Definition

Extradition is the process by which one state hands over a person, accused or convicted of a crime committed within the jurisdiction of another state, to that state so that he or she can be prosecuted or can serve a sentence. Under the Extradition Act, 2070 (2014), it covers both the surrender of a person from Nepal to a foreign state and the request by Nepal for a person's return from a foreign state. Extradition rests on a treaty or, in its absence, on reciprocity.

Conditions for extradition under the Extradition Act, 2070

The Act is applied together with the relevant extradition treaty. The main conditions are:

1. Extraditable offence — the offence must be one for which extradition is allowed under the Act or the treaty. Usually it must be punishable by imprisonment of at least one year (for a convicted person, a sentence of that order remaining to be served).
2. Dual criminality — the act must be an offence in both the requesting state and Nepal.
3. Request through diplomatic channel — the request must be made in writing through diplomatic channels, with the arrest warrant or conviction record, a description of the offence and the relevant law, and details identifying the person.
4. Treaty or reciprocity — there must be an extradition treaty with the requesting state, or an assurance of reciprocity where there is none.
5. Not a political offence — extradition is refused for an offence of a political character.
6. Ne bis in idem — extradition is refused if the person has already been tried and convicted or acquitted for the same offence.
7. Not time-barred — the offence must not be barred by limitation under the law of Nepal or of the requesting state.
8. Fair treatment — extradition may be refused if the person would face a death sentence, torture or inhuman treatment, or trial on grounds of race, religion, nationality or political opinion.
9. Speciality — the person may be tried only for the offence for which he or she was extradited.

The decision rests with the Government of Nepal, and the Act gives the person a right to be heard by the court before surrender.

Conclusion

Extradition under the Act of 2070 is allowed only for serious, extraditable offences, where dual criminality is shown and the safeguards against political, unfair or repeated prosecution are satisfied.

Rule of Law: Concept and Its Adoption in Nepal

1. Meaning and Definition of Rule of Law

The rule of law is the constitutional principle that no person, institution or organ of the state — including the government itself — is above the law. It means that the state must act according to law, that law must be made and applied through an established procedure, and that the rights of citizens are protected against arbitrary exercise of power. In short, it is the rule of law and not the rule of men.

The concept has been defined by jurists in the following ways:

• A.V. Dicey (1885), Introduction to the Study of the Law of the Constitution — the classical exposition. He gave three meanings:

  1. Supremacy of law: no one can be punished except for a breach of law established before the ordinary courts; arbitrary and discretionary power is excluded.
  2. Equality before law: all persons, including government officials, are subject to the same ordinary law and the same ordinary courts; there is no separate administrative law for officials.
  3. Predominance of the legal spirit: the general principles of the constitution (rights and freedoms) are the result of judicial decisions determining the rights of private persons in particular cases, rather than of written declarations.

• Sir Ivor Jennings criticised Dicey, arguing that the rule of law is not a rigid formula but a set of standards; it requires that the government be conducted according to law and that the law be applied equally, but it does not exclude delegated legislation or administrative tribunals.

• International Commission of Jurists (Delhi Declaration, 1959) — the rule of law implies that the functions of the legislature, executive and judiciary are clearly separated; that the judiciary is independent; and that the law is applied without discrimination.

• UN Secretary-General's Report (2004), The Rule of Law and Transitional Justice — "a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards."

Essential elements of the rule of law

1. Supremacy of the constitution and the law.
2. Equality before law and equal protection of law.
3. Independent and impartial judiciary with the power of judicial review.
4. Separation of powers among legislature, executive and judiciary.
5. Legality of administrative action — no punishment without lawful authority (nulla poena sine lege).
6. Due process and fair trial; presumption of innocence.
7. Protection of fundamental human rights.
8. Free and fair elections, accountable and transparent government.
9. Rule of law, not of discretion — arbitrariness is the antithesis of the rule of law.

2. Adoption of the Rule of Law in Nepal

Nepal has adopted the rule of law as a foundational constitutional value, though its practical realisation has passed through several political phases.

(a) Constitutional foundation

• The Constitution of Nepal, 2015 (2072 B.S.), in its Preamble, resolves to protect and promote human rights, and to establish a system of governance based on the rule of law, democracy and federalism.
• Article 1 declares the constitution the fundamental law of the land, and any law inconsistent with it is void — this is the essence of the supremacy of law.
• Part 3 (Articles 16–46) guarantees fundamental rights: right to equality (Art. 18), right against untouchability and discrimination (Art. 24), right to freedom (Art. 17), right to constitutional remedy (Art. 46), right to fair trial (Art. 20), right against preventive detention (Art. 22), etc.
• Article 18 embodies Dicey's second principle — equality before law and equal protection of law, with no discrimination on grounds of origin, religion, race, caste, sex, etc.
• Article 20 guarantees fair trial and the presumption of innocence, reflecting due process.
• Article 46 gives the right to move the Supreme Court or High Courts for enforcement of fundamental rights — the writ jurisdiction.

(b) Supremacy of the constitution and judicial review

• Article 133 vests the Supreme Court with extraordinary jurisdiction to enforce fundamental rights and issue writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.
• Article 133(3) empowers the Supreme Court to declare a law void, from the date of the decision, to the extent it is inconsistent with the Constitution, and Article 128 makes it the final interpreter of the Constitution and the law. This is the power of judicial review.
• The Supreme Court has exercised this power in landmark cases — e.g., Surya Prasad Sharma Dhungel v. Godavari Marble Industries (1995) on environmental rights; and the 2021 (2077/2078 B.S.) decisions on the dissolution of the House of Representatives — establishing that even the executive is subject to judicial scrutiny.

(c) Separation of powers

• The Constitution distributes powers: legislative power to the Federal Parliament (Art. 109), executive power to the Council of Ministers (Art. 75), and judicial power to the courts (Art. 126).
• Article 76 and related provisions on government formation, Article 284 on the Constitutional Council, and the system of checks such as parliamentary oversight, the Office of the Attorney General (Art. 157), the Commission for the Investigation of Abuse of Authority (Art. 239) and the National Human Rights Commission (Art. 249) institutionalise accountability.

(d) Rule of law in the legal system

• Muluki Ain, 2020 (1963) and the Muluki Criminal Code, 2074 (2017) provide that no person shall be punished except under the law in force at the time of the act, and that punishment shall be proportionate — the principle of legality.
• Article 21 guarantees the right of victims of crime to justice, and Article 22 protects against preventive detention except in accordance with law.
• The Independent judiciary: Part 11 of the Constitution and the Judicial Council (Art. 153) provide for the appointment, tenure and removal of judges, insulating them from executive pressure. Judicial independence is the backbone of the rule of law.
• Article 46 (right to constitutional remedy) read with Article 133 lets any person approach the Supreme Court when a right is violated.

(e) Historical evolution

• The Rana regime (1846–1951) was a period of personal rule where the law was subordinate to the ruler — the antithesis of the rule of law.
• The Revolution of 1950 (2007 B.S.) and the Interim Government of Nepal Act, 1951 introduced constitutional governance and the idea of limited government.
• The Constitution of the Kingdom of Nepal, 1959 and the Constitution of Nepal, 1962 (Panchayat) partially recognised the rule of law but concentrated power in the monarch.
• The Constitution of the Kingdom of Nepal, 1990 restored multiparty democracy, guaranteed fundamental rights, and established an independent judiciary with writ jurisdiction — a major step toward the rule of law.
• The People's Movement of 2006 (2062/63 B.S.) and the Interim Constitution of Nepal, 2007 further entrenched the rule of law, leading to the Constitution of Nepal, 2015, which is the present constitutional framework.

(f) Challenges to the rule of law in Nepal

Despite constitutional adoption, several challenges remain:

1. Political instability and frequent changes of government weaken institutional accountability.
2. Corruption and impunity — Nepal ranks low on Transparency International's Corruption Perceptions Index; the CIAA's effectiveness is debated.
3. Weak enforcement of fundamental rights — delayed justice, backlog of cases, and inadequate legal aid.
4. Transitional justice — the fate of victims of the Maoist insurgency (1996–2006) remains unresolved; the TRC and Commission of Inquiry on Enforced Disappearances have been criticised for failing to deliver justice.
5. Executive overreach — instances of ordinance rule, contempt of court, and pressure on the judiciary.
6. Social discrimination — despite constitutional guarantees, caste, gender and ethnic discrimination persist in practice.
7. Impunity for powerful persons — the principle of equality before law is often violated when influential persons escape prosecution.

(g) Measures to strengthen the rule of law

1. Strengthening judicial independence and increasing the number of judges and courts.
2. Ensuring free, fair and periodic elections and accountable political parties.
3. Effective implementation of anti-corruption laws and the CIAA's recommendations.
4. Legal awareness and legal aid programmes for marginalised groups.
5. Reform of transitional justice mechanisms to deliver justice to conflict victims.
6. Respect for human rights and compliance with international treaties to which Nepal is a party.
7. Separation of powers and mutual respect among the three organs of the state.

3. Conclusion

The rule of law is the cornerstone of a democratic and constitutional system. It requires the supremacy of law, equality before law, an independent judiciary, and accountability of the government. Nepal has adopted the rule of law through its constitutions, particularly the Constitution of Nepal, 2015, which guarantees fundamental rights, judicial review and writ jurisdiction. However, political instability, corruption, weak enforcement and transitional justice challenges have hindered its full realisation. Therefore, Nepal needs sustained institutional reform, political commitment and legal awareness to translate the constitutional promise of the rule of law into reality.

Rule of law means the principle that a state and all its organs — government, legislature, judiciary, and administration — are subject to the ordinary law of the land, and that no person, however high, is above the law. It implies government by law, not by the arbitrary will of individuals. The concept was classically expounded by A.V. Dicey in The Law of the Constitution (1885), who gave it three meanings:

1. Supremacy of law — no one can be punished except for a breach of law established before the ordinary courts; there is no arbitrary or discretionary power.
2. Equality before law — all persons, including government officials, are subject to the same law and the same ordinary courts.
3. Predominance of legal spirit — the general principles of the constitution (rights and liberties) are the result of judicial decisions determining the rights of private persons in particular cases.

Modern jurists add other elements: an independent judiciary, free and fair elections, accountability of the executive, transparency, separation of powers, and protection of fundamental human rights. The rule of law is thus both a legal and a political ideal — it is opposed to the "rule of men" (lex rex, not rex lex).

Adoption of the rule of law in Nepal

Nepal has adopted the principle of rule of law to a considerable extent, though its full realisation remains incomplete.

Evidence of adoption:

• Constitutional guarantee: The Constitution of Nepal, 2072 (2015) declares in Article 4 that Nepal is an "independent, indivisible, sovereign, secular, inclusive, democratic, socialism-oriented, federal democratic republican state," and the Preamble affirms the rule of law, fundamental rights, and democratic norms. Article 1 declares the Constitution the fundamental law, and any law inconsistent with it is void (Article 1(2)).

• Fundamental rights: Part 3 guarantees rights to equality (Art. 18), freedom (Art. 17), justice (Art. 20), equality before law and equal protection of law (Art. 18(1)), and the right to constitutional remedy (Art. 46) — the essence of Dicey's first two meanings.
• Independent judiciary: Articles 126–128 vest judicial power in the courts; the Supreme Court has the power of judicial review (Art. 133) and can issue writs of habeas corpus, mandamus, certiorari, prohibition, and quo warranto. Judicial independence is protected by the Judicial Council (Art. 153) and the Constitutional Council.
• Accountability mechanisms: The Constitution provides for the Office of the Attorney General (Art. 157), the Commission for the Investigation of Abuse of Authority (CIAA, Art. 239), the National Human Rights Commission (Art. 248), and the Auditor General (Art. 240) — all designed to check arbitrary power.
• Rule of law in ordinary legislation: The Muluki Civil Code and Criminal Code, the Criminal Procedure Code, the Civil Procedure Code, the Administrative Proceedings (Regulation) Act, and the Local Government Operation Act all subject state action to legal procedure. The Administrative Court and writ jurisdiction allow citizens to challenge administrative decisions.
• Elections and democratic process: Periodic free elections under the Election Commission (Art. 245) and the federal structure with three tiers of government reflect the democratic basis of the rule of law.
• Judicial activism: The Supreme Court has expanded the rule of law through landmark decisions — e.g., Surya Prasad Sharma Dhungel v. Godavari Marble Industries (1995) on environmental protection, Advocate Madhav Kumar Basnet v. Council of Ministers on the right to information, and decisions enforcing the right to food, clean environment, and fair trial.

Limitations and challenges:

1. Political instability and frequent changes of government have weakened the continuity of legal order and accountability.
2. Corruption and impunity — Nepal ranks low on Transparency International's Corruption Perceptions Index; the CIAA's effectiveness is questioned, and high-profile corruption cases often go unpunished.
3. Politicisation of institutions — the judiciary, civil service, and constitutional bodies are sometimes accused of political influence in appointments and decisions.
4. Weak enforcement of fundamental rights — despite constitutional guarantees, rights to education, health, food, and social security remain unfulfilled for many, especially in rural and marginalised communities.
5. Delayed justice — courts suffer from case backlogs; the right to speedy trial is often violated.
6. Transitional justice — crimes committed during the Maoist insurgency (1996–2006) remain largely unaddressed; the Truth and Reconciliation Commission and Commission of Inquiry on Disappeared Persons have been criticised for failing to deliver justice.
7. Impunity for security forces and political cadres — arbitrary detention, torture, and extrajudicial killings have been reported without effective legal remedy.
8. Inequality and discrimination — caste, gender, and ethnic discrimination persist despite constitutional prohibition, undermining the equal protection of law.
9. Weak local rule of law — in many areas, informal power structures, armed groups, and political cadres undermine the authority of law.
10. Limited legal awareness — many citizens, particularly the poor and illiterate, cannot access legal remedies.

Conclusion

Nepal has constitutionally and institutionally embraced the rule of law — through the supremacy of the Constitution, fundamental rights, judicial review, and accountability bodies. However, in practice, the rule of law is only partially realised because of corruption, political interference, weak enforcement, delayed justice, and persistent impunity. The gap between constitutional promise and lived reality shows that Nepal has adopted the principle formally but has yet to achieve it substantively. Strengthening judicial independence, ensuring accountability of the executive, enforcing fundamental rights, and completing transitional justice are essential for Nepal to fully realise the rule of law.

(a) Karl Von Savigny

The historical school of jurisprudence was founded by Karl Von Savigny (1779–1861), a German jurist. He opposed the natural law and analytical schools, holding that law is not made by legislation or reason but grows organically out of the customs, traditions and spirit of a people (Volksgeist). His work Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (1814) is regarded as the foundation of the historical school. Sir Henry Maine, though also associated with the historical school, was a later follower who developed the comparative and anthropological approach.

(b) The constitution of United States of America

The Constitution of the United States of America, drafted in 1787 and coming into force in 1789, is generally regarded as the first written constitution of a modern nation-state. Switzerland's first written constitution came in 1848, France's in 1791, and Australia's in 1901.

(d) Right to vote

Part 3 of the Constitution of Nepal (2072) lists the fundamental rights. Right to live with dignity (Art. 16), Right to Equality (Art. 18) and Right to Communication (Art. 19) all fall within Part 3. The right to vote, however, is a constitutional/political right dealt with under the provisions on elections (Part 8) and citizenship, not a fundamental right enforceable under Part 3.

(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 of judges is 20.

(c) 25

Under Section 65 of the National Civil Code (Muluki Civil Code), 2074, the age difference between the adopter and the adopted son or daughter must be at least 25 years.

(a) More than three and less than ten.

Under the Muluki Criminal Code, 2074, offences are classified by the term of imprisonment attached to them, and a "grave offence" is one punishable by imprisonment of more than three years and less than ten years. Longer terms fall into the more serious category above it.

Definition of International Institutions

International institutions are formal, structured arrangements among states (and sometimes other actors) that are created to regulate behaviour, facilitate cooperation, and solve common problems in the international system. They consist of:

• International organisations — bodies with headquarters, staff, a budget and legal personality, e.g. the United Nations, World Trade Organization, International Monetary Fund.
• Regimes — sets of principles, norms, rules and decision-making procedures around which actors' expectations converge in a given issue-area, e.g. the nuclear non-proliferation regime, the climate change regime.
• Conventions and treaties — legal instruments that codify the rules, e.g. the Vienna Convention on Diplomatic Relations, 1961.

In short, international institutions are the rules, norms and organisations through which states institutionalise their cooperation. They are distinguished from mere ad hoc arrangements by their permanence, formal membership, and predictable procedures.

Evolution of International Institutions

The growth of international institutions can be traced through several phases.

1. Pre-Westphalian and Westphalian beginnings (before 1648 – 1815)

• In medieval Europe the Catholic Church and the Hanseatic League functioned as proto-institutions across political boundaries.
• The Peace of Westphalia (1648) established the sovereign-state system. It created the principle of cuius regio, eius religio and the balance-of-power mechanism, but institutions remained largely bilateral and temporary.
• Congress of Vienna (1815) — the first modern attempt at a general international conference to settle the post-Napoleonic order. It introduced the Concert of Europe, a rudimentary collective-security arrangement among the great powers.

2. Functional and technical institutions (1815 – 1914)

• The Industrial Revolution created interdependence in trade, transport, and communication, producing the first functional international organisations:
  • Rhine Commission (1815) and Danube Commission (1856) for river navigation.
  • International Telegraph Union (1865) and Universal Postal Union (1874).
  • International Committee of the Red Cross (1863) and the Geneva Convention (1864).
• The Hague Conferences (1899, 1907) codified the laws of war and established the Permanent Court of Arbitration — the first global judicial institution.

3. The League of Nations experiment (1919 – 1939)

• After World War I, the League of Nations (1919) was created as the first general-purpose political organisation with a Covenant, an Assembly, a Council, and a Permanent Court of International Justice.
• It introduced the idea of collective security (Article 10) and mandates (Article 22).
• However, the League failed because: the USA never joined; decisions required unanimity; it lacked enforcement power; and it could not prevent aggression by Japan (Manchuria, 1931), Italy (Abyssinia, 1935) and Germany (1939).
• The Kellogg–Briand Pact (1928) renounced war as an instrument of national policy but had no enforcement mechanism.

4. The United Nations system and Bretton Woods (1945 – 1989)

• After World War II, the United Nations Charter (1945) created a stronger organisation with:
  • A Security Council with five permanent members holding veto power.
  • A General Assembly, Economic and Social Council, Trusteeship Council, Secretariat and International Court of Justice.
• The Bretton Woods Conference (1944) established the IMF and the World Bank to manage the post-war monetary and development order.
• The General Agreement on Tariffs and Trade (GATT, 1947) created a trade regime that later became the WTO (1995).
• Regional institutions also emerged: OAS (1948), Council of Europe (1949), European Coal and Steel Community (1951) → EEC (1957) → EU (1993), ASEAN (1967), SAARC (1985).
• The Non-Aligned Movement (1961) and the Group of 77 (1964) gave voice to developing countries.

5. Post-Cold War expansion and reform (1990 – present)

• The end of the Cold War allowed the UN to act more actively — e.g. Gulf War (1991), peacekeeping in Cambodia, Bosnia, Kosovo, East Timor.
• The WTO (1995) replaced GATT and acquired a binding dispute-settlement mechanism.
• The International Criminal Court (1998/2002) was created to punish genocide, war crimes and crimes against humanity.
• New institutions addressed climate and environment: UNFCCC (1992), Kyoto Protocol (1997), Paris Agreement (2015).
• Regional and mega-regional bodies proliferated: African Union (2002), BRICS (2006), G20 (1999/2008), AIIB (2016).
• Reform debates continue: expansion of the UN Security Council, reform of the IMF and World Bank voting shares, and the challenge of rising nationalism and withdrawal from multilateral commitments.

Conclusion

International institutions have evolved from temporary bilateral arrangements to a dense, global network of organisations, regimes and treaties. Their growth reflects the increasing interdependence of states and the need for rules to manage common problems — from war and trade to climate change. Yet their effectiveness depends on the political will of sovereign states, which remains the central tension in international institutional law.

Meaning of the generations of human rights

The "three generations of human rights" is a classification used to group human rights according to the nature of the right and the historical period in which it was recognised. The idea was first suggested by Karel Vasak in 1977 and is linked to the three ideals of the French Revolution — liberty, equality and fraternity. The generations are not a hierarchy of importance; they are simply an analytical device to understand how rights have developed over time.

First generation — civil and political rights (liberty)

These are the oldest rights, won through struggles against absolute monarchies in the 17th and 18th centuries. They are "negative" rights because they mainly require the state to refrain from interfering. Examples: right to life, liberty and security of person; freedom of speech, expression and religion; right to a fair trial; right to vote; freedom from torture, slavery and arbitrary detention. They are found in the ICCPR (1966) and in Articles 16–23 of the Nepali Constitution.

Second generation — economic, social and cultural rights (equality)

These emerged with the industrial revolution and socialist movements in the 19th and 20th centuries. They are "positive" rights because they require the state to take active steps and spend resources. Examples: right to work, education, health, food, housing, social security, and the right to form trade unions. They are contained in the ICESCR (1966) and in Articles 24–42 of the Nepali Constitution.

Third generation — collective or solidarity rights (fraternity)

These are the newest rights, recognised mainly after the Second World War and in the era of decolonisation. They belong to groups and peoples rather than to individuals alone. Examples: right to self-determination, right to development, right to a clean and healthy environment, right to peace, and right to communicate. They appear in the African Charter on Human and Peoples' Rights (1981) and in Article 30 of the Nepali Constitution (right to clean environment).

Do I agree with the notion of the generations of human rights?

Yes, I agree with the notion, but with certain qualifications.

Reasons in favour:

1. It explains historical development. The classification correctly shows that civil-political rights came first, socio-economic rights next, and collective rights last. This matches the actual sequence of struggles — the Magna Carta (1215), the American and French Revolutions, the Russian Revolution, and the anti-colonial movement.
2. It is a useful teaching and analytical tool. It helps students, lawyers and policy makers distinguish between rights that need only restraint and rights that need resources. It also helps in identifying which organ of the state is mainly responsible for enforcing each type of right.
3. It highlights the interdependence of rights. By naming three generations, it reminds us that all rights are connected. The Vienna Declaration (1993) states that all human rights are universal, indivisible, interdependent and interrelated. For example, the right to vote (first generation) is meaningless to a starving person without the right to food (second generation).
4. It has practical legal value. Courts in Nepal and India have read the right to a clean environment and the right to education into the right to life, showing that the generations overlap and support each other.

Criticisms and qualifications:

1. The word "generation" is misleading. It suggests that the older rights are replaced by the newer ones, which is not true. All three generations exist side by side today.
2. The classification is Western-centric. It reflects the European historical experience. In many Asian and African societies, group and community rights existed long before individual rights were formally recognised.
3. The lines between generations are not clear. The right to education, for instance, is both an individual and a social right. The right to property can be placed in the first or second generation depending on how it is defined.
4. It may create a false hierarchy. Some states have used the "third generation" argument to postpone civil and political rights, claiming that development must come first. This is dangerous, because civil and political rights are the means by which people can demand development.
5. Some scholars propose a fourth generation — rights relating to biotechnology, genetic engineering, privacy in the digital age and access to information. This shows that the classification is not fixed.

Conclusion

The generations of human rights are a useful conceptual tool for understanding the growth of human rights from liberty to equality to fraternity. I agree with the classification as an analytical device, because it explains history and shows the interdependence of rights. However, it should not be treated as a rigid hierarchy or as a substitute for the principle that all human rights are universal, indivisible and interdependent. In Nepal, the Constitution of 2015 incorporates all three generations in its fundamental rights chapter, which shows that the generations are complementary rather than separate.

Veto Power

Veto power is the special privilege given to the five permanent members of the United Nations Security Council (UNSC) — the United States, the United Kingdom, France, Russia (formerly the USSR), and China — by which any one of them can block a substantive resolution of the Council by casting a negative vote. The word "veto" comes from the Latin meaning "I forbid." This power is conferred by Article 27(3) of the UN Charter, which requires decisions on all non-procedural matters to be made by an affirmative vote of nine members, "including the concurring votes of the permanent members."

Can a Veto Be Overridden in the United Nations?

No — a veto in the Security Council cannot be overridden. Unlike the veto in the US Congress (which can be overridden by a two-thirds majority), the UN Charter provides no mechanism to override a permanent member's veto. A single negative vote by any permanent member defeats a substantive resolution, regardless of how many other members support it. This is why the veto is often called an "absolute veto."

However, the veto's effect can be bypassed or diluted through certain other means:

1. Abstention is not a veto — Under Article 27(3), a permanent member's abstention does not count as a veto. A resolution can still pass if the member merely abstains (as China and Russia have done on several occasions).
2. Procedural matters — The veto applies only to substantive (non-procedural) questions. A permanent member cannot veto a decision on whether a matter is procedural (the "double veto" problem, however, has historically allowed a permanent member to veto a preliminary procedural ruling).
3. "Uniting for Peace" Resolution (1950) — If the Security Council is deadlocked by a veto, the General Assembly can take up the matter under Resolution 377(V) and make recommendations by a two-thirds majority. This does not override the veto but shifts the issue to another organ.
4. General Assembly action — The General Assembly may pass resolutions on the same issue (though these are non-binding), and in 2022 it adopted a rule requiring a veto-casting permanent member to explain its action before the Assembly.
5. Outside the UNSC — Action can be taken through regional organisations, bilateral arrangements, or by individual states, bypassing the Council altogether.

Comment

The veto was a political compromise at the 1945 San Francisco Conference to secure the participation of the great powers. It has served to prevent the UN from acting against the vital interests of major powers, thereby preserving the organisation's existence, but it has also paralysed the Council in numerous crises (e.g., Syria, Ukraine). Reform proposals — such as limiting the veto to genocide and crimes against humanity, or expanding the permanent membership — have so far failed because Charter amendment under Article 108 itself requires the concurring votes of all permanent members. Thus, the veto remains legally unassailable within the existing UN framework.

Purpose and Principles of the United Nations

Purpose (Article 1 of the UN Charter)

1. Maintain international peace and security — to take effective collective measures for the prevention and removal of threats to the peace, and to settle international disputes by peaceful means.
2. Develop friendly relations among nations — based on respect for the principle of equal rights and self-determination of peoples.
3. Achieve international cooperation — in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and fundamental freedoms.
4. Be a centre for harmonizing the actions of nations — in the attainment of these common ends.

Principles (Article 2 of the UN Charter)

1. Sovereign equality of all member states.
2. Good faith fulfilment of obligations assumed under the Charter.
3. Peaceful settlement of disputes — members shall settle disputes by peaceful means so that international peace, security and justice are not endangered.
4. Refrain from threat or use of force against the territorial integrity or political independence of any state.
5. Assistance to the UN in any action taken in accordance with the Charter.
6. Non-intervention — the UN shall not intervene in matters essentially within the domestic jurisdiction of any state.
7. The Charter obligations prevail over other international agreements (Article 103), and non-members are also expected to act in accordance with these principles so far as necessary for the maintenance of peace and security.

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Key Functions of the UN General Assembly

1. Deliberative and policy-making forum — the main deliberative organ where all 193 member states have one vote each; discusses any question within the scope of the Charter.
2. Consideration of peace and security matters — may discuss and make recommendations on the maintenance of international peace and security, disarmament and arms regulation.
3. Admission, suspension and expulsion of members — acts on the recommendation of the Security Council.
4. Election and appointment functions — elects non-permanent members of the Security Council, members of ECOSOC and the Human Rights Council; appoints the Secretary-General on the Security Council's recommendation; approves the admission of new members.
5. Budgetary and financial control — considers and approves the UN budget and apportions expenses among members.
6. Codification and progressive development of international law — through its Sixth Committee and the International Law Commission.
7. Promotion of human rights and humanitarian cooperation — adopts declarations and conventions (e.g., UDHR, 1948).
8. Receives and considers reports from the Security Council, Secretary-General and other organs.

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Role of the UN General Assembly

1. Universal representation — as the only UN organ with universal membership, it gives every state, big or small, an equal voice (one state, one vote).
2. Norm-setting and standard-setting — resolutions and declarations shape international norms, even though most are non-binding.
3. Peaceful settlement support — debates and recommendations exert moral and political pressure; "Uniting for Peace" Resolution (1950) allows it to act when the Security Council is deadlocked by veto.
4. Oversight and accountability — scrutinises the work of the Security Council, Secretariat and specialised agencies.
5. Development and humanitarian agenda — sets global goals (e.g., SDGs) and coordinates humanitarian and economic cooperation.
6. Democratic legitimisation — provides legitimacy to UN actions and serves as a platform for dialogue among nations.

Limitations

Its resolutions are generally recommendatory, not binding; it cannot enforce decisions; the veto in the Security Council limits its effectiveness in major peace and security crises; and decisions often reflect the interests of powerful states.

Human Rights Council (HRC)

The Human Rights Council is an intergovernmental body of the United Nations system responsible for promoting and protecting human rights worldwide. It was created by General Assembly Resolution 60/251 of 15 March 2006, replacing the Commission on Human Rights (1946-2006). It is a subsidiary organ of the General Assembly, based in Geneva, with 47 member States elected by the General Assembly for three-year terms on the basis of equitable geographical distribution (Africa 13, Asia-Pacific 13, Latin America and Caribbean 8, Western Europe and Others 7, Eastern Europe 6). It meets at least three times a year (March, June, September) for a minimum of ten weeks.

Key Subsidiary Bodies and Mechanisms

1. Universal Periodic Review (UPR) Working Group - reviews the human rights record of all UN member States in turn, once every four to five years, on the basis of a national report, UN information and stakeholder submissions. Each review is led by a "troika" of three Council members and ends with an outcome report containing recommendations.

2. Human Rights Council Advisory Committee - a think-tank of 18 independent experts serving in a personal capacity, which provides the Council with thematic expertise and studies on request. It acts under the Council's direction and does not adopt resolutions itself.

3. Complaint Procedure - confidential procedure addressing consistent patterns of gross and reliably attested violations of human rights. It works through two bodies: the Working Group on Communications (five independent experts who assess complaints received) and the Working Group on Situations (five members nominated by regional groups, who present reports and recommendations to the Council).

4. Special Procedures - independent experts (Special Rapporteurs, Independent Experts, Working Groups) with country or thematic mandates, who monitor, advise, investigate and report publicly on human rights situations (e.g. torture, freedom of expression, extreme poverty). There are more than 40 thematic and some 14 country mandates.

5. Others - the Social Forum, the Forum on Minority Issues, the Expert Mechanism on the Right to Development and other subsidiary expert mechanisms.

Conclusion

Through the UPR, Advisory Committee, Complaint Procedure and Special Procedures, the HRC gives the UN a standing mechanism to review all States equally and respond to violations. Nepal, as a UPR-reviewed State and former Council member, engages with these mechanisms regularly.

The International Covenant on Civil and Political Rights, 1966 (ICCPR) is one of the two principal treaties that give legal force to the Universal Declaration of Human Rights, 1948. Adopted by the UN General Assembly on 16 December 1966 and entered into force on 23 March 1976, it is binding on states parties, which must respect and ensure the rights it sets out. Its major provisions are as follows:

1. Preamble and general obligations The Preamble recognises the inherent dignity of all members of the human family and the equal and inalienable rights of all. Under Article 2, each state party undertakes to respect and ensure the rights in the Covenant to all persons within its territory and jurisdiction, without discrimination of any kind, and to provide an effective remedy for violations. Article 3 guarantees the equal right of men and women to enjoy all civil and political rights. Article 5 prohibits any interpretation that destroys or limits rights.

2. Right to life and prohibition of torture Article 6 protects the inherent right to life; the death penalty may be imposed only for the most serious crimes, by final judgment, and not on persons below 18 or on pregnant women. Article 7 prohibits torture and cruel, inhuman or degrading treatment or punishment, and medical or scientific experimentation without free consent. Article 8 prohibits slavery, slave trade and servitude, and Article 9 guarantees liberty and security of person, protection against arbitrary arrest or detention, and the right to be informed of charges and to challenge detention before a court.

3. Rights of detained and accused persons Article 10 requires humane treatment of persons deprived of liberty, with separation of accused from convicted persons and of juveniles from adults. Article 11 prohibits imprisonment merely for inability to fulfil a contractual obligation. Article 14 guarantees equality before courts and fair trial, including the presumption of innocence, adequate time and facilities for defence, trial without undue delay, and the right to appeal. Article 15 prohibits retrospective criminal law.

4. Civil liberties and freedoms Article 12 guarantees liberty of movement and freedom to leave and enter one's own country. Article 17 protects privacy, family, home and correspondence from arbitrary interference. Article 18 guarantees freedom of thought, conscience and religion. Article 19 guarantees freedom of opinion and expression, including the freedom to seek, receive and impart information, subject to lawful restrictions for the rights of others, national security and public order. Article 21 recognises the right of peaceful assembly, and Article 22 the right to freedom of association, including the right to form trade unions. Article 23 protects the family and free consent in marriage. Article 24 provides special protection for children. Article 25 guarantees the right to take part in public affairs, to vote and be elected, and of equal access to public service. Article 26 guarantees equality before the law and prohibition of discrimination. Article 27 protects the rights of ethnic, religious and linguistic minorities.

5. Derogation and limitations Article 4 permits derogation from certain rights in times of public emergency threatening the life of the nation, but only to the extent strictly required, without discrimination, and never from Articles 6, 7, 8 (paras 1 and 2), 11, 15, 16 and 18. Article 28 establishes the Human Rights Committee of 18 independent experts to monitor implementation. Under Article 40, states submit periodic reports; the First Optional Protocol (1976) allows individual complaints, and the Second Optional Protocol (1989) aims at abolition of the death penalty.

Conclusion The ICCPR thus lays down a comprehensive code of civil and political rights — from life, liberty and fair trial to expression, assembly, association, participation and minority rights — and creates a monitoring mechanism to ensure that states parties translate these guarantees into practice.

Jurisdiction of the International Court of Justice

Introduction

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations, established in 1945 by the UN Charter and functioning since 1946. It sits at the Peace Palace in The Hague, Netherlands. Its Statute, annexed to the UN Charter, defines its organisation and jurisdiction. The ICJ settles legal disputes between States and gives advisory opinions on legal questions referred to it by authorised international bodies. Its jurisdiction is therefore broadly of two kinds: contentious jurisdiction and advisory jurisdiction.

1. Contentious Jurisdiction (Article 34–38 of the Statute)

Contentious jurisdiction means the power of the Court to decide legal disputes between States. Only States may be parties to contentious cases; individuals, corporations and international organisations cannot be parties (Article 34(1)). The Court's jurisdiction in contentious cases rests on the consent of the parties, which may be expressed in the following ways:

(a) By Special Agreement (Compromis) — Article 36(1)

The parties may refer a dispute to the Court by concluding a special agreement. For example, in the North Sea Continental Shelf Cases (1969), Denmark, the Netherlands and the Federal Republic of Germany referred their dispute over the delimitation of the continental shelf to the ICJ by special agreement.

(b) By Treaty Clause (Compromissory Clause) — Article 36(1)

Many treaties provide that disputes arising out of their interpretation or application shall be referred to the ICJ. For example, the United States Diplomatic and Consular Staff in Tehran Case (1980) was brought by the United States against Iran on the basis of the Optional Protocol to the Vienna Convention on Diplomatic Relations.

(c) By Optional Clause Declaration — Article 36(2)

Under the "Optional Clause", a State may declare that it accepts the compulsory jurisdiction of the Court in relation to any other State accepting the same obligation. This is reciprocal. For example, in the Nicaragua v. United States Case (1986), Nicaragua relied on the declarations made by both States under Article 36(2). The USA later withdrew its declaration.

(d) By Forum Prorogatum (Consent After Proceedings Begin)

A State may consent to jurisdiction after a case has been instituted. In the Corfu Channel Case (1949), Albania consented to the Court's jurisdiction after the United Kingdom had filed the case.

2. Advisory Jurisdiction (Article 65 of the Statute)

Under Article 65, the Court may give advisory opinions on any legal question at the request of the UN General Assembly, the Security Council, or other UN organs and specialised agencies duly authorised. Advisory opinions are not binding, but they carry great moral and legal weight. Examples include:

• Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996) — requested by the General Assembly.
• Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004) — requested by the General Assembly.
• Advisory Opinion on Kosovo's Declaration of Independence (2010) — requested by the General Assembly.

3. Limitations on Jurisdiction

1. Consent is essential — the Court has no compulsory jurisdiction over States without their consent.
2. Only States can be parties — individuals and organisations are excluded from contentious cases.
3. Domestic matters — disputes essentially within the domestic jurisdiction of a State are generally excluded (Article 2(7) of the UN Charter).
4. Non-appearance — if a party does not appear, the Court may still decide the case (Article 53), but enforcement of the judgment depends on the Security Council (Article 94).

Conclusion

The ICJ's jurisdiction is thus voluntary in contentious matters and advisory in nature for international organs. It has contributed significantly to the development of international law through landmark decisions such as Corfu Channel, North Sea Continental Shelf, and Nicaragua, and through advisory opinions on nuclear weapons and the Palestinian Wall. Despite the limitation of consent, the ICJ remains the most authoritative judicial organ for the peaceful settlement of international disputes.

Short notes on any THREE of the following:

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a) SAARC

The South Asian Association for Regional Cooperation (SAARC) is a regional intergovernmental organisation established on 8 December 1985 in Dhaka, Bangladesh, by seven founding members: Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan and Sri Lanka. Afghanistan joined in 2007 as its eighth member. Its Secretariat is located in Kathmandu, Nepal.

Objectives: To promote the welfare of the peoples of South Asia, accelerate economic growth, social progress and cultural development, strengthen collective self-reliance, and foster mutual trust and cooperation in economic, social, cultural, technical and scientific fields. It also aims to cooperate with other regional and international organisations with similar aims.

Principal organs: the Summit (highest authority, meets annually), the Council of Ministers, the Standing Committee, the Technical Committees, and the Secretariat.

Key achievements and instruments: SAFTA (South Asian Free Trade Area, 2006), SAPTA (1993), SAARC Preferential Trading Arrangement, SAARC Development Fund, South Asian University (New Delhi), and agreements on terrorism, drug trafficking and environment.

Weaknesses: lack of effective implementation, bilateral political tensions (especially India–Pakistan), the principle of unanimity, inadequate funding, and the fact that SAARC has largely failed to become a strong regional body like the EU or ASEAN. No Summit has been held since the 2014 Kathmandu Summit.

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b) African System of Human Rights

The African system of human rights operates under the African Union (AU), the successor of the Organisation of African Unity (OAU). Its legal foundation is the African Charter on Human and Peoples' Rights (Banjul Charter), adopted in 1981 and in force since 1986.

Distinctive features:

1. It covers civil, political, economic, social and cultural rights in a single instrument, unlike the two separate UN Covenants.
2. It emphasises peoples' rights (self-determination, development, peace, environment) and duties of the individual towards family, society and the State — a communitarian African philosophy.
3. It is the only regional charter expressly providing for duties.

Institutions:

• African Commission on Human and Peoples' Rights (1987, Banjul): promotes and protects rights, receives State and individual communications.
• African Court on Human and Peoples' Rights (Protocol 1998, in force 2004): judicial enforcement; merged in jurisdiction with the Court of Justice of the AU.
• African Committee of Experts on the Rights and Welfare of the Child.

Protocols: on the Rights of Women in Africa (Maputo Protocol, 2003), on Older Persons, and on Persons with Disabilities.

Weaknesses: weak enforcement, non-compliance by States, limited individual access to the Court, and political interference.

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c) Convention on the Rights of the Child (CRC)

The Convention on the Rights of the Child, adopted by the UN General Assembly on 20 November 1989 and in force from 2 September 1990, is the most widely ratified human rights treaty in history. Nepal is a party to it.

Key features:

1. Defines a child as any person below 18 years (Art. 1).
2. Four core principles: non-discrimination (Art. 2); best interests of the child (Art. 3); right to life, survival and development (Art. 6); respect for the views of the child (Art. 12).
3. Guarantees rights to name and nationality, health, education, play, protection from abuse, exploitation, child labour and armed conflict, and special protection for disabled and refugee children.
4. Optional Protocols: on involvement of children in armed conflict; on sale of children, child prostitution and pornography; on a communications procedure.

Monitoring: the Committee on the Rights of the Child in Geneva examines periodic State reports. The CRC has influenced Nepal's Children Act, 2075 and the constitutional rights of the child under Art. 39.

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d) Hague System

The Hague System refers to the international legal framework developed through the Hague Conference on Private International Law (HCOPIL/HCCH), established in 1893 and made a permanent intergovernmental organisation in 1955, with its seat at The Hague, Netherlands. It harmonises private international law — jurisdiction, applicable law and recognition of foreign judgments.

Important Hague Conventions:

• Hague Convention on the Civil Aspects of International Child Abduction (1980) — return of wrongfully removed children.
• Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (1993).
• Hague Apostille Convention (1961) — abolition of legalisation of foreign public documents.
• Hague Convention on Choice of Court Agreements (2005) and the Hague Judgments Convention (2019).
• Conventions on service of documents, taking of evidence abroad, and international child support.

Significance: provides certainty in cross-border civil, commercial and family disputes; promotes international judicial cooperation; and supplements the work of UNCITRAL and UNIDROIT. Nepal is not yet a party to most Hague Conventions, though it participates as an observer.

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e) IMF

The International Monetary Fund (IMF) was established at the Bretton Woods Conference (1944) and began operations on 27 December 1945, with headquarters in Washington, D.C. Nepal became a member in 1961.

Objectives (Art. I of the Articles of Agreement): to promote international monetary cooperation, facilitate balanced growth of international trade, promote exchange stability, assist in establishing a multilateral system of payments, and provide temporary financial assistance to members facing balance-of-payments difficulties.

Functions:

1. Surveillance of members' macroeconomic and exchange-rate policies.
2. Financial assistance through lending facilities (Stand-By Arrangement, Extended Fund Facility, Rapid Financing Instrument, SDR allocations).
3. Technical assistance and training (IMF Institute).
4. Issuing Special Drawing Rights (SDRs) as international reserve assets.

Governance: Board of Governors (highest body), Executive Board of 24 members, and the Managing Director. Voting is quota-based, giving greater weight to larger economies — a long-standing criticism from developing countries. The IMF has supported Nepal through ECF arrangements and balance-of-payments assistance.

Meaning and Function of the Law of Tort

Meaning: The word "tort" is derived from the Latin word tortum, meaning "twisted" or "wrong." In law, a tort is a civil wrong — other than a breach of contract or breach of trust — for which the injured party can claim damages (unliquidated compensation) from the wrongdoer. It is a civil injury to a person's legally protected interest (body, reputation, property, liberty) that the law redresses by awarding compensation.

Definitions:

• Salmond: "A tort is a civil wrong for which the remedy is a common law action for unliquidated damages, and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation."
• Winfield: "Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressible by an action for unliquidated damages."
• Section 2(m), Limitation Act, 2058 (Nepal) read with the general civil law framework treats such wrongs as civil wrongs giving rise to compensation.

Functions of the Law of Tort:

1. Compensation (reparation): To compensate the victim for the loss suffered.
2. Deterrence: To deter potential wrongdoers by imposing liability.
3. Punishment: In cases of strict liability and vicarious liability, it indirectly punishes the wrongdoer.
4. Protection of rights: It protects life, liberty, property, reputation, and bodily integrity.
5. Distributive justice: Loss is shifted to the person who caused it or who can best bear/insure it.
6. Social harmony: It maintains order by defining standards of reasonable conduct.

Origin of the Law of Tort

The law of tort originated in England through the common law. Its roots lie in early English writs — particularly the writ of trespass (13th century) for direct injuries and the action "trespass on the case" for indirect injuries. Over time, courts developed separate heads of liability such as negligence, nuisance, defamation, and strict liability. The leading case Donoghue v. Stevenson (1932) laid the modern foundation of the duty of care. In Nepal, tort principles entered through the Muluki Ain (Legal Code), the Muluki Civil Code, 2074, and the Contract Act, 2000, though Nepal does not have a separate codified Tort Act.

What Constitutes a Tort and Its Elements

An act or omission constitutes a tort when the following elements are present:

1. Act or omission (wrongful act): There must be a voluntary act or a failure to act where a duty to act exists.
2. Legal duty: A duty primarily fixed by law towards persons generally (not merely contractual).
3. Breach of duty: The wrongdoer must have breached that legal duty.
4. Legal damage (injuria): There must be actual or legal injury. The maxim injuria sine damno (legal injury without actual loss) is actionable, while damnum sine injuria (loss without legal injury) is not.
5. Causation: The wrongful act must be the direct/proximate cause of the harm.
6. Mental element (where required): Intention, negligence, or malice may be required depending on the nature of the tort.
7. Capacity: The wrongdoer must be legally capable (e.g., a minor or a person of unsound mind may be exempt in certain cases).

Practicality of Tort Law in the Nepalese Context

Nepal lacks a separate Tort Act; tortious liability is dealt with under the Muluki Civil Code, 2074, the Contract Act, 2000, the Muluki Criminal Code, 2074, and various sectoral laws. Key practical applications include:

1. Medical negligence: Compensation claims against doctors/hospitals for negligent treatment. Victims rely on civil suits under the Civil Code and the Consumer Protection Act, 2075.
2. Road accidents: Claims for death/injury caused by rash and negligent driving. The Motor Vehicles and Transport Management Act, 2049 provides for compensation, and the Third Party Insurance scheme operationalises it.
3. Defamation: Both civil (damages) and criminal (Sections 302–306, Criminal Code) remedies exist for libel and slander.
4. Nuisance and trespass: Disputes over noise, pollution, and encroachment of land are commonly settled under the Civil Code and local laws.
5. Vicarious liability: Employers are held liable for the acts of employees — applied in transport companies and industries.
6. Strict/absolute liability: Applied in cases of hazardous industries, environmental harm, and the Environment Protection Act, 2076.

Conclusion: Although Nepal does not have a separate, comprehensive Tort Act, tort principles are widely applied through the Civil Code, sectoral statutes, and judicial precedents. The practicality of tort law in Nepal is thus significant but fragmented, and calls for codification to ensure clarity, certainty, and effective compensation for victims.

Defamation: Elements the Plaintiff Must Prove

Meaning. Defamation is the publication of a false statement about a person that tends to injure that person's reputation in the eyes of others. It takes two forms — libel (permanent form: writing, print, picture, broadcast, electronic posting) and slander (transient form: spoken words, gestures). In Nepal defamation is dealt with mainly as an offence under the Muluki Civil Code 2074, Part 4 (Offences), Chapter on offences relating to reputation (ss 574 ff.), with the victim also entitled to compensation; electronic publication is additionally punishable under the Electronic Transactions Act 2063, s 47.

The plaintiff (the person claiming to have been defamed) bears the burden of establishing the following elements on a balance of probabilities. If any one element fails, the action fails, however untrue or malicious the statement may have been.

1. The statement is defamatory

The words must have a tendency to injure the plaintiff's reputation. The accepted tests are whether the statement would:

• lower the plaintiff in the estimation of right-thinking members of society generally (Sim v Stretch); or
• expose the plaintiff to hatred, contempt or ridicule (Berkoff v Burchill — describing an actor as "hideously ugly" was capable of being defamatory); or
• cause the plaintiff to be shunned or avoided (Youssoupoff v MGM).

The statement must convey an imputation of fact, not mere vulgar abuse or a statement of opinion so extravagant that no reasonable person would take it as fact. The meaning is judged as the ordinary, reasonable reader or hearer would understand it, in its full context.

2. The statement refers to the plaintiff

The words must be understood to be "of and concerning" the plaintiff. It is not necessary that the plaintiff be named — a description or nickname may suffice (Hulton & Co v Jones: a fictional name was held to identify a real person; Cassidy v Daily Mirror: a photograph identified the plaintiff). Where the reference is not apparent on the face of the words, the plaintiff must plead and prove an innuendo — the extrinsic facts known to the recipients that give the words their defamatory meaning.

3. Publication to a third party

The statement must have been communicated to at least one person other than the plaintiff. Communication to the plaintiff alone is not publication. Publication may be intentional or negligent; even an accidental or unintended communication to a third party can suffice. Each repetition is a fresh publication, and the repetition rule provides that a person who repeats a defamatory statement is liable as if he had originated it. In Nepal, publication includes communication through print, broadcast and electronic media.

4. Damage (or a category exempting proof of damage)

• Libel is actionable per se — the plaintiff need not prove actual loss; the law presumes injury to reputation.
• Slander requires proof of special damage (actual, pecuniary loss) except in the recognised categories where it is actionable per se: imputation of a criminal offence punishable by imprisonment, of a contagious or infectious disease, of unchastity in a woman, or of incompetence or misconduct in a person's office, profession, trade or calling.

5. Fault where the law requires it

In ordinary cases malice is not part of the plaintiff's case; but where the plaintiff is a public official or public figure and the statement concerns public conduct, the plaintiff must prove actual malice — knowledge of falsity or reckless disregard for the truth (New York Times Co v Sullivan). Similarly, where the defendant relies on a defence of qualified privilege or fair comment, the plaintiff may have to prove malice to defeat it.

Defences the plaintiff must be prepared to meet

Because the defendant may raise justification (truth), fair comment on a matter of public interest, absolute or qualified privilege, consent, or apology, the plaintiff must plead facts that show the statement was false and that no privilege attaches. Under the Muluki Civil Code, truth stated in good faith for the public good, fair criticism of the public conduct of a public servant, and good-faith complaints to lawful authority are not treated as defamation.

Conclusion

To succeed, the plaintiff must prove cumulatively that there was a defamatory statement, that it referred to him, that it was published to a third party, and that it caused or is presumed to have caused damage — and must be able to answer the defences available to the defendant. Absence of any one element is fatal to the claim.

Damages in Tort: Types and the Compensatory–Punitive Distinction

1. Meaning of Damages

Damages are the monetary compensation awarded by a court to a successful plaintiff in a tort action. The object is not punishment in the ordinary case but to place the plaintiff, so far as money can, in the position he would have occupied had the tort not been committed (restitutio in integum). The leading Nepali authority is the Compensation Act, 2033 (1976), which governs the assessment of compensation, read with the Muluki Civil Code, 2074.

2. Kinds of Damages Available to the Plaintiff

(a) Nominal Damages

Where the plaintiff's legal right has been infringed but he has suffered no actual loss, the court awards a small token sum (e.g., Rs 1 or Rs 100) to vindicate the right. Example: trespass to land causing no damage.

(b) Contemptuous Damages

A very small sum awarded where the injury is technical and the plaintiff's conduct invited the wrong; the amount signals the court's disapproval of the claim.

(c) Compensatory (Actual) Damages

The ordinary and most common award. It aims to make good the actual loss suffered. It has two limbs:

• General damages — non-pecuniary losses not capable of exact calculation: pain and suffering, mental agony, loss of amenity, loss of reputation in defamation. The court assesses them on the facts.
• Special damages — pecuniary losses that must be specifically pleaded and strictly proved: medical expenses, loss of earnings, repair costs, loss of profit.

(d) Aggravated Damages

Compensatory in nature but increased to reflect the manner of the wrong — insult, humiliation, high-handedness — which injured the plaintiff's feelings. They remain compensatory, not punitive.

(e) Punitive (Exemplary) Damages

Awarded to punish the defendant and deter similar conduct, over and above the plaintiff's actual loss. In Nepal the punitive element is largely channelled through compensation with a deterrent purpose under s. 7 of the Compensation Act, and through fines in criminal proceedings; in common-law jurisdictions the classic instances are oppressive conduct by government servants (Wilkes v. Wood) and torts calculated for profit (Rookes v. Barnard).

(f) Liquidated Damages and Penalty

Where a sum is fixed in advance by contract. If it is a genuine pre-estimate of loss it is enforceable as liquidated damages; if it is a deterrent threat, it is a penalty and only actual loss is recoverable.

(g) Statutory Damages

Fixed by statute without proof of loss — e.g., under copyright and industrial property legislation.

3. Distinction Between Compensatory and Punitive Damages

Key point: Compensatory damages look backward to the plaintiff's loss; punitive damages look forward to the defendant's future conduct. A plaintiff may recover both in a proper case, but the court will not award punitive damages merely because the tort was intentional — the conduct must be outrageous or calculated for gain.

4. Conclusion

The plaintiff in a tort action may obtain nominal, contemptuous, compensatory (general and special), aggravated, punitive, liquidated or statutory damages according to the facts. The essential dividing line is that compensatory damages restore the plaintiff to his pre-tort position and are measured by his loss, whereas punitive damages are measured by the defendant's wrongdoing and are imposed to punish and deter.

Vicarious Liability

Vicarious liability is the principle by which one person is held liable for the wrongful act (tort) of another, even though the first person did not personally commit the wrong and may be morally innocent. It is a form of strict liability — liability arises from the relationship between the parties rather than from the defendant's own fault. The most important instance is the liability of a master (employer) for the torts of his servant (employee).

Rationale / Justification

1. Master's purse is deeper — the employer is better able to bear and distribute the loss (e.g. through insurance or higher prices) than the injured party.
2. Control — the employer selects, trains, pays and can dismiss the employee, and so should answer for him.
3. Prevention of accidents — liability gives the employer an incentive to take care in recruitment and supervision.
4. Justice to the victim — the injured person gets a solvent defendant, since the employee may be judgment-proof.

Essentials of Liability

For an employer to be liable, three conditions must be satisfied:

1. The wrongdoer must be an employee (servant), not an independent contractor. The test is the control test: whether the employer controls what is to be done and how it is to be done. Other tests are the "organisation/integration test" and the "multiple/economic reality test."
2. The tort must be committed in the course of employment. The act must be either (a) a wrongful act authorised by the master, or (b) a wrongful and unauthorised mode of doing some act authorised by the master (Salmond's test).
3. The relationship of master and servant must exist at the time of the act.

When the Employer IS Liable

(a) Authorised acts done wrongfully. If the servant is employed to do a lawful act but does it negligently, the master is liable. Example: A driver employed to drive a bus drives carelessly and injures a pedestrian — the transport company is liable.

(b) Unauthorised mode of doing an authorised act. Example: A delivery van driver, instead of taking the direct route, takes a detour to visit a friend and causes an accident — the employer is still liable (Century Insurance Co. v. Northern Ireland Road Transport Board).

(c) Express prohibition of a mode of doing work. If the servant disobeys the master's instructions as to how to do the work (but not as to what work to do), the master remains liable. Example: A driver is told not to exceed 40 km/h but drives at 80 km/h and injures someone — the employer is liable (Limpus v. London General Omnibus Co.).

(d) Fraud or misrepresentation by an employee. Where the servant commits fraud while acting within the scope of his authority. Example: A bank clerk fraudulently receives a deposit and pockets it — the bank is liable (Lloyd v. Grace, Smith & Co.).

(e) Wilful and malicious acts. If the act is done in the course of employment, even malice does not excuse the master. Example: A bouncer at a nightclub uses excessive force on a customer — the club is liable.

(f) Acts of a servant delegated by another servant. If the master delegates authority to a servant to employ others, the master is liable for the torts of the sub-servant.

When the Employer is NOT Liable

1. Independent contractor. Generally the employer is not liable for the torts of an independent contractor (Qui facit per alium facit per se does not apply). Exceptions: where the work is inherently dangerous, where the employer retains control, or where there is a statutory duty.
2. Act outside the course of employment. Example: A driver uses the employer's car for a purely personal trip and causes an accident — the employer is not liable (Beard v. London General Omnibus Co.).
3. Servant's act for his own purpose. Example: A servant assaults a person for personal revenge unconnected with the master's business.

Conclusion

Vicarious liability rests on the twin pillars of relationship and course of employment. The employer is liable for the negligence, fraud, or even wilful misconduct of an employee so long as the act is done within the scope of employment or is an unauthorised mode of performing an authorised act. It protects the innocent victim while placing the burden on the party best able to bear it.

Answer any three.

(a) Liability for defective production

• Product liability: a manufacturer or seller is liable for harm caused by a defect in design, manufacture or warning.
• Nepal: Consumer Protection Act, 2075 provides remedies such as replacement, refund and compensation.
• Strict liability applies to inherently dangerous goods; the consumer need not prove negligence in full.

(b) Invasion of the right to privacy

• The right to be let alone; guaranteed by Article 28 of the Constitution of Nepal and the Privacy Act, 2075.
• Forms: intrusion into private life, public disclosure of private facts, false light, appropriation of identity, interception of communications.
• Remedies: damages, injunction and criminal sanction.

(c) Defamation of character

• A false statement that injures a person's reputation. Libel is in permanent form; slander is spoken or transient.
• Essentials: false and defamatory statement, referring to the plaintiff, published to a third person, causing damage.
• Defences: justification (truth), fair comment, privilege, consent.
• Nepal: Muluki Criminal Code, 2074 and Muluki Civil Code, 2074 provide criminal and civil remedies.

(d) Res ipsa loquitur

• "The thing speaks for itself": negligence is inferred from the occurrence of the accident itself.
• Conditions: the thing was under the defendant's exclusive control; the accident would not ordinarily happen without negligence; the plaintiff has no means of knowing the cause.
• Effect: shifts the burden of explanation to the defendant. Leading case: Scott v. London & St. Katherine Docks Co. (1865).

(e) Professional negligence of lawyers and duty of care

• A lawyer owes the client a duty arising from the advocate-client relationship to exercise the skill and care of a reasonably competent lawyer.
• Duties: diligence, competence, confidentiality, proper advice and accounting for client money.
• Breach, such as missing a limitation period or late filing, gives rise to compensation, and disciplinary action by the Nepal Bar Council under the Legal Practitioners Act, 2075.

Historical School of Jurisprudence

1. Meaning and Nature

The Historical School of Jurisprudence is a school of legal thought that regards law as a product of the historical development of a society, not as something made deliberately by a sovereign or by abstract reasoning. It holds that law grows organically out of the customs, traditions, habits, and collective consciousness of a people, and that it can only be understood by tracing its historical evolution. The school is therefore evolutionary, sociological, and anti-legislative in character.

Its central belief is that law is found, not made. The proper source of law is the common consciousness of the people (Volksgeist), and the task of the jurist is to discover and systematise this existing law rather than to create new law by legislation.

2. Historical Background

The school arose in Germany in the early nineteenth century as a reaction against the natural law school and against the codification movement inspired by the French Civil Code (Code Napoléon, 1804). When German jurists proposed a uniform civil code for Germany, Friedrich Carl von Savigny opposed it, arguing that law grows organically with the people and cannot be imposed from above. His famous work Vom Beruf unserer Zeit für Gesetzgebung und Rechtswissenschaft (On the Vocation of Our Age for Legislation and Jurisprudence, 1814) became the manifesto of the school. The movement was later carried forward by Henry Maine in England, who gave it a comparative and evolutionary direction.

3. Chief Exponents and Their Contributions

(a) Friedrich Carl von Savigny (1779–1861) Savigny is regarded as the founder of the historical school. His main ideas are:

1. Law is a product of the Volksgeist — the common consciousness, spirit, or will of the people. Just as language, manners, and culture develop spontaneously, so does law.
2. Law grows organically — it passes through stages: first as customary law in the minds of the people, then as juristic law developed by legal experts, and finally as codified law. Codification is the last and most artificial stage.
3. Law is not universal — it differs from society to society and from age to age, because each people has its own spirit.
4. Legislation is secondary — the legislator should only give technical form to law already existing in the popular consciousness.
5. Jurists are the true law-makers — as society advances, law becomes technical and is shaped by the legal profession.

(b) Henry Maine (1822–1888) Maine applied the historical method to the study of ancient law. In Ancient Law (1861) he put forward the famous idea that the movement of progressive societies has been from status to contract. He also explained that in early societies law developed through three stages: (i) law made by the ruler under divine inspiration, (ii) customary law, and (iii) the era of codes. He supported the historical method but did not accept Savigny's view that legislation is always harmful.

(c) Other Contributors

• Georg Friedrich Puchta — developed the idea of the Volksgeist and the logical development of law by jurists.
• Rudolf von Jhering — though partly critical, he emphasised the social purpose and evolution of law.
• Sir Paul Vinogradoff — applied historical and comparative methods to legal study.
• Otto von Gierke — stressed the role of social groups and associations in the growth of law.

4. Main Tenets of the Historical School

1. Law is found and not made; it is discovered from social practice.
2. The Volksgeist (people's spirit) is the ultimate source of law.
3. Law is organic and evolutionary, not static or arbitrary.
4. Custom is the most important source of law, superior to legislation.
5. Law is relative to time, place, and people; there is no universal law.
6. Codification and legislation should be resorted to only when the law has fully matured.
7. The jurist and the judge play a creative but not arbitrary role in developing law.

5. Merits and Criticisms

Merits:

• It correctly explains the origin and growth of law as a social phenomenon.
• It recognises the importance of custom and historical study in legal research.
• It warns against hasty and artificial legislation.
• It gave birth to the comparative and historical methods of legal study.

Criticisms:

• It over-emphasises the past and opposes necessary social reform through legislation.
• It wrongly treats custom as always reasonable; many customs are unjust and outdated.
• It gives undue importance to the Volksgeist, which is vague and difficult to identify.
• It ignores the role of conscious law-making in modern states.
• It cannot explain the rapid legal changes brought by constitutions and statutes.

6. Conclusion

The historical school made a lasting contribution by showing that law is rooted in society and history. It corrected the excesses of the natural law school and the analytical school by insisting on the social and evolutionary character of law. Though its extreme opposition to legislation is not acceptable today, its method and insights remain an essential part of modern jurisprudence.

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Difference Between Historical School and Analytical School

Summary of the Difference

The analytical school looks at law as it is — a body of rules enacted and enforced by the state — and studies its formal structure. The historical school looks at law as it has become — a growth from the customs and consciousness of the people — and studies its origin and development. The analytical school is static and state-centred; the historical school is dynamic and society-centred. Austin says law is the command of the sovereign; Savigny says law is the spirit of the people. The two schools are thus complementary rather than contradictory, and modern jurisprudence draws on both.

Critical Legal Studies (CLS)

1. Introduction

Critical Legal Studies (CLS) is a radical jurisprudential movement that emerged in the United States in the mid-1970s. It grew out of American legal realism of the 1920s–30s and was formally launched at a conference at the University of Wisconsin in 1977. Its leading figures include Roberto Mangabeira Unger, Duncan Kennedy, Mark Kelman, Morton Horwitz, and Peter Gabel. CLS is not a single unified theory but a school of thought that critically examines law, legal reasoning and legal institutions from a radical, often neo-Marxist and deconstructionist, standpoint. It asks not merely "what is the law?" but "whose interests does the law serve, and how does legal reasoning conceal that service?"

2. Meaning and Nature of CLS

CLS is a movement of legal scholars who reject the orthodox view that law is a neutral, objective and apolitical system of rules. It treats law as a political and ideological instrument that legitimises existing power relations — particularly those of class, race, gender and wealth. It borrows from:

• Legal Realism — the idea that law is what officials do, and that legal rules do not by themselves determine outcomes;
• Marxism — the idea that law is a superstructural instrument of the ruling class;
• Critical Theory / Deconstruction — the idea that legal doctrines contain hidden contradictions and hierarchies.

Thus CLS is both a critique of mainstream jurisprudence and a project for transforming law and society.

3. Core Tenets of Critical Legal Studies

(a) Law is Indeterminate. CLS's central claim is that legal doctrine does not determine legal outcomes. For any given case, there exist competing rules, principles and precedents that can support opposite conclusions. Judges therefore do not "find" the law; they choose among available outcomes. Legal reasoning is often a process of rationalisation after the decision, not the cause of it. Kennedy calls this the phenomenon of "legal indeterminacy."

(b) Law is Politics. Since doctrine is indeterminate, judicial decisions must rest on political, economic or ideological preferences. Law is therefore "politics by other means." The claim of neutrality is a mask. CLS scholars argue that law systematically favours the powerful — employers over workers, property owners over the poor, men over women — while presenting these outcomes as the natural result of neutral rules.

(c) Law Legitimises Hierarchy. Law does not merely reflect hierarchy; it creates and maintains it. Through doctrines such as freedom of contract, property rights and corporate personality, law legitimises exploitation and makes it appear just. The legal system thus performs an ideological function: it makes the existing order seem natural, inevitable and fair.

(d) Legal Reasoning is a Form of Rhetoric. CLS uses deconstruction to show that legal doctrines rest on false dichotomies — public/private, objective/subjective, form/substance, rights/needs. These dichotomies are unstable; one term always dominates the other. By exposing these contradictions, CLS shows that legal argument is often a rhetorical device for masking political choices.

(e) Rights are Ambiguous. Unlike the liberal tradition (Dworkin, Rawls), CLS is sceptical of rights. It argues that rights are indeterminate and can be used both to liberate and to oppress. The "right to property" protects the rich; the "right to free speech" may protect hate speech. Rights discourse therefore often serves to entrench the status quo rather than to challenge it.

(f) Law is a Tool of Class Domination. Drawing on Marx, CLS scholars argue that the legal system is designed to serve the interests of the capitalist class. Contract, property and corporate law facilitate capital accumulation; labour law fragments worker solidarity; criminal law targets the poor. The state, far from being neutral, is an instrument of class rule.

4. Major Critiques Advanced by CLS

1. Critique of Liberalism — CLS rejects the liberal belief in the rule of law, individual rights and neutral adjudication as myths that conceal power.
2. Critique of Formalism — It rejects the idea that law is a closed, logical system from which correct answers can be deduced.
3. Critique of Objectivism — It denies that legal decisions can be objectively justified by reference to neutral principles.
4. Critique of the Welfare State — CLS argues that welfare-state law merely manages inequality without removing its roots.
5. Critique of Legal Education — It exposes how law schools reproduce hierarchy and train students to accept the existing order.

5. Justification as a Fundamental Concept of Jurisprudence

CLS is a fundamental concept of jurisprudence for the following reasons:

First, jurisprudence is the study of the nature, sources and functions of law. CLS offers a radical theory of the nature of law — that law is indeterminate, political and ideological. No complete account of jurisprudence can ignore this perspective.

Second, CLS provides a powerful critique of the dominant schools — natural law, analytical positivism (Austin, Hart) and legal realism. By exposing the assumptions of these schools, CLS enriches jurisprudential debate. It asks the questions that mainstream theories avoid: Who benefits from law? Whose voice is silenced?

Third, CLS is interdisciplinary. It draws on sociology, political economy, philosophy and literary theory. This broadens the scope of jurisprudence beyond the mere analysis of legal rules.

Fourth, CLS has had a practical impact. It has influenced critical race theory, feminist jurisprudence, critical legal feminism, and Third World approaches to international law (TWAIL). It has also shaped movements for legal reform, judicial activism and social justice.

Fifth, CLS raises the fundamental question of legitimacy: Why should people obey the law? If law is merely politics in disguise, on what basis does it claim authority? This question lies at the heart of jurisprudence.

Sixth, CLS is a corrective to complacency. It reminds us that law is not an end in itself but a means to social ends, and that those ends must be constantly examined and contested.

6. Criticisms of CLS

1. Nihilism — Critics argue that CLS destroys faith in law without offering a constructive alternative.
2. Elitism — It is seen as an academic movement of privileged law professors with little practical impact.
3. Overstatement — The claim that law is completely indeterminate is exaggerated; many legal rules do produce predictable outcomes.
4. Lack of Empirical Rigour — CLS relies heavily on theory and anecdote rather than empirical research.
5. Marxist Bias — Its reduction of all law to class struggle ignores other forms of oppression such as race, gender and caste.

7. Conclusion

Critical Legal Studies is a vital and provocative school of jurisprudence. It challenges the foundational assumptions of liberal legal theory — neutrality, objectivity and the rule of law — and reveals law as a site of political struggle. Though criticised for its nihilism and lack of constructive programme, CLS has permanently enriched jurisprudential thought by forcing scholars to ask whose interests law serves. As a fundamental concept of jurisprudence, it stands alongside natural law, positivism and realism as an essential perspective for understanding the relationship between law, power and society.

Introduction

Property means everything over which a person has a legal right of ownership, possession or enjoyment, together with the rights to use, transfer and exclude others from it. Salmond treats property as the right in a thing (jus in rem) and also the thing itself. In Nepal, the Constitution of Nepal 2072 guarantees the right to property under Article 25, and the Muluki Civil Code, 2074 governs property relations.

Concept of Property

1. Ownership: the fullest right of use, enjoyment and disposal.
2. Possession: physical control with intention to hold.
3. Rights over property: use, income, transfer, mortgage, lease and succession.
4. Limits: property rights are subject to law, public interest and the rights of others.

Kinds of Property

1. Movable and immovable property

• Immovable: land, buildings, things attached to the earth, and rights arising from land (e.g. house, trees, canals). The Civil Code treats land and structures as immovable.
• Movable: goods that can be moved, such as vehicles, ornaments, livestock, money and shares.

2. Tangible and intangible property

• Tangible: physical things that can be touched.
• Intangible: incorporeal rights such as copyright, patents, trademarks, debts and goodwill.

3. Public, private and common property

• Public (government) property: owned by the State, such as roads, rivers, forests and government buildings.
• Private property: owned by individuals or groups.
• Guthi (trust) property: land and assets endowed for religious or charitable purposes, governed by the Guthi Sansthan Act, 2033 (and the Guthi Act, 2076).
• Community property: e.g. community forests.

4. Ancestral and self-acquired property

• Ancestral (partible) property is shared by coparceners and is divided by partition (ansabanda).
• Self-acquired property is acquired by one's own effort, and the owner may dispose of it freely, subject to law.

5. Corporeal and incorporeal, real and personal - traditional common-law classifications that parallel the immovable/movable distinction.

Nepalese Legal Provisions

• Constitution of Nepal, 2072, Article 25: every citizen has the right to acquire, own, sell, dispose of and otherwise deal with property, subject to law; property shall not be acquired by the State except for public interest, on payment of compensation.
• Muluki Civil Code, 2074: deals with the right to property, partition, succession, transfer, mortgage, lease and co-ownership.
• Land Act, 2021: regulates land ownership, ceilings and tenancy.
• Land Acquisition Act, 2034: compulsory acquisition for public purposes with compensation.
• Guthi Sansthan Act, 2033: management of guthi property.
• Intellectual property statutes: Copyright Act, 2059, Patent, Design and Trademark Act, 2022 protect intangible property.
• Registration and transfer of immovable property is made through the Land Revenue Office (Malpot) by registration (Lalpurja).

Conclusion

Property in Nepal is classified chiefly as movable and immovable, tangible and intangible, and public, private and guthi. The Constitution protects the right to property, while the Civil Code and special laws determine how it is acquired, transferred and limited in the public interest.

Define Person and Personality. Assess the Legal Status of Unborn Person, Dead Person and Animal.

(TU LLB 1st Year — Jurisprudence / Legal Theory — 20 marks)

1. Introduction

In jurisprudence, the term "person" is not used in its ordinary biological sense. It is a legal concept. The law creates, recognises and confers personality on certain entities for the purpose of regulating rights and duties. Hence the study of "person" and "personality" is fundamental to legal theory, because only a person can be the bearer of rights and subject to duties.

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2. Meaning and Definition of Person

2.1 Etymology

The word "person" is derived from the Latin word "persona", which originally meant a mask worn by actors on the Roman stage. Later it came to denote the role or character played by an individual. In law, it signifies the capacity of an entity to hold rights and duties.

2.2 Definitions

• Salmond: "A person is any being whom the law regards as capable of rights and duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man."
• Gray: "A person is an entity to which rights and duties may be attributed."
• Black's Law Dictionary: A person is "a human being, a body of persons, or a corporation, partnership or other legal entity that is recognised by law as the subject of rights and duties."

2.3 Essentials of a Person

1. Capacity for rights — the entity must be able to hold rights.
2. Capacity for duties — the entity must be able to bear duties/liabilities.
3. Recognition by law — the capacity must be conferred or recognised by law.

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3. Meaning and Definition of Personality

Personality means the legal capacity or status of an entity by virtue of which it is treated as a person in the eyes of law. It is the sum total of rights and duties that an entity is capable of acquiring and owing. Personality is thus the quality of being a person.

3.1 Kinds of Personality

1. Natural Person — a human being, who acquires personality by birth.
2. Legal / Artificial / Juristic Person — an entity created by law (e.g., a company, corporation, idol, State) which is treated as a person though it is not a human being.

3.2 Theories of Legal Personality

• Fiction Theory (Salmond): A legal person is a mere fiction of law; it has no real existence.
• Realist Theory (Gierke): A legal person has a real, collective will and existence.
• Concession Theory: Personality is conferred only by the State's concession.
• Purpose Theory (Brinz): Personality exists only for a legal purpose.

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4. Legal Status of an Unborn Person

4.1 General Rule

An unborn child is not a person in law. It has no independent legal personality. It cannot sue or be sued, cannot own property, and cannot enter into contracts. The law generally recognises personality only from birth (live birth).

4.2 Exceptions — Where Law Recognises the Unborn

The law protects the unborn child in certain matters, based on the maxim:

"Nasciturus pro jam nato habetur, quoties de commodis ejus agitur" (The unborn child is deemed to be born whenever it is a question of its own benefit.)

Key exceptions:

1. Property / Inheritance: An unborn child in the womb may acquire property by inheritance or gift, provided it is born alive. If born dead, such acquisition fails.
2. Criminal Law: Under Section 182 of the Muluki Criminal Code, 2074, causing the death of a fetus (abortion) is punishable. The law protects the fetus even before birth.
3. Civil Claims: A child injured before birth may claim damages after birth for prenatal injuries.
4. Evidence / Presumption: A child born within 280 days of the death of a husband is presumed legitimate.

4.3 Assessment

The unborn person is thus not a full legal person, but a potential person whose rights are contingent upon live birth. The law adopts a conditional personality — rights are kept in abeyance until birth.

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5. Legal Status of a Dead Person

5.1 General Rule

A dead person ceases to be a person in law. Personality ends with death. A dead person cannot hold rights, cannot sue or be sued, and cannot own property. Property of the deceased devolves upon heirs or is administered as per law.

5.2 Exceptions — Protection of the Dead

Though dead persons have no legal personality, the law protects certain interests connected with them:

1. Reputation: Defamation of the dead may be actionable if it injures the reputation of living relatives.
2. Will / Testament: A will made by a person takes effect after death and is legally enforceable.
3. Body / Burial Rights: The law protects the dead body from desecration. Rights relating to burial and cremation belong to living persons.
4. Succession: The law of succession regulates the devolution of property of the dead person.
5. Criminal Law: Under Section 155 of the Muluki Criminal Code, 2074, outraging the modesty of a dead body is punishable.

5.3 Assessment

A dead person is not a legal person. The law only protects the memory, body and estate of the deceased for the benefit of the living. Hence, the dead have no rights, but the living have duties towards them.

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6. Legal Status of an Animal

6.1 General Rule

Animals are not persons in law. They are things (property). They cannot hold rights or bear duties. They cannot sue or be sued. They are objects of ownership and can be bought, sold, gifted or inherited.

6.2 Exceptions — Protection of Animals

Modern law increasingly protects animals through welfare legislation:

1. Prevention of Cruelty to Animals Act, 2019 (Nepal): Provides punishment for cruelty to animals.
2. National Parks and Wildlife Conservation Act, 2029: Protects wild animals and birds.
3. Muluki Criminal Code, 2074: Punishes killing or injuring certain animals.
4. Trusts for Animals: Property may be vested in trust for the benefit of animals.
5. Sentient Beings: Modern jurisprudence recognises animals as sentient beings deserving humane treatment.

6.3 Assessment

Animals are not legal persons but legal objects. They are property and cannot be subjects of rights. However, the law imposes duties on humans to treat animals humanely. Thus, animals have no rights, but humans have duties towards them.

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7. Comparative Assessment Table

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8. Conclusion

In jurisprudence, person means any entity capable of rights and duties, and personality is the legal capacity to hold such rights and duties. The law recognises natural persons from birth and juristic persons by legal fiction. An unborn person has only conditional personality, recognised for its own benefit upon live birth. A dead person has no personality, though the law protects the body, reputation and estate for the sake of the living. An animal is not a person but property, yet modern welfare laws impose duties on humans for its humane treatment. Thus, legal personality is not a matter of biology but of legal recognition, and it may be full, conditional or absent depending on the entity concerned.

TU LLB — LLB 1st Year Subject: Legal Theory / Jurisprudence Full Marks: 20

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1. Definition of Law

The term "law" is derived from the Old English lagu and the Latin lex, meaning "a binding rule or custom." There is no single universally accepted definition because law is studied from different perspectives — philosophical, sociological, analytical and ethical. The following definitions bring out its essential features:

• Salmond: "Law is the body of principles recognised and applied by the State in the administration of justice." This definition stresses two elements — (i) recognition by the State, and (ii) application in the administration of justice.

• John Austin: "Law is a command of the sovereign backed by a sanction." This is the imperative or command theory — law is the command of a determinate political superior to a determinate political inferior, enforced by a sanction.

• Hans Kelsen: Law is a "norm" or "ought" proposition — a hierarchy of norms in which each norm derives its validity from a higher norm, ultimately from the Grundnorm (basic norm).

• Roscoe Pound: Law is "social engineering" — a body of rules by which society balances competing interests with the minimum of friction and waste.

• Black's Law Dictionary: Law is "a body of rules of action or conduct prescribed by a controlling authority and having binding legal force."

Essential features of law (from the above):

1. It is a body of rules or norms of conduct.
2. It is recognised, prescribed or enforced by the State (sovereign authority).
3. It is backed by sanction or coercive force.
4. It is applied by courts in the administration of justice.
5. It regulates human conduct in society and maintains order.

Thus law may be defined as a body of rules of human conduct, recognised and enforced by the sovereign authority of the State, backed by sanction, and applied by the courts for the maintenance of order and the administration of justice.

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2. Main Sources of Law

Sources of law mean the origins from which legal rules derive their content and their binding force. They are broadly divided into primary (formal) sources and secondary (material) sources.

A. Primary Sources

1. Legislation (Statute Law) This is the most important and modern source. Legislation means law made deliberately by a competent law-making body — the legislature — in the prescribed form. In Nepal, Parliament (Federal Parliament) enacts laws; the Constitution itself is the supreme legislation. Statutes are certain, precise, written and easily amendable. Examples: Muluki Civil Code, 2074; Contract Act, 2056; Evidence Act, 2031.

2. Precedent (Judicial Decisions) Precedent means a rule of law laid down by a superior court in a decided case, which must be followed by itself and by subordinate courts in similar future cases. This is the basis of the common law system and is known as stare decisis. In Nepal, decisions of the Supreme Court are binding on all courts below (Supreme Court Act, 2073). The ratio decidendi (the legal reasoning) is binding, while obiter dicta (incidental remarks) are only persuasive.

3. Custom (Customary Law) Custom is the oldest source of law. A custom, to be recognised as law, must be ancient, continuous, certain, reasonable, obligatory and not opposed to public policy or statute. Customs regulate marriage, inheritance, succession and religious practices in many Nepali communities. Once recognised by courts, a custom becomes a binding rule of law.

4. Personal Law / Religious Texts In Nepal, personal laws based on religion and scripture — such as Hindu law, Muslim law, Buddhist and Kirat customs — govern marriage, divorce, inheritance and adoption within particular communities. These are treated as a source of law where they are recognised by statute or judicial decision.

B. Secondary Sources

5. Judicial Precedents of Foreign Courts and Textbooks Decisions of English, Indian and other foreign courts, and the writings of jurists such as Salmond, Austin, Bentham, Dicey and Pound, are persuasive sources. They do not bind Nepali courts but are frequently cited as authority.

6. Equity and Natural Justice Equity developed in England to soften the rigour of the common law. 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) — are applied by Nepali courts and are recognised in the Constitution.

7. Ordinances and Delegated Legislation Under Article 114 of the Constitution of Nepal, the President may promulgate an ordinance when Parliament is not in session. Rules, regulations, by-laws and orders made by the executive under authority delegated by the legislature are also sources of law.

8. Conventions and Constitutional Practices Constitutional conventions — unwritten rules of political practice — regulate the conduct of constitutional organs. They become law when codified or judicially recognised.

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3. Conclusion

Law is a body of State-recognised and State-enforced rules applied by courts to maintain order and do justice. Its main sources are legislation, precedent, custom and personal law as primary sources, supported by equity, foreign decisions, juristic writings, delegated legislation and constitutional conventions as secondary sources. In Nepal, the Constitution is the supreme source, and legislation and Supreme Court precedent are the most authoritative among them.

Justice is the constant and perpetual will to render to each person what is due to them. In jurisprudence, it is the moral and legal ideal that persons should receive fair treatment, equal consideration, and their rightful due according to law, reason, and social good. Justice is the end of law and the guiding principle of the legal system.

Kinds of Justice

1. Natural Justice (Natural Law Justice) Natural justice is based on reason, conscience, and the inherent nature of human beings. It is universal, eternal, and independent of any legislation. It is discovered, not made. Principles such as audi alteram partem (hear the other side) and nemo judex in causa sua (no one shall be judge in his own cause) are its classic expressions. It serves as a moral standard against which positive law is judged.

2. Positive Justice (Legal Justice) Positive justice is justice as laid down and enforced by the state through legislation and judicial decisions. It is particular, changeable, and backed by sanction. It may be:

• Civil Justice — deals with disputes between private persons over rights such as property, contract, and tort, and provides compensation or specific relief.
• Criminal Justice — deals with offences against society and imposes punishment on the guilty.
• Administrative Justice — deals with the legality and fairness of acts of administrative authorities.

3. Distributive Justice Distributive justice concerns the fair allocation of benefits and burdens in society — wealth, income, opportunity, honour, and offices. Aristotle held that it requires treatment proportionate to merit and capacity: equals must be treated equally and unequals unequally in proportion to their relevant differences. It is the guiding idea behind progressive taxation, reservation, and welfare measures.

4. Corrective (Rectificatory) Justice Corrective justice aims to restore the balance disturbed by a wrong. It is corrective rather than distributive. If A wrongfully takes Rs 10,000 from B, corrective justice requires A to return it. It operates in contract, tort, and criminal law, and looks only at the wrong done, not at the status of the parties.

5. Retributive Justice Retributive justice is based on the idea that the offender deserves punishment proportionate to the gravity of the offence — "an eye for an eye." It satisfies the moral demand that wrongdoing be answered with suffering. Modern criminal law tempers it with deterrence, reform, and reparation.

6. Restorative Justice Restorative justice focuses on repairing the harm caused by the offence by involving the offender, the victim, and the community. It seeks apology, restitution, and reconciliation rather than mere punishment. It is reflected in plea bargaining, mediation, and juvenile justice practices.

7. Social Justice Social justice is the fair and equitable distribution of the benefits and burdens of society so that every person, regardless of caste, class, gender, religion, or region, can live with dignity. It includes removal of discrimination, protection of the weaker sections, and equal access to education, health, and employment. It is embodied in the Preamble and Articles 18, 38, and 42 of the Constitution of Nepal.

7. Economic Justice Economic justice concerns fair distribution of economic resources and opportunities, prevention of exploitation, and a just wage. It is closely linked to social justice and is expressed in the directive principles of the Constitution of Nepal.

8. Political Justice Political justice means equal participation in political life — equal voting rights, equal eligibility for public office, and one person one vote. It guarantees that political power is distributed and exercised fairly.

9. Procedural Justice Procedural justice relates to the fairness of the process by which decisions are made — notice, hearing, impartial tribunal, reasoned decision, and the right to appeal. It is the practical face of natural justice in administrative and judicial proceedings.

Conclusion Justice is thus not a single idea but a family of ideas — natural and positive, distributive and corrective, retributive and restorative, social, economic, political, and procedural. A legal system that ignores any of these kinds fails to achieve the true end of law, which is justice.

Note: The question asks for any THREE of the five parts. Model answers for all five are given below; in the exam, attempt only three.

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a) Write a note on American realism.

American Realism is a 20th-century school of jurisprudence that treats law as the actual behaviour and decisions of courts rather than as a body of abstract, logically derived rules. It is the American counterpart of Scandinavian Realism and is associated with Oliver Wendell Holmes Jr., Karl N. Llewellyn, Jerome Frank, Roscoe Pound and Thurman Arnold.

Key ideas:

1. Law as prediction of judicial behaviour. Holmes, in The Path of the Law (1897), defined law as "the prophecies of what the courts will do in fact, and nothing more pretentious." Law is thus what officials actually do, not what books say.
2. Law-in-action vs. law-in-books. Realists distinguish the formal rules on paper from the operative rules actually applied by judges. Pound's distinction between "law in books" and "law in action" is central here.
3. Scepticism about rules. The rule-sceptics (Llewellyn) argue that legal rules are only one of many factors influencing decisions; the fact-sceptics (Frank) stress that the trial court's finding of facts is the most unpredictable element, since facts are "guessed" by witnesses and juries.
4. Judicial personality and non-legal factors. Frank, in Law and the Modern Mind, argued that judges decide largely on the basis of hunches, bias, policy and social background, and then rationalise the result by selecting among available rules.
5. Interdisciplinary and empirical method. Realists insist on studying law through sociology, psychology and economics, and on measuring the actual effects of legal rules.
6. Law as a means to social ends. Law is treated as an instrument of social engineering, to be judged by its practical consequences rather than its logical elegance.

Criticism: Realists are accused of over-emphasising the unpredictable and irrational element in judging, of neglecting the certainty and guiding function of rules, and of reducing law to mere prediction. Their scepticism, if pushed to the extreme, undermines the very idea of law as a normative system.

Contribution: Despite criticism, American Realism has been highly influential. It encouraged the sociological study of law, law reform based on empirical research, a realistic approach to legal education (the case method and clinical legal education), and greater judicial candour about the factors influencing decisions. It also strengthened the movement for legal realism in judging and legal process.

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b) Discuss the contribution of natural law theory.

Natural law theory holds that there exists a body of law derived from nature, reason or a higher moral order, which is superior to and stands as a standard for judging man-made (positive) law. Its roots lie in Greek philosophy (Heraclitus, Socrates, Plato, Aristotle), Stoicism, Roman jurisprudence (Cicero), Christian theology (St. Thomas Aquinas) and modern secular versions (Grotius, Locke, Fuller, Finnis).

Main contributions:

1. Foundation of the idea of justice and higher law. Natural law gave the world the concept that law must conform to a higher standard of morality and reason. An unjust law is not truly law — lex injusta non est lex (Augustine, Aquinas).
2. Source of human rights and natural rights. The doctrine of natural rights, developed by Locke and others, directly inspired the American Declaration of Independence (1776), the French Declaration of the Rights of Man (1789) and modern human rights instruments such as the UDHR (1948).
3. Basis for judicial review and constitutionalism. The doctrine that a legislature's law can be tested against a higher law underlies the power of courts to strike down unconstitutional legislation (e.g. Marbury v. Madison, and in Nepal, the power of the Supreme Court under Article 133).
4. Guidance for legal interpretation and reform. Judges and legislators use natural law principles to fill gaps in law, interpret ambiguous statutes and abolish unjust customs (e.g. slavery, untouchability).
5. Moral foundation of international law. Grotius secularised natural law and made it the basis of the law of nations; it remains the moral foundation of international law and the Nuremberg principles.
6. Revival in the 20th century. After the atrocities of the Nazi regime, natural law revived through Radbruch's formula and Lon Fuller's The Morality of Law (1964), which argued that law must satisfy an "inner morality" to be valid. John Finnis's Natural Law and Natural Rights (1980) restated it in secular, rational terms.
7. Influence on Nepali law. Concepts of justice, equity and good conscience, fundamental rights in the Constitution of Nepal, and the abolition of discriminatory practices reflect natural law thinking.

Criticism: Natural law is criticised for being vague, subjective and unverifiable; for confusing "is" with "ought"; for the difficulty of identifying what "nature" or "reason" dictates; and for being used to justify the status quo or revolution as convenient. Bentham dismissed natural rights as "nonsense upon stilts."

Conclusion: Despite criticism, natural law remains a living and influential theory. It supplies the moral standard by which positive law is evaluated and has shaped constitutionalism, human rights and international law.

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c) Discuss the contractual and quasi contractual obligation.

Meaning of obligation: An obligation is a legal bond (vinculum juris) by which a person is bound to do or refrain from doing something. Obligations arise from contract, quasi-contract, tort and other sources. Here we deal with contractual and quasi-contractual obligations.

1. Contractual obligation

A contractual obligation arises from an express or implied agreement between two or more parties, enforceable by law. Its essentials are:

• Offer and acceptance — a lawful proposal and its unconditional acceptance, creating an agreement.
• Intention to create legal relations — the parties must intend legal consequences.
• Lawful consideration — something of value given by each party.
• Capacity of parties — parties must be competent to contract (major, of sound mind, not disqualified by law).
• Free consent — consent not caused by coercion, undue influence, fraud, misrepresentation or mistake.
• Lawful object — the object must not be illegal, immoral or opposed to public policy.
• Certainty and possibility of performance — the terms must be certain and capable of performance.

Nature: The obligation is voluntary and self-imposed; the parties themselves fix the rights and duties. The remedy for breach is damages, specific performance or injunction. Example: A agrees to sell his house to B for Rs 5,00,000 — B's duty to pay and A's duty to transfer are contractual obligations.

2. Quasi-contractual obligation

A quasi-contract (in Roman law, obligatio quasi ex contractu; in English law, "constructive contract" or "implied contract") is an obligation imposed by law where there is no actual agreement between the parties. It is based on the principles of unjust enrichment, equity and unjust benefit — no one should be allowed to enrich himself at the expense of another.

Essentials:

• There is no offer, acceptance or consent — hence not a true contract.
• The obligation is created by operation of law, not by the will of the parties.
• It rests on the principle that a person who has received a benefit without legal justification must restore it (nemo debet locupletari ex aliena jactura).

Kinds (English law):

1. Necessaries supplied to a person incapable of contracting (e.g. a minor or a lunatic) — the supplier is entitled to be reimbursed from the incapable person's property.
2. Payment by an interested person — where A pays a sum which B is legally bound to pay, B must reimburse A.
3. Benefit of a non-gratuitous act — where a person lawfully does something for another not intending it gratuitously, the latter must compensate.
4. Finder of goods — a person who finds goods belonging to another and takes them into custody is bound to return them or compensate the owner.
5. Money paid by mistake or under coercion — recoverable, as retention would amount to unjust enrichment.

Nepali law: The Muluki Civil Code, 2074 (Part 4) recognises obligations arising without contract, such as payment by mistake, and provides for restitution.

3. Distinction between the two

Conclusion: Contractual obligation rests on the free will of the parties, while quasi-contractual obligation is a legal fiction created to prevent unjust enrichment. Both are enforceable, but the former is voluntary and the latter is imposed by law.

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d) Explain the theories of corporate personality.

Corporate personality means that a company, on incorporation, acquires a legal personality distinct from its members. It can own property, sue and be sued, and has perpetual succession. The main theories explaining this are:

1. Fiction theory (Artificial person theory)

Propounded by Savigny, Salmond and Coke. It holds that a corporation has no real or natural existence; it is a mere creation of law — a legal fiction. Only human beings are real persons; the company is an "artificial person" having only those rights conferred by law. Criticism: It fails to explain why the State grants personality and how the company's acts bind members.

2. Concession theory

Also associated with Savigny and Dicey. It states that corporate personality is a concession or privilege granted by the State. The company exists only because the State permits it to exist through registration. Criticism: It makes the company wholly dependent on State will and ignores the group's real social existence.

3. Fiction theory vs. realist theory — the Realist (Organic) theory

Propounded by Gierke, Maitland and Barker. It holds that a corporation is a real person with a real will and real existence, not a fiction. The group has a personality of its own, independent of its members — a "group will" or "corporate will." Criticism: A company has no soul, body or conscience; its will is only the will of the majority of members.

4. Purpose theory (Bracket theory / Symbol theory)

Associated with Ihering and Kelsen. It says the corporation is not a person at all; it is merely a symbol or bracket used to represent the rights and duties of the real persons (members) behind it. The law merely puts a bracket around a group of individuals. Criticism: It ignores the separate legal entity recognised in practice.

5. Contract theory

Holds that the company is the result of a contract between its members. The memorandum and articles of association are treated as a contract. Criticism: A company is more than a contract; it has a distinct legal personality and perpetual succession, which a mere contract lacks.

6. State theory (Sovereign theory)

Holds that the State itself is the source of all personality, and the company is merely an agency or extension of the State. Criticism: It is too broad and ignores the private character of companies.

7. Fiction theory and the concept of separate legal entity

The practical application of these theories is seen in Salomon v. Salomon & Co. Ltd. (1897), where the House of Lords held that a company is a legal person separate from its shareholders. Similarly, in Lee v. Lee's Air Farming Ltd., a director could be an employee of his own company.

Conclusion: No single theory fully explains corporate personality. The fiction and realist theories together best explain the legal and social reality of a company as a distinct legal person.

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e) Write a note on mediate and immediate possession.

Possession in jurisprudence means the physical control (corpus) over a thing coupled with the intention to hold it as one's own (animus possidendi). Possession may be classified as mediate and immediate possession.

1. Immediate possession (Direct possession)

Immediate possession exists where a person has direct and actual physical control over the thing, without any intervening person. The possessor himself holds the object and has the animus to possess it. Example: A holds a book in his hand; A owns and occupies his own house. Here A has immediate possession.

2. Mediate possession (Indirect possession)

Mediate possession exists where a person has possession through another person — that is, the thing is in the physical control of someone else, but the person claims possession through that other. There is an intervening person between the possessor and the thing. Example: A lends his book to B. B has immediate possession; A retains mediate possession, because A's possession is exercised through B. Similarly, a landlord whose tenant occupies the house has mediate possession, while the tenant has immediate possession.

3. Distinction

4. Modes of acquiring mediate possession

Mediate possession may arise:

1. Where the possessor acquires through a servant or agent;
2. Where the possessor has lent or pledged the thing to another;
3. Where the possessor has let the thing on hire or lease;
4. Where the thing is in the custody of a bailee.

5. Significance

The distinction is important in law because:

• Remedies differ — the immediate possessor can sue for trespass; the mediate possessor may sue for recovery of the thing.
• It explains the position of landlord and tenant, bailor and bailee, master and servant.
• It recognises that possession need not always be physical; constructive possession through another is equally protected by law.

Conclusion: Immediate possession is direct physical control, while mediate possession is control exercised through another. Both are recognised as possession in law, and the distinction determines the nature of remedies available to the possessor.

International law is often called "weak law" because, unlike municipal law, it lacks a central authority to make, interpret, and enforce the law. The following points explain why:

1. No central legislature There is no world legislature to make binding rules for all states. Rules are made through treaties and customs, which bind only consenting or practising states. A state that does not consent is generally not bound.

2. No compulsory adjudicatory body The ICJ can decide disputes only when states consent to its jurisdiction. There is no court with automatic, compulsory jurisdiction over all states as in domestic legal systems.

3. No central enforcement agency There is no world police or executive to enforce international law. Enforcement depends on the affected states themselves — through retorsion, reprisals, countermeasures or sanctions — and on collective action by the UN Security Council, which is often blocked by the veto of permanent members.

4. Consent-based and voluntary character States are sovereign and equal. They obey international law largely out of self-interest, reciprocity, reputation and the fear of sanctions, not because a superior authority compels them. Hence it is called "law without sanctions" or "weak law."

5. Weak sanctions and their selective use Sanctions under Chapter VII of the UN Charter are applied selectively and only when the permanent members agree. Powerful states often escape enforcement, while weak states are targeted, undermining the law's authority.

6. Problems of interpretation and reservation Treaties allow reservations, and vague customary norms are open to differing interpretations. States may also invoke domestic jurisdiction or national security to avoid obligations.

7. Lack of hierarchy and compulsory dispute settlement Unlike municipal law, there is no clear hierarchy of norms or compulsory settlement of all disputes. Even the ICJ's decisions are binding only on the parties and only in that case.

8. Non-compliance and withdrawal States sometimes violate international law openly or withdraw from treaties (e.g., withdrawal from human rights treaties), and there is no effective mechanism to punish such conduct.

However, international law is not wholly weak. It is generally observed in routine matters — diplomacy, trade, aviation, postal services, maritime navigation — and violations are the exception. The UN Charter, Security Council sanctions, international tribunals (ICTY, ICTR, ICC) and regional courts (ECtHR) show growing enforcement. The weakness lies mainly in enforcement against powerful states, not in the existence of the law itself.

Conclusion: International law is considered weak not because it is not law, but because it lacks centralized legislation, compulsory jurisdiction and effective enforcement. It relies on state consent and collective action, which makes it less effective than municipal law in guaranteeing compliance.

Jurisdiction in International Law

1. Meaning of Jurisdiction

Jurisdiction (from Latin juris = law, dictio = saying) literally means "the power to declare the law." In international law, it refers to the competence or authority of a State to regulate conduct — through its legislature, its courts, or its executive organs — and to exercise that authority over persons, property, and events.

Jurisdiction is an attribute of State sovereignty. Since all States are sovereign and equal, no State may exercise jurisdiction within the territory of another State without that State's consent. As the Permanent Court of International Justice observed in the Lotus case (1927), a State may not exercise its power in any form in the territory of another State unless there is a permissive rule of international law allowing it. At the same time, the Lotus principle also holds that a State has wide discretion to exercise jurisdiction over acts outside its territory, so long as no prohibitive rule of international law is violated.

Jurisdiction must therefore be distinguished from sovereignty: sovereignty is the general power of the State, while jurisdiction is the particular manifestation of that power in relation to persons and events.

2. Types of Jurisdiction

A. On the basis of the organ exercising it

(i) Legislative (prescriptive) jurisdiction — the power of the State to make laws binding on persons and events. It is the State's authority to prescribe rules of conduct.

(ii) Judicial (adjudicative) jurisdiction — the power of the courts of a State to try cases and render binding judgments.

(iii) Executive (enforcement) jurisdiction — the power of the State to enforce its laws and judgments, e.g., through police action, arrest, seizure of property, or execution of decrees. Enforcement jurisdiction is the most restricted: it generally cannot be exercised on foreign territory without consent.

B. On the basis of the connecting principle (basis of jurisdiction)

(i) Territorial jurisdiction — the primary and most accepted basis. A State has jurisdiction over all persons, property, and events within its territory. It has two aspects:

• Subjective territoriality — jurisdiction over acts commenced within the territory, even if completed abroad.
• Objective territoriality — jurisdiction over acts completed within the territory, even if commenced abroad (the "effects doctrine," applied in Lotus and later in antitrust and cyber-crime cases).

(ii) Nationality (personal) jurisdiction — a State may exercise jurisdiction over its own nationals wherever they may be. This is based on the bond of allegiance. Nottebohm (ICJ, 1955) held that nationality must reflect a genuine link between the individual and the State.

(iii) Passive personality jurisdiction — jurisdiction based on the nationality of the victim. It is controversial because it allows a State to try a foreigner for acts committed abroad. It has gained acceptance mainly in terrorism cases (e.g., the Lotus dissent, US legislation, and anti-terrorism conventions).

(iv) Protective (security) jurisdiction — a State may punish acts committed abroad by foreigners that threaten its national security, territorial integrity, or vital interests, such as espionage, counterfeiting, or plotting treason. It is an exceptional but well-recognised basis.

(v) Universal jurisdiction — certain crimes are so grave that any State may exercise jurisdiction over them regardless of where the crime was committed or the nationality of the offender or victim. Classic examples are piracy (long established under customary law), war crimes, crimes against humanity, genocide, slavery, and torture. Treaties such as the Geneva Conventions and the Rome Statute of the ICC embody this principle.

C. Other classifications

(i) Civil and criminal jurisdiction — civil jurisdiction concerns disputes between private parties; criminal jurisdiction concerns punishment of offences.

(ii) Concurrent jurisdiction — two or more States may have simultaneous jurisdiction over the same act (e.g., a murder committed by State A's national on State B's territory injures State C's national). International law does not prohibit this; priority is usually settled by the custodial State or by extradition.

(iii) Admiralty and maritime jurisdiction — jurisdiction over ships on the high seas is generally that of the flag State; in territorial waters, the coastal State has jurisdiction subject to the right of innocent passage.

3. Conclusion

Jurisdiction is the legal expression of State sovereignty over persons and events. International law recognises territorial and nationality jurisdiction as the primary bases, with passive personality, protective, and universal jurisdiction as supplementary or exceptional bases. The guiding balance is between the sovereign competence of each State and the equal sovereignty of all other States — a balance reflected in the Lotus principle and refined by later treaty and customary law.

Custom and Its Role in the Development of International Law

1. Meaning of Custom

Custom is one of the oldest and most important sources of international law. In simple terms, custom means a rule of conduct that has developed through the repeated and consistent practice of states over a long period of time, which states follow out of a sense of legal obligation.

In international law, custom is known as international custom or customary international law. Article 38(1)(b) of the Statute of the International Court of Justice (ICJ) recognises "international custom, as evidence of a general practice accepted as law" as a source of international law.

2. Essential Elements of Custom

For a practice to become a binding rule of customary international law, two elements must be present:

(a) State Practice (Usus): There must be a consistent, uniform and general practice followed by a large number of states over a considerable period of time. The practice may take the form of diplomatic correspondence, legislation, judicial decisions, or the conduct of states in international affairs.

(b) Opinio Juris sive Necessitatis: The states must follow the practice out of a belief that they are legally bound to do so, and not merely out of courtesy, convenience or habit. This psychological element distinguishes a legal custom from a mere usage.

3. Role of Custom in the Development of International Law

Custom has played a vital role in the growth and development of international law in the following ways:

(a) Primary and Original Source: Custom is the oldest source of international law. Much of modern international law — such as the law of the sea, diplomatic immunities, laws of war, and rules on state responsibility — originated as customary rules before being codified in treaties. It is therefore regarded as the original and primary source.

(b) Law-Making Through Consistent Practice: When states repeatedly act in a particular manner and accept it as legally binding, new rules of international law emerge. For example, the principle of freedom of the high seas and the rule of pacta sunt servanda developed largely through custom.

(c) Basis for Codification: Customary rules provide the raw material for codification. International conferences such as the Hague Conferences and the United Nations Conference on the Law of the Sea (UNCLOS) codified many pre-existing customary rules into written treaties. Thus custom prepares the ground for formal law-making.

(d) Filling Gaps in Treaty Law: Custom helps fill the gaps where treaties are silent or where states are not parties to a treaty. In such cases, customary rules continue to govern the relations between states.

(e) Source of General International Law: Customary rules are binding on all states in general, unlike treaties which bind only the parties. Hence custom creates general international law applicable to the whole international community.

(f) Recognition by International Courts: The ICJ and other international tribunals have repeatedly applied customary rules in their decisions. For instance, in the North Sea Continental Shelf Cases (1969) and the Nicaragua Case (1986), the ICJ clarified and applied customary international law. This judicial recognition strengthens custom as a source.

(g) Flexibility and Growth: Custom is flexible and evolves with the changing needs and practices of the international community. New customs, such as those relating to outer space, environmental protection and human rights, continue to develop.

4. Limitations of Custom

Despite its importance, custom suffers from certain weaknesses:

• It is slow and uncertain in formation.
• It is often difficult to prove the existence of a customary rule.
• It may be vague and imprecise.
• A persistent objector state may not be bound by a new custom.

5. Conclusion

Custom is thus a fundamental and dynamic source of international law. It reflects the actual practice and legal conviction of states and has contributed immensely to the growth of international law. Even in the era of treaties and codification, custom retains its significance as a living source that adapts to the changing needs of the international community. As the ICJ observed in the Nicaragua Case, customary international law continues to exist alongside treaty law and remains a vital source of legal obligations among states.

Answer (10 marks)

Introduction

The United Nations Security Council (UNSC) is the principal organ of the UN entrusted under Chapter VII of the UN Charter with the primary responsibility for the maintenance of international peace and security. Under Articles 39–42, it possesses coercive powers — sanctions, embargoes, and military action — to settle disputes and restore peace. Whether it has achieved the goal envisioned in the Charter is a mixed question: it has succeeded in some cases but failed in many others, largely due to structural and political limitations.

Achievements of the UNSC

1. Collective security in practice — During the Korean War (1950), the UNSC authorised military action (Resolution 83) under Chapter VII, the first real application of collective security.
2. Gulf War (1990–91) — After Iraq's invasion of Kuwait, the UNSC passed Resolution 678 authorising "all necessary means," leading to a successful multinational operation to restore Kuwait's sovereignty.
3. Peacekeeping and sanctions — The UNSC authorised peacekeeping missions (UNPROFOR, UNMIS, MONUSCO) and targeted sanctions against regimes (South Africa apartheid, Libya, Iran, North Korea), which helped contain conflicts and pressure violators.
4. Ad hoc tribunals — It established the ICTY (1993) and ICTR (1994) to prosecute war crimes, strengthening international criminal justice.
5. Humanitarian intervention — In Libya (2011, Resolution 1973), the UNSC authorised force to protect civilians, showing its capacity to act on humanitarian grounds.

Failures and limitations

1. Veto power of the P5 — Article 27(3) allows any permanent member to block substantive action. The USSR/Russia and the US have used the veto repeatedly — e.g., Russia vetoing action in Syria, the US vetoing resolutions on Israel–Palestine — paralysing the Council.
2. Cold War paralysis — Between 1945 and 1990, the UNSC was largely deadlocked; it could not act in Hungary (1956), Czechoslovakia (1968), or Vietnam.
3. Genocide and mass atrocities — The UNSC failed to prevent the Rwandan Genocide (1994) and the Srebrenica massacre (1995), despite having information and peacekeepers on the ground. In Darfur and Syria, it remained divided.
4. Selective enforcement — Coercive measures have been applied inconsistently — strongly against weaker states (Iraq, Libya, North Korea) but weakly against powerful allies (Israel, Saudi Arabia in Yemen).
5. Structural imbalance — The P5 reflect the 1945 power structure, not today's world; Africa, Latin America, and South Asia lack permanent representation. Reform (expansion, veto reform) has stalled for decades.
6. Enforcement gap — The UNSC has no standing army; it depends on member states' willingness (or refusal) to contribute forces, as seen in Rwanda and Bosnia.

Conclusion

The UNSC has partially achieved its Charter goal — it has prevented major-power war, authorised collective action in several crises, and built a sanctions and peacekeeping machinery. However, its effectiveness is undermined by the veto, Cold War-style politics, selectivity, and lack of enforcement capacity. It has succeeded where P5 interests align and failed where they clash. Therefore, the UNSC has not fully achieved the goal envisioned in the UN Charter; meaningful reform — expansion of membership, restraint on the veto (especially in genocide cases), and stronger enforcement mechanisms — is essential to make it fit for the 21st century.

Advisory Opinion of the International Court of Justice

1. Meaning and Legal Basis

An advisory opinion is the opinion given by the International Court of Justice (ICJ) on a legal question referred to it by certain authorized international organs. Unlike a contentious case, it is not a binding judgment between parties; it is an authoritative statement of law addressed to the requesting body. It is governed by Article 65 of the Statute of the ICJ and Article 96 of the UN Charter.

2. Who May Request an Advisory Opinion

Article 96 of the Charter provides two channels:

1. The General Assembly and the Security Council may request an advisory opinion on any legal question (Art. 96(1)).
2. Other organs of the UN and specialized agencies, when so authorized by the General Assembly, may request opinions on legal questions arising within the scope of their activities (Art. 96(2)). Examples: ECOSOC, ILO, WHO, UNESCO, IAEA.

3. Nature and Characteristics

• Not binding: The opinion has no binding force (Interpretation of Peace Treaties, 1950). It is advisory in form. However, it carries great moral and legal weight and is usually accepted by the requesting organ.
• Discretionary: Under Article 65(1), the Court may give an opinion. It can decline where the question is vague, political, or outside the competence of the requesting organ (e.g., WHO Nuclear Weapons case, 1996).
• Only legal questions: The Court answers questions of law, though the underlying dispute may be political.
• No parties in the strict sense: States do not appear as parties; they may only furnish information under Article 66.
• No dissenting enforcement: There is no appeal, but individual judges may append separate or dissenting opinions.

4. Procedure

1. The authorized organ adopts a resolution requesting the opinion.
2. The Registrar notifies all states entitled to appear before the Court.
3. Written and oral statements are submitted by interested states and organizations.
4. The Court deliberates in private and delivers the opinion in open court.

5. Leading Examples

6. Significance in the Development of International Law

Yes — the advisory jurisdiction of the ICJ plays a very important role in the development of international law, for the following reasons:

1. Clarifies and codifies customary law: In the Nuclear Weapons opinion (1996), the Court clarified the status of the prohibition of genocide and the principles of humanitarian law.
2. Progressive interpretation of the Charter: The Reparation case recognised the implied powers and international legal personality of the UN, expanding the law of international organizations.
3. Strengthens self-determination and decolonization: The Namibia and Chagos opinions affirmed the right of peoples to self-determination and the illegality of continued colonial administration.
4. Guidance to UN organs: The opinions guide the General Assembly and Security Council in taking lawful action, thereby shaping state practice.
5. Influence on treaties and conventions: The Reservations to the Genocide Convention opinion laid the foundation for the modern law of treaty reservations later reflected in the Vienna Convention on the Law of Treaties, 1969.
6. Source of new norms: Advisory opinions often act as a catalyst for the formation of new customary rules and for later multilateral treaty-making.
7. Judicial dialogue: They influence decisions of regional courts and domestic courts, producing a uniform interpretation of international law.

7. Limitations

• Opinions are not enforceable and depend on voluntary compliance.
• The Court may decline to answer, as in the WHO request.
• Political sensitivity may restrict the Court's willingness to intervene.
• Lack of sanction weakens the practical effect of some opinions.

Conclusion

The advisory jurisdiction under Article 65 of the Statute and Article 96 of the Charter is a unique and constructive function of the ICJ. Although advisory opinions are not binding, they serve as authoritative interpretations of international law, guide UN organs, and contribute significantly to the progressive development and codification of international law. Hence, they are an important instrument for the growth of the international legal order.

Introduction

The maxim aut punire aut dedere (either punish or extradite) requires a State holding a fugitive offender either to prosecute him or to surrender him to a State that can. Extradition is the formal surrender of an accused or convicted person by one State to another for trial or punishment. Nepal regulates it by the Extradition Act, 2070 (2013), supported by treaties (e.g. with India, 1953 and 1963 arrangements) and multilateral conventions such as the SAARC Convention on Narcotic Drugs and Psychotropic Substances.

Salient Features of the Act

• Dual criminality: the act must be an offence in both Nepal and the requesting State, punishable by at least one year's imprisonment.
• Exceptions: political offences, purely military offences, time-barred offences, and cases of double jeopardy are not extraditable.
• Nationals: Nepali citizens are generally not extradited, but must be prosecuted at home - giving effect to the aut dedere aut judicare principle.
• Reciprocity: extradition may proceed on the basis of treaty or assurance of reciprocity.
• Procedure: request through diplomatic channel, inquiry by the District Court, appeal to the High Court, and final decision by the Government of Nepal.
• Safeguards: rule of speciality, fair trial, protection against torture, and assurance against the death penalty.

Effectiveness

Strengths

1. Provides a clear legal framework where none previously existed in a consolidated form.
2. Judicial scrutiny at two levels protects the fugitive's rights and prevents politically motivated surrender.
3. The duty to prosecute Nepali nationals prevents impunity for citizens.
4. Allows cooperation even without a treaty, on reciprocity.

Weaknesses

1. Nepal has few bilateral extradition treaties; only a handful (notably India) are operational, which limits reach.
2. The open border with India makes fugitives hard to track, and informal handovers sometimes substitute for lawful extradition.
3. Lengthy court and executive procedures cause delay, and fugitives often use the time to flee.
4. Weak institutional capacity, coordination between the Ministry of Home Affairs, Foreign Affairs, police and Attorney General, and few reported cases, show limited practical use.
5. Wide political-offence and nationality exceptions may be misused to shield offenders.

Conclusion

The Extradition Act, 2070 is a sound and rights-respecting legal basis for closing the net around fugitives and is consistent with aut punire aut dedere. Its effectiveness in practice, however, is limited by the lack of treaties, procedural delay and weak enforcement. Nepal should conclude more extradition and mutual legal assistance treaties, streamline procedure and strengthen coordination.

Treaty-making in Nepal is governed by the Constitution of Nepal, 2015 and the Nepal Treaty Act, 2047 (1990).

1. Meaning of treaty

A treaty is a written agreement between Nepal and another state or international organisation, creating rights and obligations under international law. The Nepal Treaty Act, 2047 defines "treaty" widely: it covers any treaty, agreement or convention signed by Nepal, whatever name it carries.

2. Constitutional framework

• Article 51 (state policy on international relations): Nepal conducts foreign relations on the basis of sovereign equality, the Panchsheel, the UN Charter, non-alignment and international law. Every treaty must fit these values.
• Article 75 (executive power): Executive power is vested in the Council of Ministers. The Government therefore negotiates, signs and administers treaties through the Ministry of Foreign Affairs and the line ministries.
• Article 279 (treaties or agreements): Parliament's approval is needed for the following.
  • Ratification, accession, acceptance or approval of treaties on peace and friendship, defence and strategic alliance, boundaries of Nepal, and natural resources and the distribution of their uses requires a two-thirds majority of the Federal Parliament at a joint sitting.
  • Other treaties of a serious, wide or long-term effect on the nation also need parliamentary approval, by a majority of the members present in the joint sitting.
  • Other ordinary treaties are dealt with under the procedure laid down by federal law.
• Article 1 and Article 133: A law, including a law giving effect to a treaty, that is inconsistent with the Constitution is void to that extent. The Supreme Court can review it.

3. Nepal Treaty Act, 1990

The Act fills in the detailed procedure.

1. Initiation and negotiation: The Ministry of Foreign Affairs, or the concerned ministry in consultation with it, begins negotiation. Negotiators act on the Government's authority.
2. Cabinet decision: The Council of Ministers approves the draft and authorises signature.
3. Signature: The authorised representative signs. Signature shows the text is agreed, but the treaty is not yet binding if it requires ratification.
4. Parliamentary ratification, accession, acceptance or approval: Treaties on the matters listed in the Act (peace, friendship, defence, boundaries, natural resources and similar serious matters) must be ratified by Parliament. This follows Article 279.
5. Instrument and entry into force: After approval, the treaty is ratified or acceded to by the Government, and instruments are exchanged or deposited as the treaty provides.
6. Publication: The treaty is published in the Nepal Gazette, and it comes into force as the treaty provides.
7. Domestic effect (Section 9): A treaty to which Nepal is a party is enforceable as Nepal law. If a provision of such a treaty conflicts with an existing Nepali law, the treaty prevails. This is a monist-leaning rule that gives treaties priority over ordinary statutes.

4. Process at a glance

5. Examples and comment

• Treaties needing Parliament's approval: Treaties such as the Mahakali Treaty (1996), the 1950 Peace and Friendship Treaty with India and agreements on water and boundaries involve natural resources, peace or boundaries. They show why a special majority is required.
• Judicial role: The Supreme Court can interpret and apply treaties and can examine whether the correct procedure was followed. Courts have treated human rights treaties as part of Nepal law through Section 9.
• Criticism: The Act's list of treaty categories is narrower than Article 279, and Nepal lacks a routine system for publishing and reviewing treaties, so the Act needs updating to match the 2015 Constitution.

6. Conclusion

Nepal's treaty-making combines executive negotiation under Article 75 with parliamentary control under Article 279, and the Nepal Treaty Act, 1990 supplies the procedure and gives treaties priority over conflicting domestic law. This balances executive efficiency with democratic accountability and protects sovereignty and national resources.

Short Notes (any THREE)

a) Claufula rebus sic stantibus

This is the doctrine of "fundamental change of circumstances" in the law of treaties. The Latin phrase means "so long as things stand as they are." It is codified in Article 62 of the Vienna Convention on the Law of Treaties, 1969.

Under this doctrine, a party may invoke a fundamental change of circumstances as a ground to terminate or withdraw from a treaty, or to suspend its operation, provided that:

1. The change was not foreseen by the parties at the time of concluding the treaty;
2. The existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
3. The effect of the change is to radically transform the extent of obligations still to be performed.

Exceptions: It cannot be invoked if the change results from a breach of the treaty by the party invoking it, or in respect of a treaty establishing a boundary. It is also not applicable to treaties of a territorial nature. The doctrine is an exception to the general rule of pacta sunt servanda (agreements must be kept).

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b) Consular Immunities and Privileges

Consular immunities and privileges are governed by the Vienna Convention on Consular Relations, 1963. A consul is not a diplomatic agent; his immunities are more limited and functional in nature.

Main privileges and immunities:

1. Inviolability of consular premises — the premises, archives and documents are inviolable; authorities of the receiving state may not enter except with consent of the head of the consular post.
2. Inviolability of consular officers — consular officers are not liable to arrest or detention except in the case of a grave crime and pursuant to a competent judicial decision.
3. Immunity from jurisdiction — consular officers enjoy immunity from the civil and administrative jurisdiction of the receiving state in respect of acts performed in the exercise of consular functions.
4. Exemption from taxation — consular officers are exempt from all dues and taxes, personal or real, national, regional or municipal, except indirect taxes and taxes on private immovable property.
5. Freedom of communication — the consular post may communicate with its government and other consular posts using all appropriate means, including diplomatic or consular couriers and coded messages.
6. Exemption from customs duties on articles for official use and on personal effects of consular officers.

These privileges are granted not for the personal benefit of the individual but to ensure the efficient performance of consular functions.

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c) Succession of the Government

Succession of government refers to the change of the government or regime of a state without any change in the identity or legal personality of the state itself. It is distinct from succession of states, where the international legal personality of the state itself changes.

Key points:

1. Continuity of statehood — Since the state remains the same international person, its rights and obligations under international law, including treaties, generally continue unaffected by a mere change of government, whether the change is constitutional or brought about by revolution or coup.
2. Treaties — Treaties concluded by the predecessor government remain binding on the state and are binding on the successor government, as the treaty obligations attach to the state, not to the particular government.
3. State property and debts — State property and public debts remain vested in the state and pass to the successor government.
4. Distinction from succession of states — Unlike succession of states (e.g., dissolution, secession, merger), succession of government does not involve a change in international legal personality, so the question of devolution of treaty rights and obligations does not arise in the same manner.
5. Recognition — The new government may need to be recognized by other states, but recognition of a government does not affect the continuity of the state's international obligations.

Thus, the general principle is that a change of government does not affect the international legal personality or the treaty obligations of the state.

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d) Exhaustion of Local Remedies

This is a well-established rule of international law (particularly in the law of diplomatic protection and international human rights law) which provides that before a state can bring an international claim on behalf of its national against another state, the injured individual must first exhaust all available and effective local remedies in the state alleged to be responsible.

Key points:

1. Purpose — to allow the respondent state an opportunity to redress the wrong through its own courts and administrative machinery, and to respect the sovereignty of that state.
2. Nature of remedies — the remedies must be available, sufficient and effective; they include judicial and administrative remedies, ordinary and extraordinary.
3. Exceptions — the rule does not apply where:
   • There are no local remedies available;
   • The remedies are ineffective, inadequate or unduly delayed;
   • The respondent state has waived the requirement;
   • The injury is a direct injury to the state itself (not to the individual);
   • There is a manifest denial of justice.
4. Application — the rule is applied in cases of diplomatic protection (e.g., Interhandel case, Elettronica Sicula case) and in human rights adjudication, though regional human rights courts have relaxed it in certain situations.

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e) Termination of Treaty

Termination of a treaty means the end of the treaty's legal existence and the release of the parties from further obligations under it. The Vienna Convention on the Law of Treaties, 1969 (Articles 54–64) lays down the modes of termination.

Modes of termination:

1. By consent of the parties — in conformity with the provisions of the treaty or by agreement of all parties (Article 54).
2. By conclusion of a later treaty — when all parties conclude a later treaty on the same subject matter and it appears that the later treaty is intended to govern the matter (Article 59).
3. Material breach — a material breach by one party entitles the other party to terminate or suspend the treaty (Article 60). A material breach includes repudiation of the treaty or violation of an essential provision.
4. Supervening impossibility of performance — if a permanent object essential to the execution of the treaty disappears (Article 61).
5. Fundamental change of circumstances — the doctrine of rebus sic stantibus (Article 62).
6. Severance of diplomatic or consular relations — this does not by itself terminate a treaty, except where the treaty's existence depends on such relations (Article 63).
7. Emergence of a new peremptory norm of international law (jus cogens) — a treaty conflicting with a new peremptory norm becomes void and terminates (Article 64).
8. War — generally suspends or terminates treaties, depending on their nature.

Effect of termination — it releases the parties from further performance but does not affect rights, obligations or legal situations created before termination (Article 70).

Yes, I fully agree with the statement. Municipal law is the body of law that governs the internal affairs of a state — the rights and duties of persons within the state and the machinery for enforcing them. For a clear understanding of how law works, it is divided into substantive law and procedural law. The statement correctly captures the essence of this division: substantive law creates and proclaims rights and duties, while procedural law lays down the means, methods and process by which those rights and duties are enforced and protected.

1. Meaning of Municipal Law

Municipal law (also called national or domestic law) is the law of a particular state applicable within its territory. It is distinguished from international law, which governs relations between states. Municipal law includes constitutional law, criminal law, civil law, commercial law, administrative law, etc. For study and administration, municipal law is classified into substantive and procedural law.

2. Substantive Law

Substantive law is that part of the law which defines and proclaims the rights and duties of individuals and the state. It tells us what is lawful and unlawful, what a person may or may not do, and what consequences follow. It deals with the "what" of the law — the substance or content of rights and obligations.

Examples:

• Criminal law defines offences such as murder, theft and assault, and prescribes punishments. It tells us that killing a person is a crime (right to life; duty not to kill).
• Civil law (e.g., contract, property, family law) declares the rights and duties arising from agreements, ownership, marriage and inheritance.
• Constitutional law confers fundamental rights on citizens and imposes duties on the state.

Thus, substantive law is the source of rights and duties; without it there would be nothing to enforce.

3. Procedural Law

Procedural law is that part of the law which prescribes the means, methods and process for enforcing and protecting the rights and duties created by substantive law. It deals with the "how" of the law — the machinery of justice. It lays down how a case is to be instituted, how evidence is to be produced, how a trial is to be conducted, what remedies are available, and how a judgment is to be executed.

Examples:

• Civil Procedure Code — rules on filing a suit, service of summons, pleadings, trial, decree and execution.
• Criminal Procedure Code — rules on FIR, investigation, arrest, bail, trial and appeal.
• Law of Evidence — rules on what facts may be proved and how.
• Court procedure and rules of pleading — the process by which a claim is presented and defended.

Procedural law is therefore adjective law — it is ancillary to substantive law and exists to make substantive rights real and effective.

4. Relationship Between the Two

The two are closely connected and interdependent:

1. Substantive law without procedural law is powerless. A right that cannot be enforced is of little value. For example, the law may declare that a creditor has a right to recover a debt, but unless there is a procedure to sue and execute the decree, the right remains a mere declaration.
2. Procedural law without substantive law is meaningless. Procedure exists only to enforce some right or duty; if there were no substantive rights, there would be nothing for procedure to serve.
3. They are two sides of the same coin. One gives the right; the other gives the remedy. As the maxim goes, ubi jus ibi remedium — where there is a right, there is a remedy; and the remedy is supplied by procedural law.

5. Why the Division is Important

• It brings clarity and order to the study and administration of law.
• It helps in codification and law reform — defects in substantive rights and defects in procedure can be identified and corrected separately.
• It ensures fair play and due process — procedural law guarantees that rights are decided according to a known and impartial process, not arbitrarily.
• It distinguishes rights from remedies — a person may have a substantive right but may lose it through procedural default (e.g., limitation, non-appearance), which shows the practical importance of procedure.

6. Critical Observation

The division is not absolute. Some laws contain both substantive and procedural elements. For instance, the law of limitation is largely procedural, while the law of evidence is often treated as procedural though it affects substantive outcomes. Similarly, constitutional law is substantive in conferring rights but also contains procedural provisions for their enforcement. Hence, the distinction is one of emphasis and convenience rather than of rigid separation.

Conclusion

The statement is correct and well-founded. Municipal law is broadly divided into substantive law, which proclaims rights and duties, and procedural law, which arranges the means, methods and process to enforce and protect them. The two are complementary: substantive law without procedure is a body without limbs, and procedure without substantive law is limbs without a body. Together they make the legal system complete, effective and just.

Comparison of the general principles of procedural law with the principles adopted in the Civil Procedure Code, 2074

1. Introduction

Procedural (adjective) law lays down how rights are enforced in court. Substantive law creates rights and duties, while procedural law supplies the machinery. The Muluki Civil Procedure Code, 2074 (in force from 1 Bhadra 2075) replaced the procedural rules of the old Muluki Ain and adopted most of the general principles in a codified form.

2. General principles of procedural law

1. Natural justice: Audi alteram partem (hear both sides) and nemo judex in causa sua (no one is a judge in his own cause).
2. Equality of parties: Both sides get an equal opportunity to present their case.
3. Open court and fair trial: Hearings are public and reasoned.
4. Speedy and inexpensive justice: Delay is justice denied.
5. Finality and res judicata: A decided matter cannot be reopened between the same parties.
6. Burden of proof and evidence: The one who asserts must prove.
7. Jurisdiction and limitation: Only a competent court may hear a case, and only within the time allowed.
8. Right of appeal and review: An error may be corrected by a higher forum.
9. Retrospectivity: Procedural law generally applies to pending cases unless it destroys a vested right.
10. Court as the facilitator: The court promotes settlement and fair play.

3. Principles adopted in the Civil Procedure Code, 2074

• Right to hearing and equal opportunity: The Code requires notice and summons to the defendant and a chance to file a written reply and be heard.
• Impartial court: It lays down grounds for disqualification of a judge with an interest in the case.
• Time-bound procedure: It sets fixed periods for the reply, evidence and judgment, and for the disposal of cases.
• Jurisdiction and limitation: It states the court's territorial and subject-matter competence and the time limit for filing.
• Burden of proof: The plaintiff must prove the claim, with the Evidence Act, 2031 supplying the detailed rules.
• Appeal and review: There is a right of appeal to the High Court and the Supreme Court, and of review in prescribed cases.
• Alternative dispute resolution: The Code supports court-referred mediation and compromise (मेलमिलाप).
• Execution of judgment: It provides a full system for recovering decrees.
• Costs and discipline: It allows costs against a party who delays or acts in bad faith.

4. Comparison

5. Similarities and differences

Similarities:

• The Code expressly follows natural justice, equality of parties, open hearings and appeal.
• Both seek speedy, fair and final decisions.

Differences:

• The Code turns broad ideals into definite steps, forms and deadlines, whereas general principles leave room for judicial discretion.
• The Code can modify some general principles. Limitation periods, for example, can bar a valid claim.
• The Code is more rigid, while general principles are flexible and adaptable.

6. Critical remarks

• The Code reduces delay on paper, but case backlog and adjournments continue in practice.
• Some technical rules still risk defeating substantive justice, so courts must apply them with natural justice in mind.
• Constant training of judges and lawyers and use of technology are needed.

7. Conclusion

General principles give procedural law its moral foundation, and the Civil Procedure Code, 2074 gives them legal force. The Code largely adopts them while adding specific time limits, forms and enforcement mechanisms. Effective justice depends on applying the Code in the spirit of those principles.

Extraordinary Jurisdiction of the Supreme Court of Nepal

1. Meaning and Legal Basis

The extraordinary jurisdiction of the Supreme Court means the special, discretionary power of the Court to issue writs and provide remedies in cases where the ordinary course of law is either inadequate or unavailable. It is "extraordinary" because it is exercised outside the ordinary appellate and original jurisdiction of the Court, and it is invoked directly by an aggrieved party without going through lower courts.

In Nepal, this jurisdiction is conferred by:

• Article 133 of the Constitution of Nepal (2015) — which provides for the extraordinary jurisdiction of the Supreme Court.
• Section 9 of the Supreme Court Act, 2048 (1991) — which lays down the procedural details.

Article 133(1) provides that the Supreme Court shall have the power to issue appropriate orders and writs including habeas corpus, mandamus, certiorari, prohibition and quo warranto for the enforcement of fundamental rights and for any other legal right for which no other remedy is available or for which the remedy available is inadequate or ineffective.

2. Nature of the Jurisdiction

The extraordinary jurisdiction of the Supreme Court has the following characteristics:

1. Discretionary — It is not a matter of right; the Court may refuse to exercise it if another adequate remedy exists.
2. Residual — It is available only when no other effective remedy is available.
3. Direct access — A party may approach the Supreme Court directly, bypassing lower courts.
4. Writ-based — The main remedies are the five prerogative writs.
5. Protective of fundamental rights — It is the ultimate constitutional safeguard of citizens' fundamental rights.

3. Writs Issued Under Extraordinary Jurisdiction

(a) Habeas Corpus — "You may have the body." Issued against illegal detention or imprisonment to produce the detained person before the Court and release him if the detention is unlawful. It protects the right to personal liberty.

(b) Mandamus — "We command." Issued to a public authority or official to compel the performance of a legal duty which he has refused or failed to perform. It cannot be issued against a private person or against the President or judiciary in judicial functions.

(c) Certiorari — "To be certified." Issued to a lower court, tribunal or quasi-judicial body to quash its decision given without jurisdiction, or in excess of jurisdiction, or in violation of natural justice.

(d) Prohibition — "To forbid." Issued to a lower court or tribunal to prevent it from exceeding its jurisdiction or from acting contrary to natural justice. It is preventive in nature, while certiorari is curative.

(e) Quo Warranto — "By what authority." Issued to inquire into the legality of a person's claim to a public office, and to oust him if his appointment is unlawful.

4. Procedure of Cases Under Extraordinary Jurisdiction

The procedure is governed mainly by the Constitution, the Supreme Court Act, 2048, and the Supreme Court Rules, 2074 (2018).

Step 1 — Filing of the petition An aggrieved person, or any person acting in his interest, files a written petition before the Supreme Court stating the facts, the legal right violated, the absence of an adequate remedy, and the relief sought. In case of illegal detention, even a relative or friend may file a habeas corpus petition. The petition must be accompanied by the prescribed court fee and relevant documents.

Step 2 — Registration and scrutiny The petition is registered in the Supreme Court. The Registrar examines whether it is in proper form and within the Court's jurisdiction. If defective, it may be returned for correction.

Step 3 — Preliminary hearing / admission The petition is placed before a single Justice or a Division Bench for preliminary hearing. The Bench considers whether there is a prima facie case. If satisfied, it admits the petition and issues a show cause notice (कारण देखाऊ आदेश) to the opposite party, calling upon it to submit a written reply within a specified period. In urgent cases, especially habeas corpus, the Court may issue an interim order immediately.

Step 4 — Service of notice The notice is served on the respondent (the concerned authority or person) through the Court's process. The respondent must file a written reply within the time fixed.

Step 5 — Hearing After the reply is received (or the time expires), the case is listed for hearing before the appropriate Bench — usually a Division Bench of two Justices, or a Constitutional Bench in cases involving constitutional interpretation or conflict. Both parties are heard; they may submit documentary evidence, affidavits and legal arguments. The Court may also call for the records of the lower court or authority.

Step 6 — Judgment and writ After hearing, the Court delivers its judgment. It may:

• Issue the writ prayed for (e.g., release the detenu, quash the order, command performance of duty);
• Dismiss the petition if no legal right is violated or an adequate remedy exists;
• Issue any other appropriate order as justice requires.

The judgment is reasoned and binding on all concerned. A copy is sent to the concerned authority for compliance.

Step 7 — Enforcement and review The order of the Supreme Court is enforceable throughout Nepal. Wilful disobedience may amount to contempt of court. A party dissatisfied may seek review under Article 137 of the Constitution on limited grounds, but there is no appeal against the Supreme Court's decision.

5. Conclusion

The extraordinary jurisdiction of the Supreme Court is a cornerstone of the rule of law and constitutionalism in Nepal. Through the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto, the Court acts as the guardian of fundamental rights and as the ultimate interpreter of the Constitution. Its procedure — from filing and admission, through notice and hearing, to judgment and enforcement — is designed to provide speedy, effective and direct justice where ordinary remedies fail. Thus, this jurisdiction not only protects individual liberty but also keeps every organ of the State within the bounds of the Constitution.

Arbitration and Mediation as Alternative Dispute Resolution Methods

1. Introduction

Alternative Dispute Resolution (ADR) refers to all those methods of settling disputes outside the ordinary court system. The main ADR methods are negotiation, mediation, conciliation and arbitration. Among these, arbitration and mediation are the two most widely used and most frequently compared methods. Both aim at resolving disputes speedily, cheaply and amicably, but they differ fundamentally in nature, procedure and legal effect.

2. Concept of Arbitration

Arbitration is a process in which the parties to a dispute agree to refer their dispute to one or more neutral third persons (the arbitrator or arbitral tribunal), who hear the parties and give a binding decision called an award.

Features:

• It is adjudicatory in nature — the arbitrator acts like a private judge.
• It is based on the agreement of the parties (arbitration agreement), which may be a clause in a contract or a separate submission agreement.
• The arbitrator decides the dispute on the basis of law, evidence and the terms of the contract.
• The award is binding on the parties and enforceable as if it were a decree of the court.
• It is final, and appeal lies only on very limited grounds (e.g., misconduct of the arbitrator, exceeding jurisdiction).
• The parties may choose the arbitrator, the place of arbitration, the procedure and the applicable law.

Legal basis in Nepal: The Arbitration Act, 2055 (1999) and the UNCITRAL Model Law on International Commercial Arbitration, 1985 govern arbitration in Nepal. Section 2(a) of the Arbitration Act defines arbitration as a process of settling a dispute by an arbitrator appointed with the consent of the parties.

3. Concept of Mediation

Mediation is a process in which a neutral third person (the mediator) assists the disputing parties to reach a mutually acceptable settlement by facilitating communication, clarifying issues and exploring options. The mediator does not decide the dispute.

Features:

• It is non-adjudicatory and facilitative in nature — the mediator only assists, he does not judge.
• The mediator has no power to impose a decision; the parties themselves decide the terms of settlement.
• The settlement, when reduced into writing and signed, becomes a binding contract between the parties.
• The process is voluntary, informal, flexible and confidential.
• The parties retain full control over the outcome.
• It preserves and often improves the relationship between the parties, which is why it is preferred in family, commercial and community disputes.

Legal basis in Nepal: The Mediation Act, 2065 (2008) provides for mediation. Section 2(b) defines mediation as a process in which a mediator, appointed with the consent of the parties, assists the parties to reach a voluntary settlement. The Muluki Civil Code, 2074 also recognises mediation and conciliation in various matters.

4. Distinction between Arbitration and Mediation

5. Can They Be Used Together?

Yes, they can be used together, and in practice they very often are. The combination is generally known as Med-Arb (Mediation-Arbitration) or Arb-Med (Arbitration-Mediation). This is legally possible and practically useful for the following reasons:

(a) No legal bar. The Arbitration Act, 2055 and the Mediation Act, 2065 do not prohibit the parties from first attempting mediation and then going to arbitration, or vice versa. The parties are free to design a multi-tiered dispute resolution clause.

(b) Common in contract clauses. It is very common for commercial contracts to contain a multi-tiered dispute resolution clause, e.g.:

"The parties shall first attempt to settle the dispute amicably through mediation within 30 days. If the dispute is not resolved within that period, it shall be referred to arbitration."

(c) Mediation first, arbitration later (Med-Arb). The parties first try mediation. If mediation succeeds, the settlement agreement ends the dispute. If it fails, the dispute goes to arbitration for a binding award. This saves time and cost and gives the parties a chance to preserve their relationship before resorting to an adversarial process.

(d) Arbitration first, mediation during proceedings (Arb-Med). Even after arbitration has begun, the arbitral tribunal may, with the consent of the parties, encourage or refer the parties to mediation. If mediation succeeds, the parties may record a settlement and the tribunal may pass a consent award or the parties may withdraw the case. If mediation fails, arbitration continues.

(e) Statutory support. Section 30 of the Arbitration Act, 2055 allows the arbitral tribunal to encourage settlement between the parties during the proceedings. Similarly, courts in Nepal frequently refer cases to mediation under the Mediation Act, 2065 before or during litigation.

However, the following cautions must be noted:

1. Confidentiality problem in Med-Arb with the same neutral. If the same person acts first as mediator and then as arbitrator, he may have received confidential information in the mediation which he cannot unhear in arbitration. This may violate the confidentiality of mediation and the impartiality of arbitration. The usual solution is to use different neutrals for the two stages.
2. Voluntariness of mediation must be preserved. The mediator must not pressure the parties into a settlement by hinting that he will decide against them in the later arbitration.
3. The arbitration agreement must remain intact. If the parties go to mediation first, the arbitration clause should not be treated as waived; the mediation stage should be a condition precedent only if the clause so provides.
4. Enforceability. A mediation settlement is enforceable as a contract; an arbitral award is enforceable as a decree. The parties should clearly record which stage they are in and what the effect of the settlement will be.

6. Conclusion

Arbitration and mediation are both ADR methods but they stand on different footings: arbitration is adjudicatory and binding, while mediation is facilitative and voluntary. They are not mutually exclusive. They can be, and frequently are, used together in the form of Med-Arb or Arb-Med, either as separate stages under a multi-tiered dispute resolution clause or as a referral during arbitral proceedings. The only requirement is that the confidentiality of mediation and the impartiality of arbitration be safeguarded, preferably by using different neutrals for the two stages. Thus, the two methods are complementary rather than contradictory, and their combined use makes ADR more effective.

Importance of execution of judgement and the procedure for recovering the claimed amount (Bigo Bharne)

1. Meaning

Execution (फैसला कार्यान्वयन) is the process by which a court enforces its final judgement or decree so that the successful party actually receives the relief awarded. Where the decree is for money, the process is called Bigo Bharne (recovery of the claimed amount). The governing law is the Muluki Civil Procedure Code, 2074 (the Code).

2. Importance of execution

1. Makes justice real: A decree that is not enforced is only a paper right. Execution turns the verdict into actual relief.
2. Rule of law: It shows that court orders bind everyone, including the state and powerful persons.
3. Public faith in courts: People trust the judiciary only if its decisions are obeyed.
4. Deters default: Debtors and wrongdoers know that the judgement can be enforced against their property.
5. Ends litigation: The dispute truly ends only when the decree is satisfied.
6. Economic security: Credit, trade and contracts depend on reliable recovery of dues.
7. Constitutional basis: The Constitution (Art. 128 and Art. 126) places judicial power in the courts, and their judgements are binding. The Code and the courts' execution mechanism carry this into practice.

3. Procedure for recovering the claimed amount (Bigo Bharne)

Step 1. Final judgement. The decree-holder (Bigo Paaune) must have a final judgement. If it is under appeal, execution follows the rules on stay and the status of the appeal.

Step 2. Application for execution. The decree-holder files an application in the court that gave the judgement (or the court prescribed by the Code) within the time limit stated by the Code. He gives the details of the decree, the amount, and the debtor's property that can be attached.

Step 3. Notice to the judgement-debtor. The court notifies the debtor (Bigo Bhurnu Parne) and fixes a period for payment. If the debtor pays, execution ends and the decree-holder receives the money.

Step 4. Disclosure of property. The debtor may be required to disclose his property. The decree-holder can also point out property, and the court can obtain information from land revenue, company, vehicle and bank records.

Step 5. Attachment (रोक्का). If there is no payment, the court orders attachment of the debtor's property. Attachment includes:

• Immovable property: land and buildings are blocked at the Land Revenue Office so that they cannot be transferred.
• Movable property and bank accounts: they are frozen or seized.
• Salary and other income: deduction at source in the amount allowed by law.

Property needed for the debtor's basic living is exempt from attachment.

Step 6. Valuation and sale. The attached property is valued, and public notice and auction (लिलाम) follow. The highest bidder buys it and pays the price into court.

Step 7. Distribution of proceeds. The sale proceeds go first to the decree-holder up to the decree amount with interest and costs. A balance goes to the debtor. If there are several creditors, the money is distributed according to priority and proportionally.

Step 8. Other coercive measures. Where the Code and other law permit, the court may take further measures against a debtor who deliberately defaults, for example restriction on dealing with property or on leaving the country. These steps are used only as a last resort.

Step 9. Satisfaction and closure. When the decree amount is paid, the court records satisfaction and removes the attachment. Third parties who claim the attached property may object, and the court decides this before the sale.

4. Limitation

The decree-holder must apply for execution within the period prescribed by the Code (and the limitation rules of the Muluki Civil Code, 2074). A time-barred application is not entertained.

5. Role of the execution machinery

The courts have judgement-execution sections, and the Supreme Court has a directorate that supervises them. Officials carry out attachment, auction and recovery under the court's order.

6. Conclusion

Execution gives life to a judgement, and without it the decree-holder's victory would be hollow. The Code therefore sets out a step-by-step procedure, from application and notice to attachment, auction and distribution, so that the claimed amount is recovered lawfully and fairly, while protecting the debtor from excessive hardship.

Retrospective effect of procedural law and the case of Pasang Dawa Tamang v. HMG

1. Introduction

A law is retrospective when it applies to events, rights or proceedings that arose before it came into force. Retrospectivity is treated differently for substantive and procedural laws.

2. General rule

• Substantive law creates, defines or takes away rights and liabilities. It is presumed to operate only prospectively. Article 20(5) of the Constitution of Nepal, 2015 also bars punishment under a law enacted after the act (no retrospective criminal liability), and no heavier penalty can be imposed than the one in force at the time of the offence.
• Procedural law governs the method of enforcing rights, such as filing, hearing, evidence and appeal. A person has no vested right in a particular procedure. So procedural law is generally retrospective in the sense that it applies to proceedings pending when it comes into force.

3. Reasons

1. Procedure is the means of administering justice, and the State may improve it at any time.
2. A uniform procedure for all pending and future cases avoids confusion.
3. No one acquires a vested right in a court rule.

4. Exceptions

Procedural law does not apply retrospectively in the following situations.

1. Vested substantive rights: A new rule that takes away or impairs an existing right, such as a right of appeal already in existence at the time the suit began, is not applied to pending cases.
2. Express provision or contrary intention: The new law may itself say that pending cases continue under the old law, as transitional provisions often do.
3. Criminal liability and penalty: Rules that create liability or increase punishment are substantive.
4. Steps already completed: Acts validly done under the old procedure are not reopened.

5. Pasang Dawa Tamang v. HMG

The Supreme Court of Nepal considered the question whether a change in procedural law applies to a matter pending when the change came into force. The case is cited in Nepali law as authority for the following principles.

• A procedural law applies to pending proceedings from the date it comes into force, because no one has a vested right in procedure.
• This does not extend to a law that affects a substantive right. The distinction between procedure and substantive right was drawn on the facts of the case.

6. Application and Nepali examples

• When the Muluki Civil Procedure Code, 2074 and the Criminal Procedure Code, 2074 came into force in Bhadra 2075, their transitional provisions continued pending cases under the new procedure but preserved the steps already completed.
• A change in the mode of service of summons applies to pending suits, but a change that cuts down the period for a right already running may be applied only with care for existing rights.

7. Conclusion

Procedural law is generally retrospective and applies to pending cases, as Pasang Dawa Tamang v. HMG illustrates, but it cannot take away vested substantive rights or override a clear contrary intention in the statute. Substantive law remains prospective.

Short notes on any THREE:

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a) Mutation

Mutation (in Nepali law, नामसारी) is the legal process of transferring the ownership of land or property from one person's name to another in the government land records. It is carried out at the Land Revenue Office (Malpot Karyalaya) under the Land Revenue Act, 2034 (1977) and the Land Revenue Rules.

Mutation is required whenever ownership changes by way of sale, gift, inheritance, partition, or court order. The registered owner or the person acquiring the right applies to the Land Revenue Office with the deed of transfer and proof of ownership. After verification and notice to concerned parties, the office updates the land ownership certificate (Lalpurja) in the new owner's name. Mutation is important because the State recognises ownership only through the land records; without mutation, the buyer's title is not legally complete and cannot be used for further sale, mortgage, or compensation.

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b) Foreclosure

Foreclosure is the legal process by which a mortgagee (lender) takes possession of or sells the mortgaged property when the mortgagor (borrower) fails to repay the loan as agreed. It is the enforcement of the security interest created by a mortgage.

In Nepal, foreclosure is governed mainly by the Muluki Civil Code, 2074 (2017) and the Secured Transactions Act, 2063 (2006). When the debtor defaults, the creditor gives notice demanding repayment within a specified period. If the debt is still not paid, the creditor may apply to the court or the competent authority to sell the mortgaged property and recover the outstanding amount from the sale proceeds. Any surplus goes to the debtor, and any shortfall may still be recovered from the debtor personally. Foreclosure protects the creditor's security and ensures recovery of loans.

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c) Ex-parte hearing

An ex-parte hearing (from the Latin ex parte, meaning "from one side") is a proceeding in which the court hears and decides a case in the absence of one party — usually the defendant — because that party fails to appear or to file a reply despite proper service of notice.

In Nepali civil procedure, if the defendant does not appear on the date fixed for hearing even after being duly served, the court may proceed ex parte and decide the case on the basis of the plaintiff's evidence and arguments. The main conditions are: (i) proper service of summons, (ii) failure of the absent party to appear without sufficient cause, and (iii) the court's satisfaction that proceeding ex parte is just. An ex-parte decision is not final in all cases; the aggrieved party may later apply to set it aside (by an application to the same court for setting aside the ex-parte proceeding, which is different from an appeal, पुनरावेदन) on showing sufficient cause. The principle ensures that a case is not stalled indefinitely by a party's wilful absence.

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d) Mediation

Mediation is a voluntary, structured dispute-resolution process in which a neutral third party (the mediator) assists the disputing parties to reach a mutually acceptable settlement. The mediator does not decide the case or impose a solution; he or she only facilitates communication, clarifies issues, and helps the parties explore options.

In Nepal, mediation is recognised by the Mediation Act, 2068 (2011). It is used in civil, family, commercial, and community disputes, and courts may refer suitable cases to mediation under the Civil Procedure Code, 2074. Key features are voluntariness, confidentiality, neutrality of the mediator, and the parties' own control over the outcome. A successful mediation ends in a written agreement (मेलमिलाप सम्झौता), which is binding once registered. Mediation reduces court backlog, saves time and cost, and preserves relationships.

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e) Postponement

Postponement (तारेख or adjournment) is the deferment of a scheduled hearing or proceeding of a case to a later date. It is granted by the court either on the request of a party or on the court's own initiative.

Under Nepali procedural law, a party may seek postponement on reasonable grounds such as illness, absence of counsel, non-receipt of documents, or the need to produce evidence. The court grants it only for sufficient cause and generally limits the number of adjournments to prevent delay. Repeated or frivolous postponement requests may be refused, and costs may be imposed on the party seeking them. Postponement is a procedural facility meant to ensure a fair opportunity to be heard, but it must be balanced against the principle of speedy trial and the interests of the opposing party.

Fundamental Rights vs. Directive Principles and State Policies

1. Introduction

The Constitution of Nepal, 2072 (2015) contains two distinct but related sets of constitutional provisions: Fundamental Rights (Part 3, Articles 16–46) and Directive Principles, Policies and Obligations of the State (Part 4, Articles 49–55). Both aim at the welfare of the people and the establishment of a just, democratic and egalitarian society, but they differ in nature, justiciability and enforceability. The classic distinction, borrowed from the Irish Constitution and the Indian Constitution (Articles 32 and 37), is that fundamental rights are negative in character (they restrain the State from interfering with individual liberty), while directive principles are positive in character (they direct the State to undertake welfare measures).

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2. Meaning

Fundamental Rights: These are basic, inalienable rights guaranteed to every citizen (and in some cases to every person) by the Constitution itself. They are enforceable in the courts and any law inconsistent with them is void to the extent of inconsistency (Article 46).

Directive Principles and State Policies: These are guidelines, ideals and policy objectives that the State is expected to follow while making laws and formulating policies. They are not enforceable in courts by themselves (Article 55), but they are fundamental to the governance of the country.

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3. Distinction between Fundamental Rights and Directive Principles

3.1 Points of Difference in Detail

1. Justiciability: Fundamental rights are enforceable by writ petitions in the Supreme Court (Art. 46 and Art. 133) and High Courts (Art. 144). Directive principles are expressly declared non-enforceable by Article 55.

2. Character: Fundamental rights are mostly civil and political rights (e.g., equality, freedom of expression, freedom of religion). Directive principles are mostly social and economic goals (e.g., education, health, employment, social security).

3. Aim: Fundamental rights establish political democracy; directive principles aim at economic democracy and a welfare State.

4. Effect of violation: Violation of a fundamental right gives rise to a legal remedy. Violation of a directive principle gives rise only to political and moral accountability.

5. Interdependence: Despite the distinction, the two are complementary. Directive principles provide the policy foundation for the realisation of fundamental rights. In Nepal, several directive principles have been converted into enforceable fundamental rights — for example, the right to free and compulsory basic education (Art. 31), the right to health (Art. 35), the right to social security (Art. 42), and the right to employment (Art. 33) — showing that Part 4 ideals have matured into Part 3 rights.

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4. Enforcement in Nepal

4.1 Constitutional Basis

• Article 46: Guarantees the right to constitutional remedy — a person whose fundamental right is violated may file a writ petition in the Supreme Court (or High Court under Art. 144) for enforcement.
• Article 133: Confers writ jurisdiction on the Supreme Court for habeas corpus, mandamus, certiorari, prohibition and quo warranto.
• Article 55: Expressly provides that directive principles are not enforceable in any court.
• Article 49: Declares that it shall be the duty of the State to protect and promote the directive principles.

4.2 Enforcement of Fundamental Rights

Fundamental rights in Nepal are strongly enforceable. The Supreme Court has issued numerous writs to protect them. Key case laws:

• Yagya Murti Banjade v. Government of Nepal (2032 BS) — The Supreme Court held that the right to constitutional remedy is a fundamental right and that the Court has the power to issue appropriate writs for the enforcement of fundamental rights. It established the principle that the right to habeas corpus cannot be suspended even during an emergency.

• Bhim Bahadur Karki v. Government of Nepal (2036 BS) — The Court held that the right to life under Article 12(1) of the 1962 Constitution includes the right to a clean environment and a decent standard of living. This expanded the scope of fundamental rights.

• Surya Prasad Sharma Dhungel v. Godavari Marble Industries (NKP 2052) — The Supreme Court recognised the right to a clean and healthy environment as part of the right to life and issued a mandamus to close a polluting industry. This is a landmark case on environmental rights.

• Advocate Prakash Mani Sharma v. Council of Ministers (2064 BS) — The Court held that the right to information is a fundamental right and directed the government to provide information. It reinforced the principle of transparency and accountability.

• Madhav Kumar Basnet v. Government of Nepal (2064 BS) — The Court held that the right to education includes the right to free education up to the basic level and directed the State to make necessary arrangements.

4.3 Enforcement of Directive Principles

Directive principles are not directly enforceable, but they influence:

1. Legislation: Parliament enacts laws to implement them (e.g., Right to Education Act, 2075; Social Security Act, 2074; Right to Employment Act, 2075).
2. Policy Formulation: Periodic Plans, budget speeches and government policies are guided by Part 4.
3. Judicial Interpretation: Courts use directive principles to interpret fundamental rights and to uphold the constitutionality of welfare legislation. In Yagya Murti Banjade, the Court referred to directive principles while interpreting the right to remedy. In Prakash Mani Sharma, the Court used the directive principle of environmental protection (Art. 51(g)) to strengthen the right to life.
4. Public Interest Litigation (PIL): The Supreme Court has entertained PILs based on directive principles, issuing directives to the government (e.g., Surya Prasad Sharma Dhungel).

4.4 Limitations and Challenges

• Lack of effective implementation due to political instability, corruption and resource constraints.
• Many directive principles remain mere paper promises (e.g., right to employment, social security for all).
• Courts cannot compel the State to allocate resources, as that is a policy matter.
• However, the Supreme Court has increasingly used directive principles to hold the State accountable, especially in environmental and education cases.

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5. Comment on Enforcement in Nepal

In Nepal, fundamental rights are enforceable and justiciable, while directive principles are non-justiciable but morally and politically binding. The Supreme Court has played an activist role in enforcing fundamental rights through writs and has used directive principles as interpretive tools. However, the gap between constitutional promises and ground reality persists. The 2072 Constitution has expanded fundamental rights significantly (e.g., rights to education, health, social security, employment), reflecting the influence of directive principles. Yet, effective enforcement requires political will, adequate resources and a strong rule of law. The judiciary alone cannot ensure socio-economic justice; it must be complemented by legislative and executive action. Thus, while fundamental rights are legally enforceable, directive principles serve as guiding stars for the State, and their realisation depends on the collective commitment of all organs of the State.

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6. Conclusion

The distinction between fundamental rights and directive principles lies in their justiciability and nature. Fundamental rights are negative, individual-centric and enforceable; directive principles are positive, community-centric and non-enforceable. In Nepal, the Supreme Court has enforced fundamental rights through writs and used directive principles for interpretation. However, the full realisation of directive principles requires legislative and executive action. The two sets of provisions are complementary and together aim at establishing a just, democratic and welfare State in Nepal.

1. Meaning of House Dissolution

Dissolution of the House means bringing the life of the House of Representatives to an end before its normal term expires. The House is the elected lower chamber of the federal Parliament and has a five-year term (Article 85 of the Constitution of Nepal, 2015). On dissolution, all members cease to hold office, pending business lapses, and fresh elections must be held. It is therefore the most drastic power touching parliamentary democracy: it ends the mandate given by the voters and is the opposite of a vote of confidence.

In a parliamentary system the power is exercised by the head of state on the advice of the Prime Minister. The central question is whether that advice is a free political choice or a power available only in defined circumstances.

2. Constitutional Framework (Constitution of Nepal, 2015)

• Article 76(1)-(5) sets out the staged process for forming a government: the leader of the parliamentary party with a majority; then a coalition; then the leader of the largest party (clause 3), who must obtain a vote of confidence; then any member who can command a majority (clause 5).
• Article 76(6) requires a Prime Minister appointed under clause (5) to obtain a vote of confidence within thirty days.
• Article 76(7) provides that if that Prime Minister fails to obtain the vote of confidence, the President, on the Prime Minister's recommendation, dissolves the House and fixes elections within six months.
• Article 78 governs the vote of confidence, Article 100 the no-confidence motion, and Article 85 the term of the House.

The 2015 Constitution deliberately limited dissolution compared with the 1990 Constitution, where the Prime Minister could advise dissolution much more freely. The aim was government stability without letting the Prime Minister use dissolution as a shield.

3. Nepal's Practice

1. 1960: King Mahendra dismissed the B.P. Koirala government and dissolved the elected House, ending parliamentary democracy and introducing the Panchayat system.
2. 1994 (under the 1990 Constitution): Prime Minister Girija Prasad Koirala recommended dissolution after an intra-party crisis, and the matter went to the Supreme Court.
3. 2002: Prime Minister Sher Bahadur Deuba recommended dissolution, and elections were never held. Years without an elected House followed and deepened the crisis that led to the 2006 People's Movement.
4. 2006: The House was restored by the proclamation of 24 April 2006 after the movement.
5. 20 December 2020 (5 Poush 2077): Prime Minister K.P. Sharma Oli recommended dissolution amid a split in his own party, and President Bidya Devi Bhandari approved it.
6. 22 May 2021 (8 Jestha 2078): After Oli lost a vote of confidence and no one could prove a majority, the President again dissolved the House on his recommendation.

The pattern is that dissolution has repeatedly been used for political survival, which is why judicial review became important.

4. Recent Supreme Court Precedent

(a) Advocate Santosh Bhandari and others v. Office of the President and others (decided 23 February 2021)

Facts: The December 2020 dissolution was challenged by a large number of writ petitions.

Held: A five-member Constitutional Bench led by Chief Justice Cholendra Shumsher Rana declared the dissolution unconstitutional and reinstated the House. The Court reasoned that:

• The Constitution provides no unfettered power to the Prime Minister to dissolve the House while a majority government exists or while a government can still be formed under Article 76. Dissolution under Article 76(7) arises only after the steps in Article 76 have been exhausted.
• A Prime Minister cannot dissolve the House merely because of an intra-party dispute.
• The President is not a mere rubber stamp but must check that the recommendation fits the Constitution, and the Court can review that decision.
• The House was to be summoned within 13 days.

(b) July 2021 decision on the May 2021 dissolution (Sher Bahadur Deuba and others, together with writs such as that of Bharat Mani Gautam, v. Office of the President)

Facts: After Oli lost the vote of confidence on 10 May 2021, he was reappointed under Article 76(3), and on 22 May he and Opposition leader Sher Bahadur Deuba both claimed to command a majority. The President dissolved the House on Oli's recommendation.

Held: The Constitutional Bench on 12 July 2021 again quashed the dissolution, reinstated the House, and by mandamus directed the President to appoint Sher Bahadur Deuba Prime Minister under Article 76(5). The Court held that:

• When members had signed in support of an alternative candidate who could command a majority, Article 76(5) required that person to be appointed. A Prime Minister cannot dissolve the House to block it.
• Article 76(7) is not a route to dissolution while a credible claim of majority exists.
• The Court may direct appointment of the Prime Minister when the Constitution leaves no other option.

Deuba was appointed on 13 July 2021 and won a vote of confidence on 18 July 2021.

(c) Position since then

No House has been dissolved since 2021. Both decisions remain the leading authority, and later governments formed after the 2022 elections have been formed within the Article 76 process.

5. Principles Established

1. Dissolution is a conditional, exceptional power, and not a discretionary weapon of the Prime Minister.
2. It is available only after the government-formation steps of Article 76 have been exhausted.
3. A dissolution recommendation is justiciable; the Supreme Court can review it.
4. The President must examine constitutionality and is not a rubber stamp.
5. Dissolution cannot be used to avoid a vote of confidence, a rival majority claim, or an intra-party fight.
6. The Court can order the House restored and a Prime Minister appointed.

6. Conclusion

House dissolution is the premature ending of the elected House. Nepal's history shows its misuse, from the 1960 royal takeover to the 2002 and 2020-21 dissolutions. Through Santosh Bhandari (2021) and the July 2021 decision, the Supreme Court made dissolution a constitutionally disciplined power, reviewable by the courts and available only when Article 76 truly offers no stable government.

संविधानहरूको वर्गीकरण (Classification of Constitutions)

संविधानहरूलाई विभिन्न आधारहरूमा वर्गीकरण गर्न सकिन्छ। मुख्य वर्गीकरणहरू निम्नअनुसार छन्:

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

• लिखित संविधान: यो संविधान लिखित दस्तावेजको रूपमा हुन्छ, जसमा राज्यका सबै नियम, संरचना र नागरिकका अधिकारहरू स्पष्ट रूपमा उल्लेख गरिएका हुन्छन्। (उदाहरण: नेपालको संविधान, संयुक्त राज्य अमेरिकाको संविधान)।
• अलिखित संविधान: यसमा कुनै एक केन्द्रीय लिखित दस्तावेज हुँदैन। यसको संरचना परम्परा, न्यायिक निर्णयहरू, रीतिरिवाज र कानुनहरूको संग्रहबाट विकसित हुन्छ। (उदाहरण: बेलायतको संविधान)।

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

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

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

• एकात्मक संविधान: यसमा सम्पूर्ण शासकीय शक्ति केन्द्रीय सरकारमा निहित हुन्छ। स्थानीय वा क्षेत्रीय सरकारहरू केन्द्रीय सरकारको अधीनमा रहन्छन्। (उदाहरण: फ्रान्स)।
• संघीय संविधान: यसमा शासकीय शक्ति केन्द्र र प्रदेश/राज्यहरूबीच विभाजित हुन्छ। प्रत्येक तहको सरकारले आफ्नो अधिकार क्षेत्रभित्र स्वतन्त्र रूपमा शासन गर्दछ। (उदाहरण: संयुक्त राज्य अमेरिका, भारत, नेपाल)।

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

• संसदीय संविधान: यसमा कार्यपालिका (सरकार) विधायिका (संसद) बाट उत्पन्न हुन्छ र त्यसप्रति उत्तरदायी हुन्छ। कार्यपालिका र विधायिकाबीच समन्वय हुन्छ। (उदाहरण: भारत, बेलायत)।
• अध्यक्षीय संविधान: यसमा कार्यपालिका (राष्ट्रपति/प्रधानमन्त्री) र विधायिका छुट्टाछुट्टै हुन्छन् र एकअर्काप्रति उत्तरदायी हुँदैनन्। कार्यपालिकाको प्रमुख विधायिकाबाट अलग हुन्छ। (उदाहरण: संयुक्त राज्य अमेरिका)।

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

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

१. लिखित संविधान: नेपालको संविधान एक लिखित संविधान हो। यसले राज्यको संरचना, नागरिकका मौलिक हकहरू, सरकारका अंगहरूको कार्यक्षेत्र र अधिकारहरूलाई एक बृहत् दस्तावेजमा स्पष्ट रूपमा परिभाषित गरेको छ।

२. कठोर र लचिलोको मिश्रण: यो संविधान कठोर र लचिलोको मिश्रण हो। यसका केही आधारभूत संरचना र मौलिक हकहरू परिवर्तन गर्नका लागि विशेष प्रक्रिया (जस्तै: संविधान संशोधन प्रक्रिया) आवश्यक पर्दछ, जसले यसलाई कठोर बनाउँछ। तर, केही प्रावधानहरू सामान्य विधायी प्रक्रियाद्वारा संशोधन गर्न सकिने भएकाले यसमा लचिलोपन पनि पाइन्छ।

३. संघीय संविधान: नेपालको संविधान संघीय संविधान हो। यसले नेपाललाई संघीय लोकतान्त्रिक गणतन्त्रको रूपमा स्थापित गरेको छ। यसले शासकीय शक्तिलाई केन्द्र, प्रदेश र स्थानीय तहबीच स्पष्ट रूपमा बाँडफाँड गरेको छ, जसले गर्दा शक्ति विकेन्द्रीकरण भएको छ।

४. संसदीय प्रणाली: नेपालको संविधान संसदीय प्रणाली अवलम्बन गरेको छ। यसमा सरकार (कार्यपालिका) संसद (विधायिका) बाट उत्पन्न हुन्छ र संसदप्रति उत्तरदायी हुन्छ। प्रधानमन्त्री र मन्त्रिपरिषदले संसदको विश्वास प्राप्त गरेपछि मात्र शासन गर्न सक्छन्।

निष्कर्ष: संक्षेपमा, नेपालको संविधान, २०७२ एक लिखित, संघीय, संसदीय प्रणालीमा आधारित, र कठोरता तथा लचिलोपनको मिश्रण भएको संविधान हो। यसले नेपाललाई एक आधुनिक, विकेन्द्रीकृत र लोकतान्त्रिक गणतन्त्रको रूपमा स्थापित गरेको छ।

Federal System: Merits and Demerits

A federal system is a form of government in which powers are constitutionally divided between a central (federal) government and constituent units (states/provinces), each supreme within its own sphere. Nepal adopted federalism through the Constitution of Nepal, 2072 (2015), creating 7 provinces and 753 local units.

Merits of Federal System

1. Distribution of power / checks and balances — Power is not concentrated in one centre; the centre and units check each other, reducing the risk of authoritarian rule.
2. Protection of diversity — Ethnic, linguistic, religious and cultural groups get space to preserve and promote their identity, language and culture.
3. Local needs and local solutions — Units understand local problems (roads, health, irrigation, education) better and can frame need-based policies.
4. Decentralisation and participation — Decision-making comes closer to the people; citizens participate in governance and hold leaders accountable.
5. Efficient administration — Division of labour between centre and units reduces the burden on the central government and speeds up service delivery.
6. Balanced regional development — Backward regions can be developed through provincial and local budgets, reducing centre–periphery inequality.
7. Conflict management — Federalism accommodates regional and identity-based aspirations, helping resolve armed conflict and separatist demands peacefully.
8. Democratic stability — Government remains stable even if one unit faces a crisis; units act as laboratories of policy experiment.
9. National unity in diversity — "Unity in diversity" is strengthened when groups feel included rather than dominated.

Demerits of Federal System

1. Costly and duplicative — Multiple governments, legislatures, ministries and bureaucracies increase public expenditure; Nepal's federal structure is financially heavy for a poor economy.
2. Duplication and conflict of jurisdiction — Overlapping powers between centre, province and local level cause disputes and delay in service delivery.
3. Weak fiscal autonomy — Units depend heavily on central grants; own-source revenue is small, so real autonomy is limited.
4. Risk of separatism / disintegration — Strong regional identity may encourage secessionist tendencies and weaken national unity.
5. Inequality among units — Rich provinces (e.g., Province 1, Bagmati) and poor provinces (Karnali, Sudurpaschim) grow at different rates, creating new imbalances.
6. Slow decision-making — Coordination among three tiers takes time; emergency response becomes sluggish.
7. Corruption and local elite capture — New power centres create new opportunities for corruption and dominance by local elites.
8. Lack of capable manpower — Provinces and local units often lack trained staff, so they cannot use their powers effectively.
9. Political instability — Coalition politics and unclear roles can produce conflict between federal and provincial governments.

Has Nepal Benefited from Federalism as Perceived?

Benefits actually achieved:

• Legal-institutional foundation — Constitution of Nepal, 2072; 7 provinces; 753 local units; federal, provincial and local legislatures and governments functioning since 2074/2075 BS.
• Devolution of powers — Powers listed in Schedules 5, 6, 7, 8 and 9; local governments now handle education, health, local roads, water, sanitation and local registration.
• Greater participation — Local elections held in 2074 and 2079 BS; women, Dalit and Janajati representation increased through quotas.
• Service delivery at the doorstep — Citizens can get many services (birth/death registration, land revenue, local infrastructure) at the local level.
• Identity and language — Provinces and local units can use local languages in administration and education; cultural identity is better recognized.
• Development planning — Provincial and local periodic plans and budgets are being made; some balanced regional investment has occurred.

Shortfalls / limitations:

• Fiscal dependence — Provinces raise only a small share of their expenditure; heavy reliance on central grants and conditional transfers.
• Unclear and contested powers — Disputes over police, education, forest, land and civil service management between centre and provinces.
• Weak provincial capacity — Shortage of trained staff, weak institutions and poor coordination among the three tiers.
• Slow law-making — Provinces took years to pass necessary laws; many federal laws are still pending.
• Corruption and inefficiency — Local levels have faced complaints of corruption, nepotism and poor accountability.
• Unequal development — Karnali and Sudurpaschim remain far behind; federalism has not yet removed regional disparity.
• Political instability — Frequent changes in provincial governments and centre–province tension have hindered effective implementation.
• Public perception — Many citizens feel federalism has increased expenditure and political posts without matching improvement in daily life.

Conclusion

The federal system is theoretically superior for a diverse country like Nepal — it promotes participation, identity and balanced development. However, in practice, Nepal has achieved only partial success. The legal and institutional framework is in place and some benefits are visible, but fiscal autonomy, administrative capacity, coordination and accountability remain weak. Federalism should therefore be strengthened through clear power-sharing, adequate fiscal transfer, capable manpower and political stability, rather than being abandoned.

Constitutionalism and Its Forms, with Special Reference to Nepal

1. Meaning of Constitutionalism

Constitutionalism is the political and legal doctrine that government power must be limited by law and exercised according to a constitution. It is not merely the existence of a constitution; rather, it is the spirit, practice and institutional arrangement through which the authority of the state is restrained, divided and made accountable to the people. A country may have a written constitution yet lack constitutionalism (e.g., a constitution that legitimises one-party rule or unlimited executive power). Conversely, constitutionalism may exist even where the constitution is largely unwritten (e.g., the United Kingdom).

In essence, constitutionalism means:

• Limited government — rulers are not above the law;
• Rule of law — law governs both the governed and the governors;
• Separation of powers — legislative, executive and judicial functions are distributed;
• Checks and balances — each organ restrains the others;
• Protection of fundamental rights — individual liberty against state encroachment;
• Free and fair elections and accountability — rulers are answerable to the people.

Thus constitutionalism is the antithesis of arbitrary, absolute or personal rule. As Wheare observes, it means "the rules which regulate the structure of the principal organs of government and their relationship to each other and to the citizen."

2. Forms of Constitutionalism

Constitutionalism has evolved in different historical and ideological settings. The major forms are discussed below.

(a) Liberal / Western Constitutionalism

This is the classical form, associated with the American (1787) and French (1791) Revolutions. Its core features are:

• Individual rights and liberties as the primary purpose of the state;
• Written constitution with supremacy of the constitution;
• Separation of powers (Montesquieu) and checks and balances;
• Judicial review (Marbury v. Madison, 1803);
• Laissez-faire economy and limited state intervention.

(b) Socialist / Marxist Constitutionalism

Socialist constitutionalism rejects the liberal emphasis on individual property rights. It stresses:

• Economic and social rights (right to work, health, education);
• State ownership of the means of production;
• Democratic centralism rather than separation of powers;
• The constitution as an instrument of social transformation (e.g., USSR Constitutions of 1936 and 1977).

(c) Democratic Constitutionalism

This form combines popular sovereignty with legal restraint. It holds that the people are the source of all authority, but that authority must be exercised through constitutional procedures. It emphasises universal adult franchise, periodic elections, political pluralism and constitutional accountability.

(d) Authoritarian / Pseudo-Constitutionalism

Here a constitution exists formally but does not limit power. It is used to legitimise dictatorship, one-party rule or military rule. Fundamental rights are suspended, the judiciary is subordinated, and elections are manipulated. Such constitutions are "sham" or "facade" constitutions.

(e) Federal / Plural Constitutionalism

This form recognises diversity — ethnic, linguistic, religious and regional — and distributes power between central and sub-national units. It seeks to accommodate minorities through autonomy, self-rule and shared rule. Nepal's present Constitution (2015) is a leading example.

(f) Transformative Constitutionalism

Found mainly in post-colonial and post-conflict societies (South Africa, Nepal), it treats the constitution as a transformative document aimed at redressing past injustice, ensuring inclusion and building a just society.

3. Constitutionalism in the Practice of Nepal

(a) Early Phase (1948–1959)

The Government of Nepal Act, 1948 was the first written constitution, but it was granted by the Rana ruler and never implemented. The Interim Constitution of 1951 ended Rana rule and introduced a constitutional monarchy. The Constitution of the Kingdom of Nepal, 1959 provided for a parliamentary system, but it was suspended by King Mahendra in 1960. Constitutionalism thus remained weak.

(b) Partyless Panchayat Phase (1962–1990)

The Constitution of 1962 established the partyless Panchayat system with the king as the supreme authority. Political parties were banned, fundamental rights were restricted, and the judiciary lacked independence. This was a classic case of pseudo-constitutionalism — a constitution without limited government.

(c) Constitutional Monarchy Phase (1990–2006)

The Constitution of the Kingdom of Nepal, 1990, restored multiparty democracy, guaranteed fundamental rights, and introduced constitutional monarchy with a Council of Ministers responsible to the House of Representatives. It marked real progress in constitutionalism. However, the royal massacre of 2001, the royal takeover of 2005, and the Maoist insurgency exposed its weaknesses. The People's Movement of 2006 (Jana Andolan II) ended royal rule.

(d) Interim Constitution Phase (2007–2015)

The Interim Constitution of Nepal, 2007 abolished the monarchy, declared Nepal a federal democratic republic, and vested sovereignty in the people. The Constituent Assembly was elected in 2008 to draft a new constitution. The process was delayed by political deadlock, but it demonstrated a commitment to constitutionalism through constituent power.

(e) Present Constitution (2015 onwards)

The Constitution of Nepal, 2015 embodies several features of constitutionalism:

• Popular sovereignty (Art. 2) — all power emanates from the people;
• Fundamental rights (Part 3) — 31 rights including equality, freedom, and right to constitutional remedy;
• Federal democratic republic with three tiers of government;
• Separation of powers among legislature, executive and judiciary;
• Independent judiciary with judicial review (Art. 133, 137);
• Constitutional bodies (CIAA, NHRC, Election Commission) to ensure accountability;
• Secularism, inclusiveness and proportional representation.

(f) Challenges to Constitutionalism in Nepal

Despite these provisions, constitutionalism in Nepal faces several challenges:

1. Political instability — frequent changes of government and dissolution of Parliament;
2. Weak enforcement of fundamental rights — impunity, delayed justice;
3. Politicisation of constitutional bodies — appointments based on political loyalty;
4. Corruption and lack of accountability;
5. Transitional justice — unresolved cases of conflict-era violations;
6. Centralisation of power within parties despite federal structure;
7. Citizenship and identity disputes affecting inclusion.

4. Conclusion

Constitutionalism is the doctrine of limited, accountable and lawful government. It takes liberal, socialist, democratic, authoritarian, federal and transformative forms. Nepal's constitutional journey — from the 1948 and 1959 Constitutions, through the partyless Panchayat system, the 1990 Constitution, the 2007 Interim Constitution, to the 2015 Constitution — reflects a gradual but incomplete march towards constitutionalism. The 2015 Constitution provides a strong normative framework, but true constitutionalism requires political will, independent institutions, respect for the rule of law and a vigilant citizenry. Without these, the constitution remains a document; with them, it becomes a living instrument of limited and accountable government.

(a) Historical development of constitutional law in Nepal

Nepal's constitutional history moves from absolute rule to a federal democratic republic.

• Before 1948: Government by Rana oligarchy under the Muluki Ain of 1854, with no written constitution of rights.
• Government of Nepal Act, 1948: The first constitutional document, issued by the Rana Prime Minister Padma Shamsher, offering limited reforms. It was never effectively implemented.
• Interim Government of Nepal Act, 1951: Issued after the 2007 BS revolution that ended Rana rule, restoring monarchy and promising a constituent assembly.
• Constitution of the Kingdom of Nepal, 1959: The first elected parliament, but dissolved by King Mahendra in 1960.
• Constitution of Nepal, 1962: Introduced the party-less Panchayat system with sovereignty in the King.
• Constitution of the Kingdom of Nepal, 1990: Restored multi-party democracy after the first People's Movement, with a constitutional monarchy, fundamental rights and an independent judiciary.
• Interim Constitution, 2007: Followed the second People's Movement of 2006 and the peace agreement; it declared a federal democratic republic through the Constituent Assembly.
• Constitution of Nepal, 2015 (2072 BS): Promulgated on 20 September 2015 by the second Constituent Assembly. It created a federal, secular, democratic republic with three tiers of government (federal, 7 provincial and 753 local), and a long list of fundamental rights.

(b) Ministerial accountabilities

A minister is accountable in a parliamentary system in the following ways:

1. Collective responsibility: The Council of Ministers is collectively responsible to the House of Representatives (Articles 76 and 78). The government must keep the confidence of the House and falls if it loses a vote of confidence or a no-confidence motion passes (Article 100).
2. Individual responsibility: Each minister answers to the House for his or her own ministry and is accountable for its acts and policies, and must resign in serious cases of failure or misconduct.
3. Accountability to the Prime Minister, who can remove the minister.
4. Legal and judicial accountability: Ministers act within the Constitution and law, and their decisions can be reviewed by the Supreme Court through writs. They can also be investigated for corruption and held liable.
5. Accountability to the public: Through parliamentary committees, questions and answers, audit by the Auditor General, and public scrutiny.

(e) Contempt of court

Contempt of court is conduct that disobeys, insults or interferes with the authority and administration of justice. It protects public confidence in courts.

• Source of power: Article 128(4) of the Constitution of Nepal, 2015 gives the Supreme Court the power to punish for contempt of itself and of subordinate courts. The Contempt of Court Act, 2059 BS (2003) regulates the matter.
• Kinds: Disobeying a court order or judgment, scandalising or lowering the authority of the court, interfering with a pending proceeding, and obstructing officers of the court.
• Punishment: Imprisonment of up to six months or a fine, or both, as the Act prescribes.
• Defences: Fair criticism of a judgment and truthful reporting of court proceedings in good faith are generally not contempt, so that the balance with freedom of expression is kept.

Short answer: To a considerable but steadily declining extent, I agree. Nepal's family law is no longer a Hindu personal law, but its basic structure, vocabulary and some rules still carry the imprint of the Hindu legal tradition, especially in the Muluki Civil Code, 2074 BS (2017 AD, in force from Bhadra 2075).

1. Historical background

For over a century the Muluki Ain of 1854 (1910 BS) governed family life on the basis of Hindu dharmashastra, including caste-based rules on marriage, inheritance and purity. The Muluki Ain of 2020 BS (1963) removed caste discrimination but kept a patriarchal, Hindu-inspired family structure. Since the 1990s, women's movements, Supreme Court decisions (such as Meera Dhungana, 2051 BS) and the Eleventh Amendment of the Muluki Ain (2058 BS, 2002) have pushed the law toward equality. The 2074 Code replaced the 1963 Ain and sits under a secular Constitution (Article 4) that guarantees equality and non-discrimination (Articles 18 and 38).

2. Hindu-derived features that still influence the Code

1. Marriage as a union of man and woman: Marriage is recognised only between a man and a woman. Same-sex marriage is not recognised in law, although the Supreme Court has directed that rights of sexual minorities be protected.
2. Marriage by customs and rites: Marriage is valid if performed by the rites and customs of the parties' community, as well as by registration, and the customary Hindu form (kanyadan, sindur, vows before fire) is the model form.
3. Prohibited degrees: Marriage within specified close relationships is banned, reflecting the old rule against marriage within kinship. The Code makes some allowances for local customs.
4. Stridhan (woman's property): Property given to a woman at marriage and by her family (daijo, pewa) is her own property, a concept from Hindu law. This existing right is balanced by a ban on dowry (dahej) as an offence.
5. Adoption and the son-centred family: Adoption retains a link to the Hindu aim of continuing the lineage, although the Code allows adoption of a daughter and of a son.
6. Patrilineal conventions: The woman usually moves to her husband's household and takes his surname; the husband is described as the head of the family in popular practice, although the law treats spouses as equals.
7. Maintenance of dependents and parents: The duty of a son (and now a daughter) to support aged parents reflects the Hindu ethic of filial obligation, recognised in family and senior-citizen laws.
8. Joint-family concepts: Rules on partition (ansha) of property and the family as a group of kin retain the idea of a joint family.

3. Reforms that have moved away from Hindu law

• Equal inheritance for daughters and sons as co-heirs of ancestral property and, in the Code, equality of spouses in property.
• Legal age of marriage 20 for both sexes (a break from child marriage traditions), with a criminal penalty for child marriage.
• Ban on polygamy (one man, one wife) and on marital rape (2002).
• Divorce available to both wife and husband on equal grounds, and maintenance and a share of property on divorce.
• Equal guardianship and children's rights regardless of sex.
• No caste restrictions: inter-caste and inter-religious marriage is lawful.
• Prohibition of discriminatory practices such as chhaupadi and dowry-related violence, and recognition of children born outside marriage.

4. Assessment

The law now rests on constitutional equality, not on religion. The influence of the Hindu tradition survives mainly in the structure of the family (heterosexual, patrilineal marriage, kinship rules, stridhan, duties to parents) and in social practice. The persisting gap between the formal rule and social reality, such as daughters' limited use of inheritance and continued dowry, shows the tradition's continuing hold. Therefore the statement is largely correct in terms of structure and culture, but incorrect to the extent that it suggests that religious law, as such, governs.

5. Conclusion

Nepal's family law is a secular, equality-oriented law that retains Hindu-derived forms. It has incorporated Hindu concepts of marriage as a sacred union, stridhan, kinship prohibitions and duties to parents, while rejecting caste, patriarchal inequality and polygamy.

Nepali Law Relating to the Relation Between Parents and Their Children

1. Introduction

The relation between parents and their children in Nepal is governed principally by the Muluki Civil Code (Muluki Dewani Samhita), 2074 (2017) — especially Part 4 (Family Law), which contains the provisions on marriage, parental authority, maintenance, guardianship, adoption and succession — together with the Muluki Criminal Code (Muluki Faujdari Samhita), 2074, the Children Act, 2075 (2018) and the Children Rules, 2076. These laws replaced the old Muluki Ain, 2020 (1963), which was based on a patriarchal and son-centred scheme. Nepal is also bound by the Convention on the Rights of the Child (CRC), 1989, ratified in 1990, and by Article 39 of the Constitution of Nepal, 2072, which guarantees the rights of the child.

2. Who is a Child / Minor

• Section 2(g) of the Children Act, 2075 defines a "child" as a person who has not completed 18 years of age.
• Section 2(j) of the Muluki Civil Code, 2074 defines a minor (nabalig) as a person who has not completed 18 years; a person who has completed 18 years is a major (balig).
• A child born within a lawful marriage is presumed to be the legitimate child of the husband. A child born out of wedlock has a legal relation with the mother from birth and, upon proof of paternity, with the father.

3. Parental Authority and Responsibility (Aabhivawak Adhikar)

The Civil Code, 2074 deals with parental authority in the provisions relating to the relation between parents and children:

1. Joint exercise — Both the father and the mother jointly exercise parental authority over a minor child, and neither may exercise it in a manner prejudicial to the interest of the child.
2. Duty to care — Parents must provide food, clothing, shelter, education, health care and a safe environment to their minor children, and must not discriminate between sons and daughters.
3. Natural guardianship — Parents are the natural guardians of their minor children and may represent them in legal and financial matters.
4. Correction, not cruelty — A parent may correct a child, but corporal punishment causing grievous hurt is prohibited. Section 38 of the Children Act, 2075 expressly bans cruel punishment, torture and inhuman treatment of children, and Section 39 prohibits their involvement in armed conflict.
5. Intervention by the court — If parents misuse parental authority, neglect the child, or act against the child's interest, the court may appoint another guardian or order the child to be kept in a care home or with a fit person.
6. Termination — Parental authority ends when the child attains majority (18 years), marries, or is adopted by another person.
7. Minor's transactions — Contracts and transactions entered into by a minor are voidable, and cannot be enforced against the minor unless ratified after attaining majority.

4. Maintenance (Posan) of Children

• The Civil Code imposes a legal duty on both the father and the mother to maintain their minor children, whether legitimate or illegitimate.
• If a parent fails to maintain a minor child, the child — through the mother or any interested person — may file a case in the District Court for an order of maintenance.
• The court fixes the amount having regard to the means of the parents and the needs of the child. Failure to comply may lead to execution of the order, including attachment of property.
• The duty of maintenance also extends, in appropriate cases, to parents who are unable to maintain themselves, so that the relation of support is in principle reciprocal.
• Section 26 of the Children Act, 2075 reiterates the duty of parents to maintain their children and makes neglect punishable.

5. Guardianship (Sanrakshan)

• The Civil Code governs guardianship of a minor's person and property.
• On the death of the father, the mother becomes the natural guardian; if both parents die, the court appoints a guardian, preferring a close relative who is willing and fit to act.
• A guardian must manage the minor's property as a prudent person (yatha sadharan vyakti), keep accounts, and may not sell or mortgage the minor's immovable property without the court's permission.
• Guardianship terminates when the minor attains majority, or earlier if the court revokes it for misconduct or for acting against the minor's interest.

6. Adoption (Dharmaputra / Palak-Palika)

• The Civil Code governs adoption. A person who has completed 25 years of age and is at least 15 years older than the child may adopt, with the consent of the child (if above a certain age) and of the spouse.
• An adopted child has the same legal status as a natural child, including rights of succession in the adoptive family.
• Adoption requires registration in the local Civil Registration Office; without registration the adoption is not legally recognised.
• Adoption is regulated consistently with the CRC and the Hague Convention on Inter-country Adoption, to which Nepal is a party; inter-country adoption is permitted only through the prescribed central authority and procedure.

7. Property and Succession Rights of Children

• The Civil Code provides that sons and daughters have equal rights of inheritance in ancestral property (ansha), irrespective of sex. This is a landmark reform over the old Muluki Ain, which gave daughters only a limited right (and, in practice, often no share in ancestral property).
• A child conceived at the time of partition but born later also has a share.
• A person may bequeath property by will, but a minor child cannot be deprived of the legal share without the court's approval.
• Section 27 of the Children Act, 2075 protects a child's right to property and prohibits dispossession except in accordance with law.

8. Criminal Law Protection

The Muluki Criminal Code, 2074 punishes, among other things:

• Foeticide and infanticide;
• Abandonment of a child;
• Cruelty to children and child labour exploitation;
• Child marriage — punishable with imprisonment and fine;
• Sexual offences against children, with aggravated punishment for incest and offences against minors.

9. Constitutional and International Framework

• Article 39 of the Constitution of Nepal, 2072 guarantees the child's right to name and identity, education, health, recreation and protection from exploitation, and directs the State to make special provision for children.
• The CRC obliges Nepal to ensure that in all actions concerning children the best interests of the child shall be a primary consideration (Article 3), and that parents have the primary responsibility for the upbringing of the child (Article 18), with the State providing appropriate assistance.

10. Conclusion

Nepali law has moved from a patriarchal, son-centred framework to one that recognises the child as a rights-holder and treats sons and daughters equally. The Muluki Civil Code, 2074, the Children Act, 2075 and the Criminal Code, 2074 together create a comprehensive scheme of parental authority, maintenance, guardianship, adoption and succession, reinforced by the Constitution and the CRC. The remaining challenge is effective enforcement, particularly in rural areas where child marriage, child labour and discrimination against daughters still persist.

1. Meaning of punishable marriage

A punishable marriage is a marriage which the law forbids and treats as a crime, so that the persons who contract, arrange or take part in it are liable to imprisonment and fine. In Nepal the main rules are found in the Muluki Criminal Code, 2074 BS (National Penal Code) in its chapter on offences relating to marriage, read with the marriage provisions of the Muluki Civil Code, 2074 BS. Such marriages are also generally void or voidable, since a lawful marriage requires the consent of both parties and compliance with the conditions of age and relationship.

2. Types of punishable marriage

1. Child marriage: A marriage in which either party is below the minimum age of 20 years. Making, performing or arranging such a marriage is punishable, with higher punishment where the child is younger, and the persons responsible (parents, guardians, priests) are also liable. The Civil Code also makes the marriage voidable.
2. Marriage within prohibited degrees of relationship: A marriage between persons closely related by blood or in certain other kinship relations, as listed in the Code, is prohibited and punishable. The Code allows limited customary exceptions.
3. Bigamy and polygamy: A married person who marries another while the first spouse is alive and the marriage is subsisting commits an offence. The second marriage is void, and those who knowingly assist can also be punished.
4. Marriage by coercion, force or fraud: Forced marriage without free consent, or marriage obtained by fraud, misrepresentation or concealing facts (such as an existing marriage or age), is punishable. This also covers abduction and trafficking for marriage.
5. Marriage with a person incapable of consenting: For example marrying a person of unsound mind or concealing a serious disqualification to obtain consent.
6. Marriage related to dowry or harmful practices: Demanding or giving dowry and pressure linked to marriage is punishable under the Code.

Penalties are imprisonment and fine, graded by the seriousness of the offence and by the age of the victim in child marriage. Complaints must be filed within the time limit set by law.

3. Reasons for the increase in child marriage and polygamy

Child marriage:

1. Poverty: Families marry off daughters early to reduce economic burden, especially in rural and Karnali, Madhesh and Lumbini areas.
2. Social and cultural norms: Traditions that value early marriage, fear of dishonour, and the practice of arranging marriage before puberty.
3. Low education and awareness: Girls out of school marry earlier, and many families do not know the legal age of marriage.
4. Dowry pressure: In some communities, dowry is lower for younger brides.
5. Elopement and love marriage of adolescents: Social media, migration and peer influence lead to teenage elopement, which the law then penalises.
6. Weak enforcement: Marriages are often not registered, officials hesitate to act, and police and local governments seldom prosecute.
7. Crises: Natural disasters, conflict and the COVID-19 lockdown increased child marriage.

Polygamy:

1. Son preference and childlessness: A man may remarry if the first wife has no son.
2. Foreign employment and migration: Husbands abroad take second partners, and unregistered or informal marriages are common.
3. Patriarchal attitudes and women's economic dependence, which keep first wives from complaining.
4. Unregistered marriages, which make proof difficult.
5. Weak enforcement and social acceptance in some communities.

4. Conclusion

A punishable marriage is one that violates the legal conditions of marriage and attracts criminal liability. Child marriage, prohibited-degree marriage, bigamy and forced or fraudulent marriage are the principal types. The persistence of child marriage and polygamy is explained less by gaps in the law than by poverty, patriarchy, low education and weak enforcement, so remedies lie in mandatory registration, education, community awareness and strict prosecution.

1. Rights and duties of husband and wife

Under the Muluki Civil Code, 2074 BS, and the Constitution (Articles 18 and 38), husband and wife have equal rights in the family.

Mutual duties:

1. Cohabitation and fidelity: To live together, be faithful and respect each other.
2. Mutual maintenance: Each spouse must support the other and the family according to his or her capacity. A spouse who deserts without cause can be required to maintain.
3. Care and respect for family members, including each other's parents.
4. Joint responsibility for the upbringing and education of children.
5. Not to commit cruelty or violence: Domestic violence is punishable under the Domestic Violence (Offence and Punishment) Act, 2066, and marital rape is an offence.

Rights:

1. Equal rights in family decisions and in property acquired during marriage.
2. Right to maintenance and residence, and on divorce, a share of property and maintenance as the law provides.
3. Wife's right to her own property (stridhan) and equal property rights with the husband.
4. Right to divorce on equal legal grounds for both.
5. Right to the matrimonial home and protection from desertion and abuse.

2. Mutual rights and duties of parents and children

Duties of parents:

• To maintain, protect, educate and care for the child, and to provide for health, nutrition and development.
• To register the birth and give a name and nationality (Children's Act, 2075).
• Not to abuse, exploit, marry off or put to child labour; child marriage is punishable.
• To act as guardian and manage the child's property in the child's interest.

Rights of children: Maintenance, education, identity, protection, and, under the Code, equal rights to ancestral property for sons and daughters.

Duties of children:

• To support, care for and respect parents, especially when they are old or ill, and not to abandon them.
• Failure to support parents can be actionable (the Code, and the Senior Citizens Act, 2063).

Rights of parents: Maintenance and care by their children, and respect.

3. Factors contributing to fragmentation of families in contemporary Nepal

1. Foreign employment and migration: Many young men go abroad, leaving wives, children and elderly parents separated for years.
2. Urbanisation and nuclear families: Movement to Kathmandu and other cities weakens the joint family.
3. Economic pressure and unemployment, leading to conflict over property and income.
4. Changing values: Individualism, education and the influence of social media.
5. Women's empowerment and equal rights, which make women less willing to stay in abusive or unequal marriages, and a rise in divorce.
6. Partition of property: Equal inheritance and partition of ancestral land creates separate households.
7. Domestic violence, alcoholism and polygamy, which break up families.
8. Conflict and disasters (the decade-long insurgency and the 2015 earthquake) displaced families.
9. Weakened support systems: Old-age loneliness, and fewer people available for care.

4. Conclusion

Nepali law makes spouses equal partners and imposes reciprocal duties between parents and children. Yet migration, urbanisation, economic stress and changing values are breaking up traditional joint families. The law, supported by counselling, mediation, support for migrant families and care for the elderly, should aim to protect the family as the basic social unit.

Short Notes (any three)

a) Provisions relating to Family Law during the Lichhavi Period

The Lichhavi period (c. 400–879 AD) is regarded as the formative era of Nepali family law. Though no complete code survives, inscriptions, shilalekh (stone inscriptions) and tamrapatra (copper-plate grants) reveal the following features:

1. Marriage — Marriage was a religious sacrament, generally arranged by parents. Monogamy was the normal rule, though polygamy was permitted to kings and nobles. Marriage within the same gotra was discouraged. Forms such as Brahma, Daiva and Asura (bride-price) marriages were recognised.
2. Age and consent — Marriage was usually performed after puberty; the consent of the guardian was essential. Widow remarriage was restricted, especially among the higher castes.
3. Adoption — Adoption (dattak) was recognised, mainly to secure a son for religious rites and inheritance. An adopted son generally had to be of the same caste.
4. Property and inheritance — The putra (son) was the principal heir. Daughters had a limited right, chiefly in stridhan (gifts given at marriage). The widow had a right of maintenance and, in some cases, a life interest in her husband's property. Joint family property was the norm.
5. Divorce and remarriage — Divorce was difficult and largely a male prerogative; grounds such as adultery and desertion were recognised. Remarriage was permitted in certain circumstances, e.g. on the husband's death or desertion.
6. Influence of religion — Hindu Dharmaśāstra (Manusmriti, etc.) strongly shaped these rules, with local custom (deshachar) also playing a role.

Thus the Lichhavi period laid the foundation of the Hindu family-law system later consolidated in the Muluki Ain.

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b) Void Marriage

A void marriage is a marriage that is invalid ab initio — it is treated in law as if it never took place. No decree of nullity is strictly necessary, though a declaration may be sought. The parties acquire no marital status, and no rights or obligations of husband and wife arise from it.

Grounds (as recognised under the National Civil Code, 2074 and general law):

• Marriage within prohibited degrees of relationship (sapinda/same gotra).
• Marriage with a person who already has a living spouse (bigamy).
• Marriage without free consent, or by fraud, coercion or undue influence.
• Marriage with a person of unsound mind.
• Marriage below the legal age of marriage.
• Marriage performed without the required religious or legal ceremony.

Effects:

1. The marriage is invalid from the very beginning.
2. Children may still be treated as legitimate in certain cases, and are entitled to maintenance.
3. Neither party can claim maintenance as a spouse, nor inherit as a spouse.
4. Either party may marry again.

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c) Difference between Jari and Adultery

In short, jari is a civil claim of the husband against the wife's paramour, whereas adultery is a matrimonial offence against the other spouse.

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d) Difference between Alimony and Child Custody

Thus alimony concerns money payable to a spouse, while child custody concerns the physical and legal care of the child.

1. Nature of the law of contract

The law of contract is the branch of private law that decides which agreements the law will enforce. A contract is an agreement between competent parties, made by free consent, for a lawful object and lawful consideration, and intended to create legal obligations. Its nature may be described as follows:

1. It is based on agreement: it arises from offer and acceptance and the free will of the parties.
2. It creates enforceable obligations: an agreement is a contract only if the law will enforce it, and breach gives a remedy (damages, specific performance, rescission).
3. It is private law: it governs relations between private persons, and the state only provides the framework and enforcement.
4. It prescribes essential elements: capacity, free consent, lawful object, lawful consideration, certainty and possibility of performance.
5. It is a body of default and mandatory rules: parties may choose terms, but not terms contrary to law or public policy.
6. It protects the weaker party through rules on fraud, coercion, undue influence and unfair terms.

2. Historical development of contract law in Nepal

1. Ancient and medieval period: Contract and debt were governed by Hindu dharmashastra, custom and royal edicts, with rules on loans, sale and pledge.
2. Muluki Ain of 1854 (1910 BS): The first comprehensive code, enacted under Jung Bahadur Rana. It dealt with contract matters in chapters such as those on lending and borrowing (len den), sale, pledge, deposit and similar transactions. There was no general theory of contract.
3. Muluki Ain, 2020 BS (1963): The revised general code replaced the older one and contained contract rules in parts on transactions (such as len den, sale, pledge, partnership), still scattered and incomplete.
4. Special statutes: Laws such as the Partnership Act, 2020, the Company Act, the Sale of Goods-type provisions, the Negotiable Instruments Act, 2034, and the Arbitration Act, 2055 supplemented the general law.
5. Contract Act, 2056 BS (2000): The first dedicated and comprehensive contract law of Nepal. It defined contract, formation, consideration, capacity, free consent, performance, breach, remedies, surety, bailment and agency, modelled on the common law tradition.
6. Muluki Civil Code, 2074 BS (2017 AD): Passed in 2017 and in force from Bhadra 2075 (August 2018). It replaced the 1963 Ain, and brought general contract law into its part on contracts, in a modernised and codified form. (The question's reference to "Civil Code, 2017" means this Code, as 2074 BS corresponds to 2017 AD.)

3. Basic features of the Muluki Civil Code, 2074 on contract law

1. Codified and comprehensive: One code deals with contract formation, validity, performance, breach and remedies together with related contracts such as sale, lease, guarantee, bailment and agency.
2. Essentials of a valid contract: Offer and acceptance, capacity (age of majority and sound mind), free consent, lawful object and consideration.
3. Free consent: A contract is voidable if consent is obtained by coercion, undue influence, fraud, misrepresentation or mistake.
4. Void agreements: Agreements with unlawful object, against public policy, or impossible to perform are void.
5. Performance and discharge: Rules on who must perform, time and place, and the circumstances in which a contract need not be performed.
6. Breach and remedies: Compensation for loss, specific performance in suitable cases, and rescission.
7. Written form and registration for specified contracts, such as transfers of immovable property.
8. Freedom of contract limited by law, public interest and good faith.

4. Conclusion

Contract law in Nepal developed from religious and customary rules, through the Muluki Ain of 1854 and 2020 BS and the Contract Act, 2056, to the codified rules of the Muluki Civil Code, 2074 BS. The Code gives Nepal a modern, unified and accessible law of contract.

1. Meaning of performance of contract

Performance means the fulfilment by the parties of the obligations they have undertaken under the contract. A contract is performed when each party does what he or she promised, or offers to do so, in the manner, at the time and in the place agreed. Performance discharges the contract and ends the liability of the parties. In Nepal the rules come from the Contract Act, 2056 BS (2000), whose principles are now reflected in the contract provisions of the Muluki Civil Code, 2074 BS.

2. Rules regarding performance

1. Parties must perform their promises: Each party must perform, unless the law excuses performance.
2. Offer of performance (tender): If the promisor offers to perform and the promisee refuses, the promisor is not liable for non-performance and keeps his or her rights. The offer must be unconditional, at a proper time and place, and the promisee must have a chance to check that the thing offered is what was promised.
3. Who must perform: Where the contract depends on personal skill or the identity of the parties, the promisor must perform personally. Otherwise, performance can be through a competent agent or representative, and the legal representatives of a dead promisor are bound unless the contract shows a contrary intention.
4. Joint promisors: Where two or more persons jointly promise, all must perform jointly, and on death the survivors and the representatives of the dead person are bound.
5. Time and place of performance: Performance is to occur at the agreed time and place. If no time is fixed, it must be within a reasonable time, and if no place is fixed, the promisor must ask the promisee to appoint a reasonable place.
6. Reciprocal promises: Where promises are to be performed at the same time or in a set order, they must be performed in that order. A party who is ready and willing to perform may demand performance from the other.
7. Performance in the manner prescribed: The promisee may specify the manner or time of performance, and acceptance of performance in that manner discharges the promisor.
8. Appropriation of payments: Where a debtor owes several debts and makes a payment, the debtor may say which debt it is for. If the debtor does not, the creditor may apply it, and otherwise it is applied in order of time.
9. Contracts which need not be performed (see below).

3. Conditions under which a contract need not be performed

1. Agreement of the parties: If the parties agree to substitute a new contract, to alter or rescind the original (novation, alteration, rescission), the original need not be performed.
2. Waiver or remission: The promisee may dispense with or remit performance, or accept a lesser performance in satisfaction.
3. Refusal of a valid tender: If the promisee refuses a proper offer of performance, the promisor is not bound to perform further, and is not liable for non-performance.
4. Impossibility or frustration: If, after the contract is made, performance becomes impossible or unlawful because of events beyond the parties' control (destruction of the subject matter, change of law, war, natural disaster), the contract becomes void and need not be performed.
5. Void or voidable contracts: A void contract (for unlawful object, lack of capacity, or mistake) is not performed, and a voidable contract need not be performed if the party entitled avoids it (for fraud, coercion or undue influence).
6. Breach by the other party: Where one party fails to perform his or her part of a reciprocal promise, or repudiates the contract, the other party may treat the contract as ended and need not perform.
7. Death or incapacity where the contract depends on personal skill.
8. Failure of a condition: Where performance depends on a condition precedent that does not occur.
9. Expiry of limitation: Where the time within which performance can be enforced has run out.

4. Conclusion

Performance is the normal and natural end of a contract. The law requires faithful performance at the proper time, place and manner, and protects a party who has duly offered performance. Only where the parties agree otherwise, or where law, impossibility or the other party's breach intervenes, is performance excused.

1. Meaning of surety

A contract of guarantee (surety) is a contract to perform the promise, or discharge the liability, of a third person in case of his or her default. The person who gives the guarantee is the surety; the person for whom it is given is the principal debtor; and the person to whom it is given is the creditor. The contract may be oral or written, and may be for a single debt or for a continuing series of transactions (a continuing guarantee). In Nepal the subject is governed by the contract law, namely the Contract Act, 2056 BS and now the guarantee provisions of the Muluki Civil Code, 2074 BS.

A surety is a third party who undertakes a secondary liability: the primary liability is that of the principal debtor.

2. Liability of the surety

1. Co-extensive with the principal debtor: The surety's liability is the same in extent as that of the principal debtor, unless the contract provides otherwise.
2. Arises on default: The creditor may proceed against the surety as soon as the principal debtor defaults, without first suing the debtor, unless the contract says otherwise.
3. Valid consent required: A guarantee obtained by misrepresentation or by concealing material facts from the surety is invalid.
4. Continuing guarantee: It extends to a series of transactions until revoked.
5. Several sureties: Co-sureties are liable jointly and severally for the debt, unless otherwise agreed.

3. Rights of the surety

(a) Against the creditor:

• To the benefit of every security the creditor holds against the debtor at the time of the guarantee, even if the surety did not know of it.
• To be told the truth about material facts affecting the risk.

(b) Against the principal debtor:

• Right of indemnity: To recover from the debtor all sums rightfully paid to the creditor.
• Right of subrogation: After paying the whole debt, to stand in the creditor's place and enforce the creditor's remedies and securities against the debtor.

(c) Against co-sureties:

• Right of contribution: If one surety pays more than his or her share, he or she may recover a proportionate share from the other sureties.

4. Duties of the surety

1. To pay the debt or perform the promise on the debtor's default, to the extent of the liability.
2. To act in good faith and not to prejudice the creditor's rights.
3. To bear his or her share of the liability alongside co-sureties.
4. To give notice to the creditor if he or she wants to revoke a continuing guarantee for future transactions.

5. Conditions under which a surety is discharged from liability

1. By revocation: A continuing guarantee may be revoked by notice to the creditor as regards future transactions.
2. By death of the surety, as regards future transactions, unless the contract provides otherwise.
3. By variance in the terms of the contract: Any change in the terms between the creditor and the principal debtor without the surety's consent discharges the surety from transactions after the change.
4. By release or discharge of the principal debtor: If the creditor releases the debtor, or does something that legally discharges the debtor, the surety is discharged.
5. By compromise or giving time: If the creditor makes a composition with the debtor, promises to give time, or promises not to sue the debtor without the surety's consent, the surety is discharged.
6. By creditor's act or omission that impairs the surety's eventual remedy against the principal debtor.
7. By loss of security: If the creditor, without the surety's consent, loses or parts with a security he held against the debtor, the surety is discharged to the extent of the value of the security.
8. By invalidity of the contract, such as a guarantee procured by misrepresentation or concealment, or where the underlying contract is void.
9. By performance: When the principal debtor pays or performs, the guarantee ends.

A surety is not discharged merely because the creditor delays suing, or where the surety agreed to the variation.

6. Conclusion

A surety is a person who stands behind a debtor's promise. The surety's liability is real but secondary, and the law balances it with the rights of indemnity, subrogation and contribution, and releases the surety where the creditor changes the bargain or damages the surety's position.

Contract of Carriage

1. Meaning of Contract of Carriage

A contract of carriage is an agreement by which one person (the carrier) undertakes, for reward or hire, to transport goods or passengers of another person (the consignor/passenger) from one place to another and to deliver them at the destination to the consignee or to the person entitled to receive them.

It is a species of contract of bailment combined with a contract of carriage, because the carrier takes possession of the goods and holds them in trust for the owner until delivery. The essential elements are:

1. Two parties — the carrier and the consignor/passenger.
2. Carriage of goods or persons from one place to another.
3. Reward or hire — the freight or fare (though a gratuitous carriage is possible, it is not a contract of carriage in the commercial sense).
4. Delivery at the destination to the proper person.

In Nepal, contracts of carriage are governed mainly by the Contract Act, 2000 (2056 B.S.), the Carriage of Goods by Road Act, 2049 B.S., the Carriage by Air Act, 2016, and the general law of bailment under Chapter 10 of the Contract Act.

2. Definition of Common Carrier

A common carrier is a person (or firm) who:

• holds himself out as ready to carry for hire the goods of any person who chooses to employ him;
• carries as a regular business and not as an occasional or isolated act;
• does not reserve the right to refuse service without lawful excuse; and
• carries goods of the class to which he holds himself out, along a regular route or between fixed places.

Definitions:

• Black's Law Dictionary: "A common carrier is a person or company that is in the business of transporting the public or goods for a fee, and that must, by law, accept any person or goods offered for carriage."
• Carrier's Act (English) / Carriage of Goods by Road Act, 2049 (Nepal): A common carrier is one who publicly professes to carry goods for all persons indiscriminately, and is bound to carry without discrimination, at a reasonable charge, and with due care and safety.

Distinction from Private Carrier:

3. Rights of a Common Carrier

1. Right to charge freight/fare — He is entitled to reasonable freight or fare for the service rendered. If the charge is unreasonable, the court may fix a reasonable amount.
2. Right to lien — He has a particular lien over the goods carried until the freight and lawful charges are paid. He may retain the goods as security for payment.
3. Right to refuse carriage — He may lawfully refuse to carry goods which are dangerous, prohibited, improperly packed, or where the consignor refuses to disclose the true nature of the goods.
4. Right to demand disclosure — He may require the consignor to disclose the true nature, value and description of the goods, especially for calculating freight and assessing risk.
5. Right to special contract — He may enter into a special contract limiting or excluding his liability, provided it is not contrary to law or public policy.
6. Right to recover expenses — He may recover extraordinary expenses incurred for the safety of the goods, e.g., storage, repairs, or demurrage.
7. Right to sue for freight — He can sue the consignor or consignee for recovery of unpaid freight and charges.

4. Duties of a Common Carrier

1. Duty to carry — He must carry the goods of any person offering them, without discrimination, provided they are of the class he professes to carry and are properly packed.
2. Duty to carry at reasonable charge — He cannot charge exorbitant or discriminatory rates.
3. Duty to take reasonable care — He must take due care in loading, carriage, custody, and delivery of goods.
4. Duty to deliver at the proper place and time — He must deliver the goods to the consignee at the destination within the agreed or reasonable time.
5. Duty to deliver to the right person — Delivery must be made to the consignee or his authorised agent; delivery to a wrong person makes him liable.
6. Duty to disclose the route and mode of carriage — He must carry by the usual route, unless otherwise agreed.
7. Duty not to deviate — Any unnecessary deviation from the usual route makes him liable as an insurer for any loss.
8. Duty to give notice of arrival — He must inform the consignee of the arrival of the goods so that delivery can be taken.

5. Liabilities of a Common Carrier

(a) Strict Liability (Liability as Insurer)

The most important feature of a common carrier's liability is that he is liable as an insurer of the goods. He is liable for loss, damage, or non-delivery of goods even without negligence on his part. This is strict liability, based on the public nature of his business and the confidence reposed in him.

(b) Exceptions to Strict Liability

A common carrier is not liable for loss or damage caused by:

1. Act of God — e.g., earthquake, flood, lightning.
2. Act of the State's enemies — e.g., war, foreign invasion.
3. Inherent vice of the goods — e.g., perishable nature, fermentation, decay.
4. Act or default of the consignor — e.g., defective packing, misdescription of goods.
5. Act of public authority — e.g., seizure by customs or police.
6. Special contract — where liability is limited by agreement.

(c) Liability for Deviation

If the carrier deviates from the usual route without justification, he loses the benefit of the exceptions and becomes liable even for loss caused by Act of God or enemies.

(d) Liability for Negligence

Where the strict liability is excluded by special contract, the carrier remains liable for negligence in the performance of his duties.

(e) Liability for Employees

The carrier is vicariously liable for the acts and omissions of his servants or agents committed in the course of employment.

(f) Liability for Passengers

In the case of carriage of passengers, the carrier is not an insurer but is liable for negligence causing injury or death. He must provide safe vehicles, competent drivers, and reasonable care.

(g) Statutory Limits

Under the Carriage of Goods by Road Act, 2049 and the Carriage by Air Act, the liability of the carrier is limited to a specified amount per kilogram or per passenger, unless a higher value is declared.

6. Conclusion

A contract of carriage is a bailment for reward under which the carrier undertakes to transport and deliver goods or passengers. A common carrier is one who carries as a regular public business for all persons indiscriminately. He enjoys rights such as freight, lien, and refusal of dangerous goods, and is bound by duties of care, timely delivery, and non-discrimination. His liability is strict and insurer-like, subject only to recognised exceptions such as Act of God, inherent vice, and the fault of the consignor.

1. Meaning of arbitration

Arbitration is a method of settling disputes in which the parties agree to refer their dispute to one or more neutral persons (arbitrators), who hear both sides and give a binding decision called an arbitral award, instead of going to the ordinary court. It rests on the arbitration agreement of the parties. In Nepal it is governed by the Arbitration Act, 2055 BS (1999) and rules made under it, with the Nepal Council of Arbitration (NEPCA) providing institutional arbitration.

2. Importance of the arbitrator in settling disputes

The arbitrator is the central actor of the process.

1. Neutral decision-maker: He or she decides impartially on the evidence, the law and the agreement.
2. Chosen by the parties: The parties choose the arbitrator or the method of appointment, which builds confidence in the outcome.
3. Expertise: A person with technical or commercial knowledge (an engineer for a construction dispute, a banker for a financial dispute) can be selected.
4. Speed and economy: The arbitrator conducts a flexible procedure that avoids the delays and costs of court litigation.
5. Confidentiality: Proceedings are private, protecting business reputation.
6. Finality: The arbitrator's award is binding and enforceable.
7. Preserving relationships: A less adversarial process keeps commercial relationships intact.
8. Reducing the courts' burden: Arbitration diverts disputes from the overloaded courts.

The Act therefore requires the arbitrator to be independent and impartial, allows challenge of an arbitrator on proper grounds, and requires him or her to treat the parties equally and to give each a chance to present the case.

3. Process of execution of an arbitral award under the Arbitration Act, 1999

1. Making of the award: The tribunal decides in writing, with reasons (unless the parties agree otherwise), signs it, and gives a copy to each party.
2. Correction and interpretation: A party may, within the short period fixed by the Act, ask the tribunal to correct clerical or computational errors or to explain a part of the award.
3. Challenge to the award: A party dissatisfied with the award can apply to the court to set aside the award within the time fixed by the Act (35 days of receipt of the award). The grounds are limited, such as an invalid agreement, incapacity of a party, not being given proper notice or a chance to present the case, an award beyond the scope of the agreement, improper composition or procedure of the tribunal, a dispute not capable of arbitration, or conflict with public policy.
4. Voluntary compliance: If no challenge is made, or it fails, the losing party should comply with the award voluntarily.
5. Application for execution: If the party does not comply, the other party may apply to the competent court (the District Court) for enforcement of the award.
6. Enforcement as a decree: The court enforces the award as if it were a decree of that court, using the same methods of execution, such as attachment of property and recovery of money.
7. Appeal: An order of the court in a challenge or execution proceeding is open to appeal to the higher court in the manner the Act provides.
8. Foreign awards: Foreign arbitral awards are recognised and enforced under the New York Convention, to which Nepal is a party, and under the Act.

4. Conclusion

Arbitration offers a speedy, private and expert method of settling disputes, and the arbitrator's independence and skill are its foundation. The Arbitration Act, 1999 makes the arbitral award binding and enforceable like a court decree, subject to limited judicial review, so that an award is a practical remedy and not a paper decision.

Citation. Bir Shankar Kashai v. Anita Lama, D.N. 7673, NKP 2063, Vol. Jp. 395, Supreme Court of Nepal. The question asks for two things: the facts of the dispute and the ratio decidendi, that is, the binding legal principle the Court needed to decide the case. Obiter remarks are not part of it.

Facts of the dispute. A lawsuit between a petitioner (Bir Shankar Kashai) and a respondent (Anita Lama) was taken up to the Supreme Court after the lower courts disagreed on a point of law. The answer should state, in order: who claimed what, which right or document was relied on, what the District and Appellate Courts held, and why the Supreme Court admitted the matter.

Issues.

1. Did the claimant establish the right asserted under the law in force when the cause of action arose?
2. Was the lower court's reading of the statute correct, or did it overlook a mandatory provision?

Ratio decidendi.

• The Court first fixes the governing provision and reads it according to its plain words and purpose.
• It then applies that provision to the facts proved on record, and it treats a point of procedure or form as decisive only where the statute makes it mandatory.
• Its conclusion on the issue is the ratio. Because NKP reports are binding precedent under Article 128 of the Constitution of Nepal, 2072, the same reasoning governs later cases with similar facts.

Obiter. General remarks on policy or on facts not before the Court bind no one, though they are persuasive.

Significance. The decision shows the Supreme Court correcting a statutory misreading by a lower court and fixing a rule for future cases. In an examination, give the facts first and then the ratio, and tie each part of the ratio to a provision of the law.

Any three notes are required. Notes (a), (c) and (e) are given.

(a) Finder of lost goods. A finder takes into custody goods that the owner has lost involuntarily. He does not become the owner and holds the goods for the true owner, like a bailee.

• Duties: take reasonable care, do not use or mix the goods with his own, and make reasonable efforts to trace and inform the owner. Dishonest appropriation attracts civil liability for the value and criminal liability under the Muluki Criminal Code, 2074.
• Rights: he may retain the goods until the owner reimburses the reasonable expenses of preserving and finding him. He may sue for a reward the owner has publicly offered.
• Sale: he may sell only if the owner cannot be traced with reasonable diligence, or refuses to pay his lawful charges, and the goods are perishable or the charges nearly equal their value. He accounts to the owner for the balance of the proceeds.

(c) Conditions and warranties. In a contract of sale, a stipulation about the goods is either a condition or a warranty.

Implied conditions include title, correspondence with description or sample, and fitness or merchantable quality. Implied warranties include quiet possession and freedom from encumbrance. A breach of condition is treated as a breach of warranty where the buyer waives it or has accepted the goods. Example: if a buyer orders a tractor of a stated model and gets another model, he may reject it. If only a minor accessory is missing, he may claim damages for it but must keep the tractor.

(e) Lapse or revocation of offer. An offer does not stay open forever. It ends in these ways.

1. Lapse of time: the time fixed for acceptance expires, or a reasonable time passes where none is fixed.
2. Revocation: the offeror withdraws before acceptance. The revocation must reach the offeree, and it is too late once acceptance has been communicated.
3. Rejection or counter-offer by the offeree.
4. Failure of a condition attached to the offer.
5. Death or insanity of the offeror, if the offeree learns of it before accepting.

Example: A offers in Kathmandu to sell his house to B for Rs 80 lakh, open for 7 days. B says nothing for 10 days, so the offer has lapsed. If A had written on day 3 withdrawing the offer and the letter reached B before B accepted, the offer would have been revoked. Once an offer has lapsed or been revoked, it cannot be accepted.

Citation. Anil Krishna Pokhrel v. Kathmandu District Court, NKP 2064. A case against a District Court is a writ petition to the Supreme Court. It is brought under the extraordinary jurisdiction in the Constitution (Article 88 of the 2047 Constitution, now Article 133 of the Constitution of Nepal, 2072).

Law involved.

• The writ jurisdiction of the Supreme Court (certiorari, mandamus, prohibition and others) over lower courts and authorities.
• The principles of natural justice and the right to a fair hearing, and the procedure laid down in the relevant Court procedure legislation.
• The rule that a writ does not lie as a substitute for an appeal, and that the Supreme Court does not re-weigh evidence unless there is an error of jurisdiction or a clear violation of law or fundamental right.

Facts and issue. The petitioner challenged an order or decision of the Kathmandu District Court. The question was whether the District Court had acted within its jurisdiction and in accordance with law and procedure, or whether its act should be quashed by writ.

Ratio.

1. A court that decides without following the procedure required by law, or in breach of a party's right to be heard, can be corrected by the Supreme Court.
2. The Supreme Court will intervene only for want or excess of jurisdiction or a clear legal error. It will not intervene merely because another view of the facts is possible.
3. Where an ordinary remedy such as appeal or review exists, the petitioner must use it first.

Significance. The case is cited for the limits and purpose of certiorari against a lower court. It also supports the rule that every judicial act must be reasoned, lawful and fair.

Citation. Chhue Lama v. Ishwari Devi, NKP 2050. The case is taken as the authority on how possession over time affects title to land.

Facts. The dispute was over land in the possession of one party while the other claimed it by title. The claimant against the possessor said the possession was permissive or wrongful and sought to recover it. The possessor said he had held it openly for years, without interruption, as his own.

Issue. Does long, open and uninterrupted possession of another's land, held as owner, defeat the right of the person with title?

Ratio.

1. Possession acquires legal weight only if it is open, continuous, peaceful and adverse, that is, held as of right and not with the owner's permission.
2. The owner who sleeps on his rights beyond the statutory period (the period for lodging a claim to recover land under the Muluki Ain, and now the Muluki Civil Code, 2074) loses the remedy, and the possessor's title is strengthened.
3. Where possession began with the owner's permission, for example as tenant or licensee, it is not adverse, and time does not run in the possessor's favour.
4. Whoever pleads adverse possession must prove its start, its nature and its duration.

Significance. The decision shows the Court balancing the owner's registered title against the policy that stale claims should end. Cite it when a question asks whether possession can confer or defeat ownership of land in Nepal.

Capacity to Contract

Definition: Capacity to contract means the legal competence or ability of a person to enter into a valid contract. Under Section 505 of the Civil Code 2074 B.S. (Muluki Civil Code), every person is competent to contract unless declared otherwise. A contract is valid only when it is made by parties who are competent to contract. The Civil Code provides that the following persons are not competent to contract:

1. A minor (person below 18 years of age);
2. A person of unsound mind;
3. A person declared incompetent by a competent court.

Thus, capacity to contract refers to the legal fitness of a person to make a binding contract, which requires attainment of the age of majority, soundness of mind, and not being disqualified by law.

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Consequences of an Agreement with or by a Minor under Civil Code 2074 B.S.

The Civil Code 2074 B.S. deals with the contracts of minors mainly under Sections 506, 507, 508 and 509. The consequences are as follows:

1. Agreement with a Minor is Void (Section 506)

An agreement made with a minor is void from the very beginning (void ab initio). Since a minor lacks capacity to contract, no legal obligation arises from such an agreement. The minor cannot be bound by it, though the minor may take benefit if the agreement is beneficial to him/her.

2. Agreement by a Minor is Void

Similarly, an agreement made by a minor is also void. A minor cannot create any legal liability by his/her own act. Any contract entered into by a minor is unenforceable against him/her.

3. No Ratification on Attaining Majority (Section 507)

A minor cannot ratify (validate) an agreement made during minority after attaining the age of majority. Since the agreement was void from the beginning, it cannot be made valid by subsequent ratification. However, if the minor, after attaining majority, makes a fresh agreement with free consent, it becomes valid.

4. Minor's Property is Not Liable

The property of a minor cannot be attached or sold for the enforcement of an agreement made during minority. Since the agreement is void, no liability can be enforced against the minor's estate.

5. Exception – Necessaries Supplied to a Minor (Section 508)

If a person supplies necessaries (food, clothing, shelter, education, medical treatment, etc.) to a minor, the supplier is entitled to be reimbursed from the property of the minor. However, this is not based on the contract but on the principle of quasi-contract. The minor is not personally liable; only his/her property is liable.

6. Minor as an Agent

A minor can act as an agent of another person. Since an agent does not incur personal liability, a minor can validly represent a principal. However, the minor cannot be held personally liable for breach of duty as an agent.

7. Minor as a Beneficiary

A minor can be a beneficiary of a contract. If a contract is made for the benefit of a minor, it is valid and enforceable. For example, a minor can receive gifts or be a beneficiary under a life insurance policy.

8. Minor as a Partner

A minor cannot be a full partner, but with the consent of all partners, he/she may be admitted to the benefits of partnership as a partner. However, the minor is not personally liable for the debts of the firm; only his/her share is liable.

9. Contract for Marriage

A marriage contract of a minor is governed by separate provisions. Under Section 509, a marriage of a minor without the consent of the guardian may be voidable at the option of the minor.

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Conclusion

In conclusion, capacity to contract is the legal competence to enter into a valid contract. Under the Civil Code 2074 B.S., a minor lacks this capacity. Any agreement with or by a minor is void ab initio, cannot be ratified, and the minor's property is generally not liable. However, exceptions exist for necessaries supplied to a minor and for contracts made for the minor's benefit.

Termination (Discharge) of Contract

Meaning. Termination, or discharge, of a contract means the end of the contractual relationship. After it, neither party can be compelled to perform and the rights and duties created by the contract come to an end. In Nepal, the law of contract is in Part 4 of the Muluki Civil Code, 2074.

Modes of discharge

(a) By performance. Both parties perform what they promised, exactly and at the proper time and place. Example: A sells 100 sacks of rice to B for Rs 50,000. A delivers and B pays. The contract is discharged.

(b) By mutual agreement. The parties may end or change the contract by consent.

• Rescission: cancelling the contract before it is fully performed.
• Novation: replacing the contract with a new one, possibly with a new party.
• Alteration: changing a material term.
• Remission: accepting less than is due.
• Waiver: giving up a right.

Example: A owes B Rs 1,00,000. B agrees to accept Rs 80,000 in full settlement. That part of the debt is remitted.

(c) By impossibility (frustration). Performance becomes impossible or unlawful after the contract is made, through no fault of either party. This includes destruction of the subject matter, a change of law, or the death or incapacity of a person whose personal service is essential. Example: A agrees to deliver goods stored in a godown, and an earthquake destroys the godown and the goods. The contract is discharged.

(d) By breach. One party fails or refuses to perform.

• Actual breach: failure on the due date.
• Anticipatory breach: declaring before the due date that he will not perform. The other party may treat the contract as ended at once and sue for damages.

Example: A promises to supply goods on 1 Baisakh, but on 1 Chaitra tells B he will not. B may sue immediately.

(e) By operation of law. The law ends the contract without any act of the parties. Examples are the death of a party in a personal-service contract, insolvency, a merger of rights (a tenant buys the leased property and the lease merges into ownership), and material alteration of a document without consent. The expiry of the limitation period does not extinguish the debt itself, but it bars the legal remedy.

Effect of discharge

The parties are freed from further obligations. The innocent party in a breach may claim compensation for loss that was reasonably foreseeable.

Conclusion

A contract ends by performance, agreement, impossibility, breach, or operation of law. Knowing the mode matters because it decides whether anyone can still sue and for what.

Meaning of Carrier

A carrier is a person or business (individual, firm or company) that undertakes, for reward (hire or freight), to transport goods or passengers from one place to another. The essential element is the assumption of the obligation to carry — the carrier holds itself out as ready to transport for any person who chooses to employ it. In Nepal, carriage of goods is mainly governed by the Carriage of Goods by Land (Regulation) Act, 2042 (1985) and the Contract Act, 2000, while carriage by sea and air is governed by international conventions and the Civil Code.

Types of Carrier

1. Common Carrier — A carrier that holds itself out to carry goods for all persons indiscriminately who offer them for carriage, for a fixed or reasonable charge, and as a regular business. It is bound to carry for anyone without refusal, subject to certain exceptions. Examples: Nepal Transport Corporation, courier companies, airlines running scheduled services.

2. Private Carrier — A carrier that carries goods only for selected persons or on particular occasions, not as a regular business open to the public. It is not bound to carry for everyone and may accept or refuse any offer. Example: a factory's own truck carrying its own goods, or a person carrying goods for a friend occasionally.

3. Gratuitous Carrier — A carrier who carries goods without any reward (free of charge). Since there is no consideration, the carrier is liable only for gross negligence, not for ordinary negligence.

4. Special (Particular) Carrier — A carrier employed for a single, isolated transaction under a special contract, not as a public employment. Its rights and duties are governed by the terms of that particular contract.

Rights of a Common Carrier

1. Right to receive freight (reward): It is entitled to the agreed charge or, if none is fixed, a reasonable charge for the carriage.

2. Right to lien: It may retain the goods in its possession until the freight and other lawful charges are paid (carrier's lien).

3. Right to sue for freight: If the consignee or consignor fails to pay, the carrier can sue to recover the amount due.

4. Right to refuse or reject goods: It may refuse to carry goods that are dangerous, prohibited, improperly packed, or likely to cause loss or injury to other goods or to the carrier.

5. Right to special contract: It may enter into a special contract limiting its liability (e.g., fixing a lower value or excluding liability for certain risks), provided such terms are lawful.

6. Right to claim indemnity: It can claim compensation from the consignor for any loss caused by false declaration of the nature or value of goods.

7. Right to sell goods (in certain cases): Where goods remain unclaimed and freight is unpaid, it may, after due notice, sell the goods to recover its charges.

Duties of a Common Carrier

1. Duty to carry: It must carry the goods of any person offering them, provided they are of the kind it professes to carry, are properly packed, and the freight is tendered. Refusal without lawful excuse is a breach of duty.

2. Duty to carry by the usual route: It must transport the goods by the ordinary and customary route without unnecessary deviation or delay.

3. Duty to deliver safely: It must deliver the goods to the right consignee at the destination in the same condition, and is liable as an insurer for loss or damage, except for the recognised exceptions (act of God, inherent defect, act of the consignor, act of a public enemy, or inherent vice of goods).

4. Duty to give notice: It must give notice to the consignee on the arrival of goods so that they may be collected within a reasonable time.

5. Duty to account: It must account for the goods and pay over any amount realised, and must not deliver goods without production of the consignment note or proper authority.

6. Duty to charge reasonable freight: It must charge only a reasonable and uniform rate, not an arbitrary or discriminatory one.

7. Duty not to discriminate: It must treat all customers equally, without undue preference to any particular person.

Conclusion

A common carrier occupies a special position in law — it is bound to serve the public and is liable as an insurer of the goods, while enjoying rights such as freight, lien and refusal of dangerous goods. A private or gratuitous carrier, by contrast, carries a much lighter burden of liability. Thus the distinction between the types of carriers determines the extent of their rights and duties.

Major Provisions of the Nepal Madhyasthata Ain (Arbitration Act), 2055

Introduction. "Madhyasthata" means arbitration. The Act, enacted in 2055 BS (1999), replaced the Arbitration Act, 2038. It modernises arbitration in Nepal on the model of the UNCITRAL Model Law, and it governs both domestic and international commercial arbitration. Its aim is to settle disputes quickly and cheaply, outside the ordinary courts.

1. Arbitration agreement

• Parties may agree to refer present or future disputes arising from a legal relationship to arbitration.
• The agreement must be in writing. It may be an arbitration clause in a contract or a separate submission agreement. An exchange of letters, telex or fax is also enough.
• A court before which a suit is brought on a matter covered by a valid agreement should refer the parties to arbitration if a party so asks.

2. Arbitrable matters

• A dispute arising from a contract or other civil or commercial relationship may be referred to arbitration if the parties are competent.
• Matters that the law does not allow to be settled privately cannot be referred. These include criminal offences, matters of status, and subjects reserved by other laws to a court or authority.

3. Arbitral tribunal

• The parties may fix the number of arbitrators, which should be odd. A sole arbitrator or a panel of three is usual.
• They may agree on the manner of appointment. If they fail, or one party does not appoint, the court appoints.
• An arbitrator must be impartial and independent. A party may challenge an arbitrator for doubts about impartiality or for lacking agreed qualifications. A tribunal may rule on its own jurisdiction (kompetenz-kompetenz).

4. Procedure

• The parties may agree on procedure. Otherwise the tribunal conducts the proceedings with equal treatment of both sides and a full opportunity to present their case.
• The tribunal may decide place, language, evidence and interim measures.
• Proceedings should be completed within the time the parties or the Act fix.

5. Award

• The award must be in writing, reasoned, dated and signed, and delivered to the parties. A majority decides where there are three arbitrators.
• It is binding on the parties.
• The tribunal may correct clerical errors and interpret the award.

6. Setting aside and enforcement

• A party may apply to the competent appellate court within the prescribed time to set the award aside on grounds such as incapacity, an invalid agreement, absence of notice or opportunity, an award outside the reference, an improper tribunal, or conflict with public policy.
• An award that is not challenged in time is enforced like a court decree by the district court.

7. Nepal Council of Arbitration

The Act provides for the Nepal Council of Arbitration, which promotes arbitration, keeps a roster of arbitrators and gives administrative help.

8. Foreign awards

The Act deals with recognition and enforcement of foreign arbitral awards. Nepal is a party to the New York Convention (1958).

Conclusion

The Act makes the arbitration agreement the basis of the process, gives the parties wide control over procedure, limits court interference, and allows limited review of the award. It is an important tool for settling commercial and construction disputes in Nepal.

Short Notes (any three)

b) Tender

Meaning. Tender (or "tender of performance") means an unconditional offer by the promisor to the promisee to perform his obligation under the contract, in accordance with its terms. It is an attempt at performance, not performance itself. It may be a tender of money (offer to pay a debt) or a tender of performance of any other obligation.

Essentials of a valid tender.

1. It must be unconditional — not coupled with any condition or demand.
2. It must be made at the proper time and place, as fixed by the contract, or, if not fixed, at a reasonable time and at the usual place of business.
3. It must be of the whole obligation — the entire amount due or the whole of the thing promised; a part-tender is no tender.
4. It must be made to the proper person — the promisee or his authorised agent.
5. It must be made in the proper manner — in the manner agreed, or in the ordinary course, and, where the goods are to be delivered, the seller must be ready and willing to deliver and must offer to do so.

Effect.

• A valid tender of money that is refused does not discharge the debtor from liability, but the creditor cannot thereafter claim interest on the amount, and the debtor is not liable for the costs of a suit for the debt.
• A valid tender of performance discharges the promisor from his obligation, and the promisee cannot treat the contract as broken.
• An invalid tender has no such effect; the promisor remains liable for breach.

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c) Finder of lost goods

Meaning. A person who finds goods belonging to another and takes them into his custody occupies the position of a bailee towards the true owner. He is not the owner, but he has lawful possession and certain rights against the owner and third parties.

Duties of the finder.

1. To take reasonable care of the goods as a man of ordinary prudence would take of his own goods of the same bulk and quality.
2. To make reasonable efforts to trace the true owner and to return the goods to him.
3. Not to use the goods, or deal with them in a manner inconsistent with the terms of the bailment.
4. Not to mix the goods with his own goods; if he does so and the goods are separable, he must bear the cost of separation, and if inseparable, he must compensate the owner.

Rights of the finder.

1. Right of lien — he may retain the goods until he receives compensation for the trouble and expense incurred in preserving the goods and finding the true owner.
2. Right to reward — if the owner has offered a specific reward for the return of the goods, the finder may sue for it on returning the goods.
3. Right to sell — he may sell the goods if (a) the goods are perishable, or (b) the owner cannot be found with due diligence, or (c) the owner, when found, refuses to pay the lawful charges of the finder. The sale must be made in a reasonable manner, and the proceeds, after deducting his lawful charges, must be handed over to the true owner.

In Nepal these matters are governed by the law of bailment under the Muluki Civil Code, 2074.

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d) Unpaid seller

Meaning. Under the Sale of Goods Act, 2063, a seller is an unpaid seller when—

1. the whole of the price has not been paid or tendered, or
2. a bill of exchange or other negotiable instrument given as conditional payment has been dishonoured.

The term includes any person who is in the position of a seller, e.g. an agent of the seller to whom the bill of lading has been endorsed, or a consignor who has paid the price.

Rights against the goods (available so long as the property in the goods has not passed to the buyer, or, in some cases, even after it has passed):

1. Lien — the right to retain possession of the goods until the price is paid. It can be exercised only when the seller is still in possession, no credit has been agreed upon, and the buyer has not become insolvent. The lien is lost if the seller delivers the goods to a carrier without reserving the right of disposal, or waives it.
2. Stoppage in transit — if the buyer becomes insolvent while the goods are in transit, the seller may resume possession of the goods. This right is exercised either by taking actual possession or by giving notice to the carrier. It ends when the goods reach the buyer or his agent.
3. Right of resale — where the goods are perishable, or where the seller has given notice of his intention to resell, or where the right is expressly reserved in the contract, the seller may resell the goods and recover damages from the defaulting buyer.

Rights against the buyer personally.

1. Suit for the price of the goods.
2. Suit for damages for non-acceptance.
3. Right to repudiate the contract before the due date of delivery if the buyer repudiates or fails to pay the price.

"All contracts are agreements but all agreements are not contracts." Prove with suitable illustrations.

1. Introduction

The statement states the relationship between two legal concepts — agreement and contract. It means that every contract must necessarily contain the elements of an agreement, but every agreement does not necessarily possess those additional elements which convert it into a contract. In other words, contract is a species of the genus "agreement"; the genus is wider than the species.

2. Meaning of Agreement and Contract

Agreement — Section 2(b) of the Nepal Contract Act, 2056 (and Section 2(e) of the Indian Contract Act, 1872) defines agreement as "every promise and every set of promises forming the consideration for each other." A promise arises when a proposal is accepted. Hence:

$\text{Agreement} = \text{Offer (Proposal)} + \text{Acceptance}$

Contract — Section 2(a) of the Nepal Contract Act, 2056 (Section 2(h) of the Indian Contract Act, 1872) defines contract as "an agreement enforceable by law." Therefore:

$\boxed{\text{Contract} = \text{Agreement} + \text{Enforceability by law}}$

3. Why All Contracts Are Agreements

Every contract, by definition, is an agreement because the following elements of a valid agreement are always present in it:

1. Two or more parties — there must be at least two persons, one making the proposal and the other accepting it.
2. Offer and acceptance — a lawful proposal must be accepted, giving rise to a promise.
3. Consensus ad idem — both parties must agree upon the same thing in the same sense.
4. Consideration — there must be lawful consideration, for no contract can exist without it.
5. Intention to create legal relations — the parties must intend legal consequences.

Since all these elements are the very ingredients of an agreement, it follows that wherever there is a contract, there is necessarily an agreement. A contract cannot exist without an agreement.

4. Why All Agreements Are Not Contracts

An agreement becomes a contract only when it satisfies the essentials of a valid contract laid down in Section 10 of the Nepal Contract Act, 2056 (Section 10 of the Indian Contract Act, 1872), namely — free consent, competent parties, lawful consideration, lawful object, certainty of meaning, possibility of performance, and no express declaration of invalidity. An agreement which fails to satisfy any of these requirements remains a mere agreement and is not enforceable by law. Such agreements may be:

• Social or domestic agreements — not intended to create legal relations;
• Agreements without consideration — unless falling within recognised exceptions;
• Agreements with incompetent parties — minors, persons of unsound mind, persons disqualified by law;
• Agreements without free consent — caused by coercion, undue influence, fraud, misrepresentation or mistake;
• Agreements with unlawful object or consideration — forbidden by law, immoral, or opposed to public policy;
• Agreements expressly declared void — restraint of marriage, restraint of trade, restraint of legal proceedings, uncertain agreements, wagering agreements, impossible agreements, etc.

5. Suitable Illustrations

(a) Valid contract — agreement enforceable by law. A agrees to sell his motorcycle to B for Rs 2,00,000, and B agrees to buy it. There is offer, acceptance, lawful consideration, free consent and lawful object. It is both an agreement and a contract.

(b) Social agreement — not a contract. A invites his friend B to dinner and B accepts. B fails to attend. A cannot sue B, because the parties never intended to create legal relations. It is an agreement but not a contract. (Balfour v. Balfour)

(c) Agreement without consideration — not a contract. A promises to give Rs 10,000 to his nephew B out of natural love and affection, without anything in return. Since there is no consideration and no exception applies, it is void — a mere agreement.

(d) Agreement with a minor — not a contract. A, aged 16, agrees to purchase a bicycle from B for Rs 15,000. Since a minor is not competent to contract (Section 4 of the Nepal Contract Act, 2056), the agreement is void ab initio — not a contract. (Mohori Bibee v. Dharmodas Ghose)

(e) Agreement without free consent — not enforceable as a contract. A obtains B's consent to sell his land by threatening him with bodily harm. The agreement is voidable at B's option and cannot be enforced against him so long as he does not affirm it.

(f) Unlawful object — not a contract. A agrees to pay B Rs 50,000 if B beats C. The object is unlawful; hence the agreement is void and cannot be enforced.

(g) Wagering agreement — not a contract. A and B agree that if Nepal wins the match, A will pay B Rs 1,000, and if Nepal loses, B will pay A Rs 1,000. It is a wager, expressly declared void.

(h) Uncertain agreement — not a contract. A agrees to sell to B "one hundred tons of oil" without specifying which oil. The meaning is uncertain; hence void under Section 10.

(i) Impossible agreement — not a contract. A agrees to bring a dead person back to life in consideration of Rs 1,00,000. The act is impossible; hence the agreement is void.

(j) Restraint of trade — not a contract. A agrees with B not to carry on any business in Kathmandu Valley. The agreement is in restraint of trade and therefore void (subject to statutory exceptions such as sale of goodwill and partnership agreements).

6. Conclusion

From the above discussion it is clear that agreement is the wider term and contract is the narrower one. Every contract presupposes an agreement, because offer, acceptance, consensus and consideration are its essential ingredients. But an agreement becomes a contract only when it is coupled with enforceability by law, i.e. when it fulfils all the essentials of a valid contract. Hence the proposition — "All contracts are agreements but all agreements are not contracts" — is perfectly correct and legally sound.

Transfer of Ownership under the Muluki Civil Code, 2074

Meaning

Transfer of ownership is the passing of the right of ownership in property from one person (the transferor) to another (the transferee). Ownership includes the rights to use, enjoy and dispose of a thing. It passes voluntarily by sale, gift, exchange or will, or by operation of law through succession, court sale or insolvency.

Modes of transfer

1. Sale (bikri)
2. Gift (daan) and will (ichchhapatra)
3. Exchange (sattapatta)
4. Succession (uttaradhikar)
5. Operation of law, such as a court decree or insolvency

Rules regarding transfer

(a) Only the owner can transfer. The rule nemo dat quod non habet applies. A person cannot give a better title than he has. A non-owner may transfer only with the owner's authority, with exceptions such as a bona fide purchaser for value.

(b) Sale.

1. Seller and buyer must be competent, and the object and price lawful.
2. For immovable property, ownership passes only on registration of the deed (rajinama) before the proper office, together with payment of the price and fees. A bare agreement does not transfer ownership.
3. For movable property, ownership passes when the parties intend it, generally on delivery of ascertained goods.
4. Where ownership is made to depend on a condition, it passes only when the condition is fulfilled.

(c) Gift and will.

1. A gift needs the owner's free consent and the donee's acceptance. A gift of immovable property must be in writing and registered.
2. A will operates on the testator's death. It must be in writing and attested as the law requires, and it cannot defeat the shares due to heirs under the Code.

(d) Exchange. The rules of sale apply to exchange as far as possible. Registration is needed for immovable property.

(e) Succession. On death, ownership devolves on the heirs by operation of law in the shares the Code prescribes.

(f) Restrictions.

1. A guardian cannot transfer a minor's immovable property without the permission the law requires and without benefit to the minor.
2. A co-owner can transfer only his own share.
3. Property of the State or a trust cannot be transferred contrary to law or the trust deed.
4. Property under a restraint order cannot be transferred.

Conclusion

The Code recognises sale, gift, will, exchange, succession and operation of law as modes of transfer. It requires registration for immovables, protects the interests of minors and co-owners, and makes only the true owner or his authorised agent able to pass title.

Under the Arbitration Act (Nepal Madhyasthata Ain), 2055:

Who can refer a dispute to arbitration

1. Parties to a legal relationship, if they are competent and have a written arbitration agreement. The agreement may be a clause made before any dispute (a clause in the contract) or a separate submission agreement made after the dispute arises.
2. Persons claiming through a party, such as successors, heirs, assignees or a merged company, who are bound by and can use the agreement.
3. A court, which refers parties to arbitration when one of them asks and the suit concerns a matter covered by a valid arbitration agreement.
4. Government bodies and corporations acting through contracts that contain an arbitration clause.

Matters that cannot be referred to arbitration

1. Criminal offences, which only criminal courts may try.
2. Matters of personal status such as marriage and divorce, or matters the parties have no power to compromise.
3. Matters affecting public policy or public interest, and matters in which the law gives exclusive jurisdiction to a court or special authority (for example some tax and revenue matters).
4. Matters prohibited from arbitration by any other law, and matters already finally decided by a competent court.

If a dispute not open to arbitration is referred, the agreement and any award on it are not enforceable.

Citation. Bir Maya Limbu v. Rama Maya Limbu, NKP 2061. The case is taken as one involving a dispute within the Limbu community that turned on a claim based on custom and on a woman's claim to family property.

Facts. Two women of the Limbu family contested a claim to property. One relied on a custom of the Limbu community, and the other relied on the general law of the Muluki Ain. The lower courts disagreed on which governed.

Issue. Can a community custom displace or limit the rights the general law gives to a woman?

Holding (in outline). Custom is recognised in Nepal only if it is ancient, certain, reasonable, continuous, not against statute or public policy, and proved by the person who relies on it. The Court looked for proof of the custom and for its consistency with the law and constitutional equality.

Critical analysis.

1. Strength: requiring strict proof of custom keeps the general law from being evaded by vague assertions of tradition.
2. Strength: it treats the community's customs as legitimate but subject to law.
3. Weakness: testing custom against "public policy" leaves wide judicial discretion, which can give unequal results for like cases.
4. Weakness: in practice custom often disadvantaged women, so deference to it can conflict with equality guaranteed by the Constitution.
5. Later development: the Eleventh Amendment of the Muluki Ain (2058), the 2072 Constitution (Articles 18 and 38) and the Muluki Civil Code, 2074 strengthened women's property rights. The decision should be read against this trend.

Conclusion. The case remains useful for the test of a valid custom, but its approach to women's property rights is now overtaken by statute and the Constitution.

Short Notes

a. Parties Incompetent to Contract

Section 11 of the Contract Act provides that every person is competent to contract who is of the age of majority, of sound mind, and not disqualified from contracting by any law. Thus, the following parties are incompetent to contract:

1. Minors — A person below 18 years of age. An agreement with a minor is void ab initio (from the beginning), as held in Mohori Bibee v. Dharmodas Ghose.
2. Persons of unsound mind — Idiots, lunatics, and drunkards. A person is of unsound mind if he is incapable of understanding the contract and its effects on his interests at the time of contracting.
3. Persons disqualified by law — Alien enemies, insolvents (whose property is vested in the receiver), convicts, and foreign sovereigns/ambassadors.

An agreement with such parties is void.

b. Doctrine of Frustration

The doctrine of frustration means that a contract becomes void when, after its formation, an event occurs which is beyond the control of the parties and makes the performance of the contract impossible. This is contained in Section 56 of the Contract Act: "An agreement to do an impossible act is void."

Essentials:

1. The event must be beyond the control of the parties.
2. It must make performance impossible or unlawful.
3. It must occur after the formation of the contract.

Illustration: A contracts to sing at B's theatre, but is struck by serious illness before the date. The contract becomes void. The doctrine is based on the maxim lex non cogit ad impossibilia — the law does not compel the impossible.

c. Requisites of a Valid Tender

A tender is an offer of performance. To be valid, a tender must satisfy the following requisites:

1. Unconditional — It must not be subject to any condition.
2. Proper time — It must be made at the proper time and place.
3. Reasonable opportunity — The promisor must give the promisee a reasonable opportunity to inspect the goods.
4. Whole obligation — The entire obligation must be tendered, not a part of it.
5. To the proper person — It must be made to the promisee or his authorised agent.
6. Of exact amount — In case of money, the exact amount must be tendered.
7. Capable of performance — The promisor must be able and willing to perform his obligation.

A valid tender discharges the promisor from liability.

d. Continuing Guarantee

A continuing guarantee is a guarantee which extends to a series of transactions. Section 129 of the Contract Act defines it as "a guarantee which extends to a series of transactions." In such a guarantee, the surety's liability continues until the guarantee is revoked by notice.

Essentials:

1. It covers a series of transactions.
2. The surety remains liable for all transactions until revocation.
3. It may be revoked by notice for future transactions (Section 130).
4. The death of the surety also revokes it for future transactions.

Illustration: A guarantees to B the payment of all bills that C may draw upon B from time to time. This is a continuing guarantee.

e. Bill of Lading

A bill of lading is a document issued by the master or owner of a ship acknowledging the receipt of goods on board for carriage and undertaking to deliver them at the destination to the consignee or his order. It is a document of title to goods and is transferable by endorsement.

Functions:

1. It is a receipt for the goods shipped.
2. It is a contract of carriage between the shipper and the carrier.
3. It is a document of title, enabling the holder to transfer ownership by endorsement and delivery.

Types: Clean bill of lading, claused bill of lading, through bill of lading, and container bill of lading. It plays a vital role in international trade and shipping.

Administrative Law: Definition and Sources

1. Definition of Administrative Law

Administrative law is that branch of public law which deals with the organisation, powers, functions, duties and liabilities of administrative authorities, and which governs the relationship between these authorities and the citizens. It lays down the rules by which the executive branch of government is kept within the bounds of law.

Several jurists have defined it in different ways:

• A.V. Dicey treated administrative law as the body of rules concerning the position of officials and the remedies available against them — the law relating to the droit administratif of France.
• Sir Ivor Jennings defined it as "the law relating to administration. It determines the organisation, powers and duties of administrative authorities."
• K.C. Davis gave a broad definition: "Administrative law is the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action."
• Wade regards it as the law relating to the control of governmental power.

In short, administrative law is the branch of law that controls and regulates the exercise of public power by administrative bodies. Its main concern is to prevent the abuse of power and to protect the rights of citizens against arbitrary administrative action.

2. Sources of Administrative Law

The sources of administrative law may be classified as primary and secondary.

A. Primary Sources

(i) The Constitution The constitution is the supreme and most important source. It creates the organs of the State, distributes powers among them, and provides the framework within which administrative authorities function. In Nepal, the Constitution of Nepal, 2072 (2015) contains provisions on the executive, public service, fundamental rights, and constitutional bodies, all of which form part of administrative law.

(ii) Statutes or Legislation Statutes are the main source of administrative law. Parliament enacts laws that create administrative authorities, confer powers on them, and prescribe their procedures. Examples include the Local Government Operation Act, 2074; the Public Service Commission Act; the Nepal Police Act; and the Commission for the Investigation of Abuse of Authority Act. These statutes define the jurisdiction, powers and duties of administrative bodies.

(iii) Delegated or Subordinate Legislation Because Parliament cannot make detailed rules on every matter, it delegates rule-making power to the executive. Rules, regulations, by-laws, orders and notifications issued under a parent statute are called delegated legislation. They are a very important source of administrative law because they supply the working details of administration. In Nepal, such rules are framed under the authority of Article 114 of the Constitution.

(iv) Judicial Precedents Decisions of the courts, especially of the Supreme Court, are binding precedents and thus a major source of administrative law. Through writs such as certiorari, mandamus, prohibition, quo warranto and habeas corpus, the courts have developed principles such as natural justice, ultra vires, reasonableness and legitimate expectation. In Nepal, Articles 133 and 144 empower the Supreme Court and High Courts to issue such writs.

(v) Ordinances When Parliament is not in session, the President may promulgate ordinances on the recommendation of the Council of Ministers under Article 114 of the Constitution. Such ordinances have the force of law and are also a source of administrative law, though they must be approved by Parliament within six months.

B. Secondary Sources

(vi) Administrative Rules, Regulations and Circulars Rules of business, departmental circulars, manuals and directives issued by ministries and departments guide the day-to-day working of administration and are treated as a source of administrative law.

(vii) Custom and Usage Long-standing customs and usages followed in administrative practice, when recognised by courts, become a source of administrative law.

(viii) Principles of Natural Justice Principles such as audi alteram partem (hear the other side) and nemo judex in causa sua (no one shall be judge in his own cause) are unwritten but universally applied principles and form an important source of administrative law.

(ix) International Law and Conventions International treaties, conventions and agreements to which Nepal is a party also influence and shape administrative law, especially in areas such as human rights, labour and the environment.

Conclusion

Administrative law is thus a growing branch of public law. Its sources are both written and unwritten — the constitution, statutes, delegated legislation, ordinances and precedents being the primary sources, while customs, circulars, principles of natural justice and international law serve as secondary sources. Together they regulate the exercise of administrative power and protect the citizen against its abuse.

Doctrine of Rule of Law

The doctrine of rule of law means the principle that the state and its organs must be governed by law and not by the arbitrary will of any individual or authority. It implies that law is supreme, everyone — including the government and its officials — is equal before the law, and no one is above the law. The doctrine is traced to A.V. Dicey (1885), who explained it through three elements:

1. Supremacy of law — no person can be punished except for a breach of law established before the ordinary courts; arbitrary power is excluded.
2. Equality before law — all persons, including government officials, are subject to the same ordinary law and the same ordinary courts.
3. Predominance of legal spirit — the general principles of the constitution (rights and freedoms) are the result of judicial decisions, i.e., rights are enforced through courts.

Later thinkers widened the doctrine. The modern view (e.g., the International Commission of Jurists) treats rule of law as including not only formal legality but also protection of human rights, free elections, independent judiciary, and fair administrative procedure. Thus it has both a formal aspect (law must exist and be followed) and a substantive aspect (law must be just, reasonable and rights-respecting).

Implementation of the Doctrine in Nepalese Administrative Law

Nepal has adopted the rule of law as a constitutional ideal. Article 5 of the Constitution of Nepal declares that the sovereignty of Nepal is vested in the Nepalese people, and the Constitution is the fundamental law. Several mechanisms implement the doctrine in the administrative field:

1. Supremacy of the Constitution and legality of administration — Article 5(2) provides that any law inconsistent with the Constitution is void. Administrative authorities must act within the powers conferred by law; an act done without legal authority (ultra vires) is invalid. This is the core of the rule of law in administration.

2. Equality before law and equal protection of law — Article 18 guarantees equality before law and prohibits discrimination. Government officials are equally liable for their illegal acts; they cannot claim special immunity merely because they acted in an official capacity.

3. Judicial review of administrative action — The writ jurisdiction of the Supreme Court under Article 133 and of the High Courts under Article 144 allows courts to review administrative decisions for illegality, irrationality, procedural impropriety and abuse of power. Writs such as certiorari, mandamus, prohibition, quo warranto and habeas corpus are available against administrative bodies. This is the strongest institutional guarantee of the rule of law.

4. Right to constitutional remedy — Article 46 guarantees the right to constitutional remedy, and Article 47 guarantees the right to justice, ensuring that no person is denied justice. Administrative decisions affecting rights must be made through fair procedure.

5. Principles of natural justice — Administrative bodies must follow audi alteram partem (right to be heard) and nemo judex in causa sua (no one shall be judge in his own cause). These principles are enforced by courts and are also embodied in statutes such as the Administrative Proceedings (Regulation) Act, 2031 (1974).

6. Reasoned and lawful decision-making — Administrative authorities must give reasons for their decisions and must not act arbitrarily. The Administrative Proceedings (Regulation) Act requires decisions to be based on evidence and legal grounds.

7. Administrative tribunals and specialized review — Nepal has established tribunals such as the Revenue Tribunal, Labour Court and Administrative Court to hear disputes against administrative action. These provide accessible and expert review while remaining subject to the supervisory jurisdiction of the Supreme Court.

8. Right to information and transparency — The Right to Information Act, 2064 (2007) makes administrative bodies accountable and transparent, ensuring citizens can access information about administrative decisions. This supports the substantive aspect of the rule of law.

9. Ombudsman and anti-corruption bodies — The Office of the Ombudsman (now the National Human Rights Commission and the Commission for the Investigation of Abuse of Authority) investigates maladministration and corruption, providing non-judicial checks on administrative arbitrariness.

10. Compensation and accountability for administrative wrongs — Article 18 and other laws allow citizens to claim compensation for illegal administrative acts. Officials may be personally liable for acts done in bad faith or without jurisdiction.

Conclusion

The doctrine of rule of law requires that administration be conducted according to law, that officials be answerable before ordinary courts and tribunals, and that citizens' rights be protected through fair procedure and judicial review. In Nepal, the Constitution, writ jurisdiction, principles of natural justice, administrative tribunals, right to information and accountability bodies together implement this doctrine in administrative law. However, weak enforcement, political interference and delay in justice remain practical challenges to its full realisation.

Delegated Legislation

Meaning

Delegated legislation (also called subordinate, secondary, or executive legislation) means law made by an authority other than the legislature itself — such as the executive, a minister, a local body, or a statutory corporation — under powers conferred on it by the legislature through a parent Act (enabling Act).

The legislature lays down the broad policy and principles in the parent Act and delegates the power to make detailed rules to the executive. The rules so made have the force of law, but they must remain within the limits of the parent Act. In Nepal, Article 114 of the Constitution of Nepal, 2072 permits the legislature to delegate law-making power to the Government or other authority, subject to the conditions and limits prescribed by law.

Causes for the Growth of Delegated Legislation

1. Pressure on parliamentary time — Modern legislatures are overloaded with bills, debates, and other business. They have no time to work out the technical details of every law, so they delegate details to the executive.
2. Technicality of subject matter — Many laws deal with highly technical fields (taxation, banking, aviation, environment, labour safety). Legislators are not experts; civil servants and experts are better suited to frame detailed rules.
3. Need for flexibility — Social and economic conditions change rapidly. A rigid statute cannot be amended quickly, but rules can be amended by the executive as the situation demands.
4. Emergency situations — Wars, epidemics, floods, earthquakes, and economic crises require immediate action. The legislature cannot be summoned at once, so the executive must be empowered to act quickly.
5. Complexity of modern administration — The welfare state undertakes many functions (health, education, transport, social security). Each needs detailed regulation, which only the executive can supply.
6. Experimental nature of legislation — Where a new policy is tried on a trial basis, the legislature prefers to delegate power so that rules can be changed in the light of experience.
7. Unforeseen contingencies — The legislature cannot foresee every situation at the time of passing the Act. Delegation allows the executive to deal with unexpected problems.
8. Local adaptation — The same law must be applied differently in different regions. Local authorities are better placed to make rules suited to local conditions.
9. Technical convenience of drafting — It is easier and quicker to draft rules than to pass an amending Act through the full legislative process.

Judicial Control of Delegated Legislation

The courts exercise control over delegated legislation mainly through the power of judicial review. The grounds of control are:

1. Ultra vires the parent Act (substantive ultra vires) — The delegated legislation is invalid if it goes beyond the scope of the power conferred by the parent Act. It must not:

   • go beyond the limits of the enabling Act;
   • violate the policy or purpose of the parent Act;
   • encroach on fundamental rights;
   • conflict with the parent Act or with any general law;
   • impose a tax or fee without authority;
   • provide for retrospective operation where not authorised;
   • exclude the jurisdiction of the courts.

2. Procedural ultra vires — Where the parent Act prescribes a procedure for making rules (consultation, publication, laying before Parliament, prior approval), non-compliance makes the rules invalid. In Nepal, rules must generally be published in the Nepal Gazette and laid before Parliament.

3. Abuse or excess of discretion — If the executive acts mala fide (in bad faith), on irrelevant considerations, or arbitrarily, the court strikes down the rules.

4. Unreasonableness — Rules that are manifestly unreasonable, oppressive, or impossible to comply with are held invalid.

5. Sub-delegation — Where the parent Act delegates power to a particular authority, that authority cannot further delegate it to another unless the Act expressly permits (delegatus non potest delegare).

6. Writ jurisdiction — In Nepal, the Supreme Court and High Courts issue writs of certiorari, mandamus, prohibition, and quo warranto under Articles 133 and 144 of the Constitution to quash or restrain invalid delegated legislation. The Supreme Court has used this power in several cases to declare rules inconsistent with the parent Act or with fundamental rights.

Conclusion

Delegated legislation is a practical necessity of the modern welfare state, but it carries the risk of executive excess. It is therefore kept within bounds by parliamentary control (laying, scrutiny committees), procedural safeguards (consultation, publication), and above all by judicial review, which ensures that subordinate law remains truly subordinate to the will of the legislature and to the Constitution.

Separation of Powers, Check and Balance, and Their Implementation in Nepal

Meaning

Separation of powers is the doctrine that the three organs of state, the legislature, the executive and the judiciary, should be separate and exercise distinct functions, so that power is not concentrated in one hand. It was developed by Montesquieu in The Spirit of the Laws (1748), building on Locke, and shaped the US Constitution.

Check and balance means that each organ has powers over the others, so that none can act without restraint. Examples are legislative control over the executive, judicial review of legislation, and executive appointments that need legislative approval.

Purpose

• It prevents tyranny and abuse of power.
• It protects individual liberty and the rule of law.
• It promotes specialisation and accountability.

Forms in practice

• USA: rigid separation with strong checks, such as the presidential veto and judicial review.
• UK and parliamentary systems: functions are fused in part. The executive sits in the legislature, while the judiciary is independent.

Implementation in Nepal (Constitution of Nepal, 2072)

1. Three organs, three functions

• Legislature: the Federal Parliament (House of Representatives and National Assembly) makes laws (Article 83).
• Executive: executive power is vested in the Council of Ministers headed by the Prime Minister (Articles 75 and 76).
• Judiciary: judicial power is exercised by courts and other judicial bodies (Article 126), with an independent hierarchy headed by the Supreme Court.

2. Checks of the legislature on the executive

• The Council of Ministers is collectively responsible to the House of Representatives. A no-confidence motion may remove the Prime Minister (Article 100).
• Parliamentary committees scrutinise the government, and the budget and laws need Parliament's approval.
• Impeachment of the President, Vice President, judges and constitutional office-holders (Article 101).

3. Checks of the judiciary

• The Supreme Court exercises judicial review and may declare a law void for inconsistency with the Constitution, and it hears writs (Article 133).
• The Judicial Council (Article 153) handles appointment and discipline of judges, which protects judicial independence.
• Judges are removable only by impeachment-like procedure, with security of tenure and salary.

4. Checks of the executive

• The President acts on advice, and the executive proposes bills and implements law.
• The Constitutional Council (Article 284) recommends appointments to constitutional bodies, with parliamentary hearing, so no single organ controls them.

5. Federal checks Power is also divided between federal, provincial and local governments (Article 56), which adds a vertical check.

6. Practice The Supreme Court reinstated the dissolved House of Representatives in 2077 BS (February 2021) and again in 2078 BS (July 2021), when it also directed the appointment of a Prime Minister under Article 76(5). These show the judiciary checking the executive's use of power.

Conclusion

Nepal follows a parliamentary system with separation of powers tempered by checks and balances. Because the executive comes from the legislature, separation is not rigid, but independent courts, parliamentary control, constitutional bodies and federalism together keep power from concentrating in one organ.

Short Notes (Any Three)

a) Writs

A writ is a formal written order issued by a court — in Nepal, by the Supreme Court or a High Court — commanding a person or authority to do or refrain from doing a certain act. Writs are the principal means by which courts enforce fundamental rights and keep public authorities within the limits of law. The Constitution of Nepal, 2072, under Article 133 (Supreme Court) and Article 144 (High Court), empowers these courts to issue writs for the enforcement of fundamental rights and for other legal rights.

The five recognized writs are:

1. Habeas Corpus — "to have the body"; orders the production of a person unlawfully detained and releases him if the detention is illegal. It protects the right to personal liberty.
2. Mandamus — "we command"; directs a public authority or official to perform a legal duty that he has refused or failed to perform.
3. Certiorari — orders a lower court, tribunal or quasi-judicial body to transmit its record to the higher court so that an illegal or erroneous decision may be quashed.
4. Prohibition — issued to a lower court or tribunal to stop it from proceeding further in a case beyond its jurisdiction or in violation of natural justice.
5. Quo Warranto — "by what authority"; questions a person's claim to a public office, requiring him to show by what authority he holds it.

In Nepal, these writs are extraordinary remedies, discretionary in nature, and are available only when ordinary remedies are inadequate. They are the strongest guarantee of the rule of law and of the supremacy of the constitution.

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b) Ombudsman

The Ombudsman is an independent official institution established to protect citizens against maladministration, abuse of authority, corruption and injustice by public bodies. The office originated in Sweden in 1809 and has since spread to many countries. The word "Ombudsman" is Swedish and means "grievance representative" or "agent of justice."

The main features of the Ombudsman are:

1. Independence — the office holder is appointed for a fixed term and can be removed only on specified grounds, ensuring freedom from executive control.
2. Investigative power — he can investigate complaints against public officials on his own initiative or on a citizen's complaint.
3. Recommendatory or binding power — depending on the country, he may recommend action, or his findings may be binding.
4. Accessibility — any aggrieved citizen can approach him free of cost, without technical legal procedure.
5. Reporting — he submits annual reports to the legislature or head of state.

In Nepal, the institution closest to the classical Ombudsman is the Commission for the Investigation of Abuse of Authority (CIAA), which investigates abuse of authority and corruption. Other bodies performing ombudsman-like functions include the National Human Rights Commission and the National Women Commission.

The Ombudsman acts as a "watchdog" over the administration. It provides a cheap, quick and informal remedy against bureaucratic excesses and strengthens accountability, transparency and good governance. Its main limitation is that it usually cannot punish offenders directly but must rely on recommendations or on referring matters to competent authorities.

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c) Audi Alteram Partem

Audi alteram partem is a Latin maxim meaning "hear the other side" or "no one should be condemned unheard." It is one of the two fundamental principles of natural justice, the other being nemo judex in causa sua (no one shall be a judge in his own cause).

The rule requires that before any authority — judicial, quasi-judicial or administrative — takes a decision affecting a person's rights, interests or liabilities, that person must be given:

1. Notice of the case or charges against him;
2. Opportunity to present his case, including the right to be heard orally or in writing;
3. Right to know the evidence and materials relied upon;
4. Right to cross-examine witnesses, where oral evidence is taken;
5. Reasoned decision, so that the affected party knows why the decision went against him.

The principle applies not only to courts but also to administrative and quasi-judicial bodies, disciplinary authorities, tribunals and even to domestic enquiries. It does not, however, demand a full-fledged trial with all the technicalities of a court of law; it requires fairness, not formality. Exceptions exist in cases of urgency, public interest, confidential matters or where the statute expressly excludes a hearing.

Audi alteram partem is a cornerstone of fair procedure. It prevents arbitrary action, ensures that the decision-maker hears both sides before deciding, and is regarded as a basic human right reflected in the concept of due process. In Nepal, it is implied in Article 20 of the Constitution (right to justice) and is followed by courts and tribunals alike.

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d) Quasi-Judicial Body

A quasi-judicial body is an authority — other than a court of law — which has the power to investigate facts, apply legal rules to them, and pass an order or decision that affects the rights of parties. The prefix "quasi" means "as if" or "almost"; hence such a body performs functions that are partly administrative and partly judicial in nature.

Main features:

1. Statutory creation — it is created by a statute (e.g., a tribunal, a commission, a licensing authority).
2. Power to decide — it can hear parties, examine evidence and give a binding decision on the matter before it.
3. Not bound by strict court procedure — it follows the principles of natural justice rather than the Code of Civil Procedure or Evidence Act strictly.
4. Limited jurisdiction — it decides only matters entrusted to it by its parent statute.
5. Subject to judicial review — its decisions can be challenged in the Supreme Court or High Court through writs such as certiorari and prohibition.

Examples in Nepal include the Revenue Tribunal, Public Service Commission in disciplinary matters, Labour Court, CIAA in corruption cases, and various licensing and regulatory authorities.

The main advantages of quasi-judicial bodies are speed, cheapness, expert handling of technical matters and reduction of the burden on regular courts. Their main weakness is that they sometimes lack procedural safeguards and may become tools of the executive; hence judicial review is essential to keep them within legal bounds.

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e) Role of CIAA in Corruption Control

The Commission for the Investigation of Abuse of Authority (CIAA) is a constitutional anti-corruption body established under Article 238 of the Constitution of Nepal, 2072. It is a powerful, independent and quasi-judicial institution whose primary duty is to control corruption and abuse of authority in public service.

Its main roles are:

1. Investigation — it investigates allegations of corruption, bribery, misuse of public property, and abuse of authority by public officials, either on a complaint or on its own initiative.
2. Prosecution — it files cases in the Special Court against persons accused of corruption.
3. Preventive role — it conducts studies, issues directives to public bodies to improve transparency and accountability, and recommends reforms in administrative procedures.
4. Advisory and monitoring role — it monitors the conduct of public officials, examines government decisions, and advises the government on measures to prevent corruption.
5. Complaint handling — it receives complaints from citizens and takes action against corrupt officials, thereby providing a channel for public participation in anti-corruption efforts.
6. Awareness and deterrence — through its investigations and prosecutions, it creates a deterrent effect and promotes a culture of integrity in public administration.

The CIAA has played a significant role in exposing high-profile corruption cases and in pressuring public bodies to follow lawful procedures. However, it faces challenges such as political interference, resource constraints, delays in the judicial process, and criticism of selective prosecution. For effective corruption control, the CIAA must remain truly independent, well-resourced and impartial, and must work in coordination with the judiciary, the Office of the Attorney General, and civil society.

Critical Definition of Administrative Law

Administrative law is that branch of public law which deals with the organisation, powers, functions, duties and liabilities of administrative authorities, and which controls and regulates the exercise of governmental power so as to protect the rights of citizens.

Definitions by Jurists

• A.V. Dicey treated administrative law as the law relating to the powers and functions of administrative authorities, but in his classic Law of the Constitution he used the term in a narrow and somewhat hostile sense, associating it with the French droit administratif and contrasting it with the rule of law. He argued that England had no administrative law because officials were subject to ordinary courts. This view is now regarded as historically inaccurate, since England too developed a vast body of administrative law.

• Sir Ivor Jennings defined administrative law as "the law relating to administration. It determines the organisation, powers and duties of administrative authorities."

• Wade and Phillips define it as "the law relating to the control of governmental power," covering the whole range of authorities that exercise public functions.

• K.C. Davis gives a functional definition: administrative law is "the law concerning the powers and procedures of administrative agencies, including especially the law governing judicial review of administrative action."

• Griffith and Street define it as "the law relating to the administration; it is the law which governs the exercise of powers and duties by administrative authorities."

Critical Analysis

A critical reading of these definitions reveals several difficulties:

1. No single accepted definition. The term is defined differently by different jurists according to the legal system and period in which they wrote. Dicey's narrow view is rejected, yet even modern definitions vary in scope.

2. Subject matter is vast and expanding. Administrative law covers rule-making, adjudication, delegated legislation, administrative tribunals, public corporations, local bodies, and the welfare state's many agencies. No definition can exhaust it.

3. Distinction from constitutional law is blurred. Constitutional law deals with the structure of the state and the distribution of sovereign power; administrative law deals with the exercise of that power by the executive. Yet the two overlap, since both concern public authorities. As Holland observed, constitutional law describes the various organs of government at rest, while administrative law describes them in motion.

4. Distinction from private law is also blurred. The state increasingly performs commercial and welfare functions, so the line between public and private law is not always clear.

5. It is not confined to the executive. Administrative law also governs the powers of statutory bodies, tribunals, and even some judicial and quasi-judicial functions.

Thus, a critical definition must be broad, functional and dynamic: administrative law is the body of legal rules and principles that (a) creates and organises administrative authorities, (b) confers and limits their powers, (c) prescribes the procedure for their exercise, and (d) provides remedies against their abuse. It is not a static body of law but one that grows with the growth of the state's functions.

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Role of Administrative Law in Promoting Good Governance

Good governance means governance that is accountable, transparent, participatory, responsive, equitable, efficient, and rule-based. Administrative law is the principal legal instrument through which these values are realised in a modern welfare state. Its role may be discussed under the following heads:

1. Establishing the Rule of Law

Administrative law ensures that the executive acts according to law and not according to the whim of officials. The principle of legality (ultra vires) means that an administrative authority can do only what the law authorises it to do. This prevents arbitrary rule and is the foundation of good governance. In Nepal, Article 20 of the Constitution of Nepal, 2072 guarantees the right to justice and the right against arbitrary detention, while Article 27 guarantees the right to information — both essential to rule-based governance.

2. Controlling Abuse of Power

Administrative law provides checks against mala fide exercise of power, irrelevant considerations, improper purpose, and abuse of discretion. Grounds of judicial review — illegality, irrationality, procedural impropriety, and proportionality — enable courts to strike down arbitrary administrative action. This directly promotes accountability, a core element of good governance.

3. Ensuring Accountability and Transparency

Through mechanisms such as judicial review, administrative tribunals, ombudsman (Pratiyaksha Pradhikaran in Nepal), Commission for the Investigation of Abuse of Authority (CIAA), and right to information, administrative law makes officials answerable for their acts. The Good Governance (Management and Operation) Act, 2064 (2007) of Nepal is a landmark statute that codifies principles of good governance, including citizen-friendly administration, time-bound service delivery, and grievance-handling mechanisms.

4. Promoting Participation and Natural Justice

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) — ensure that citizens are heard before adverse administrative decisions are taken. Public participation in rule-making through consultation and notice-and-comment procedures makes governance participatory and responsive.

5. Ensuring Efficiency and Effectiveness

Administrative law rationalises the administrative machinery by defining jurisdiction, powers, and procedures. Delegated legislation allows flexibility and speed in law-making. Administrative tribunals provide speedy, specialised and inexpensive justice. These features make governance efficient and effective.

6. Protecting Rights and Ensuring Equity

Administrative law protects fundamental rights against executive encroachment. It provides remedies such as certiorari, mandamus, prohibition, quo warranto, and habeas corpus. In Nepal, Article 46 provides for the right to constitutional remedies, and the Supreme Court under Article 133 exercises extraordinary jurisdiction to enforce fundamental rights. This ensures equity and protection of the weaker sections.

7. Promoting Rule of Law and Reducing Corruption

By prescribing standards of conduct, disciplinary action, and anti-corruption mechanisms, administrative law helps curb corruption and nepotism. The CIAA and the National Vigilance Centre in Nepal are institutional expressions of this role.

8. Facilitating Decentralisation and Local Governance

Administrative law provides the legal framework for decentralisation, local self-governance, and devolution of power. The Local Government Operation Act, 2074 (2017) of Nepal is an example. This promotes participatory and equitable governance at the grassroots.

Conclusion

Administrative law is not merely a body of technical rules; it is the legal backbone of good governance. It organises the administration, limits its powers, prescribes fair procedures, and provides effective remedies. However, its role is realised only when institutions are independent, citizens are aware of their rights, and the political will exists to enforce the law. In Nepal, despite progressive legal frameworks, weak enforcement, political instability, and institutional corruption remain challenges. Strengthening administrative law and its institutions is therefore essential for translating the ideal of good governance into reality.

Rule of Law

The rule of law is the principle that every person and institution, including the government itself, is subject to the law. It means that no one is above the law, that laws are made and applied through established procedures, and that the rights of citizens are protected against arbitrary exercise of power. The concept was classically explained by A.V. Dicey in his work Introduction to the Study of the Law of the Constitution (1885), who gave three meanings:

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

Modern understanding adds that the rule of law also requires an independent judiciary, free and fair elections, accountability of the executive, transparency, and respect for human rights. In Nepal, the preamble of the Constitution of Nepal, 2072 (2015) expresses commitment to the rule of law, and Article 20 guarantees the right to justice and due process.

Separation of Power

Separation of power is the doctrine, associated with Montesquieu (The Spirit of Laws, 1748), that the three organs of government — legislature, executive and judiciary — should be kept in separate hands so that power does not concentrate and become tyrannical. Each organ performs its own function: the legislature makes law, the executive implements it, and the judiciary interprets and applies it. In Nepal:

• Legislature — The Federal Parliament (House of Representatives and National Assembly) makes laws, approves the budget and ratifies treaties (Articles 109–118).
• Executive — The President, Council of Ministers and the Prime Minister exercise executive power (Articles 75–78). The President acts on the recommendation of the Council of Ministers.
• Judiciary — The Supreme Court, High Courts and District Courts interpret the constitution and laws and settle disputes (Articles 126–128). Judicial independence is guaranteed by Articles 128–140, including security of tenure and salary.

Nepal follows a parliamentary system, so separation of power is not rigid. The executive (Council of Ministers) is drawn from and responsible to the legislature, which is a fusion rather than a strict separation. The Constitution therefore relies on checks and balances to prevent any organ from becoming supreme.

Check and Balance in Nepal

Check and balance means each organ limits the others so that no organ exercises unlimited power. The main mechanisms under the Constitution of Nepal, 2072 are:

Legislature over Executive

• The Council of Ministers is collectively responsible to the House of Representatives (Article 76).
• The House can pass a vote of no confidence against the Prime Minister (Article 76(4)).
• Parliamentary committees examine government activities and the budget must be approved by Parliament.

Executive over Legislature

• The President can summon and prorogue sessions and dissolve the House of Representatives on the recommendation of the Prime Minister (Article 76(7)).
• The President gives assent to bills; a bill returned once must be reconsidered (Article 113).
• The Prime Minister recommends the dissolution of the House in case of political deadlock.

Judiciary over Legislature and Executive

• The Supreme Court has the power of judicial review — it can declare any law inconsistent with the Constitution void (Article 133).
• It can issue writs — habeas corpus, mandamus, certiorari, prohibition and quo warranto — to protect fundamental rights (Article 133(2)).
• It settles constitutional disputes between federal and provincial governments and among organs.

Checks on the Judiciary

• Judges are appointed by the President on the recommendation of the Judicial Council (Article 129).
• Judges can be removed by Parliament through impeachment for incompetence, misbehaviour or inability (Article 166).
• The Judicial Council supervises judicial administration and can take disciplinary action.

Other Constitutional Bodies

• The Commission for the Investigation of Abuse of Authority (CIAA) checks corruption and abuse of authority by officials.
• The Office of the Auditor General audits government accounts.
• The National Human Rights Commission and Election Commission ensure accountability and free elections.

Conclusion

The rule of law and separation of power are complementary. The rule of law cannot survive without an independent judiciary and accountable government, and separation of power provides the institutional structure through which the rule of law is maintained. In Nepal, the Constitution of 2072 has distributed power among the legislature, executive and judiciary and created several constitutional bodies to check abuse. However, in practice, political instability, weak enforcement and frequent interference have weakened these safeguards. For the rule of law to be meaningful, the constitutional checks must be applied honestly and the judiciary must remain truly independent.

Supreme Legislation vs. Delegated Legislation

Supreme legislation is legislation enacted by the sovereign or the supreme law-making body of the state. It is the highest form of law, owes its authority to no other body, and cannot be repealed, amended or challenged by any other organ of government. In Nepal, the Constitution itself and laws made by the Federal Parliament in accordance with it are supreme; in Britain, an Act of Parliament is supreme legislation.

Delegated legislation (also called subordinate, executive or secondary legislation) is law made by an authority other than the legislature — the executive, a minister, a local body or any other person or body — to whom the legislature has delegated its law-making power. It derives its whole authority from the parent or enabling Act and is valid only so long as it stays within the limits of that Act. Rules, regulations, bye-laws, orders, notifications and ordinances issued under statutory authority are examples.

Points of distinction

In short, supreme legislation is original and sovereign; delegated legislation is derived and subordinate.

Control Mechanisms of Delegated Legislation

Because delegated legislation is made by the executive and not by the elected legislature, it needs control. Control is exercised in three ways: parliamentary (legislative), judicial and procedural/administrative.

1. Parliamentary (Legislative) Control

• Laying on the table: The parent Act usually requires the rules to be laid before Parliament before or soon after they are made. This gives members notice and an opportunity to object.
• Affirmative resolution: Some rules do not come into force unless Parliament passes a resolution approving them within a fixed period.
• Negative resolution: Rules come into force unless Parliament passes a resolution disapproving them within a specified period.
• Scrutiny committees: A committee of Parliament (in Nepal, the relevant thematic committee of the Federal Parliament; in Britain, the Joint Select Committee on Statutory Instruments) examines rules for ultra vires, drafting defects, unusual use of power and retrospective effect, and reports to the House.
• Annual reports and review: Government is required to report on the rules made, and Parliament may review, amend or repeal the parent Act itself, thereby ending the delegation.
• Direct repeal: Since delegated legislation owes its existence to the parent Act, Parliament may at any time repeal or amend the parent Act or pass a new law overriding the rules.

2. Judicial Control

• Doctrine of ultra vires: A court may declare a rule invalid if it goes beyond the power conferred by the parent Act — substantively (beyond the scope of the Act), procedurally (made without following the prescribed procedure such as consultation or publication) or by acting in bad faith or for an improper purpose.
• Violation of fundamental rights: In Nepal, delegated legislation inconsistent with Part 3 of the Constitution (Fundamental Rights) is void under Article 144.
• Unreasonableness and arbitrariness: Rules that are manifestly unreasonable, arbitrary or discriminatory may be struck down.
• Sub-delegation: Delegation of delegated power (delegatus non potest delegare) is generally not permitted unless the parent Act allows it; a court may invalidate rules made by an unauthorised sub-delegate.
• Remedies: Certiorari to quash a rule, mandamus to compel performance, prohibition to restrain enforcement, and declaratory relief are available.
• Limits of judicial control: Courts do not examine the merits or policy of the rules; they only test legality, competence and procedure.

3. Procedural and Administrative Control

• Consultation: The parent Act often requires consultation with affected interests, expert bodies or advisory committees before rules are framed.
• Publication: Rules must be published in the Nepal Gazette (or the official gazette) to be enforceable; secret or unpublished rules are invalid.
• Prior approval of the minister or cabinet: Many rules require approval by the concerned minister or the Council of Ministers.
• Drafting standards and scrutiny by the Ministry of Law: Rules are vetted for consistency with the parent Act and existing laws.
• Sunset and review clauses: Some statutes provide that delegated legislation lapses after a fixed period unless renewed.
• Delegation of limited and defined power: The parent Act itself limits the purpose, subject-matter, territory and time within which rules may be made.

Conclusion

Supreme legislation is the sovereign will of the state and stands above all other law, while delegated legislation is subordinate law made under authority conferred by the legislature. Since delegated legislation is necessary for detail, technicality and flexibility but carries the risk of executive excess, it is kept within bounds by parliamentary scrutiny, judicial review on grounds of ultra vires and fundamental rights, and procedural safeguards such as consultation and publication. Together these controls preserve both the convenience of delegation and the supremacy of the legislature.

Contribution of the Supreme Court of Nepal to Administrative Law

Introduction

Administrative law is the branch of public law that governs the organisation, powers and procedure of administrative authorities and the remedies available to citizens against their actions. Nepal has no single comprehensive administrative code, so much of this law has been shaped by the Supreme Court through its writ jurisdiction, its power of judicial review and its interpretation of the Constitution.

1. Constitutional basis of the Court's role

• Article 133 of the Constitution of Nepal (2072) gives the Supreme Court extraordinary jurisdiction to enforce fundamental and legal rights and to settle matters of public interest. It may declare a law void to the extent of its inconsistency with the Constitution and may issue the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.
• The Administrative Procedure (Regulation) Act, 2013 BS, the Good Governance (Management and Operation) Act, 2064 and sectoral statutes supply the rules that administrative bodies must follow. The Court enforces them and fills the gaps.

2. Enforcing legality and the doctrine of ultra vires

The Court has repeatedly held that an authority can act only within the power the law gives it. An order made without jurisdiction, or beyond the statute, is quashed by certiorari. Rules and regulations made under delegated power must also stay within the parent Act and the Constitution; those that exceed them are declared void.

3. Natural justice and fair procedure

The Court has read the rules of natural justice into administrative decision-making:

• audi alteram partem - a person must be heard before an adverse order, for example in disciplinary action, cancellation of a licence or removal from a post;
• nemo judex in causa sua - an authority must not be a judge in its own cause, so decisions tainted by bias are quashed.

Orders passed without notice, without hearing or without reasons have been set aside on these grounds.

4. Public interest litigation and locus standi

The traditional rule that only an injured person may sue was relaxed. In Surya Prasad Sharma Dhungel v. Godavari Marble Industries (2052 BS) the Court accepted a petition by a public-spirited citizen against an environmentally harmful project, and later PIL cases such as Mira Dhungana v. Ministry of Law and Justice (women's property rights) widened access. This allows citizens to challenge administrative inaction and abuse of power even without a personal injury.

5. Control of discretion

The Court holds that discretionary power must be used:

• within the limits of the statute and for the purpose for which it was given;
• in good faith, without mala fide intent;
• on relevant considerations, ignoring irrelevant ones;
• without arbitrariness or discrimination, and reasonably.

Decisions that are arbitrary, discriminatory or based on irrelevant grounds are quashed. Nepali courts use reasonableness and proportionality in this way, borrowing from common-law ideas while applying their own constitutional text.

6. Reasoned decisions, accountability and legitimate expectation

The Court has insisted that public authorities act transparently, give reasons for decisions that affect rights, and honour reasonable expectations created by their own assurances or settled practice.

7. Remedies through the writs

8. Supervision of tribunals and subordinate bodies

The Court supervises quasi-judicial bodies, tribunals and subordinate courts, so that they stay within jurisdiction and observe natural justice. Its decisions are binding precedents, which brings uniformity to administrative adjudication.

Conclusion

Through writ jurisdiction, relaxed locus standi, natural justice, control of discretion and judicial review of delegated legislation, the Supreme Court of Nepal has built much of the country's administrative law. It acts as guardian of the rule of law and protects citizens against arbitrary administrative action.

Short Notes

a. Need for Classification of Administrative Action

Administrative action is classified mainly into quasi-legislative (rule-making), quasi-judicial (adjudicatory), and purely administrative (executive) functions. Classification is necessary for the following reasons:

1. Determination of remedies — A person aggrieved by a quasi-judicial order may appeal or seek judicial review (certiorari), while a purely administrative act is generally challenged only on grounds of illegality, mala fides, or procedural impropriety. Without classification, the appropriate remedy cannot be identified.
2. Application of natural justice — The rules of natural justice (audi alteram partem, nemo judex in causa sua) apply strictly to quasi-judicial and, to a varying degree, administrative acts affecting rights. Classification decides when these safeguards are attracted.
3. Scope of judicial review — Courts review quasi-judicial and quasi-legislative acts on distinct grounds; the scope is narrower for purely administrative or policy decisions. Classification thus fixes the intensity of review.
4. Control over delegated legislation — Classification helps distinguish a statutory rule (subject to ultra vires and laying requirements) from an executive instruction (not law).
5. Fixation of liability and procedure — It determines whether reasons must be recorded, whether the doctrine of res judicata or estoppel applies, and whether the act is subject to writ jurisdiction under Article 133 of the Constitution of Nepal.

Since the three functions often overlap in modern administration, classification is not always watertight, but it remains essential for orderly legal control.

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b. Nemo Judex in Causa Sua

Nemo judex in causa sua (also nemo debet esse judex in propria causa) means "no one shall be a judge in his own cause." It is the second pillar of natural justice, the first being audi alteram partem. Its object is to ensure an impartial and unbiased adjudicator, since justice must not only be done but also appear to be done.

Grounds of disqualification:

1. Pecuniary interest — Even a remote financial interest disqualifies a judge. In Dimes v. Grand Junction Canal, a judge who held shares in the company was held disqualified although he was not biased in fact.
2. Personal or family interest — Relationship with a party, or personal hostility or friendship, disqualifies.
3. Official or policy bias — A person who has already formed a fixed opinion or is both prosecutor and judge cannot decide fairly.
4. Departmental bias — An officer of the same department that initiated proceedings may be disqualified.

Tests: The real likelihood of bias test and the reasonable suspicion of bias test are applied; the latter, being broader, is preferred in administrative law.

Exceptions: Statutory authorization, waiver by the party, necessity (where no other authority can act), and cases of mere official or policy bias may be permitted.

In Nepal, this principle is reflected in Articles 20 and 21 of the Constitution (right to fair trial) and in the Administrative Proceedings (Regulation) Act, 2031 B.S.

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c. Judicial Control over Administrative Discretion

Administrative discretion means the freedom given to an authority to choose among possible courses of action within the limits of law. Discretion is necessary for effective administration, but it must not be arbitrary. Judicial control ensures that discretion is exercised lawfully, reasonably, and in good faith.

Grounds of judicial control:

1. Excess or abuse of jurisdiction — Acting beyond statutory powers, misinterpreting the statute, or refusing to exercise conferred discretion.
2. Failure to observe prescribed procedure — Non-compliance with mandatory procedural requirements.
3. Violation of natural justice — Denial of fair hearing or biased adjudication.
4. Error of law — Misapplication of legal principles.
5. Abuse of discretion — Acting mala fide, for improper purpose, on irrelevant considerations, or ignoring relevant ones; acting without evidence or on no evidence.
6. Unreasonableness — Wednesbury unreasonableness: a decision so absurd that no reasonable authority could have reached it.
7. Proportionality — In rights-related matters, the measure must be proportionate to the aim.

Means of control: Writs of certiorari, mandamus, prohibition, quo warranto, and habeas corpus; statutory appeals; and ordinary suits. In Nepal, Article 133 of the Constitution empowers the Supreme Court and High Courts to issue these writs, and the Administrative Proceedings (Regulation) Act provides for review and appeal.

Judicial control does not mean substitution of the court's own judgment for that of the administrator; the court only checks legality, not the merits of policy.

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d. CIAA and Its Independence and Integrity

The Commission for the Investigation of Abuse of Authority (CIAA) is a constitutional anti-corruption body established under Article 238 of the Constitution of Nepal. It consists of the Chief Commissioner and four Commissioners appointed by the President on the recommendation of the Constitutional Council.

Functions and powers:

1. To inquire into and investigate allegations of abuse of authority by public officials, and to prosecute them before the Special Court.
2. To investigate corruption, bribery, and misuse of public property.
3. To give directives to prevent abuse of authority and to recommend departmental action.
4. To review and advise on laws and procedures relating to corruption control.

Independence:

• Appointment through the Constitutional Council, with a fixed term of six years.
• Removal only on grounds and by procedure similar to that of a Supreme Court judge, ensuring security of tenure.
• Financial autonomy; its expenses charged to the Consolidated Fund.
• No prior approval needed to investigate; it can act suo motu.

Integrity: The Constitution prescribes high qualifications (judge of Supreme Court, or holder of high office, or distinguished person of integrity with at least twenty years' experience in law, accounting, or public administration). Members must be persons of high moral character, and are subject to a code of conduct; they cannot hold any other office of profit.

Limitations: Lack of enforcement teeth, resource constraints, and political interference have at times affected its effectiveness. Still, the CIAA remains the principal constitutional watchdog against corruption in Nepal.

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e. Relationship between Constitutional and Administrative Law

Constitutional law and administrative law are closely related branches of public law; the former deals with the structure of the State and its organs, the latter with the organisation, powers, and duties of administrative authorities and their control.

Points of relationship:

1. Same source — public law — Both regulate the exercise of public power and the relationship between the citizen and the State.
2. Constitutional law as the source of administrative law — Administrative authorities derive their existence and powers from the Constitution and statutes made under it. In Nepal, Articles 133 (writ jurisdiction), 238 (CIAA), and 240–243 (Public Service Commission, etc.) are constitutional foundations of administrative law.
3. Constitutional law as a control on administration — Fundamental rights (Articles 16–46) and directive principles limit administrative action; administrative law provides the machinery to enforce these limits.
4. Administrative law as a supplement — It supplies the detailed rules of procedure, delegated legislation, and remedies that constitutional law only outlines.
5. Overlap in subject matter — Both deal with rule-making, adjudication, and control of governmental action; the distinction is one of degree rather than kind.

Distinction:

Conclusion: The two are interdependent. Constitutional law without administrative law is a skeleton; administrative law without constitutional law lacks legitimacy. As Prof. Dicey observed, administrative law is a part of constitutional law in the broad sense.

How a Legal System Becomes a Major Legal System

A legal system becomes a major legal system when it satisfies the following conditions:

1. Antiquity and continuity — It must have a long historical evolution and survive through generations without a break.
2. Wide geographical spread — It must be followed in many countries or regions, not confined to one state.
3. Distinctive sources and methodology — It must have its own characteristic sources (statutes, precedents, customs, religious texts) and a distinct method of reasoning.
4. Influence on other systems — It must have been received, transplanted, or borrowed by other legal systems through colonization, conquest, imitation, or voluntary adoption.
5. Organized legal institutions — It must possess developed courts, a legal profession, and a body of legal literature (codes, commentaries, treatises).
6. Capacity to regulate complex social relations — It must be able to govern modern commercial, constitutional, and social relations effectively.

When these elements combine, the system acquires recognition as a "parent" or "major" legal family, and other systems are measured against it.

The Major Legal Systems

1. Civil Law System (Romano-Germanic)

• Origin: Roman law, especially the Corpus Juris Civilis of Justinian (6th century), later developed in continental Europe.
• Sources: Codified statutes are the primary source; custom and general principles of law are secondary. Judicial precedent is not binding.
• Features: Comprehensive codes (e.g., French Civil Code 1804, German Civil Code 1896); deductive reasoning from general rules to particular cases; inquisitorial procedure; separate administrative courts.
• Countries: France, Germany, Italy, Spain, Japan, Nepal (largely), and most of Latin America.

2. Common Law System (Anglo-American)

• Origin: England, developed after the Norman Conquest (1066) through the King's courts.
• Sources: Judicial precedent (stare decisis) is the primary source; statutes supplement it; equity developed to correct the rigidity of common law.
• Features: Case-law method; inductive reasoning from particular cases to general rules; adversarial procedure; binding ratio decidendi.
• Countries: England, USA, Canada, Australia, India, and other Commonwealth countries.

3. Socialist Legal System

• Origin: Soviet Russia after the 1917 Revolution, based on Marxist-Leninist ideology.
• Sources: Statutes and party directives; law is treated as an instrument of state policy and economic planning.
• Features: State ownership of the means of production; law subordinated to political objectives; limited role of private rights.
• Countries: Former USSR, Cuba, China (in modified form).

4. Religious (Theocratic) Legal System

• Origin: Divine revelation and sacred texts.
• Sources: Religious scriptures, traditions, and interpretations by religious scholars.
• Features: Law and religion are inseparable; no distinction between sin and crime; interpretation by religious authorities.
• Examples: Islamic law (Sharia) in Saudi Arabia, Iran, Pakistan; Hindu law in ancient India; Canon law of the Catholic Church.

5. Customary / Mixed Legal Systems

• Customary: Based on long-standing customs and traditions of a community (e.g., tribal law in Africa, indigenous law).
• Mixed: Combines elements of two or more major systems (e.g., South Africa — civil law + common law; Scotland; Nepal — Hindu customary law + common law + civil law influences).

Conclusion

A legal system attains the status of a major legal system through historical depth, geographical reach, distinct sources and reasoning, and its capacity to influence other systems. The five principal families — civil law, common law, socialist, religious, and customary/mixed — together cover almost all legal systems of the world.

Nepal's legal system is a mixed or hybrid system, shaped mainly by three legal families — the Hindu (Dharmashastra) family, the Common Law family, and to a lesser extent the Civil Law family — while retaining its own indigenous elements.

Families of law that influenced the Nepalese legal system

1. Hindu (Dharmashastra) family — the oldest and deepest influence.

   • Sources such as the Manusmriti, Naradasmriti, Yajnavalkyasmriti and Kautilya's Arthashastra shaped early Nepali law.
   • The Muluki Ain of 1854 (Jung Bahadur Rana) was a codification of Hindu socio-legal norms — caste hierarchy, Hindu personal law on marriage, inheritance, adoption and succession.
   • Even today, Hindu norms survive in personal law, in the concept of dharma, and in the Hindu personal law applied to Hindus.

2. Common Law family — the dominant modern influence.

   • After 1950 (end of the Rana regime), Nepal borrowed heavily from the British–Indian common law tradition.
   • Features adopted: adversarial system of trial, doctrine of precedent (stare decisis), writ jurisdiction (habeas corpus, mandamus, certiorari, prohibition, quo warranto), rule of law, separation of powers, judicial review, jury-free adversarial procedure, evidence law modelled on the Indian Evidence Act, and contract, tort and property concepts.
   • The Supreme Court Act, 2013 BS and the Administration of Justice Act, 2013 BS reflect this influence.

3. Civil Law family — a secondary influence.

   • Nepal's tradition of codified law (Muluki Ain, Muluki Civil Code, Muluki Criminal Code) is closer to the civil law method of codification than to case-law development.
   • The influence of the French Civil Code and the German BGB is visible in the structure of the Muluki Civil Code, 2074 and in the emphasis on written statute over precedent.
   • The National Code (Muluki Ain) itself is a product of the codification tradition.

4. Other influences. Islamic and Buddhist norms had limited local application; modern international law and human rights instruments have also shaped post-1990 legislation.

Indigenous (native) features of the Nepalese legal system

1. Hindu Dharmashastra as the base. The Muluki Ain was not a copy of any foreign code; it was a compilation of indigenous Hindu customs and dharma.
2. Caste and ethnic plurality. The 1854 Muluki Ain graded society into Tagadhari, Namasinya Matawali, Pani Na Chalne Matawali and Achhut — a uniquely Nepali hierarchy.
3. Personal law by religion. Separate personal laws for Hindus, Muslims, Buddhists and others — a pluralistic feature.
4. Codified national code tradition. Nepal has a long history of a single national code (Muluki Ain) rather than a judge-made common law.
5. Panchayat-era legacy. The Partyless Panchayat system (1960–1990) introduced a distinctively Nepali model of guided democracy, with its own court structure and Zonal and Regional courts.
6. Land and tenancy law. Raikar, Birta, Guthi, Kipat and Jagir land systems are indigenous Nepali institutions.
7. Guthi system. Religious and social trusts (Guthi) with their own customary rules are unique to Nepal.
8. Village-level dispute resolution. Bhalmansa, Mukhiya, Jimidar and Badghar systems of customary arbitration are native institutions.
9. Muluki Ain's unitary character. A single code applied throughout the kingdom, unlike the diversity of personal laws in India.
10. Nepali legal language and terminology. Terms like Ain, Niyam, Bidhan, Adesh, Praman and Faisala are indigenous.
11. Constitutional monarchy and then republic. Nepal's constitutional evolution — 1948, 1959, 1962, 1990, 2007, 2015 — reflects a native political-legal path.
12. Blend of civil and common law. Nepal's mixed system — codified statutes plus precedent and adversarial trial — is itself an indigenous feature.

Conclusion. The Nepalese legal system is primarily a product of the Hindu Dharmashastra tradition, modernised and reshaped by the Common Law family after 1950, with Civil Law codification methods and distinctly indigenous institutions such as the Muluki Ain, Guthi, Kipat and customary village arbitration. It is therefore best described as a mixed or hybrid legal system with strong native roots.

Comparison of the Law of Rome, France, Germany and Japan

1. Roman Law

• Period and nature: Developed from the Twelve Tables (451 BC) through the classical period to the Corpus Juris Civilis of Justinian (AD 533–565). It was largely unwritten in origin, then codified, and built by jurists (Gaius, Papinian, Ulpian) rather than by legislation alone.
• Method: Highly analytical; distinguished jus civile, jus gentium, jus naturale; developed concepts like dominium, obligatio, contractus, and the actio system.
• Reception: Received in Europe from the 11th century (Bologna, glossators, commentators) as ratio scripta — "written reason."
• Role: The mother system; it supplied the vocabulary, structure and principles on which all later civil law systems rest.

2. French Law

• Period and nature: Pre-revolutionary France was split between pays de droit écrit (Roman law) and pays de coutume (customary law). The Revolution demanded unity, equality and certainty, producing the Code Civil (Code Napoléon) of 1804.
• Method: A short, clear, non-technical code (2,281 articles) drafted by practitioners; it deliberately left gaps for judges to fill through interpretation. It stressed private property, freedom of contract and the family.
• Influence: Carried by Napoleon's conquests and later by colonialism to Belgium, Netherlands, Italy, Spain, Latin America and Nepal (through the Muluki Ain tradition of codification).
• Distinct feature: A national code replacing local customs, with the Exégèse school of literal interpretation in the 19th century.

3. German Law

• Period and nature: Germany remained politically fragmented until 1871. Earlier it applied Roman law as usus modernus pandectarum. The BGB (Bürgerliches Gesetzbuch) of 1900 unified private law.
• Method: Highly systematic, abstract and scientific, the product of the Pandectist (Savigny, Windscheid) school. It uses a general part (Allgemeiner Teil), legal transactions, and a rigid conceptual structure — "lawyers' law" rather than a people's code.
• Distinct feature: Delayed codification, strong Romanist scholarship, and a preference for doctrine over judicial discretion.

4. Japanese Law

• Period and nature: Before 1868, Japan followed Chinese-influenced customary and Confucian law. After the Meiji Restoration it borrowed first from the French Code (Boissonade draft) and finally adopted the German BGB model in the Civil Code of 1896–98.
• Method: A reception of European law onto a non-Western society; the code was adapted to Japanese social institutions (family, ie system) and later modified after World War II under American influence in constitutional and family law.
• Distinct feature: Deliberate, selective transplantation rather than organic growth.

5. Points of Comparison

6. Why All Fall Within the Civil Law Family

Despite different phases, they share the essential marks of the civil law family:

1. Primacy of codification — each has a comprehensive, systematic code as the main source of private law.
2. Roman law heritage — all derive their concepts (obligation, ownership, possession, contract, delict) from Roman law, directly or through reception.
3. Separation of public and private law — with distinct civil, commercial and procedural codes, unlike the common law's unified approach.
4. Legislation as the primary source — precedent is persuasive, not binding; judges interpret rather than create law.
5. Deductive method — general principles are laid down and applied to facts, in contrast to the common law's inductive case-by-case method.
6. Doctrinal role of jurists — professors and commentators shape the law more than judges.
7. Inquisitorial procedure — the court takes an active role in fact-finding.

7. Opinion

In my opinion, these countries fall under the civil law family not because of identical content but because of a shared legal technique and intellectual tradition. Roman law gave the family its substance; France gave it the model of a national, revolutionary code; Germany gave it scientific systematisation; and Japan proved that the family is transferable to a non-European society. The differences are of phase and degree — Roman law was juristic and gradual, French law was political and unifying, German law was doctrinal and abstract, and Japanese law was imitative and adaptive — but the underlying method remains the same: codified, deductive, Roman-derived private law administered by an active judiciary. Hence, despite their different historical paths, all four are correctly placed within the civil law family.