one that does not meet legal requirements, subject to the right of the party to seek an order from the judge.
• To issue notices and certified copies and to sign documents as authorised.
• To direct and assign work to subordinate staff and to take them to account for neglect.
• To bring any delay, misconduct or irregularity to the notice of the Registrar or the judge.

A section officer has no judicial power and cannot decide any case.

Case Management Systems: Introduction and Impact on Case Flow

Introduction

A case management system (CMS) is a structured mechanism — manual or digital — for registering, tracking, processing, monitoring and disposing of cases (legal, administrative or service-related) from the point of entry to the final decision. In the context of Nepal's judicial and public administration, the major case management systems are:

1. Manual (Traditional) Case Management System

• Cases are registered in registers (diary, peshi register, faisala register) and files are physically maintained and moved by peshi staff.
• Information is retrieved from registers and file bundles; no central database exists.

2. Electronic/Digital Case Management System (e-CMS)

• Cases are entered into a computer database and given a unique case number; tracking is done through software.
• In Nepal, the Supreme Court's Case Management Information System (CMIS) and the e-Court system, along with the Integrated Case Management Information System (ICMIS) used in courts and quasi-judicial bodies, are examples. The Nepal Police uses the Crime Information Management System (CIMS), and the Public Service Commission uses an online application and result management system for its own "cases" (applications).

3. Hybrid Case Management System

• A mix of manual and electronic systems, where some stages are digitised (registration, cause list) while others remain paper-based. Most Nepali courts currently operate in this hybrid mode.

4. Specialised Case Management Systems

• Court-annexed mediation and plea bargaining systems, fast-track courts, and case flow management committees designed to handle specific categories of cases (e.g., commercial, corruption, gender-based violence).

Impact on the Case Flow System

Positive impacts:

1. Faster registration and disposal — automatic numbering, cause-list generation and date scheduling reduce clerical delay; cases are listed systematically instead of waiting in physical bundles.
2. Reduced case backlog — continuous monitoring of pending cases, ageing analysis and automatic alerts help courts and offices prioritise old cases.
3. Transparency and accountability — case status can be checked online by litigants; staff cannot easily hide or misplace files, reducing manipulation and corruption.
4. Accurate data and informed policy — reliable statistics on institution, disposal and pendency support better planning of judges, staff and infrastructure.
5. Efficient service delivery — online filing, e-payment of fees, SMS/email notification of hearing dates and digital copies of judgments save time and cost for service seekers.
6. Better monitoring of deadlines — statutory time limits (e.g., peshi dates, limitation periods) can be tracked automatically, reducing unnecessary adjournments.

Challenges/limitations:

1. Digital divide — poor internet, load-shedding and low digital literacy in rural areas limit access.
2. Incomplete digitisation — many courts still keep parallel manual records, duplicating work.
3. Data security and privacy risks — weak cybersecurity can expose sensitive case information.
4. Resistance to change — reluctance among staff and lack of trained manpower slow down implementation.
5. High initial cost — software, hardware and maintenance require sustained investment.

Conclusion

Case management systems have shifted case flow from a slow, register-based, person-dependent process to a faster, rule-based and trackable process. In Nepal, e-CMS has improved disposal rates and transparency, but its full benefit depends on reliable infrastructure, trained human resources and complete digitisation.

Answer:

Natural Justice — Definition:

Natural justice (also called natural law or fair play in action) is a fundamental principle of administrative law and good governance which means that a public authority, while taking any decision affecting the rights, interests or legitimate expectations of a person, must act fairly, reasonably and impartially. It is not a written rule of law but a body of unwritten, universal principles based on conscience, morality and the sense of fair dealing. In the Nepali context, the spirit of natural justice is reflected in Article 18 (Right to Equality), Article 20 (Right to Justice) and Article 27 (Right to Information) of the Constitution of Nepal, and in the Administrative Proceedings (Rules) Act, 2031 B.S.

Basic Rules (Principles) of Natural Justice:

The principle of natural justice rests mainly on two pillars — Nemo Judex in Causa Sua (rule against bias) and Audi Alteram Partem (rule of fair hearing). These are explained below:

1. Rule Against Bias — Nemo Judex in Causa Sua (No one shall be a judge in his own cause):

This rule means that the authority deciding a case must be impartial and must not have any personal interest in the matter. It has the following forms:

• Personal bias: The deciding officer has personal friendship, enmity or relationship with any party to the case. Example: An officer deciding a case in which his own relative is a party.
• Pecuniary bias: The officer has a financial interest in the outcome of the case.
• Subject-matter bias: The officer has already expressed an opinion or prejudged the issue, or is himself the complainant/prosecutor and also the judge.
• Departmental bias: The officer belongs to the same department whose action is under challenge.

The principle is that "justice must not only be done but must also appear to be done" (Rex v. Sussex Justices).

2. Rule of Fair Hearing — Audi Alteram Partem (Hear the other side):

This rule means that no person shall be condemned unheard. Before any adverse order is passed against a person, he must be given a fair and reasonable opportunity to present his case. Its main elements are:

• Notice: The affected person must be given prior, clear and adequate notice of the charges or the proposed action, mentioning the time, place and nature of the proceeding.
• Opportunity to present evidence: He must be allowed to produce oral and documentary evidence in his support.
• Opportunity to cross-examine: He must be allowed to cross-examine the witnesses produced against him.
• Right to be represented: He may be allowed to be represented by a lawyer or a representative, as provided by law.
• Reasoned decision: The order must be supported by reasons, and the decision must be based on the material on record, not on personal knowledge or secret evidence.

3. Other Supporting Rules:

• Rule of speaking orders: The authority must give reasons for its decision so that the affected party knows why the order was passed and can appeal if necessary.
• Rule of reasonable opportunity: The opportunity given must be real and effective, not merely a formality or an empty ritual.
• Rule of fair procedure: The procedure adopted must be just, transparent and free from arbitrariness, and the party must be informed of the case he has to meet.

Conclusion:

Thus, natural justice is the minimum standard of fairness which every administrative or quasi-judicial authority must follow. Its two pillars — the rule against bias and the rule of fair hearing — along with the duty to give reasons and to act reasonably, ensure that public administration does not become arbitrary and that the rights of citizens are protected. Observance of these rules increases public trust in the administration and is therefore regarded as the soul of good governance.

Application of Information Technology in Court Management

Introduction

Information Technology (IT) refers to the use of computers, software, networks and digital systems for collecting, storing, processing and transmitting information. In modern court management, IT has become an essential tool for making judicial administration speedy, transparent, accurate and accessible. In Nepal, the Supreme Court has introduced systems such as the Case Management Information System (CMIS), e-Court, video conferencing and the Court Information Management System (CIMS) to modernise court operations.

Major Applications of IT in Court Management

1. Case Registration and Case Management IT enables electronic registration of cases through systems like CMIS. Each case is given a unique registration number, and details such as parties, case type, hearing dates and bench allocation are recorded digitally. This reduces manual registers, avoids duplication and allows instant retrieval of case status.

2. Automated Cause List and Hearing Scheduling Software automatically prepares the daily cause list (peshi) and schedules hearings based on priority, case age and judge availability. This reduces adjournments, balances the workload of benches and helps lawyers and litigants know when their case will be heard.

3. Digital Record Keeping and Document Management Judgments, orders, pleadings and evidence can be scanned and stored electronically. This saves physical space, protects documents from loss or damage, and allows quick search and reference. The Supreme Court's judgment portal provides free online access to verdicts.

4. e-Filing and Online Services Parties and lawyers can file cases and documents electronically, pay court fees online and receive notices via SMS or email. This saves time, travel cost and paperwork, and reduces direct contact with court staff.

5. Video Conferencing and Virtual Hearings Video conferencing allows hearings, witness examinations and remand proceedings to be conducted remotely. This is especially useful for courts in remote districts, for prisoners in custody and during emergencies such as the COVID-19 pandemic.

6. Transparency and Public Access Websites and mobile applications publish case status, cause lists, judgments and statistical reports. This strengthens the citizen's right to information and increases public trust in the judiciary.

7. Automation of Administrative Work IT supports payroll, accounting, budgeting, human resource management, inventory and correspondence. This reduces clerical burden and allows judicial staff to focus on core judicial work.

8. Data Analysis and Policy Making Digital data helps the judiciary analyse case pendency, disposal rate, backlog and delay patterns. Such evidence supports better policy decisions on resource allocation and court reform.

Benefits

• Speedy disposal of cases and reduction of pendency
• Transparency, accountability and reduced chances of manipulation
• Cost and time saving for litigants, lawyers and courts
• Easy access to legal information and judgments
• Better monitoring and supervision of subordinate courts

Challenges

• Inadequate ICT infrastructure and unreliable electricity, especially in rural areas
• Lack of computer literacy and skilled manpower
• High cost of hardware, software and maintenance
• Risk of data loss, hacking and breach of privacy
• Resistance to change and weak digital security policy
• Digital divide among citizens, lawyers and court staff

Conclusion

Information technology has brought significant improvement in court management by making registration, scheduling, record keeping, service delivery and monitoring more efficient and transparent. However, its full benefit depends on strong infrastructure, trained manpower, adequate budget and a clear legal framework for digital security. Therefore, IT should be applied in court management as a continuous reform process with proper investment and capacity building.

1. Extra-ordinary jurisdiction of the Supreme Court

Article 133 of the Constitution of Nepal gives the Supreme Court extra-ordinary jurisdiction, which is the power to act outside the ordinary course of appeal to protect the Constitution and rights.

It is exercised in these ways:

• Writs: for the enforcement of fundamental rights, or of other legal rights for which there is no other remedy, the Court issues habeas corpus, mandamus, certiorari, prohibition and quo warranto, and other appropriate orders. These may be issued against any person, body or authority, including government.
• Public interest litigation: a petition on a matter of public concern may be filed even by a person not personally affected.
• Judicial review of laws: where a law or part of a law is inconsistent with the Constitution, the Court may declare it void to that extent, from the date of its decision.
• Interpretation: the Court interprets the Constitution and the law, and its interpretation is binding on all.

The Court may issue orders it considers appropriate, and the cases are heard by the benches formed by the Chief Justice.

2. Formation of the Constitutional Bench (Article 137)

• The Constitutional Bench is a bench of the Supreme Court headed by the Chief Justice.
• It consists of the Chief Justice and four other judges, five in all, chosen by the Chief Justice on the recommendation of the Judicial Council.
• It is formed as required to hear the cases that fall under its jurisdiction.

3. Cases heard by the Constitutional Bench

• Disputes between the Federation and a Province, between Provinces, between a Province and a Local level, and between Local levels, over the exercise of jurisdiction.
• Election disputes of members of the Federal Parliament and the Provincial Assemblies.
• Cases challenging a law as inconsistent with the Constitution under Article 133, and other constitutional questions of this kind.
• Other constitutional matters that the Constitution or law assign to this bench.

Conclusion

The Supreme Court's extra-ordinary jurisdiction makes it guardian of the Constitution and citizens' rights, and the Constitutional Bench is the forum for the most serious constitutional questions, especially disputes between governments.

Functions, Duties and Powers of the Attorney General of Nepal

Constitutional Basis

The Attorney General is a constitutional office established under Article 157 of the Constitution of Nepal (2015). The President appoints the Attorney General on the recommendation of the Prime Minister. A person who is qualified to be a Judge of the Supreme Court is eligible for appointment as the Attorney General. The term of office is six years or until the age of 65 years, whichever is earlier. The Attorney General is the chief legal advisor to the Government of Nepal and the chief public prosecutor.

Functions, Duties and Powers

1. Chief Legal Advisor to the Government

• Tender legal advice on constitutional and legal matters to the Government of Nepal, the Prime Minister, and other ministers.
• Provide opinions on legal questions referred by the President, the Prime Minister, or any minister through the Prime Minister.
• Examine and give opinions on bills, ordinances, and legal drafts before they are presented or issued.

2. Chief Public Prosecutor

• Represent the Government of Nepal in cases where the Government is a party, before the Supreme Court and other courts.
• Conduct and supervise the prosecution of criminal cases on behalf of the State.
• Issue necessary directives to the Government Attorney (Sarkari Waked) offices regarding prosecution and legal proceedings.

3. Power to Institute and Defend Cases

• Institute legal proceedings on behalf of the Government of Nepal in any court or judicial authority.
• Defend the Government in suits filed against it.
• Appeal or petition on behalf of the Government against judgments of courts, including to the Supreme Court.

4. Supervision over Government Attorneys

• Supervise, control, and direct the Government Attorneys and their offices throughout the country.
• Ensure uniformity and effectiveness in the conduct of government litigation.

5. Power to Issue Directives

• Issue necessary instructions to Government Attorneys regarding the conduct of cases, evidence, and legal strategy.
• Monitor whether prosecution is being carried out in accordance with law.

6. Advisory Role in Constitutional Matters

• Give opinions on constitutional disputes and questions of interpretation when referred by the President or the Government.
• Assist in matters relating to the enforcement of fundamental rights and constitutional compliance.

7. Right to Appear and Be Heard

• The Attorney General has the right to appear and be heard in any court, tribunal, or judicial body on behalf of the Government of Nepal.
• May appear in the Federal Parliament and its committees to give legal opinions on matters under consideration.

8. Other Functions Prescribed by Law

• Perform other functions, duties, and powers as prescribed by the Constitution and federal laws.
• Perform duties assigned by the President or the Government in the interest of justice and the State.

Limitations

• The Attorney General must not be involved in any political party or politics.
• The office is independent in the exercise of legal duties, though it works under the Constitution and laws.
• The Attorney General is answerable to the President and the Prime Minister for the conduct of the office.

Conclusion

The Attorney General is the highest legal officer of the Government of Nepal. He/she serves as the chief legal advisor and chief public prosecutor, supervises government attorneys, and represents the State in courts. The office plays a vital role in maintaining the rule of law, constitutional supremacy, and effective prosecution in Nepal.

Meaning of plea bargaining

Plea bargaining is a process in which an accused admits the offence voluntarily and cooperates with the prosecution, and in return the court gives a lighter sentence or other concession, usually without a full trial. It saves time and cost, reduces the burden on the courts, and gives the victim quicker relief.

Legal provisions in Nepal

Plea bargaining was introduced by the Criminal Procedure (Code) Act, 2074, and the Code sets the following rules.

1. Who may use it: an accused who admits the offence may apply, or the government attorney may propose it, before the court gives final judgment.
2. Offences covered: mostly offences punishable with a fine or a shorter term of imprisonment (up to five years), and offences that can be compounded.
3. Offences excluded: serious offences such as offences against the State, corruption, human trafficking, rape and other offences against women and children.
4. Persons excluded: children and persons of unsound mind.
5. Voluntariness: the court must be satisfied that the admission is made freely and with understanding of the consequences, and the accused may consult a lawyer.
6. Role of the government attorney and the victim: the government attorney takes part, and the victim must be informed, with compensation to the victim ordered as needed.
7. Concession: if the court accepts the plea, it may reduce the punishment (up to one-fourth less than the prescribed punishment) and give the sentence accordingly.
8. Effect: the judgment is final, with appeal limited to cases where the plea was not voluntary or the court acted beyond its power.

Safeguards

The accused is not forced to plead guilty, the court retains the power to refuse a bargain, and a refused plea cannot be used as evidence against the accused.

The National Civil Procedure (Code) Act, 2074 is the main law on how civil disputes are brought, heard and decided. It rests on the following general principles of civil procedural law.

1. Natural justice — no one is condemned without a fair hearing (audi alteram partem), and the decision-maker must be free from bias (nemo judex in causa sua).
2. Equality of the parties — both parties have equal opportunity to present their case, evidence and arguments.
3. Independent and impartial court — the judge acts independently, without favour or fear.
4. Open hearing — hearings are public except where law allows privacy.
5. Speedy justice — cases should be decided within the time limits, and unnecessary delay is avoided.
6. Party presentation (adversarial process) — the parties bring forward the facts and evidence, and the court decides on the basis of them.
7. Burden of proof — the person who claims a fact must prove it.
8. Good faith — parties must act honestly and not abuse the process of the court.
9. Proportionality and economy — procedure and cost should be in proportion to the claim.
10. Finality of judgment (res judicata) — a matter finally decided cannot be raised again between the same parties.
11. Alternative dispute resolution — the court encourages reconciliation, mediation and settlement.
12. Access to justice and legal aid — no one should be denied justice for poverty or ignorance.

Together these principles ensure that a civil case is decided fairly, quickly and finally.

Rights of Detainees and Prisoners

Introduction

A detainee is a person kept in custody during investigation or trial, while a prisoner is a person serving a sentence after conviction. The Constitution of Nepal, the Muluki Criminal Procedure Code (Muluki Faujdari Karyavidhi Samhita), 2074, and the Prison Act (Kaidi Ain), 2019, guarantee certain basic rights to both. These rights cannot be taken away merely because a person is in custody.

Rights of Detainees

1. Right to know the ground of arrest – Every arrested person must be informed of the reason for arrest and the offence alleged against him.
2. Right to consult a lawyer – A detainee has the right to consult and be defended by a legal practitioner of his choice.
3. Right to inform family – He must be allowed to inform his family or relatives about the arrest.
4. Right to be produced before the court – An arrested person must be produced before the competent court within 24 hours of arrest, excluding travel time.
5. Right against torture – No person in custody shall be subjected to physical or mental torture or cruel, inhuman or degrading treatment. Confession extracted by torture is not admissible as evidence.
6. Right to medical examination – A detainee has the right to be examined by a medical practitioner.
7. Right to remain silent – He cannot be compelled to confess guilt.
8. Right to humane treatment – He must be kept in a clean place with proper food, water and sanitation.
9. Right to bail – In bailable offences, he has the right to be released on bail.
10. Right against preventive detention without law – No person shall be detained under preventive detention except in accordance with law.

Rights of Prisoners

1. Right to life and personal liberty – A prisoner retains the right to life and dignity; only the freedom of movement is restricted.
2. Right against torture and inhuman punishment – Torture, beating and degrading treatment are prohibited.
3. Right to food, clothing and shelter – The prison must provide adequate and nutritious food, clothing and accommodation.
4. Right to health care – Free medical treatment and medicines must be provided.
5. Right to communicate – Prisoners may write letters and meet relatives and legal advisers as prescribed.
6. Right to legal remedy – They may file petitions, appeals and complaints against unlawful treatment.
7. Right to practice religion – They may follow their own religion and observe religious rites.
8. Right to wages – A prisoner who works is entitled to wages as prescribed.
9. Right to education and recreation – Facilities for reading, skill development and recreation must be available.
10. Right to parole, remission and pardon – A prisoner may be released on parole or have the sentence remitted or pardoned as per law.
11. Separate treatment – Women prisoners must be kept separately from men, and juvenile offenders separately from adults.
12. Right to die with dignity – Even a condemned prisoner has the right to a dignified death.

Conclusion

The rights of detainees and prisoners are based on the principle that imprisonment is a punishment for the offence, not a denial of humanity. The Constitution, criminal procedure law and prison law together ensure that custody does not become a licence for cruelty. Respect for these rights is the mark of a civilised and lawful state.

Pleading Management and Essential Elements of Pleading Skills

1. Meaning of Pleading

In legal practice, pleading means the formal presentation of a party's case before a court, tribunal, or quasi-judicial body — stating facts, legal provisions, evidence and arguments in a clear, logical and persuasive manner. In the context of the Public Service Commission (Lok Sewa Aayog) examination, "pleading" also extends to presenting one's case, reply or defence before an administrative body, departmental committee or inquiry.

2. How Pleading is Managed

Pleading is managed through a systematic process:

(a) Preparation before pleading

• Study the facts of the case thoroughly.
• Identify the legal provisions (Act, Rules, Regulations, precedents).
• Collect and arrange evidence, documents and witnesses.
• Prepare a written note or draft of the pleading.

(b) Structuring the pleading

• Introduction — brief statement of facts and the issue.
• Statement of facts — chronological, clear and relevant facts only.
• Legal provisions — cite the relevant section, rule or precedent.
• Evidence — documentary and oral evidence supporting the facts.
• Arguments — logical reasoning linking facts with law.
• Conclusion/Prayer — the specific relief or decision sought.

(c) Presentation

• Speak clearly, politely and confidently before the authority.
• Present facts first, then law, then argument.
• Answer questions of the bench or opposing party calmly.
• Avoid repetition, emotion and irrelevant matters.

(d) Follow-up

• Submit written pleadings/notes if required.
• Comply with procedural orders and time limits.
• Keep records of the pleading for future reference.

3. Essential Elements of Pleading Skills

4. Examples

Example 1 — Service matter (departmental action):

"The applicant was dismissed by order dated 2080-02-10 without giving an opportunity to submit a written explanation, which violates Rule 12 of the Civil Service Rules. Therefore, the order is liable to be quashed."

Here facts (date, no explanation), law (Rule 12) and argument (violation of natural justice) are clearly linked.

Example 2 — Revenue/administrative case:

"The tax was assessed at Rs 50,000 on 2079-10-15, but the assessment notice was served only on 2080-01-20, beyond the limitation period prescribed by Section 15 of the Act."

This shows accuracy of facts and knowledge of limitation law.

Example 3 — Weak vs. strong pleading:

• Weak: "The officer did wrong and I suffered."
• Strong: "The officer passed the order on 2080-03-05 without jurisdiction, as Section 9 empowers only the Chief District Officer, not the Section Officer."

5. Conclusion

Effective pleading management requires preparation, proper structure, legal knowledge and orderly presentation. The essential elements — clarity, accuracy, relevance, logic, persuasiveness, confidence and listening — together make pleading a professional skill. In the Lok Sewa context, these skills help a Nayab Subba draft notes, replies and representations before administrative authorities in a lawful and convincing manner.