Comparison between Procedural Law and Substantive Law

1. Introduction

Law, in its broadest sense, is divided into two fundamental branches on the basis of its content and function: Substantive Law and Procedural Law. Substantive law creates and defines rights, duties, liabilities and offences, whereas procedural law lays down the machinery or method through which those rights and duties are enforced in a court of law. The former is the "what" of law; the latter is the "how" of law. Both are complementary and interdependent — a right without a remedy is meaningless, and a remedy without a right is hollow. Hence, the maxim: "Ubi jus, ibi remedium" (where there is a right, there is a remedy).

---

2. Meaning

(a) Substantive Law

Substantive law is that body of law which defines and determines the rights, duties, obligations and liabilities of persons. It prescribes what acts are lawful or unlawful and what consequences follow from them. It deals with the substance or essence of the matter.

Examples:

• The Muluki Civil Code, 2074 — defines rights relating to property, contract, marriage, succession, etc.
• The Muluki Criminal Code, 2074 — defines offences (theft, murder, cheating) and prescribes punishments.
• The Contract Act, 2000 — determines when a contract becomes valid, void or voidable.

(b) Procedural Law

Procedural law (also called Adjective Law) is that body of law which prescribes the procedure, method and machinery by which substantive rights and liabilities are enforced, remedies are sought, and justice is administered. It governs the conduct of proceedings in courts and tribunals.

Examples:

• The Muluki Civil Procedure Code, 2074
• The Muluki Criminal Procedure Code, 2074
• The Evidence Act, 2031
• The Court Proceedings (Civil) Rules and Supreme Court Rules

---

3. Detailed Comparison

---

4. Points of Similarity

1. Both are branches of the same legal system and are interdependent.
2. Both are enforceable by the State through courts.
3. Both aim at administration of justice.
4. Both are dynamic and evolve with social change.
5. Both are binding on citizens and the State alike.

---

5. Interrelationship

Substantive law and procedural law are two sides of the same coin. The Supreme Court of Nepal and various legal authorities have repeatedly held that:

• Substantive law cannot be enforced without procedural law.
• Procedural law has no meaning without substantive law.
• A defect in procedure does not necessarily affect the substantive right, unless it causes failure of justice (Section 3 of the Civil Procedure Code, 2074).

Illustration: If A commits theft, the Muluki Criminal Code (substantive) defines theft and its punishment. The Muluki Criminal Procedure Code (procedural) tells how the complaint is filed, how the accused is arrested, how the trial is conducted, and how the sentence is executed.

---

6. Conclusion

Substantive law and procedural law are distinct but inseparable. Substantive law provides the skeleton (rights and duties), while procedural law provides the muscle and nerves (enforcement mechanism). One without the other is ineffective. In Nepal, the Muluki Civil Code and Muluki Criminal Code represent substantive law, while the Muluki Civil Procedure Code and Muluki Criminal Procedure Code represent procedural law. Together they form the twin pillars of the Nepalese legal system, ensuring both justice according to law and law according to justice.

Jurisdiction

Definition. Jurisdiction (from Latin juris dictio — "the saying of the law") is the authority or power conferred by law upon a court or tribunal to hear and determine disputes, to pronounce judgment, and to enforce that judgment. It is the legal competence of a court to take cognizance of a case. Without jurisdiction, a court's proceedings are a nullity — a decree passed without jurisdiction is void ab initio and cannot be cured by consent of the parties.

In Official Trustee v. Sachindra Nath, the Supreme Court of India held that jurisdiction is the power to hear and decide a matter, and that consent cannot confer jurisdiction where the law does not give it.

Nature of Jurisdiction

1. Legal authority, not a natural right. Jurisdiction is created by statute or the constitution; a court has only the jurisdiction expressly or impliedly conferred on it. It cannot assume jurisdiction on its own.
2. Not conferrable by consent. Parties cannot, by agreement, give a court jurisdiction it lacks, nor can they oust the jurisdiction of a court that lawfully has it (though in civil matters parties may by agreement choose among courts that already have jurisdiction).
3. Condition precedent to valid proceedings. A court must have jurisdiction over the subject-matter and the parties before it can pass a binding order. Want of jurisdiction makes the whole proceeding void.
4. Cannot be waived. An objection to jurisdiction can be raised at any stage, even at the stage of execution or appeal, because it goes to the root of the matter.
5. Determined by the law as it stands. Jurisdiction is judged by the law in force at the time the proceedings are instituted; subsequent changes ordinarily do not revive or destroy jurisdiction already exercised.
6. Limited and defined. Every court is a court of limited jurisdiction except the highest constitutional court, which has inherent and plenary powers.

Kinds of Jurisdiction

A. On the basis of the nature of the case

1. Civil jurisdiction — power to try suits relating to rights, property, contracts, torts, family matters, etc. (e.g., District Court in civil suits).
2. Criminal jurisdiction — power to try offences and impose punishment (e.g., District Court, High Court, Supreme Court in criminal cases).
3. Revenue and special jurisdiction — power to decide revenue, tax, land, election and other matters under special statutes (e.g., Revenue Tribunal, Election Commission courts).

B. On the basis of territorial limits

4. Territorial jurisdiction — the geographical area within which a court may exercise its authority. A court cannot ordinarily act beyond its territory.
5. Extra-territorial jurisdiction — power to try matters arising outside the territory, as in cases of offences committed abroad against the State or its citizens.

C. On the basis of the source and extent of power

6. Original jurisdiction — power to hear a case for the first time, as a court of first instance.
7. Appellate jurisdiction — power to hear appeals against decisions of subordinate courts.
8. Revisional jurisdiction — power to examine the legality or propriety of an order of a subordinate court without hearing a regular appeal.
9. Review jurisdiction — power of the same court to reconsider its own judgment.
10. Advisory jurisdiction — power to give opinions on constitutional or legal questions referred to it (e.g., the Supreme Court of Nepal under Article 137 of the Constitution).
11. Original and writ jurisdiction — power to issue writs such as habeas corpus, mandamus, certiorari, prohibition and quo warranto for the enforcement of fundamental rights.
12. Inherent jurisdiction — power inherent in a court to do justice and prevent abuse of process, preserved by statute (e.g., Section 9 of the Civil Procedure Code, 2074).

D. On the basis of the subject-matter

13. Exclusive jurisdiction — where only one court is empowered to try a matter, to the exclusion of all others.
14. Concurrent jurisdiction — where two or more courts have power to try the same matter, the plaintiff or prosecutor choosing one.
15. Pecuniary jurisdiction — jurisdiction determined by the value of the subject-matter or the amount claimed.
16. Original and transferred jurisdiction — power to try a case transferred to it by a superior court.

Conclusion. Jurisdiction is thus the foundation of judicial authority. It is conferred by law, cannot be created or destroyed by the will of the parties, and its absence renders a decision void. The classification above shows that jurisdiction may be classified by the nature of the case, territory, source of power and subject-matter, and a court must satisfy all the relevant tests before it can validly decide a dispute.

Under the National Criminal Procedure (Code) Act, 2074 (2017) a criminal case in Nepal moves through the following stages. The Code replaced the old Muluki Criminal Procedure Code, and the substantive offences and punishments are in the National Penal (Code) Act, 2074.

1. Pre-trial stages

(a) Complaint / first information (jaheri). Any person, including the victim, may report an offence to the police (or a government body empowered by law). The police must register it, and a refusal to register can be challenged.

(b) Investigation. The police, under the supervision of the government attorney, collect evidence: they inspect the scene, prepare a mahazar, arrest suspects within legal limits, record statements and send material for forensic examination. Detention for investigation is allowed only with the permission of the court, within the time limits fixed by the Code and Article 22 of the Constitution of Nepal 2072.

(c) Decision to prosecute and charge-sheet (abhiyog-patra). On the investigation file the government attorney decides whether to prosecute. If there is sufficient evidence, the charge-sheet is filed in the court that has jurisdiction. The government attorney's office has to file within the statutory limitation period for the offence. The government is the plaintiff in public offences.

2. Trial stages

(d) Registration, presentation of the accused and bayan. The court registers the case and issues a summons or warrant. The accused is produced, informed of the charge and given a copy of the charge-sheet. He or she is asked to give a statement (bayan), may admit or deny, and has the right to a lawyer and to remain silent. Custody, bail or dhito (security) is decided at this stage.

(e) Framing of charge / issues. After the plea, the court identifies the points in dispute.

(f) Examination of evidence. The prosecution leads witnesses and exhibits first. The defence cross-examines. The defence then produces its own evidence. Documents, expert reports and witnesses are examined in open court under the Evidence Act, 2031 (1974). The court may summon further witnesses.

(g) Final hearing (argument). Both sides argue on facts and law.

3. Judgment and after

(h) Judgment. The court decides, with reasons, whether guilt is proved beyond reasonable doubt. The judgment is pronounced in open court.

(i) Sentencing. If the accused is convicted, the court fixes punishment (imprisonment, fine, compensation to the victim) within the range set by the Penal Code. It also considers aggravating and mitigating factors.

(j) Appeal and review. A party who is dissatisfied may appeal to the next higher court within the limit prescribed by the Code (35 days from the date of knowledge of the decision). The chain is District Court -> High Court -> Supreme Court. The Supreme Court can also hear a revision or review in the cases set out in law.

(k) Execution of judgment. The final sentence is carried out: imprisonment through the Department of Prison Management, recovery of fines and compensation through the court, and release on completion of the term.

Summary

The Code is built around the presumption of innocence, the right to fair trial and the right to counsel under Article 20 of the Constitution of Nepal.

Meaning

Revision (punarabalokan) is an extraordinary remedy by which a higher court re-examines a final decision of a lower court for a serious error of law or a failure of justice. Unlike an appeal, it is not a right and is not a re-hearing on facts. It is granted only on the grounds and in the manner set out in law.

Conditions on which a revision petition may be filed

A revision petition is normally entertained when:

1. The decision is final (no further appeal is available), or the time for appeal has expired through no fault of the petitioner and substantial injustice would follow.
2. There is a serious error of law or a wrong interpretation of a legal provision.
3. The decision is contrary to a precedent of the Supreme Court, or involves a substantial question of constitutional or legal interpretation.
4. The court ignored important evidence or acted without jurisdiction, or there was a violation of natural justice.
5. Public interest or a miscarriage of justice requires re-examination.
6. The petition is filed within the time limit prescribed by the Supreme Court Act, 2073 (2016) and the relevant Codes. For a case decided by a High Court, the Supreme Court may admit the petition under its revision jurisdiction.

Procedure

1. The aggrieved party files a petition in the proper court, stating the facts, the decision challenged and the grounds, with a copy of the decision.
2. A preliminary hearing decides whether the petition should be admitted. A petition without sufficient ground is dismissed at this stage.
3. If admitted, the court calls for the case file and issues notice to the opposite party.
4. A final hearing is held on the points raised. A revision does not automatically stay the decision. The court may, for good reason, stay execution.
5. The court may uphold, reverse or modify the decision, or remit the case for fresh hearing.

Distinction from appeal

Conclusion

Revision protects the finality of judgments while letting the Supreme Court correct a clear legal wrong. A petitioner must therefore show a specific legal ground and not merely dissatisfaction with the outcome.

Parashuram Banjade v. Durgadai Shrestha, N.K.P. 2027, No. 1, p. 157

The Nepal Kanoon Patrika (N.K.P.) is the official law report of the Supreme Court. The year 2027 B.S. falls in the Panchayat period, when the Supreme Court decided civil disputes mostly under the Muluki Ain (General Code of 2020). A full case brief should be written from the report itself. The facts and holding below are given only as far as they can be stated with confidence.

How to present the case in an examination

1. Facts. The case is a civil dispute between two private parties, Parashuram Banjade and Durgadai Shrestha, which reached the Supreme Court from the lower courts. State in the examination: the parties' relationship and the property or right in dispute, the claim and defence, and the decisions of the lower courts, as they appear in the report at p. 157.

2. Issue. What point of law the Supreme Court had to decide on the lower courts' findings (for example, the evidence of title or document, or the application of a provision of the Muluki Ain).

3. Ratio decidendi. The legal principle on which the final decision rests. It binds later courts, as the Supreme Court's interpretation of law is binding on all courts in Nepal (Article 128(4) of the Constitution of Nepal, 2072 for the present period).

4. Decision. Whether the lower court's judgment was upheld, reversed or modified, and the order made.

Note on verification

The reported facts and holding of this case could not be confirmed from a reliable source. Students should read the judgment in N.K.P. 2027, No. 1, p. 157 and fill sections 1 to 4 from it. An answer built on guessed facts will be marked down.

Meaning

Execution of a criminal judgment (faisala karyanwayan) means giving practical effect to the final sentence imposed by a court: imprisonment, fine, compensation, confiscation or other order. A judgment is executed only when it is final, i.e. the time for appeal has passed or the appeal has been decided.

Authority

Under the National Criminal Procedure (Code) Act, 2074 (2017), the court that gave the judgment (through its judgment execution section) is responsible for seeing that it is carried out, with the help of the police, the prison and the government attorney. The Government of Nepal, through the Department of Prison Management, runs the prisons in which the sentence is served.

Modes of execution

(a) Imprisonment. The court issues a warrant (bandi-patra) to the prison. The convict is held for the term stated. The period already spent in custody during investigation and trial is counted against the sentence. The convict may be released on completing the term, with remission or earlier release only under the law (for example, parole or remission by the executive).

(b) Fine. A fine is realised by the court. If the convict does not pay, the court may recover it from property, or order imprisonment in lieu of the fine at the rate set in the Penal Code.

(c) Compensation and restitution to the victim. A compensation order is realised in the same way as a fine, from the convict's property, and is paid to the victim or the heirs.

(d) Confiscation (zafat). Property that is the proceeds or instrument of the offence is seized and vested in the Government as ordered.

(e) Capital punishment. Capital punishment was abolished by the Constitution of Nepal 2072 (Article 16). The maximum is life imprisonment under the Penal Code.

Procedure in outline

1. When the judgment becomes final the court's office prepares the execution file.
2. The court issues the warrant or order to the prison, police and the District Administration Office as needed.
3. The convict, if absent, is arrested by the police.
4. Fine, compensation and confiscation are executed through the court's recovery process.
5. The executing body reports to the court. The court may hear objections from the convict.

Safeguards

• A convict cannot be punished beyond the sentence stated.
• The Constitution of Nepal gives the President the power to grant pardon and remission (Article 276) on the advice of the Council of Ministers.
• The convict keeps basic rights in prison (Article 22 of the Constitution: rights of detainees).
• The executing authority has to return the warrant with a note of the action taken.

Short Notes on any THREE of the following:

---

a. Responsibilities-Judicate

The term "responsibilities-judicate" refers to the judicial duty or function of adjudication — the responsibility of a court or a judicial/quasi-judicial body to hear and decide disputes between parties by applying the law to the facts. It is one of the core responsibilities of the judiciary in a democratic state governed by the rule of law.

Key points:

1. Meaning: Adjudication means the process of resolving a dispute by a neutral third party (judge or tribunal) who examines the evidence and arguments of both parties and gives a binding decision.
2. Basis: It flows from the principle of separation of powers, under which the judiciary is entrusted with the function of interpreting and applying the law, while the legislature makes law and the executive implements it.
3. Nature of the duty: The responsibility is not merely a power but a duty — a court cannot refuse to decide a matter properly brought before it (denial of justice).
4. Requirements: The adjudicator must be independent, impartial, and must follow the principles of natural justice — audi alteram partem (hear the other side) and nemo judex in causa sua (no one shall be judge in his own cause).
5. Significance: It protects the rights of citizens, maintains law and order, settles conflicts peacefully, and upholds the supremacy of the constitution and the rule of law.

In Nepal, this responsibility is exercised by the courts under Article 126 of the Constitution of Nepal, which vests judicial power in the courts and judicial institutions.

---

b. Separate Bench System

The separate bench system is an arrangement in which different benches (a bench means a judge or a group of judges sitting to hear cases) are constituted to deal separately with different types of cases or different stages of the same case. Instead of one bench handling a matter from beginning to end, separate benches may deal with, for example, preliminary or procedural matters and the final hearing on the merits.

Key points:

1. Meaning: Constitution of distinct benches for distinct categories of cases (civil, criminal, constitutional, revenue, etc.) or for distinct stages of proceedings.
2. Purpose: To ensure specialisation of judges, speedy disposal of cases, and efficient management of the court's workload.
3. Advantages:
   • Judges develop expertise in particular fields of law.
   • Reduces backlog by allowing parallel hearings.
   • Saves time of senior judges for important matters.
4. Disadvantages:
   • A judge who decides a preliminary issue may not hear the final case, causing discontinuity.
   • May lead to conflicting views and inconsistency in decisions.
   • Increases cost and delay if the same matter must be argued before more than one bench.
5. Practice in Nepal: The Supreme Court, High Courts and District Courts sit in different benches (single bench and division bench) and also constitute special benches such as the constitutional bench and the revenue bench.

---

c. Laches

Laches is an equitable doctrine by which a party is barred from claiming a legal or equitable remedy because of unreasonable delay in asserting the right, where such delay has prejudiced the other party. It is expressed in the maxim: "Equity aids the vigilant, not those who sleep over their rights."

Key points:

1. Meaning: Laches means negligent or unreasonable delay in asserting a legal right or claim, resulting in the loss of the remedy.
2. Essentials:
   • Unreasonable and unexplained delay in filing the claim;
   • The delay must cause prejudice or disadvantage to the opposite party;
   • The party must have knowledge of the facts giving rise to the claim.
3. Distinction from limitation: Limitation is a statutory period fixed by law within which a suit must be filed; laches is an equitable doctrine applied where no specific statutory period applies. Limitation is a legal bar; laches is an equitable bar.
4. Effect: The court, in its discretion, may refuse to grant relief (especially equitable relief such as injunction or specific performance) to a party guilty of laches.
5. Significance: It prevents stale claims, protects the defendant from being taken by surprise after evidence has been lost, and ensures fairness and good conscience in the administration of justice.

---

d. Continuous Hearing

Continuous hearing is the principle that once the hearing of a case has begun, it should proceed from day to day without unnecessary adjournments until it is concluded. It is also called the rule of continuous trial or continuous sitting.

Key points:

1. Meaning: The court, after commencing the hearing of a case, should hear it continuously on successive working days until the case is disposed of, and should not adjourn it except for sufficient cause.
2. Legal basis: In Nepal, the concept is reflected in the procedural laws and in the directives of the Supreme Court requiring courts to conduct continuous hearings to reduce delay.
3. Advantages:
   • Ensures speedy trial and speedy justice;
   • Preserves the memory and freshness of evidence;
   • Prevents witnesses from being influenced or tampered with during long adjournments;
   • Reduces the cost and hardship of repeated court appearances for parties and witnesses.
4. Exceptions: Adjournment may be granted for sufficient cause such as illness of a party or counsel, non-availability of a witness, or a legal impediment.
5. Significance: It is an important means of ensuring the right to speedy trial and the effective administration of justice.

---

e. Mediation

Mediation is a voluntary, informal, and non-adversarial process of dispute resolution in which a neutral third party (the mediator) assists the disputing parties to reach a mutually acceptable settlement. The mediator does not decide the dispute but facilitates communication, negotiation, and compromise.

Key points:

1. Meaning: Mediation is a process in which a third party helps the parties to negotiate and arrive at their own solution, without imposing a decision.
2. Nature: It is voluntary, confidential, flexible, and interest-based rather than right-based.
3. Role of mediator: The mediator is a facilitator and not a judge; he/she has no power to give a binding decision.
4. Advantages:
   • Cheaper, quicker, and less formal than litigation;
   • Preserves relationships between the parties;
   • Parties themselves control the outcome;
   • Confidential and party-friendly.
5. Legal basis in Nepal: The Mediation Act, 2058 (2002) and the Mediation Rules provide for mediation in civil and other disputes. Court-annexed mediation is conducted through mediation centres attached to the courts, and community mediation is also practised at the local level.
6. Significance: It reduces the burden on courts, promotes access to justice, and encourages a culture of compromise and reconciliation.

---

Note: Any three of the above may be written as required.

Procedural Law

Procedural law (also called adjective law) is that branch of law which prescribes the procedure by which substantive rights and duties are enforced through the courts. It lays down how a case is to be instituted, how the parties must plead, what evidence may be produced, how the trial is to be conducted, what remedies are available and how a judgment is to be executed. It does not create rights; it only provides the machinery for realising the rights created by substantive law. For example, the Muluki Civil Procedure Code, 2074 and the Muluki Criminal Procedure Code, 2074 are the principal procedural laws of Nepal, while the Muluki Civil Code, 2074 and the Muluki Criminal Code, 2074 are substantive laws. In short, substantive law tells us what the law is; procedural law tells us how the law is applied and enforced.

Principles of Procedural Law

1. Principle of Natural Justice — Every person whose right or interest is affected must be given a fair hearing (audi alteram partem) and the deciding authority must be impartial and free from bias (nemo judex in causa sua). This is the foundation of all fair procedure.

2. Principle of Fair Hearing / Due Process — Each party must get a reasonable opportunity to present its case, to know the case of the opposite party and to rebut it. No one should be condemned unheard.

3. Principle of Equality of Parties — Both parties stand on an equal footing before the court. Neither party should be given an undue advantage over the other in pleading, evidence or argument.

4. Principle of Impartiality and Independence of the Adjudicator — The judge or tribunal must be neutral, independent and free from any personal interest, bias or pressure in deciding the case.

5. Principle of Reasonableness — The procedure must be reasonable, just and fair. Arbitrary, oppressive or discriminatory procedural rules are not countenanced.

6. Principle of Certainty and Predictability — Procedure must be clear, fixed and known in advance so that parties can conduct their case with confidence and the outcome does not depend on the whims of the deciding authority.

7. Principle of Speedy Trial / Expeditious Justice — Justice delayed is justice denied. Procedural law aims at the quick disposal of cases without unnecessary adjournments and delay.

8. Principle of Open Court / Publicity — Proceedings should ordinarily be held in open court so that justice is seen to be done. Secrecy is permitted only in exceptional cases such as those involving juveniles or privacy.

9. Principle of Right to Legal Representation — A party has the right to be represented by a lawyer or pleader of his choice to present his case effectively.

10. Principle of Evidence and Proof — Facts must be established by relevant, admissible and reliable evidence, and the burden of proof is generally placed on the party who asserts a fact.

11. Principle of Finality of Judgment / Res Judicata — Once a matter is finally decided by a competent court, it cannot be re-litigated between the same parties on the same issue. This ensures certainty and prevents endless litigation.

12. Principle of Right to Appeal and Review — An aggrieved party is generally given the right to appeal or apply for review or revision against an erroneous decision, subject to the conditions laid down by law.

13. Principle of Execution of Judgment — A judgment is of no use unless it can be enforced. Procedural law therefore provides for the execution of decrees and sentences.

14. Principle of Cost and Compensation — The losing party may be ordered to bear the cost of litigation, and compensation may be awarded to a party who has suffered loss due to the wrongful act of another.

Conclusion

Procedural law is thus the handmaid of substantive law. Its principles — natural justice, fair hearing, equality, impartiality, reasonableness, certainty, speedy trial, open court, legal representation, evidence, finality, appeal, execution and cost — together ensure that substantive rights are enforced in a just, fair and orderly manner. Without procedural law, substantive law would remain a dead letter.

The Supreme Court is the highest court of Nepal. It is established by Article 126 of the Constitution of Nepal, 2072 (2015), and its powers are in Articles 127 to 133 and in the Supreme Court Act, 2073 (2016). Its jurisdiction is as follows.

1. Original (writ and extraordinary) jurisdiction. Under Article 133 the Supreme Court can issue orders and writs (habeas corpus, mandamus, certiorari, prohibition, quo warranto) for the enforcement of fundamental rights and for the settlement of a public question of constitutional or legal importance connected with the rights or interest of the public or a community. This is the public interest litigation (PIL) jurisdiction. It may also declare a law void to the extent that it is inconsistent with the Constitution (Article 133(1)).

2. Appellate jurisdiction. Under Article 134, the Supreme Court hears appeals against the judgments of the High Courts, and against decisions of the Special Court and other judicial bodies in the cases allowed by law.

3. Revision and review jurisdiction. The Supreme Court may revise a decision in the cases provided by law (Article 134) and may review its own judgment where there is a serious error of law or injustice (Article 137).

4. Reference jurisdiction. Under Article 133(5) a lower court may refer to the Supreme Court a question of constitutional validity of a law.

5. Jurisdiction in constitutional bench matters. Questions of interpretation of the Constitution are heard by a Constitutional Bench headed by the Chief Justice (Article 137). The Bench decides disputes between federal, provincial and local governments, and election and other constitutional disputes.

6. Power to superintend and supervise. Under Article 154, the Supreme Court supervises the High Courts, District Courts and other judicial bodies.

7. Contempt of court power. Under Article 128(2), the Supreme Court has the power to punish for contempt of itself and its subordinate courts.

8. Precedent-making power. The legal principle laid down by the Supreme Court in the course of hearing a case binds all courts and the Government (Article 128(4)).

9. Administrative and rule-making power. The Court frames rules on its procedure (for example, the Supreme Court Rules) and gives directions to subordinate courts.

Conclusion

The Supreme Court is the final interpreter of the Constitution and the protector of fundamental rights. Its writ, appellate and constitutional jurisdictions together make it the guardian of the rule of law.

Meaning of review and revision

Review (punarbichar) is a re-examination by the same court of its own final decision, on narrow grounds such as an apparent error of law or fact, or discovery of new evidence that could not have been produced earlier. Revision (punarabalokan) is a re-examination by a higher court of a decision of a subordinate court, for an error of law or jurisdiction or a failure of justice.

Legal provisions in Nepal

1. Constitution of Nepal, 2072 (2015)

• The Supreme Court's power to review its own decisions is recognised in the Constitution, which says that the Supreme Court may review its own decision in accordance with law (Article 137 and the Supreme Court Act). The Supreme Court is also the court of record (Article 128).
• The Supreme Court may hear a revision petition in a case of a serious legal error or injustice (Article 134).
• The Constitution thus leaves the grounds and procedure to the ordinary law.

2. Supreme Court Act, 2073 (2016)

• It states when the Court admits a review (for example, a petition showing an obvious error in the judgment, a decision contrary to precedent or the discovery of a new fact) and the time limit, which is generally short, running from the date of the decision. A review is heard by a bench of the Court, often a larger one. A repeated review of the same decision is not allowed.
• It states when the Court admits a revision petition against a High Court judgment: an error of law, a matter of public importance or a miscarriage of justice. The petition is first screened for admission, and then a hearing is held.

3. Civil and criminal procedure codes

• The National Civil Procedure (Code) Act, 2074 and the National Criminal Procedure (Code) Act, 2074 contain provisions on review by the same court and revision by the higher court, with grounds, limit of time and procedure.

Differences

Conclusion

Both are exceptional remedies. They do not give a party a second appeal. They allow the courts to correct errors and secure justice while preserving finality of judgments.

Special Court

The Special Court is a court established under the Special Court Act, 2059 (2002) to try corruption cases brought by the Commission for the Investigation of Abuse of Authority (CIAA) and the cases under the Corruption Control Act, 2059. It is a specialised court, and not part of the ordinary District Court structure.

Jurisdiction

1. Original jurisdiction in corruption cases. The Special Court hears cases of corruption and cases of abuse of authority filed by the Attorney General's office on the charge-sheet of the CIAA.
2. Other cases given by law. The Court hears other offences that the law provides shall be tried by the Special Court (for example, offences under the Corruption Control Act, 2059 and the Money Laundering Prevention Act).
3. Territorial reach. It has jurisdiction over the whole country and may sit in different places as needed.

Important features

1. Exclusive original jurisdiction. Cases in its jurisdiction can be tried only there, not by a District Court.
2. Prosecution by the Attorney General. The charge-sheet is filed by the Attorney General (not by the CIAA directly) after the CIAA investigation (Article 160 of the Constitution of Nepal, 2072 allows the CIAA to file cases through the Attorney General in the cases of corruption).
3. Bench. It is composed of a chairperson and members. The Court sits as a bench of three judges for hearing.
4. Direct appeal to the Supreme Court. An appeal from the judgment of the Special Court lies directly to the Supreme Court within the period fixed by law, skipping the High Court (Article 134 of the Constitution and the Special Court Act).
5. Summary procedure. It follows the Special Court Act and, for matters not covered, the general procedure of the Civil and Criminal Procedure Codes. The aim is speedy trial of corruption cases.
6. Punishment and recovery. In addition to imprisonment, it orders recovery of the amount of corruption and may order fines and confiscation of property.

Conclusion

The Special Court gives a single, expert forum for corruption cases and speeds up their trial. Its direct appeal to the Supreme Court shortens the route of appeal.

Advocate Radheshyam Adhikari v. HMG, Council of Ministers Secretariat, [2044] 1 KLR (1994) 1; N.K.P. 2048, p. 810

This is a public-interest writ petition decided by the Supreme Court of Nepal soon after the Constitution of the Kingdom of Nepal, 2047 (1990) came into force. It is one of the early cases in which the Court considered what a writ petitioner must show before it will interfere with a decision of the Council of Ministers.

What can be stated reliably

1. Facts. Advocate Radheshyam Adhikari filed a writ petition under Article 88 of the 1990 Constitution against a decision or act of His Majesty's Government, acting through the Council of Ministers Secretariat, claiming that it was illegal or unconstitutional and seeking the Court's intervention.
2. Issue. Whether the act of the executive could be challenged in the Supreme Court, and whether the petitioner had shown a breach of the Constitution or law that justified a writ.
3. Ratio. The executive must act within the Constitution and the law. An executive act that has no legal basis or that violates the Constitution is open to judicial review. At the same time, the petitioner must identify a specific legal or constitutional provision which has been violated.

Note on verification

The exact facts and holding of the decision could not be verified from a reliable source here. For an examination the student should read the report at N.K.P. 2048, p. 810 (and 1 KLR) and write the facts, issues, ratio and decision from the judgment itself, because markers expect the precise ratio. Answers that give invented facts, such as the removal of particular officials, should be avoided unless the report states them.

Stay Orders and Interlocutory Orders

Stay Order

A stay order is an order by which a court temporarily suspends or halts the operation of a proceeding, an order, or a decision already made by a lower court or authority, pending the final decision of the case. It is a protective, interim measure whose purpose is to preserve the status quo so that the final relief does not become infructuous (useless) by the time it is granted. In Nepal, stay orders are commonly issued under the Civil Procedure Code, 2074, the Criminal Procedure Code, 2074, and the Administration of Justice Act, 2073 (which governs the Supreme Court's power to stay decisions of the lower courts). A stay order is generally granted only when the applicant shows a prima facie case, irreparable loss, and balance of convenience. It operates only until the matter is finally decided or until it is vacated.

Interlocutory Order

An interlocutory order is any order passed during the pendency of a suit or proceeding that decides a subsidiary or procedural matter without deciding the substantive rights of the parties or the main dispute itself. Examples include orders relating to amendment of pleadings, discovery and inspection, appointment of a receiver, granting of interim injunction, summoning of witnesses, or fixing of dates. Such an order is provisional and tentative in nature; it does not conclude the litigation. An interlocutory order may or may not be appealable, depending on the governing statute — generally, only interlocutory orders that affect substantial rights are made appealable.

Basic Differences

In brief: A stay order is a narrower, protective order that freezes a proceeding or decision, whereas an interlocutory order is a wider concept covering all interim orders passed before final judgment. A stay order is thus one species of the genus of interlocutory orders.

Any three of the following.

(a) Limitation and laches. Limitation is the period fixed by a statute within which a suit, appeal or application must be filed; once it runs out, the remedy is barred, though the right may remain. In Nepal limitation is governed by the statutory time limits (hadmyad) in the Muluki Civil Code, 2074, the Criminal Procedure Code, 2074 and other special Acts. The rule is based on the maxim interest reipublicae ut sit finis litium (it is in the public interest that litigation should end) and on the idea that the law helps the vigilant. Laches is an equitable doctrine: unreasonable delay in asserting a right, which prejudices the other party, may defeat equitable relief even where no statutory limit applies. Limitation is rigid and fixed by statute; laches depends on the circumstances of each case.

(b) Precedent. A precedent is an earlier judicial decision that is followed as authority in later cases. The binding part is the ratio decidendi; the obiter dicta only persuade. Under Article 128(4) of the Constitution of Nepal, 2072, the legal principle laid down by the Supreme Court in the course of hearing a case is binding on all. Precedents promote certainty, equality of treatment and judicial economy, and they develop the law in gaps. A precedent can be departed from by a larger bench or by distinguishing it on facts.

(c) Stare decisis. Stare decisis et non quieta movere means "stand by decisions and do not disturb the settled". It is the principle that courts should follow earlier decisions on the same point of law. It gives predictability and stability. In Nepal it applies to the Supreme Court's decisions, which bind lower courts; the Supreme Court itself may overrule its own earlier decision only through a larger bench, giving reasons.

(d) Natural justice. Natural justice means the basic principles of fair procedure that every body deciding on rights must follow, even when the statute is silent. It has two main rules: (i) nemo judex in causa sua, no one should be a judge in his own cause (rule against bias), and (ii) audi alteram partem, hear the other side (right to be heard, with notice and chance to reply). A decision made in breach of natural justice may be quashed by certiorari under Article 133 of the Constitution. The right to a fair trial is also protected in Article 20.

(e) Amicus curiae. Amicus curiae means "friend of the court". He is a person, usually a senior advocate or an expert, who is not a party to the case but is invited by the court, or allowed, to give it assistance on a point of law, fact or public interest. The court is not bound by his opinion. The Supreme Court of Nepal often appoints amici in constitutional and public-interest cases.