Constitutional Law

Rule of law: meaning and adoption in Nepal

1. Meaning and definition

The rule of law means that the law is supreme: every person and every institution, including the government, is bound by law, no one is punished except for a breach of law established in the ordinary courts, and everyone is equal before the law. It is "government by law, not by the will of men", and the opposite of arbitrary or personal rule.

A.V. Dicey (Introduction to the Study of the Law of the Constitution, 1885) gave three meanings:

1. Supremacy of regular law: no one can be punished or made to suffer in body or goods except for a distinct breach of law proved before ordinary courts; arbitrary power is excluded.
2. Equality before the law: all persons, officials included, are subject to the same law and the same courts.
3. Constitutional rights result from judicial decisions: rights are secured by remedies the courts give to individuals, not only by declarations in a document.

Modern writers add a substantive meaning: a just law, protection of human rights, independent judiciary, and access to justice.

2. Adoption in Nepal

(a) Constitutional supremacy: The Constitution of Nepal 2072 (2015) states that it is the fundamental law of Nepal and that any law inconsistent with it is void to the extent of the inconsistency. The preamble commits the state to democracy, the rule of law and an independent judiciary.

(b) Equality and non-arbitrariness: Article 18 guarantees the right to equality before the law and equal protection of the law without discrimination.

(c) Fair trial and liberty: Article 17 protects personal freedom, and Article 20 guarantees rights relating to justice: no arrest without being told the reason, the right to consult a lawyer, production before a judicial authority within 24 hours (excluding travel time), the presumption of innocence, protection against double jeopardy and the right to a fair trial by an independent, impartial and competent court. Article 16 protects the right to live with dignity, and the rights of victims and against torture are protected separately.

(d) Constitutional remedy and judicial review: Article 46 gives every person the right to move the Supreme Court or High Court for enforcement of fundamental rights, and the Supreme Court has writ jurisdiction (habeas corpus, mandamus, certiorari, prohibition, quo warranto). The Supreme Court can declare laws and executive acts void if unconstitutional, as it has done in many public interest litigation cases.

(e) Independent judiciary and separation of powers: The Constitution vests judicial power in courts and tribunals, with a Judicial Council for judges' appointment and discipline. Parliament, the executive and the judiciary have separate roles with checks on each other, including impeachment and parliamentary oversight.

(f) Principle of legality in criminal law: The Penal Code and Criminal Procedure Code, 2074 (and the Muluki Civil Code, 2074) are written laws that define offences, punishments and procedure; no retroactive punishment is allowed.

(g) Accountability of government: Constitutional bodies such as the Commission for the Investigation of Abuse of Authority, Auditor General and National Human Rights Commission, together with the right to information, make public power answerable to law.

3. Assessment

Nepal has a strong constitutional and statutory framework for the rule of law. In practice, weaknesses remain: delay in justice, non-implementation of court orders, political interference, impunity for past conflict-era violations and limited access to justice for poor and marginalised groups. The rule of law will be fully realised only through effective enforcement and a culture of respect for law.

Rule of Law

The rule of law is the principle that every person and institution in a country, including the government itself, is subject to the ordinary law of the land and accountable before it. It means that law is supreme, not the will of any individual ruler or official. The concept was popularised by the British jurist A. V. Dicey in his book Introduction to the Study of the Law of the Constitution (1885), who gave three meanings to it:

1. Supremacy of law — no one can be punished except for a breach of law established through the ordinary legal process; there is no arbitrary or discretionary power.
2. Equality before law — all persons, whatever their rank or office, are subject to the same law and the same courts.
3. Predominance of legal spirit — the general principles of the constitution (rights and freedoms) are the result of judicial decisions, not merely of written declarations.

In the modern sense, the rule of law also requires an independent judiciary, free and fair elections, a transparent and accountable government, protection of fundamental rights, and equal treatment of all citizens without discrimination. It is the opposite of the rule of men, where rulers govern according to their personal whim.

Adoption of the Rule of Law in Nepal

Nepal has adopted the principle of the rule of law to a considerable extent, though its full realisation is still incomplete. The position may be assessed as follows:

Positive aspects (extent of adoption):

1. Constitutional supremacy: Article 1 of the Constitution of Nepal (2015) declares the constitution the fundamental law of the land, and any law inconsistent with it is void. This establishes the supremacy of law over every organ of the state.
2. Fundamental rights: Part 3 of the constitution guarantees rights such as equality before law (Art. 18), right to justice (Art. 20), right against preventive detention (Art. 22), right against torture (Art. 23), and right to constitutional remedy (Art. 46). These are enforceable through the Supreme Court and High Courts.
3. Independent judiciary: The constitution provides for an independent judiciary with the Supreme Court as the guardian of the constitution. Judicial review of legislative and executive acts is recognised, and the courts have exercised it in several landmark cases.
4. Equality and non-discrimination: Article 18 guarantees equality before law and prohibits discrimination on grounds of religion, race, caste, sex, origin, and similar grounds. Special legal provisions for women, Dalits, indigenous peoples, and marginalized groups are permitted as positive discrimination.
5. Accountability institutions: Bodies such as the Commission for the Investigation of Abuse of Authority (CIAA), the Office of the Auditor General, the National Human Rights Commission, and the Public Service Commission work to enforce accountability and legality in public administration.
6. Periodic elections and people's sovereignty: Regular elections to federal, provincial, and local levels, and the provision of referendum and recall, reflect the legal spirit that power flows from the people through law.
7. Rule of law in the constitution's directive principles: The directive principles (Part 4) direct the state to build a just, democratic, and inclusive society governed by law.

Limitations (extent still limited):

1. Weak enforcement: Despite strong legal provisions, implementation is poor. Impunity, delayed justice, and pending cases in courts weaken the practical rule of law.
2. Corruption and political interference: Corruption among officials and political protection of wrongdoers undermine equality before law. The CIAA itself has been criticised for selective action.
3. Politicisation of institutions: Appointments to constitutional bodies and the judiciary are often influenced by political parties, reducing their independence.
4. Transitional justice: Victims of the decade-long armed conflict (1996–2006) have not yet received full justice; the transitional justice process remains contested.
5. Weak legal awareness: Illiteracy, poverty, and lack of legal awareness among a large section of the population prevent equal access to justice. The poor cannot afford quality legal services.
6. Frequent constitutional instability: Frequent changes of government and dissolution of parliament have created uncertainty, weakening the supremacy of law in practice.
7. Discrimination in practice: Caste-based discrimination, untouchability, and gender-based violence continue despite legal prohibition.

Conclusion

In conclusion, Nepal has adopted the rule of law in its constitution, legal framework, and institutional structure to a large extent. However, its effective enforcement is limited by corruption, political interference, weak institutions, and social inequality. For the rule of law to be truly realised, Nepal needs an independent and efficient judiciary, strict enforcement of laws without political favour, strong accountability mechanisms, and legal awareness among the people.

Fundamental rights and directive principles in Nepal

1. Introduction

The Constitution of Nepal 2072 (2015) has two sets of provisions guiding the relationship between the state and the people:

• Fundamental rights: Part 3 (Articles 16 to 48).
• Directive principles, policies and obligations of the state: Part 4 (Articles 49 to 55).

2. Differences

The line between the two is not rigid. The Constitution of 2072 turned many social rights, such as the rights to health, education, food, housing, employment and social security, into fundamental rights, so they are justiciable, though some are subject to "as provided by law", and the state implements them as resources permit. Article 54 and the following articles require the state to make laws and policies to implement the directive principles, and the Constitution provides for a periodic review of their implementation.

3. Enforcement in Nepal and case law

Fundamental rights. Courts have given wide meaning to these rights through public interest litigation (PIL), under the Supreme Court's extraordinary jurisdiction.

• Surya Prasad Sharma Dhungel v. Godavari Marble Industries: a leading environmental PIL. The Supreme Court recognised that a clean and healthy environment is part of the right to life and gave directions against harmful pollution; the right is now expressly in Article 30.
• Sunil Babu Pant v. Government of Nepal (2007): the Court ordered the state to recognise the rights of sexual and gender minorities and the third gender, relying on the principles of equality and dignity.
• Meera Dhungana v. Government of Nepal: the Court held that unequal property rights of women violated the equality right, leading to reform of inheritance law.
• Advocate Prakash Mani Sharma and others v. Government of Nepal: a leading case on citizenship and the equal rights of women, in which the Court issued directions to reform discriminatory rules.

Directive principles. The Court has used them mainly as aids to interpretation and to give content to rights; they cannot by themselves be enforced by a writ. For example, in public interest cases on the right to health and education the Court has read the state's policy obligations together with the fundamental rights and directed the government to provide services to the poor and the vulnerable.

4. Conclusion

Fundamental rights are legally enforceable claims of individuals, whereas directive principles are policy goals which bind the state morally and politically. The two operate together: directive principles guide the state's laws and budget, while fundamental rights allow courts to enforce minimum standards. Nepal's courts, through PIL and constructive interpretation, have narrowed the gap between them, but implementation remains the main challenge.

House dissolution and Nepal's practice

1. Meaning

Dissolution of the House is the termination of the life of the House of Representatives before its full term ends, followed by fresh elections. It differs from prorogation (ending a session) and adjournment (a short break in a sitting), after which the same House continues. Dissolution is ordinarily made by the head of state on the advice of the prime minister, as a tool to return to the people when a stable government cannot be formed or when the government wants a fresh mandate.

2. Constitutional basis

Under the Constitution of Nepal 2072, the House of Representatives has a five-year term unless dissolved earlier. The Constitution is built on the principle that the House should be dissolved only in limited circumstances. Article 76 provides for the formation of the government: the leader of the largest party, then a majority coalition, then the leader of the largest party facing a vote of confidence, and, if none of these succeeds, the President may dissolve the House on the recommendation of the Prime Minister and call elections within six months (Article 76(7)). The Constitution does not give the prime minister a free power to dissolve the House at will.

3. Nepal's practice

• Constitution of 1990: Prime Ministers G.P. Koirala (2051 BS/1994) and later Man Mohan Adhikari (1995) recommended dissolution. The Supreme Court upheld the earlier dissolution but declared the 1995 dissolution unconstitutional and reinstated the House. Several later dissolutions (including those in 1999 and 2002) took place amid party instability and the Maoist conflict.
• 2002: King Gyanendra's removal of Prime Minister Deuba and later direct rule contributed to the constitutional crisis ended by the 2006 People's Movement.
• 2012: The first Constituent Assembly was dissolved by Prime Minister Baburam Bhattarai after it failed to promulgate a constitution within the extended time.
• After 2015: Prime Minister K.P. Sharma Oli recommended dissolution on 20 December 2020 (2077 Poush 5), and again on 22 May 2021 (2078 Jestha 8).

4. Recent Supreme Court precedent

1. February 2021: A full constitutional bench of the Supreme Court held the December 2020 dissolution unconstitutional and reinstated the House. The Court reasoned that the Constitution's scheme does not permit dissolution by a Prime Minister who has a majority in the House and has not failed to form a government under Article 76; the ground that a party cannot govern as it wishes is not a ground for dissolution.
2. July 2021: A constitutional bench led by Chief Justice Cholendra Shumsher Rana again declared the May 2021 dissolution unconstitutional, reinstated the House and ordered the appointment of Sher Bahadur Deuba as Prime Minister under Article 76(5), since he had shown majority support through the signatures of members of the House.

5. Significance

These decisions confirm that dissolution is subject to judicial review, that the Constitution fixes the grounds for dissolution, and that the President must act in accordance with the Constitution rather than merely rubber-stamp a recommendation. They protect the sovereignty of the people's elected House and uphold constitutional supremacy, but they also show the need for political stability and for parties to respect constitutional limits.

संविधानको वर्गीकरण (Classification of Constitutions)

संविधानलाई विभिन्न आधारमा वर्गीकरण गर्न सकिन्छ। प्रमुख वर्गीकरणहरू निम्नअनुसार छन्:

१. लिखित र अलिखित संविधान (Written and Unwritten Constitutions):

• लिखित संविधान (Written Constitution): संविधानका सबै नियम, प्रावधान र सिद्धान्तहरू एक आधिकारिक, लिखित दस्तावेजमा समावेश हुन्छन्। उदाहरण: नेपालको संविधान, संयुक्त राज्य अमेरिकाको संविधान।
• अलिखित संविधान (Unwritten Constitution): संविधानका नियमहरू कुनै एक दस्तावेजमा संकलन नगरिएका हुन्छन्। यी नियमहरू परम्परा, न्यायिक निर्णयहरू (Judicial Precedents), कानुनहरू र प्रथागत मान्यताहरूमा आधारित हुन्छन्। उदाहरण: बेलायतको संविधान।

२. कठोर र लचिलो संविधान (Rigid and Flexible Constitutions):

• कठोर संविधान (Rigid Constitution): यसका प्रावधानहरू परिवर्तन गर्नका लागि विशेष, जटिल र कठिन प्रक्रिया (जस्तै: विशेष बहुमत वा जनमत संग्रह) आवश्यक पर्दछ। यसले सरकारलाई मनमानी परिवर्तन गर्नबाट रोक्छ। उदाहरण: संयुक्त राज्य अमेरिकाको संविधान।
• लचिलो संविधान (Flexible Constitution): यसका प्रावधानहरू सामान्य कानुनहरू जस्तै प्रक्रियाद्वारा सजिलै परिवर्तन गर्न सकिन्छ। उदाहरण: बेलायतको संविधान।

३. संघीय र एकात्मक संविधान (Federal and Unitary Constitutions):

• संघीय संविधान (Federal Constitution): शक्ति केन्द्र सरकार र प्रदेश/राज्य सरकारहरूबीच विभाजित हुन्छ। संविधानले यी दुई तहका सरकारहरूको अधिकार क्षेत्र स्पष्ट रूपमा परिभाषित गर्दछ। उदाहरण: संयुक्त राज्य अमेरिका, भारत, नेपाल।
• एकात्मक संविधान (Unitary Constitution): सबै शक्ति केन्द्रीय सरकारमा केन्द्रित हुन्छ। स्थानीय तहहरूलाई अधिकार भए तापनि ती केन्द्रीय सरकारबाट प्राप्त हुन्छन् र केन्द्रीय सरकारले ती अधिकारहरू फिर्ता लिन सक्छ। उदाहरण: फ्रान्स, जापान।

४. संसदीय र अध्यक्षीय संविधान (Parliamentary and Presidential Constitutions):

• संसदीय संविधान (Parliamentary Constitution): कार्यकारी प्रमुख (प्रधानमन्त्री) विधायिका (संसद) प्रति उत्तरदायी हुन्छ। सरकार र विधायिकाबीच गहिरो सम्बन्ध हुन्छ। उदाहरण: भारत, बेलायत, नेपाल (अहिलेको संरचना)।
• अध्यक्षीय संविधान (Presidential Constitution): कार्यकारी प्रमुख (राष्ट्रपति) र विधायिका छुट्टाछुट्टै हुन्छन् र एकअर्काप्रति उत्तरदायी हुँदैनन्। राष्ट्रपतिले आफ्नो कार्यकालका लागि निश्चित समय पाउँछन्। उदाहरण: संयुक्त राज्य अमेरिका।

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नेपालको संविधान (२०७२) को विश्लेषण (Analysis of the Constitution of Nepal 2072)

नेपालको संविधान २०७२ लाई माथि उल्लेखित वर्गीकरणका आधारमा निम्न रूपमा विश्लेषण गर्न सकिन्छ:

१. लिखित संविधान: नेपालको संविधान २०७२ एक लिखित संविधान हो। यसका सबै मौलिक हक, संरचना, अधिकार र शासकीय प्रक्रियाहरू एक विस्तृत र आधिकारिक दस्तावेजमा समावेश गरिएका छन्।

२. कठोर र लचिलोको मिश्रण (Hybrid Nature): यो संविधान पूर्ण रूपमा कठोर वा पूर्ण रूपमा लचिलो छैन, बरु यसले कठोरता र लचिलोपनको मिश्रण प्रस्तुत गर्दछ।

• कठोर पक्ष: संविधान संशोधनका लागि विशेष प्रक्रिया (जस्तै: संसदको दुवै सदनको दुई तिहाइ बहुमत र राष्ट्रिय सभाको अनुमोदन) आवश्यक पर्दछ, जसले यसलाई कठोर बनाउँछ।
• लचिलो पक्ष: केही प्रशासनिक वा प्रक्रियागत प्रावधानहरू सामान्य कानुनको प्रक्रियाबाट पनि समायोजन गर्न सकिने व्यवस्था छ।

३. संघीय संविधान: नेपालको संविधान २०७२ एक संघीय संविधान हो। यसले नेपाललाई तीन तहको सरकार (संघ, प्रदेश र स्थानीय) मा विभाजन गरेको छ। संविधानले संघ, प्रदेश र स्थानीय तहको अधिकार क्षेत्र (Jurisdiction) स्पष्ट रूपमा परिभाषित गरेको छ, जसले शक्ति विकेन्द्रीकरणको सिद्धान्तलाई स्थापित गरेको छ।

४. संसदीय प्रणाली: नेपालको संविधान २०७२ ले संसदीय प्रणाली अवलम्बन गरेको छ। यसमा राष्ट्रपति राज्य प्रमुख हुनुहुन्छ भने प्रधानमन्त्री सरकार प्रमुख हुनुहुन्छ। सरकार (कार्यपालिका) संसद (विधायिका) प्रति उत्तरदायी हुन्छ।

निष्कर्ष: संक्षेपमा, नेपालको संविधान २०७२ एक लिखित,संघीय, संसदीय र कठोरता तथा लचिलोपनको मिश्रण भएको संविधान हो। यसले नेपालको बहुदलीय, समावेशी र लोकतान्त्रिक शासन प्रणालीको आधारशिला तयार गरेको छ।

Merits and Demerits of the Federal System

Merits:

1. Decentralisation of power: State power is shared between the central and provincial/local governments, so authority does not remain concentrated in one place. This prevents the rise of autocracy and protects democracy.
2. Protection of regional identity and diversity: Provinces and local units can preserve and promote their own language, culture, religion and traditions. Ethnic and minority groups get space to express themselves.
3. Balanced and equitable development: Each province can plan and spend on its own priorities, which helps reduce regional imbalance between the developed and backward areas.
4. Efficient public service delivery: Local governments are closer to the people, so they can identify local needs and deliver services such as health, education, drinking water and sanitation more quickly and cheaply.
5. Greater public participation: People participate directly in decision-making, planning and budget-making at the local level. This strengthens grassroots democracy and makes the government accountable to the people.
6. Proper use of local resources: Local resources, skills and manpower can be identified and mobilised for local benefit.
7. Conflict management: By accommodating regional and ethnic aspirations within the constitutional framework, federalism reduces the chance of separatist movements and armed conflict.
8. Opportunity for local leadership: It creates a large number of leadership positions at provincial and local levels, developing new political talent.

Demerits:

1. High administrative cost: A federal system requires three tiers of government with separate legislatures, ministries, bureaucracies and offices. This increases public expenditure and the burden on taxpayers.
2. Duplication of work and resources: The same functions may be performed by more than one tier, causing waste and confusion.
3. Weak coordination: Lack of clear coordination among the three tiers leads to disputes over jurisdiction and delays in development work.
4. Risk of regional inequality and rivalry: Rich provinces may develop faster while poor ones lag behind, and inter-provincial disputes (border, river, forest, revenue) may arise.
5. Threat to national unity: If provincial identity becomes stronger than national identity, it may encourage regionalism, ethnic politics and even separatist tendencies.
6. Shortage of skilled manpower: Provinces and local units often lack trained administrators, planners and technicians, so they depend on the centre.
7. Delay in decision-making: The involvement of many levels makes decisions slow and costly.
8. Political instability: Frequent changes of provincial governments and unstable coalitions weaken governance.

Has Nepal Been Able to Take Benefit of the Federal System as Perceived?

Nepal adopted federalism through the Constitution of Nepal, 2072 BS, with one federal government, seven provinces and 753 local units. The expectation was that power would reach the people, development would be balanced and services would improve. The experience so far is mixed — partial success, but not as per the expectation.

Positive achievements:

1. Legal and institutional structure built: Three tiers of government are in operation, with two successful elections (2074 and 2079 BS) to provincial assemblies and local levels. This has institutionalised federal democracy.
2. Power devolved to local units: Local governments now enjoy legislative, executive and judicial (minor) powers. They prepare their own budgets and plans, collect local revenues (property tax, business tax, service charges) and deliver basic services.
3. Growth in local participation: Women, Dalits, Janajatis and Madhesis have got representation through reservation and inclusive provisions. People now approach local units for their problems instead of running to Kathmandu.
4. Some improvement in service delivery: Local units have built roads, drinking water projects, health posts and schools, and have run campaigns such as local health insurance and sanitation programmes.
5. Identity and language promotion: Provinces and local units have started using local languages in offices and schools, and have promoted local culture.

Weaknesses and failures:

1. Incomplete fiscal federalism: Provinces and local units depend heavily on grants from the centre. Their own revenue is small, so they cannot plan big projects independently. The Fiscal Commission's recommendations are not fully implemented.
2. Unclear jurisdiction and disputes: The Constitution has three lists (federal, provincial, concurrent), but many subjects overlap. Disputes over forest, land, education, health and revenue sharing between the centre and provinces are common.
3. Weak provincial governments: Provinces have not been able to establish a distinct identity or perform effectively. Their role is often seen as a "post office" between the centre and local units. Frequent changes of chief ministers and unstable coalitions have weakened them.
4. Shortage of skilled manpower and capacity: Provincial and local offices lack trained staff. Many local representatives lack the technical knowledge to prepare good plans and budgets.
5. Corruption and misuse of funds: Increased levels of government have also increased opportunities for corruption. Many local projects are of poor quality or incomplete.
6. No balanced development yet: Regional imbalance between the hills, Terai and remote areas has not reduced as expected. Development is still concentrated in a few cities and provinces.
7. Political culture not federal: Leaders still think and act in a centralised way. Devolution of power from the centre to the provinces has been slow.
8. Citizens' awareness: Many people, especially in rural areas, do not clearly understand the roles of the three tiers, so they cannot take full benefit.

Conclusion:

Nepal has succeeded in establishing federalism institutionally and in bringing government closer to the people. However, it has not yet been able to take full benefit as perceived, mainly because fiscal federalism is incomplete, provincial governments are weak, coordination is poor and political instability continues. Federalism is a long-term process; with clear laws, capacity building, stable politics and honest leadership, Nepal can gradually realise its expected benefits.

Constitutionalism is the principle that the authority of government is derived from and limited by a constitution. It means the government is not above the law but is bound by it. It stands for limited government, rule of law, protection of fundamental rights, separation of powers, and checks and balances. In short, constitutionalism is the doctrine that power must be exercised according to the constitution, not according to the whims of the ruler.

Forms of Constitutionalism

1. Liberal Constitutionalism — It emphasises individual freedom, fundamental rights, free press, free elections and limits on state power. The state exists to protect the liberty of the individual. Example: the constitutions of the USA and India.

2. Socialist Constitutionalism — It gives priority to social and economic rights (employment, health, education) along with political rights. The state plays an active role in removing inequality. Example: the constitutions of the former USSR and China.

3. Democratic Constitutionalism — It combines popular sovereignty with limited government. The people rule through elected representatives, but the government remains accountable to the constitution and the courts. Example: the UK and India.

4. Authoritarian / Nominal Constitutionalism — Here a constitution exists on paper but real power lies with a single party, military or a dictator. The constitution is used only to give legitimacy. Example: North Korea.

5. Federal / Multi-level Constitutionalism — Power is divided between the centre and the units (provinces/states), each supreme in its own sphere. Example: the USA, India and Nepal.

Practice in Nepal

• Before 1951 (Rana rule): There was no real constitutionalism. The Government of Nepal Act, 1948 was never implemented; power remained with the Rana Prime Minister. It was nominal constitutionalism only.

• 1951–1960 (Transitional period): The Interim Government of Nepal Act, 1951 introduced a constitutional monarchy with a cabinet and advisory assembly. But frequent changes and political instability weakened constitutional practice.

• 1959–1960 (Parliamentary democracy): The Constitution of the Kingdom of Nepal, 1959 provided for a parliamentary system and fundamental rights. The first general election was held in 1959. But in 1960 King Mahendra dissolved the parliament — a clear breach of constitutionalism.

• 1962–1990 (Panchayat system): The Constitution of Nepal, 1962 established a partyless Panchayat system with the King at the centre. It was authoritarian constitutionalism — the constitution existed but real power was with the monarch. Political parties were banned.

• 1990–2007 (Constitutional monarchy): The Constitution of the Kingdom of Nepal, 1990 restored multiparty democracy, fundamental rights and constitutional monarchy. It was a big step towards liberal and democratic constitutionalism. But the Maoist insurgency and the royal takeover of 2005 again weakened it.

• 2007–2015 (Interim period): The Interim Constitution of Nepal, 2007 was made after the People's Movement of 2006. It declared Nepal a federal democratic republic and made the people sovereign. The Constituent Assembly was formed to write a new constitution.

• 2015 onwards: The Constitution of Nepal, 2015 (implemented 20 September 2015) is the present constitution. It establishes federal democratic republicanism, three levels of government (federal, provincial, local), fundamental rights, secularism, and checks and balances. It reflects federal, democratic and liberal constitutionalism together.

Conclusion

Nepal's journey shows a gradual shift from nominal and authoritarian constitutionalism to liberal, democratic and federal constitutionalism. The Constitution of 2015 has created a strong legal base for constitutionalism, but its real success depends on honest implementation, respect for the rule of law, and accountable government.

(a) Historical development of constitutional law in Nepal

• Before 1948: Nepal was governed by the king and, after 1846, by the hereditary Rana prime ministers. The Muluki Ain of 1854 was a legal code rather than a constitution.
• Government of Nepal Act, 1948: the first written constitutional document, issued by Padma Shumsher Rana. It promised limited reforms but was never effectively implemented.
• Interim Government of Nepal Act, 1951 (2007 BS): after the end of Rana rule it introduced a constitutional monarchy and a cabinet system.
• Constitution of the Kingdom of Nepal, 1959: the first democratic constitution, with a bicameral parliament and general elections; it ended in 1960 when King Mahendra dissolved the elected government.
• Constitution of 1962: it created the party-less Panchayat system with executive powers in the king.
• Constitution of the Kingdom of Nepal, 1990: restored multiparty democracy after the People's Movement, with sovereignty in the people, fundamental rights and an independent judiciary.
• Interim Constitution, 2007: after the 2006 People's Movement and the peace agreement, it abolished the monarchy and made Nepal a federal democratic republic through the Constituent Assembly.
• Constitution of Nepal, 2072 (2015): promulgated by the second Constituent Assembly on 20 September 2015 (3 Ashwin 2072), with a federal structure of seven provinces, three tiers of government, secularism and wide fundamental rights.

(b) Ministerial accountabilities

Ministerial accountability means that ministers must answer for their decisions and the work of their ministries.

• Collective responsibility: the Council of Ministers is collectively responsible to the House of Representatives; if the House withdraws confidence from the Prime Minister, the whole Council falls.
• Individual responsibility: each minister is responsible to the Prime Minister and the House for his or her ministry's policies and actions, including answering questions in Parliament.
• Legal accountability: ministers act under the law and can be challenged in court by writ, and are liable under the anti-corruption laws.
• Financial accountability: expenditure must be authorised by Parliament through the budget and is audited by the Auditor General.
• Political and public accountability: through parliamentary committees, the opposition, media and the voters.
• Impeachment: the House can bring an impeachment motion against specified office holders; ministers are also removed if they lose the Prime Minister's confidence.

(e) Contempt of court

Contempt of court is an act or omission that disobeys, disrespects or interferes with the administration of justice. It protects the authority and dignity of the courts and public confidence in justice.

• Types: (i) civil contempt: wilful disobedience of a court order or judgment; (ii) criminal contempt: scandalising the court, interfering with proceedings or obstructing justice.
• Constitutional and legal basis: the Constitution gives the Supreme Court the power to punish for contempt of itself and of subordinate courts. The Contempt of Court Act, 2075 (2018) also governs the subject.
• Punishment: imprisonment or fine, or both, as provided by law; a person may defend himself by showing that the statement was true and in the public interest or that there was no wilful disobedience.
• Limits: fair criticism of a judgment made in good faith is not contempt, since freedom of expression is also protected by the Constitution.

Constitution as the Law of the Land

The Constitution is fundamentally the supreme law of the land. This means that it is the highest legal document in a country, and all other laws, rules, and governmental actions must conform to its provisions.

1. Supremacy: The Constitution establishes the fundamental principles, structure, and framework of the state. No law passed by the legislature, nor any action taken by the executive or judiciary, can contradict the Constitution. If any law violates the Constitution, it can be declared unconstitutional and void by the judiciary (Judicial Review).
2. Source of Authority: It defines the powers and limitations of the government organs (legislature, executive, and judiciary). It dictates who has the authority to make laws and how they must be made.
3. Guarantor of Rights: The Constitution enshrines the fundamental rights and freedoms of the citizens. It acts as a shield protecting individuals from arbitrary state action.
4. Framework for Governance: It outlines the political system (e.g., parliamentary or presidential), the distribution of power between different levels of government (federalism), and the relationship between the state and its people.

In essence, the Constitution is not just a document; it is the foundational blueprint that determines the nature of the state, limits governmental power, and guarantees the rights of the citizens, making it the ultimate law of the land.

Classification of Constitutions

Constitutions can be classified based on several different grounds:

1. Based on Written or Unwritten Nature:

• Written Constitution: A constitution that is codified in a single, formal document (e.g., the Constitution of India, Nepal).
• Unwritten Constitution: A constitution that is not contained in a single document but is derived from various sources, such as statutes, judicial precedents, conventions, and customs (e.g., the British Constitution).

2. Based on Rigidity or Flexibility:

• Rigid Constitution: A constitution whose provisions cannot be easily amended. It requires a special, difficult, and often complex procedure for its alteration (e.g., the US Constitution).
• Flexible Constitution: A constitution whose provisions can be amended or changed by the ordinary legislative process, similar to passing an ordinary law (e.g., the UK Constitution).
• Semi-Rigid Constitution: A blend of both, where some parts can be amended easily, while others require a special procedure.

3. Based on the Source of Sovereignty (Who holds ultimate power):

• Popular Sovereignty: The ultimate power resides in the people, who exercise it either directly or through elected representatives (most modern democracies).
• Divine Sovereignty: The ultimate power is believed to reside in a deity or God.
• Parliamentary Sovereignty: The legislature (Parliament) is the supreme authority, and its decisions are final (characteristic of the Westminster system).

4. Based on the Relationship between the Executive and Legislature:

• Parliamentary System: The executive branch (Cabinet/Government) is drawn from and is accountable to the legislature (Parliament). The head of government (Prime Minister) is typically a member of the legislature.
• Presidential System: The executive branch (President) is elected separately from the legislature and is generally independent of it. The President serves as both the head of state and the head of government.

5. Based on the Structure of Government:

• Unitary System: All powers are concentrated in the central government. Local governments exist but derive their authority from the center.
• Federal System: Power is constitutionally divided between a central (federal) government and various regional (state/provincial) governments, each having its own sphere of authority.

Separation of power and check and balance in the Constitution of Nepal, 2072

Nepal adopts a parliamentary system in which the three organs have distinct roles but are linked by mutual controls.

Checks and balances

1. Legislature over executive – the Prime Minister must command a majority in the House of Representatives; the Council of Ministers is collectively responsible to it; it can pass a no-confidence motion; parliamentary committees scrutinise the government.
2. Executive over legislature – the PM can recommend the summoning and proroguing of sessions, and ministers sit in Parliament and initiate bills. The President may return a bill once for reconsideration.
3. Judiciary over both – the Supreme Court can declare a law void if it is inconsistent with the Constitution (Art. 133) and can issue writs against illegal executive acts.
4. Executive and legislature over judiciary – judges are appointed on the recommendation of the Judicial Council, and the Parliament can remove them by impeachment.
5. Independent constitutional bodies (CIAA, Auditor General, Election Commission and others) check the abuse of power.

Comment on the House Dissolution case law (2021)

First dissolution. On 20 Poush 2077 (20 December 2020) PM K. P. Sharma Oli recommended the dissolution of the House, and the President dissolved it. A constitutional bench led by Chief Justice Cholendra Shumsher Rana held on 11 Falgun 2077 (23 February 2021) that the dissolution was unconstitutional and reinstated the House. The Court reasoned that the Constitution (Art. 76) provides a step-by-step process of forming a government, that the House can be dissolved under Art. 76(7) only when no government can be formed, and that a PM who has been appointed with a majority cannot dissolve it merely because his party is divided.

Second dissolution. After Oli lost a vote of confidence and failed to form a government again, while Sher Bahadur Deuba claimed majority support under Art. 76(5), the President on 22 Jestha 2078 (22 May 2021) again dissolved the House on Oli's recommendation. On 28 Asar 2078 (12 July 2021) the Supreme Court again reinstated the House and ordered, by mandamus, that Deuba be appointed PM under Art. 76(5), because the claim of a majority had been backed by signatures of the members.

Significance. The decisions show the judiciary acting as the guardian of the Constitution. They hold that the House is not dissolved at the PM's discretion, that the President's decisions are subject to constitutional limits, and that political questions become justiciable when they concern the constitutional text. Critics argue that the Court went close to appointing a PM itself, which strains the separation of powers. On balance, the cases strengthened the principle of constitutional supremacy and checks and balances.

Meaning of amendment

An amendment of the constitution is a formal change, addition or repeal of its provisions through the procedure the constitution itself lays down. It lets the constitution adapt to changing social, political and economic needs while keeping its stability. A constitution is rigid if the amendment procedure is difficult and flexible if it is easy. Nepal's Constitution of 2072 (2015) is moderately rigid.

Procedure under Article 274 of the Constitution of Nepal

1. Introduction – a bill to amend or repeal the Constitution may be tabled in either House of the Federal Parliament, by the government or a member, following the usual rules for bills.
2. Limits – an amendment cannot be proposed that prejudices the matters that Article 274 protects, such as the sovereignty, territorial integrity, nationality and independence of Nepal, and the core principles on which the Constitution is based; the Preamble is likewise protected.
3. Passage in the first House – the bill must be passed by a majority of at least two-thirds of the total members of that House.
4. Passage in the second House – it is then sent to the other House and must again be passed by at least two-thirds of the total members of that House.
5. Provincial consent – if the amendment concerns matters relating to provinces, such as boundaries or the distribution of powers, it must also be approved by the Provincial Assemblies as required by the Article.
6. Authentication – the Speaker certifies the bill and presents it to the President, who authenticates it within the time allowed. The amendment becomes part of the Constitution from the date of authentication.

Comment

• The requirement of two-thirds of total members in both Houses means broad consensus is needed, so one party cannot easily change the Constitution.
• Provincial participation supports federalism.
• Restricting amendment of the basic matters protects the identity of the Constitution.
• However, the procedure can cause deadlock, and the protected "basic features" are not clearly defined, so the courts may have to decide what is unamendable.
• Overall, the procedure balances stability and flexibility.

Differences between Fundamental Rights and Directive Principles and State Policies

Conclusion: Fundamental rights are enforceable legal rights that protect the individual, whereas Directive Principles and State Policies are non-enforceable moral guidelines that direct the state towards social and economic welfare. Both are complementary — the rights provide the foundation of democracy and the directives give it direction.

Role of Political Parties in Sustaining Democracy

Political parties are the backbone of a democratic system. Their major roles are:

1. Interest aggregation and representation — They collect the diverse demands of citizens and convert them into a coherent policy programme.
2. Political socialisation and education — They educate voters about rights, duties and public issues, especially during elections.
3. Recruitment of leaders — They select and train candidates for legislative and executive positions, thus supplying the governing personnel.
4. Formation of government — The party or coalition with a majority forms the government; others form the opposition.
5. Accountability and opposition — The opposition questions the government, exposes lapses and keeps it responsible to the people.
6. Linkage between people and state — They act as a bridge between the citizens and the government machinery.
7. Mobilisation and stability — They mobilise voters, run election campaigns and give stability to the political system by channelising conflict through peaceful means.

Without strong, disciplined and accountable parties, democracy becomes weak, unstable and prone to authoritarianism.

Performance of Nepali Political Parties in Their Constitutional Role

Positive aspects:

• They restored democracy in 1990 (Jana Andolan I) and again in 2006 (Jana Andolan II), ending the absolute monarchy.
• They conducted the Constituent Assembly elections (2008, 2013) and promulgated the Constitution of Nepal, 2072 BS (2015).
• They have maintained a multi-party competitive system, held regular elections (2017, 2022) and transferred power peacefully.
• They gave space to marginalised groups through proportional representation and inclusion provisions.

Weaknesses / failure to perform effectively:

• Instability: Frequent changes of government — more than a dozen governments since 1990 — show weak commitment to stable governance.
• Personality-centred politics: Parties are run as personal fiefdoms of leaders rather than as institutional, ideologically based organisations.
• Weak ideology: Most parties lack clear ideology; they shift alliances for power rather than principle.
• Corruption and impunity: Several leaders face corruption charges; accountability is weak.
• Politicisation of administration and judiciary: Bureaucracy and constitutional bodies are often influenced by ruling parties.
• Weak opposition: The opposition often cooperates in power-sharing rather than performing a genuine watchdog role.
• Failure to deliver services: Citizens still face poor health, education, employment and infrastructure despite decades of party rule.
• Internal democracy lacking: Most parties do not hold regular internal elections or follow democratic procedures in candidate selection.

Conclusion: Political parties have played a decisive role in establishing and sustaining democracy in Nepal, but their constitutional role has not been performed effectively. They have succeeded in institutionalising a multi-party system, yet failed in providing stable, accountable and development-oriented governance. Internal democratisation, ideological clarity, strong opposition and strict accountability are essential for them to become true instruments of democracy.

Short Notes (Any Three)

a) Parliamentary privilege

Parliamentary privileges are special rights and immunities of the Federal Parliament and its members that let them work freely and without fear. They are provided in Article 105 of the Constitution of Nepal. Main privileges: freedom of speech and vote in Parliament, for which no case can be filed in any court; protection for the publication of Parliament's proceedings; and the Parliament's power to regulate its own proceedings. A member is also protected from arrest during a session, except as the law permits. These privileges belong to the institution, not to the person, and a breach may be dealt with as contempt.

b) Emergency power

Under Article 273, if the sovereignty, integrity or independence of Nepal, or the security of any part of it, is seriously threatened by war, external aggression, armed rebellion or extreme economic disorder, or by a natural calamity or epidemic, the President may proclaim a state of emergency on the recommendation of the Council of Ministers. The proclamation must be approved by a two-thirds majority of the House of Representatives within one month, and it can last for a limited period that can be extended with further approval. During an emergency, some fundamental rights may be suspended, but the Constitution protects others, such as the right to life, protection against torture, and the right to habeas corpus. The proclamation may be challenged in court.

c) Right to equality

Article 18 guarantees that all citizens are equal before the law and entitled to equal protection of the law. No discrimination is allowed on grounds of origin, religion, race, caste, tribe, sex, economic condition, language, region, ideology or similar. Equal pay for equal work applies to men and women. The State may make special provisions for the protection, empowerment and development of women, Dalits, indigenous peoples, Madhesis, Tharus, Muslims, the disabled, the poor, and others, and such provisions are not counted as discrimination. It can be enforced through writs under Article 133.

d) Freedom of expression

Article 17(2)(a) of the Constitution guarantees the freedom of opinion and expression. Article 19 protects communication, including freedom of publication, broadcast and press, and Article 27 provides the right to information. Reasonable restrictions may be made by law to protect the sovereignty, integrity and nationality of Nepal, the harmony between the federal units and communities, good conduct and public decency, and to prevent incitement to an offence, defamation or contempt of court. Prior censorship is not allowed in ordinary times.

e) Sources of constitutional law

Sources of Nepal's constitutional law include: the written Constitution and its amendments; statutes that fill in constitutional matters (for example, the Election Commission and Parliament-related Acts); decisions of the Supreme Court, which bind lower courts (Article 128); constitutional conventions and customs; international treaties to which Nepal is a party; and history and political documents such as the Interim Constitution 2063, the Comprehensive Peace Accord, and the Constituent Assembly debates.