(b) The constitution of United States of America

The US Constitution, drafted in 1787 and ratified in 1788, is regarded as the first written constitution of a modern nation-state. The others came later — France (1791), Switzerland (1848) and Australia (1901).

(d) Right to vote

Right to live with dignity (Art. 16), Right to Equality (Art. 18) and Right to Communication (Art. 19) are all listed in Part 3 of the Constitution of Nepal 2072 as fundamental rights. The right to vote is a political/constitutional right exercised under the election provisions (Part 8), not a fundamental right.

(c) 20

Under Article 129 of the Constitution of Nepal (2072), the Supreme Court consists of the Chief Justice and a maximum of 20 other judges; so excluding the Chief Justice the number is 20.

The Constitution of Nepal, promulgated on 20 September 2015 (3 Ashoj 2072 BS) by the Constituent Assembly, is the seventh constitution of the country. It was drafted in the aftermath of the decade-long Maoist insurgency and the 2006 People’s Movement, and it transformed Nepal from a unitary Hindu monarchy into a federal democratic republic. Its main features are discussed below.

1. Federal democratic republican system Article 4 declares Nepal an “independent, indivisible, sovereign, secular, inclusive, democracy, socialism-oriented, federal democratic republican state.” The hereditary monarchy was abolished and the President became the ceremonial head of state, with the Prime Minister as the executive head of government. Sovereignty rests with the people (Article 2).

2. Federal structure with three tiers of government The Constitution devises a three-tier federal system — federal, provincial and local — with one federal government, seven provinces (Article 56) and 753 local units (6 metropolitan cities, 11 sub-metropolitan cities, 276 municipalities and 460 rural municipalities). Legislative, executive and judicial powers are divided between the federation and the provinces through Schedules 5, 6, 7, 8 and 9 (federal, provincial, concurrent, local and residual powers). Revenue-sharing and inter-governmental fiscal transfers are also constitutionally recognised.

3. Fundamental rights and duties Part 3 guarantees 31 fundamental rights, including the right to life and liberty, equality, freedom of expression, right against untouchability and discrimination, right to education, health, clean environment, social justice, and the rights of women, children, Dalits, indigenous peoples, Madhesis, Muslims and sexual minorities. Article 48 lists the fundamental duties of citizens. These rights are enforceable through writs under Articles 46, 133 and 144.

4. Secularism and religious freedom Article 4 declares the state secular, meaning equal respect for all religions. Article 26 guarantees the freedom to profess, practise and propagate one’s own religion, while prohibiting acts that disturb the religious harmony of others. The state is barred from discriminating on grounds of religion.

5. Inclusive and proportional representation The Constitution adopts the principle of inclusion in state organs. Article 42 guarantees the right to social justice; Articles 84 and 176 provide for proportional, inclusive and reservation-based representation in the federal and provincial legislatures. Marginalised groups such as women, Dalits, Janajatis, Madhesis and Muslims are given special quotas in the legislature, civil service and other state bodies.

6. Bicameral federal legislature The federal Parliament consists of two houses: the House of Representatives (275 members — 165 first-past-the-post and 110 proportional) and the National Assembly (59 members — 56 elected, 8 from each province, and 3 nominated by the President). This ensures both territorial and population-based representation.

7. Independent and integrated judiciary Part 11 establishes an independent judiciary headed by the Supreme Court, with High Courts in each province and District Courts at the district level. Judicial independence is guaranteed through security of tenure, financial autonomy and the power of judicial review. The Constitution also provides for constitutional benches and specialised bodies.

8. Justiciable fundamental rights Unlike many earlier constitutions, the 2015 Constitution makes fundamental rights directly enforceable. Citizens can approach the Supreme Court or High Courts under Articles 46, 133 and 144 for writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto. The National Human Rights Commission is also constitutionally established.

9. Directive principles, policies and obligations Part 4 (Articles 49–51) lays down directive principles, policies and obligations of the state aimed at building a socialism-oriented, prosperous and just society. These guide the state in policy-making, though they are not directly enforceable in courts.

10. Independent constitutional bodies The Constitution provides for several independent constitutional bodies — the Election Commission, Public Service Commission, Commission for the Investigation of Abuse of Authority, Auditor General, National Human Rights Commission, National Women Commission, National Dalit Commission, National Inclusion Commission, and others — to ensure accountability and inclusiveness.

11. Single citizenship with provincial identity Article 10 provides for single federal citizenship with provincial identity. A citizen enjoys the same rights throughout the country while retaining a provincial identity, balancing national unity with provincial recognition.

12. Provision for amendment Article 274 provides for a flexible yet safeguarded amendment procedure. Most provisions can be amended by a two-thirds majority of the total membership of each House of the federal Parliament, while matters of national sovereignty, territorial integrity and the rights of provinces require special consent as specified in the Constitution.

13. Supremacy of the Constitution Article 1 declares the Constitution the fundamental law of the land; any law inconsistent with it is void to the extent of inconsistency. This establishes constitutional supremacy, rule of law and constitutionalism.

Conclusion The Constitution of Nepal, 2015 is a progressive, inclusive and transformative document that institutionalises republicanism, federalism, secularism and human rights. Despite criticisms regarding implementation delays and some ambiguities in power-sharing, it remains the most inclusive constitution in Nepal’s constitutional history and provides the legal foundation for a federal democratic republic.

Fundamental Rights under the Constitution of Nepal (2072)

The Constitution of Nepal, promulgated on 20 September 2015 (3 Ashoj 2072 BS), guarantees fundamental rights in Part 3 (Articles 16-48). Articles 16 to 46 set out the rights, Article 47 requires laws to be made for their implementation, and Article 48 lists the duties of citizens. The rights are justiciable: a person whose right is violated can approach the Supreme Court (Article 133) or a High Court (Article 144) for enforcement.

Civil and political rights

1. Right to live with dignity (Art. 16): every person has the right to live with dignity; no law may provide for the death penalty.
2. Right to freedom (Art. 17): freedom of opinion and expression, peaceful assembly, forming political parties, unions and associations, movement and residence in Nepal, and practising any profession or business.
3. Right to equality (Art. 18): all citizens are equal before law; no discrimination on grounds of origin, religion, race, caste, tribe, sex, economic condition, language, region or ideology; equal pay for equal work; special provisions for women, Dalits, indigenous peoples, Madhesis, Tharus, Muslims, the disabled and other disadvantaged groups.
4. Right to communication (Art. 19): freedom of publication, broadcasting and press; no censorship.
5. Right relating to justice (Art. 20): protection against arbitrary arrest, the right to a lawyer, to be informed of the grounds of arrest, to be produced before a judicial authority within 24 hours, to a fair trial, and against double jeopardy and retroactive punishment.
6. Rights of victims of crime (Art. 21): to information about the investigation and trial, and to justice and compensation.
7. Right against torture (Art. 22) and right against preventive detention (Art. 23).
8. Right against untouchability and discrimination (Art. 24): caste-based untouchability and discrimination are punishable offences.
9. Right to property (Art. 25): every citizen may acquire, own, use and dispose of property; compulsory acquisition only for public interest, with compensation.
10. Right to freedom of religion (Art. 26): to profess, practise and preserve one's religion; conversion by force or inducement is prohibited.
11. Right to information (Art. 27) and right to privacy (Art. 28): privacy of the person, residence, property, documents, data, correspondence and character is inviolable.
12. Right against exploitation (Art. 29): trafficking, slavery, bonded labour and forced labour are prohibited.

Economic, social and cultural rights 13. Right to clean environment (Art. 30). 14. Right to education (Art. 31): compulsory and free basic education, free secondary education, and education in the mother tongue. 15. Right to language and culture (Art. 32). 16. Right to employment (Art. 33) and right to labour (Art. 34): fair remuneration, social security and trade-union rights. 17. Right to health (Art. 35): free basic health services and access to emergency care. 18. Right to food (Art. 36) and right to housing (Art. 37).

Rights of specific groups 19. Women (Art. 38), children (Art. 39), Dalits (Art. 40), senior citizens (Art. 41). 20. Right to social justice (Art. 42) and right to social security (Art. 43). 21. Rights of consumers (Art. 44) and right against exile (Art. 45).

Enforcement 22. Right to constitutional remedy (Art. 46): the right to approach the courts for enforcement of fundamental rights, including through writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.

Conclusion Compared with earlier constitutions, the 2015 Constitution gives wider protection, including economic, social and cultural rights. These rights are not absolute: reasonable restrictions may be imposed by law in the interest of sovereignty, public order, morality and the rights of others, and the judiciary protects them through judicial review.

Constitution and Its Difference from Ordinary Laws

Meaning of Constitution

A constitution is the fundamental and supreme law of a state. It is the body of basic rules and principles that establishes the structure of the government, distributes powers among its organs (legislature, executive and judiciary), defines the relationship between the state and its citizens, and guarantees the rights and duties of the people. It is the source from which all other laws derive their validity. In the words of Aristotle, a constitution is "the way of life of a state." Wade and Phillips define it as "that body of rules which regulates the government of a state." Every state, whether democratic or not, has a constitution — written or unwritten.

Differences Between the Constitution and Other (General) Laws

Conclusion

Thus, the constitution is the supreme, fundamental and organic law of the state, while ordinary laws are subordinate, specific and flexible rules made under its authority. The constitution is the foundation upon which the entire legal and governmental structure rests; ordinary laws are merely the bricks built upon that foundation. This supremacy and permanence is what essentially distinguishes the constitution from all other laws.

Critical Analysis of the Formation of the Council of Ministers of Nepal under the Existing Constitution

1. Introduction

The Council of Ministers is the real executive organ of the Nepali state. Under the Constitution of Nepal, 2072 (2015), its formation is governed mainly by Article 76, read together with Articles 77, 78 and 78A. The Constitution adopts a parliamentary system in which the executive derives its legitimacy from the House of Representatives (HoR). This answer critically analyzes the constitutional scheme of formation, its merits, and its practical weaknesses.

2. Constitutional Basis of Formation

Article 76 lays down the procedure for appointing the Prime Minister:

• Clause (1): The President appoints as Prime Minister the leader of the parliamentary party that commands a majority in the HoR.
• Clause (2): If no party has a clear majority, the President appoints as Prime Minister a member of the HoR who can secure a majority with the support of two or more parties.
• Clause (3): If a majority cannot be secured even under clause (2), the President appoints as Prime Minister the leader of the largest parliamentary party.
• Clause (4): A Prime Minister appointed under clause (3) must obtain a vote of confidence within 30 days.
• Clause (5): A Prime Minister appointed under clause (2) or (3) must obtain a vote of confidence within 30 days if he/she ceases to be supported by the parties that backed him/her.
• Clause (6): If a Prime Minister appointed under clause (3) fails to obtain a vote of confidence, the President appoints as Prime Minister a member who can command a majority with the support of two or more parties.
• Clause (7): If a Prime Minister cannot be appointed even under clause (6), the President dissolves the HoR and calls fresh elections within six months.
• Clause (9): The Prime Minister and Ministers are collectively responsible to the HoR.

Article 77 deals with the composition and allocation of portfolios: the Prime Minister may appoint Deputy Prime Ministers and Ministers from among HoR members, and Ministers may also be appointed from among National Assembly members, subject to the condition that such Ministers must be members of either House within six months. The total number of Ministers, including the Prime Minister, must not exceed 25.

Article 78 provides for the appointment of a Minister who is not a member of either House, on the recommendation of the Prime Minister, subject to the same six-month membership requirement. Article 78A (added by the second amendment) requires the Prime Minister to obtain a vote of confidence within 30 days if the party he/she leads splits.

3. Critical Analysis

(a) Merits of the Existing Scheme

1. Democratic legitimacy: The Prime Minister emerges from the directly elected House, ensuring the executive is accountable to the people's representatives.
2. Flexibility in hung parliament: Clauses (2), (3) and (6) provide a graded mechanism to form a government even when no party has a clear majority, avoiding immediate constitutional deadlock.
3. Stability safeguards: The 30-day confidence vote, the six-month membership rule, and the 25-Minister ceiling are designed to prevent unstable and bloated governments.
4. Collective responsibility: Article 76(9) makes the entire Council answerable to the HoR, strengthening parliamentary control.

(b) Weaknesses and Critical Observations

1. Ambiguity in "commanding a majority": The Constitution does not clearly define how "majority with the support of two or more parties" is to be verified. This has led to disputes and floor tests being used as the only reliable measure.
2. Political instability: The provision allowing the leader of the largest party to become Prime Minister [clause (3)] has, in practice, produced minority governments that fall quickly. Nepal has seen repeated changes of government since 2015, showing the scheme's failure to ensure stability.
3. Floor crossing and party splits: Article 78A, while intended to discourage defection, has been criticised for legitimising splits that destabilise governments. The requirement of a fresh confidence vote after a split often triggers political crisis.
4. Presidential discretion: The President's role in inviting a Prime Minister under clauses (2), (3) and (6) leaves room for subjective interpretation, raising questions of neutrality.
5. 25-Minister ceiling: Although meant to control expenditure and ensure efficiency, it has been criticised as arbitrary and has led to imbalance in representation of provinces, women, and marginalised groups.
6. Non-member Ministers: The six-month rule for non-members can be misused to bring in technocrats or loyalists without immediate electoral accountability.

4. Conclusion

The formation of the Council of Ministers under the existing Constitution of Nepal is based on sound parliamentary principles—majority rule, collective responsibility, and accountability to the HoR. However, its practical operation has exposed serious flaws: ambiguity in appointment criteria, recurring instability, and the misuse of party-split provisions. For the scheme to work as intended, clearer statutory guidelines on majority verification, stricter anti-defection rules, and a more balanced ministerial ceiling are needed. Without such reforms, the constitutional design of executive formation will continue to produce fragile and short-lived governments.

Separation of Powers and Checks and Balances

1. Separation of Powers

Meaning. The principle of separation of powers means the division of the sovereign power of the state among three distinct organs of government — the legislature, the executive, and the judiciary — so that each organ exercises its own function independently, and no single organ or person holds all the powers of the state. In simple words, it is the doctrine that "power should not be concentrated in one hand; it should be separated and distributed among different organs."

Origin and development. The doctrine is ancient in origin. Aristotle, in his Politics, classified the functions of government into deliberative, executive, and judicial. John Locke, in his Second Treatise of Civil Government (1690), distinguished legislative, executive, and federative powers. But the doctrine received its classic and systematic exposition from the French jurist Baron de Montesquieu in his book The Spirit of Laws (1748). Montesquieu wrote:

"When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty... Again, there is no liberty if the judiciary power be not separated from the legislative and executive."

Three organs and their functions.

Rationale. The main purposes of separation of powers are: (a) to prevent tyranny and concentration of power; (b) to protect individual liberty and fundamental rights; (c) to ensure the rule of law; (d) to promote efficiency through division of labour; and (e) to maintain the independence of the judiciary.

2. Checks and Balances

Meaning. Checks and balances is a corollary of the doctrine of separation of powers. Since a strict or absolute separation of powers is neither possible nor desirable in a modern state, each organ is given certain powers by which it can check and control the other organs, so that no organ becomes supreme. In this way, the three organs remain not only separate but also balanced against one another. It is the system under which "each organ of government is given the means to resist the encroachment of the other organs."

How checks and balances operate.

• Legislature checks the executive: The legislature passes no-confidence motions, approves the budget, asks questions, moves motions of adjournment, and can impeach the head of state or ministers. In Nepal, the Parliament can pass a vote of no confidence against the Prime Minister (Art. 100) and ratify treaties.
• Executive checks the legislature: The executive (President/Prime Minister) can summon and prorogue sessions, dissolve the House of Representatives (Art. 76), recommend ordinances when the House is not in session (Art. 114), and veto or withhold assent to bills (Art. 113).
• Judiciary checks both: The courts exercise the power of judicial review over laws and executive actions that violate the Constitution (Art. 133), issue writs (habeas corpus, mandamus, certiorari, prohibition, quo warranto), and can declare laws unconstitutional.
• Legislature and executive check the judiciary: Judges are appointed through a constitutional process (Judicial Council), their conduct can be questioned through impeachment (Art. 101), and the legislature can amend the Constitution or alter the jurisdiction of courts by law.
• Judiciary checks the executive: Through writ jurisdiction and contempt power, the courts compel the executive to act lawfully.

3. Position in Nepal

The Constitution of Nepal, 2072 BS (2015 AD) does not follow the doctrine of separation of powers in its strict sense. It adopts a parliamentary system in which the executive is drawn from and responsible to the legislature. However, the Constitution distributes state power among the legislature (Part 8), the executive (Part 7), and the judiciary (Part 11), and provides for mutual checks and balances — e.g., judicial review (Art. 133), vote of no confidence (Art. 100), ordinance power (Art. 114), and impeachment (Art. 101). The judiciary is made independent (Art. 127–128), which reflects the spirit of the doctrine.

4. Conclusion

The doctrine of separation of powers and the system of checks and balances are complementary. Separation of powers prevents concentration of authority; checks and balances prevent any organ from becoming absolute. Together they safeguard liberty, uphold the rule of law, and maintain constitutional equilibrium. In practice, no state applies the doctrine absolutely; what is applied is a "separation of powers with checks and balances," which is the essence of modern constitutional government.

Federation

A federation is a system of government in which the powers of the state are constitutionally divided between a central (federal) government and constituent regional units (such as states, provinces or cantons), with each level exercising its own powers directly over the people. Neither level is subordinate to the other in the sphere assigned to it; both derive their authority from the constitution. A federation is thus a union of partially self-governing units held together by a common central authority.

Key features:

• Written, rigid constitution — the division of powers is laid down in the constitution and cannot be altered unilaterally by either level.
• Two sets of government — central government and regional (state/provincial) governments, each with its own legislature, executive and judiciary.
• Division of powers — powers are enumerated, usually as union, state and concurrent lists.
• Supremacy of the constitution — the constitution is the supreme law; disputes over powers are settled by the judiciary or a constitutional court.
• Bicameralism — the upper house usually represents the constituent units (e.g. Nepal's National Assembly, the US Senate).
• Dual citizenship — in many federations (e.g. the USA) a person holds both federal and state citizenship.
• Independent judiciary — an impartial court acts as the guardian of the constitution and umpire in centre–unit disputes.

Difference between Federation and Unitary System

Conclusion: In a federation, authority flows from both the centre and the units, and the constitution safeguards the existence and powers of the units. In a unitary system, authority flows only from the centre, and the units exist at its pleasure. Hence the essential test of a federation is not the mere existence of provinces, but whether the units possess constitutionally guaranteed autonomy that the centre cannot withdraw at will.

Meaning of fundamental rights

Fundamental rights are the basic rights guaranteed by the Constitution itself and enforceable by courts. They are called fundamental because they:

• are essential for the life, liberty, dignity and development of a person;
• are placed in the Constitution (Part 3, Articles 16 to 48 of the Constitution of Nepal, 2072);
• are justiciable, so a victim can approach the Supreme Court or High Court under Article 46 and Article 133;
• limit the State: any law inconsistent with them is void to that extent.

Right against untouchability and discrimination (Article 24)

The question's "radical discrimination" should read "racial discrimination". Article 24 is headed Right against Untouchability and Discrimination. Its main provisions are:

1. No untouchability or discrimination in any private or public place on the ground of caste, descent, community, profession, occupation or physical condition. Such acts are prohibited.
2. Equal access: no person may be denied access to public places, public services, public religious places or public facilities, or the use of public property, on those grounds.
3. No propagation of superiority or hatred: no one may spread caste-based ideas of superiority or inferiority, or justify social discrimination.
4. Employment and wages: no discrimination in employment, occupation, wages or remuneration for the same work.
5. Goods and services: no discrimination in the sale or distribution of goods, services or facilities offered to the public.
6. Punishment and compensation: any such act is a punishable offence under law, and the victim is entitled to compensation as provided by law.

Supporting provisions

• Article 18, right to equality: equality before law and a ban on discrimination, with special provision allowed for the protection and advancement of disadvantaged groups.
• Article 40, rights of Dalits and Article 42, right to social justice: proportional inclusion in state bodies and special support in education, health, housing and employment.
• Article 46 and Article 133: the remedy for violation of any fundamental right.

Statutory support

The Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2068 gives effect to Article 24. It declares such acts offences, prescribes imprisonment and fines, and provides compensation to victims.

Conclusion

Article 24 is a fundamental right that bans untouchability and discrimination in public and private life, in access to places and services, in employment and in the market. It is enforceable through the courts and backed by the 2068 Act.

Formation of the Cabinet in the Parliamentary System

In a parliamentary system, the executive (the Cabinet) is drawn from and is responsible to the legislature. The Cabinet is not directly elected by the people; it is formed after the general election of the legislature. The process is as follows:

1. Holding of general election: The legislature (in Nepal, the House of Representatives) is elected by the people. The election decides the strength of each party in the House.

2. Identification of the majority party or coalition: The political party that wins a majority of seats, or a coalition of parties that together commands a majority, becomes entitled to form the government. If no party has a clear majority, parties may form a coalition or an alliance.

3. Appointment of the Prime Minister: The head of state (the President in Nepal, the King/Queen in Britain) formally appoints the leader of the majority party or the leader of the majority coalition as the Prime Minister. The head of state's role is largely formal — he or she must invite the person who can command the confidence of the House.

4. Appointment of ministers on the PM's advice: The Prime Minister selects the ministers and allocates portfolios. The head of state appoints them on the recommendation of the Prime Minister. Ministers are usually members of the legislature, though a limited number of non-members may also be appointed in some systems.

5. Vote of confidence: The Prime Minister must prove a majority in the legislature, usually by obtaining a vote of confidence within a fixed period (in Nepal, within 30 days of appointment). If the government fails to win the confidence vote, it must resign.

6. Collective responsibility: The Cabinet so formed remains in office only so long as it retains the confidence of the majority in the legislature. It is collectively responsible to the House.

Thus, the Cabinet is formed out of the legislature, is led by the Prime Minister, and survives on the confidence of the House — these are the defining features of cabinet government in the parliamentary system.

Role of the Prime Minister in the Cabinet System

The Prime Minister is the real head of the government and the central figure of the Cabinet system. His or her role can be explained as follows:

1. Formation of the Cabinet: The PM selects the ministers, distributes portfolios, and advises the head of state on their appointment. He or she can also ask a minister to resign or advise the head of state to remove one.

2. Chairperson of the Cabinet: The PM presides over Cabinet meetings, sets the agenda, guides discussion, and sums up decisions. The Cabinet's decisions are, in practice, the PM's decisions.

3. Chief coordinator: The PM coordinates the work of all ministries, resolves conflicts between departments, and ensures that the government speaks with one voice.

4. Link between the head of state and the Cabinet: The PM is the chief channel of communication between the head of state and the Council of Ministers. He or she advises the head of state on appointments, dissolution of the House, and other constitutional matters.

5. Leader of the legislature: The PM is normally the leader of the majority party in the House. He or she controls the legislative programme, moves important bills, and uses the party's majority to get them passed.

6. Chief spokesperson of the government: The PM represents the government inside and outside the country, makes major policy statements, and defends government actions in the House and before the public.

7. Leader of the party: As leader of the majority party or coalition, the PM holds the party together, maintains discipline, and manages coalition partners.

8. Crisis manager: In emergencies — war, natural disaster, economic crisis — the PM provides leadership and takes decisive action on behalf of the government.

9. Collective responsibility: The PM is the keystone of collective responsibility. If the PM resigns or loses the confidence of the House, the whole Cabinet falls with him or her.

Conclusion: The Prime Minister is described as "primus inter pares" (first among equals) in the Cabinet. In practice, however, the office has grown so powerful that the PM is the pivot on which the entire parliamentary government turns — the Cabinet is formed, run, and dissolved around him or her.

Federation and Its Challenges under the Constitution of Nepal

1. Concept of Federalism

Federalism is a system of government in which powers are constitutionally divided between a central (federal) government and constituent units (provinces/states), each exercising its own authority independently within its sphere. Nepal adopted federalism through the Constitution of Nepal, 2072 (2015), transforming from a unitary to a federal democratic republic. This was a major outcome of the People's Movement (Jana Andolan) II of 2062/63 and the decade-long Maoist insurgency, which raised demands for restructuring the state to end centralization, discrimination, and exclusion.

2. Constitutional Provisions Regarding Federation

(a) Federal Structure and Units

• Article 56 provides that the State of Nepal shall comprise three tiers: the Federation, Provinces, and Local Levels.
• Article 56(1) establishes Nepal as a federal democratic republic with 7 provinces and 753 local levels (6 metropolitan cities, 11 sub-metropolitan cities, 276 municipalities, and 460 rural municipalities).
• Article 57 provides that the federal, provincial, and local levels shall exercise sovereign powers as per the Constitution.

(b) Distribution of Legislative Powers

• Article 58 deals with the distribution of State power, and Schedules 5, 6, 7, 8, and 9 list:
  • Schedule 5 – Powers of the Federation (e.g., defence, foreign affairs, currency, citizenship).
  • Schedule 6 – Powers of Provinces (e.g., provincial police, education, health, agriculture).
  • Schedule 7 – Concurrent powers of Federation and Provinces (e.g., criminal law, civil law, forests).
  • Schedule 8 – Powers of Local Levels (e.g., local taxes, local infrastructure).
  • Schedule 9 – Concurrent powers of Federation, Provinces, and Local Levels.
• Article 115 provides that if a conflict arises between federal and provincial law on a concurrent subject, the federal law prevails; provincial law prevails if it was enacted later with federal consent.

(c) Executive and Administrative Powers

• Article 61 provides for the President as the Head of State of the Federation.
• Article 74 provides for a Council of Ministers headed by the Prime Minister for the federal executive.
• Article 75 provides for the formation of the federal government.
• Article 76 provides for the appointment of the Prime Minister and formation of the Council of Ministers.
• Article 77 provides for the Governor as the Head of the Province, appointed by the President.
• Article 162 provides for the Chief Minister and Provincial Council of Ministers.
• Article 214 provides for the District Assembly and District Coordination Committee to coordinate between local levels and the provincial government.

(d) Financial Provisions

• Article 59 provides for federal, provincial, and local consolidated funds.
• Article 60 provides for the distribution of revenue among the three tiers.
• Article 115 and the National Natural Resources and Fiscal Commission (Article 250) ensure equitable distribution of natural resources and fiscal transfers.
• Article 251 provides for the Inter-Provincial Council to settle disputes and coordinate among provinces.

(e) Judicial Provisions

• Article 126 establishes the Supreme Court as the highest court of the Federation.
• Article 139 establishes High Courts in each province.
• Article 148 provides for District Courts and local judicial bodies.

(f) Other Federal Provisions

• Article 56(4) provides for special, protected, and autonomous regions and special zones as per the Constitution.
• Article 57(2) provides that provinces and local levels shall have autonomous legislative, executive, and judicial powers.
• Article 232 provides for federal-provincial-local coordination through the Inter-Provincial Council and other mechanisms.
• Article 268 provides for emergency powers of the President in case of war, external aggression, armed rebellion, or extreme economic crisis.

3. Challenges of Federation in Nepal

(a) Political and Institutional Challenges

1. Delay in formation of provincial governments: After the 2017 elections, provincial governments were formed late, and the federal parliament took time to pass necessary laws.
2. Lack of clarity in power-sharing: Ambiguity in Schedules 5–9 has led to disputes between federal and provincial governments over subjects like education, health, and forests.
3. Weak provincial institutions: Provinces lack adequate administrative capacity, trained manpower, and infrastructure to exercise their constitutional powers effectively.
4. Frequent changes in government: Political instability at the federal level has affected the smooth functioning of federalism.

(b) Fiscal and Economic Challenges

1. Dependency on federal grants: Provinces and local levels are heavily dependent on federal fiscal transfers, lacking independent revenue sources.
2. Unequal distribution of resources: Provinces like Karnali and Sudurpaschim lag behind in revenue generation and development compared to Bagmati and Gandaki.
3. Delay in fiscal transfers: Funds are often released late, affecting provincial and local budgets and development activities.
4. Corruption and mismanagement: Poor financial discipline and corruption at all levels hinder effective implementation of federalism.

(c) Administrative and Bureaucratic Challenges

1. Shortage of skilled manpower: Provinces and local levels struggle to recruit and retain qualified civil servants.
2. Coordination problems: Lack of effective coordination among the three tiers leads to duplication of work and confusion.
3. Weak local governance: Many local levels lack basic infrastructure, offices, and resources to deliver services effectively.

(d) Socio-Cultural and Geographical Challenges

1. Ethnic and regional diversity: Nepal's multi-ethnic, multi-lingual, and multi-religious society makes it difficult to satisfy all groups' demands for representation and autonomy.
2. Geographical disparities: Mountainous and remote regions face difficulties in accessing services and participating in governance.
3. Identity politics: Demands for separate provinces or autonomous regions by various ethnic groups (e.g., Madhesi, Tharu, Janajati) create tension.

(e) Legal and Constitutional Challenges

1. Incomplete laws: Many federal laws required to operationalize federalism have not yet been enacted.
2. Conflicting laws: Provincial laws sometimes conflict with federal laws, leading to legal disputes.
3. Judicial interpretation: The Supreme Court has had to intervene in several federalism-related disputes, indicating ambiguity in constitutional provisions.

(f) Other Challenges

1. Resistance from central bureaucracy: Traditional central agencies are reluctant to transfer power and resources to provinces.
2. Lack of public awareness: Citizens are often unaware of their rights and the roles of different tiers of government.
3. COVID-19 pandemic: The pandemic exposed coordination weaknesses among the three tiers and strained fiscal resources.

4. Conclusion

The Constitution of Nepal, 2072, has laid a strong legal foundation for federalism through Articles 56–60, 115, 232, 250, 251, and Schedules 5–9. However, the effective implementation of federalism faces numerous challenges—political, fiscal, administrative, socio-cultural, and legal. Addressing these challenges requires political commitment, capacity building, clear laws, equitable resource distribution, and effective coordination among all three tiers of government. Only then can federalism deliver its promised benefits of inclusion, equality, and development for all Nepali citizens.

Meaning. Independence of the judiciary means that judges decide cases only on law, evidence and conscience, free from pressure by the executive, legislature, parties or litigants. It has an institutional side (separation from other organs, security of tenure, financial and administrative autonomy) and a decisional side (freedom of the individual judge in deciding).

The statement treats independence as a means to an end: only an independent judiciary can hold proceedings that are fair, transparent and respectful of the parties' rights. This is largely correct, and the test in Nepal is how far the framework works in practice.

1. Constitutional and legal framework

2. Fairness

Strengths: adversarial hearings with cross-examination, legal counsel and free legal aid, the presumption of innocence, reasoned decisions with appeal, and public interest litigation that has widened access for marginalised groups.

Weaknesses: long delays and large backlogs ("justice delayed is justice denied"); lengthy pre-trial detention; thin quality of legal aid; language and distance barriers for poor, Dalit and indigenous litigants; and executive non-compliance with court orders.

3. Transparency

Strengths: open hearings, published judgments and orders, online cause lists and case information, and media access.

Weaknesses: limited published reasons and criteria in judicial appointments and transfers by the Judicial Council; weak public access to complaints and disciplinary outcomes; and uneven digital infrastructure.

4. Respect for parties' rights

Article 20 and 21 protect accused persons and victims, and special laws protect children and victims. In practice, victim compensation is rare, witness protection is weak, and women, persons with disabilities and the poor face barriers in court.

5. Critical examination

• Institutional independence is well protected on paper, but political influence on appointments (the Judicial Council includes the Law Minister and political nominees influence the process) and allegations of corruption weaken public trust.
• Decisional independence is generally respected by the Supreme Court, which has struck down laws and ordered the government in important cases, though pressure and delay persist.
• Fairness, transparency and rights of parties are guaranteed in text but unevenly delivered in practice, especially for the poor.

Conclusion. The statement is correct: independence is the foundation of fair, transparent and rights-respecting proceedings. Nepal's constitutional design is sound, but there is still a gap between promise and practice. Merit-based and transparent appointments, adequate resources, quicker disposal, better legal aid and strict enforcement of judgments are needed to close it.

Is it possible to amend a written constitution?

Yes. A written constitution is a formal, codified document, but it is not unchangeable. It contains its own procedure for amendment. A constitution that could never be changed would become rigid and out of step with society, and might be overthrown by force. So almost every written constitution, including Nepal's, provides a special procedure for its amendment, more difficult than the one for ordinary laws.

Why the amendment provision is included in the constitution

1. Adaptability: society, economy, technology and politics change, and the constitution must change with them without being replaced.
2. Peaceful, lawful change: it gives a legal route for change, avoiding revolution and unconstitutional methods.
3. Balance of rigidity and flexibility: ordinary laws can be changed easily, the constitution only by a special majority.
4. Protection of basic character: a special majority prevents a temporary simple majority from altering fundamental features.
5. Certainty and supremacy: it fixes who may amend, how, and within what limits, preserving the supremacy of the constitution.
6. Legitimacy: a large majority of the people's representatives must agree.

Provisions of the Constitution of Nepal, 2072 (Article 274)

(a) Introduction: a Bill to amend or repeal any Article may be introduced in either House of the Federal Parliament. The Constitution excludes any amendment that is contrary to the spirit of the Preamble.

(b) Majority: the Bill must be passed by a two-thirds majority of the total members of each House. With 275 members in the House of Representatives and 59 in the National Assembly, this means at least 184 and 40 votes respectively.

(c) Provincial matters: where the amendment concerns matters relating to the provinces, such as the boundaries or areas of a province, the Bill must also be sent to, and approved by, the concerned Provincial Assembly before it is passed.

(d) Certification: the passed Bill is presented to the President, who certifies it. It comes into force from the date of certification.

(e) No referendum: the Constitution does not require a referendum for amendment; passage in Parliament by the special majority (with provincial approval where required) is sufficient.

Conclusion

The Constitution of Nepal can be amended, but only through a special two-thirds procedure, with provincial involvement in provincial matters, and not in a way that goes against the spirit of the Preamble.

Theories of Constitutional Interpretation

Constitutional interpretation is the process by which courts determine the meaning of constitutional provisions. Since a constitution is a living document drafted in general terms, its interpretation requires certain guiding theories. The major theories are as follows:

1. Literal or Textual Theory (Plain Meaning Theory) This theory holds that the constitution must be interpreted according to the ordinary, natural and grammatical meaning of its words. The court should not add or subtract anything. If the language is clear, the literal meaning prevails. State v. Keshari Raj Pandey (NKP 2049) reflects this approach. Its merit is certainty and objectivity; its demerit is that it ignores the purpose and changing social context.

2. Golden Rule Theory This is a modification of the literal rule. Here the words are given their ordinary meaning, but if that produces absurdity, repugnancy or injustice, the court may modify the literal meaning to avoid such absurdity. It is a midway path between literal and purposive interpretation.

3. Mischief Rule (Heydon's Case, 1584) Under this theory the court looks at the defect or mischief the constitutional provision was intended to remedy. It examines: (a) what was the law before; (b) what was the mischief or defect; and (c) what remedy the framers provided. The court then interprets the provision so as to suppress the mischief and advance the remedy. This is useful in interpreting fundamental rights and directive principles.

4. Purposive Theory This theory requires the court to ascertain the purpose or object of the provision and interpret it so as to fulfil that purpose. It is widely used in modern constitutional adjudication, especially in cases concerning fundamental rights. Surya Prasad Sharma Dhungel v. Godavari Marble Industries (NKP 2052) and Advocate Prakash Mani Sharma v. HMG are examples where the Supreme Court of Nepal adopted a purposive approach to expand the scope of Article 16 (right to live with dignity) to include the right to a clean environment.

5. Harmonious Construction Theory No provision of the constitution should be interpreted in isolation. The court must read the whole constitution together and give effect to all provisions, avoiding conflict between them. This theory is applied when two provisions appear to clash.

6. Living Constitution Theory (Progressive/Dynamic Theory) The constitution is not static; it must be interpreted in the light of changing social, economic and political conditions. The framers could not foresee all future circumstances, so the court should give a dynamic meaning. The doctrine of implied powers and the expansion of fundamental rights in Nepal illustrate this theory.

7. Doctrine of Pith and Substance Borrowed from Canadian and Indian practice, this theory is used in federal disputes. The court examines the true nature and substance of a law rather than its form to decide whether it falls within the competence of the federal or provincial legislature. In Nepal it is relevant to Schedules 5–9 of the Constitution of Nepal, 2072.

8. Doctrine of Colourable Legislation Where a legislature lacks competence on a subject, it may attempt to legislate on it indirectly. The court looks at the real character of the legislation and strikes it down if it is colourable.

9. Strict Construction of Limitations Provisions that limit fundamental rights or confer exceptional powers are construed strictly in favour of the citizen. Conversely, provisions conferring fundamental rights are construed liberally.

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Should the Court Stay Apart in Political Questions?

The "political question doctrine" holds that certain questions which are inherently political should be left to the political branches (executive and legislature) and not decided by the court. It originated in the United States (Marbury v. Madison, 1803; Baker v. Carr, 1962) and is followed in various forms in Nepal.

Arguments in favour of judicial restraint:

1. Separation of powers — The judiciary, executive and legislature have distinct functions. Deciding pure policy matters would amount to judicial legislation, violating the doctrine of separation of powers.
2. Lack of expertise and mandate — Judges are not elected and lack the political mandate or technical expertise to decide questions of national policy, foreign affairs or war.
3. Justiciability — Courts act only on legal disputes. Questions such as the formation of a coalition, confidence motions or treaty ratification are not amenable to judicial standards.
4. Finality and stability — Interference in political matters may create constitutional deadlock and undermine the authority of elected organs.

Arguments against absolute restraint:

1. Constitutional supremacy — Under Article 128 of the Constitution of Nepal, 2072, the Supreme Court has the power of judicial review. If a political act violates the constitution, it becomes a legal question and is justiciable.
2. Protection of fundamental rights — Even political decisions cannot infringe fundamental rights. The court must intervene to protect citizens.
3. Abuse of power — Absolute restraint may allow the executive or legislature to act arbitrarily. Judicial review is a check on such excess.
4. Nepali practice — In Ravi Lamichhane v. Office of the Prime Minister and in cases relating to the dissolution of the House of Representatives (2021), the Supreme Court intervened, showing that political questions are not wholly immune from review.

Conclusion: The court should not stay completely apart from political questions. A balanced approach is required. Pure policy questions—such as the merits of a bill or the conduct of foreign policy—should be left to the political branches. But where a political act violates the constitution, exceeds constitutional limits, or infringes fundamental rights, the court must exercise judicial review. Thus, the court should stay apart only in genuinely non-justiciable political questions, not in every matter having a political colour.

Short notes (any three)

a) Preamble of the constitution

The Preamble is the introductory statement of a constitution that declares its source of authority, objectives and spirit. It is not an operative provision but is a key to interpretation. The Preamble of the Constitution of Nepal, 2072 declares that sovereignty and state authority rest in the Nepali people. It commits the country to a federal democratic republic, secularism, inclusiveness, proportional representation, human rights, and the goal of socialism based on democratic values. Article 274 forbids amendments contrary to the spirit of the Preamble.

b) Doctrine of sub judice

Sub judice ("under a judge") means that a matter pending before a court should not be discussed or commented upon in Parliament or in public in a way that may prejudice a fair trial. In parliamentary practice a member cannot raise a pending court matter in the House. The rule protects the independence of the judiciary and maintains comity between the legislature and the courts. It is not absolute: the Speaker may allow discussion of a matter of urgent public importance. The Rules of Procedure of the House of Representatives follow this principle.

c) Semi-proportional system

A semi-proportional (mixed) electoral system combines first-past-the-post (FPTP) with proportional representation (PR). In Nepal, the House of Representatives has 275 members: 165 elected by FPTP from single-member constituencies and 110 elected by PR from closed party lists. It is not fully proportional because FPTP favours larger parties. It was adopted to combine territorial representation with the inclusion of women, Dalits, indigenous peoples, Madhesis and other marginalised groups.

d) Constitutional role of the head of state

The President is the head of state and symbol of national unity (Article 61). The President is elected by an electoral college for a five-year term. The President appoints the Prime Minister under Article 76, summons and prorogues Parliament, authenticates bills, issues ordinances (Article 114), appoints constitutional office-holders on the recommendation of the Constitutional Council, and is the Supreme Commander of the Nepal Army. The role is largely ceremonial: the President acts on the advice of the Council of Ministers. The Speaker is elected by the House of Representatives, not appointed by the President.

e) Emergency power

Emergency power is the special power to deal with an extraordinary crisis. Under Article 273 of the Constitution of Nepal, the President may proclaim a state of emergency on the recommendation of the Council of Ministers if the sovereignty, integrity or security of Nepal or any part of it is in grave peril because of war, external aggression, armed rebellion, extreme economic depression, natural calamity or epidemic. The proclamation must be approved by the House of Representatives within one month, otherwise it lapses. Certain fundamental rights may be suspended during an emergency, but not all, and the power must stay within constitutional limits to prevent abuse.