1) Summarize the History of leagel system of Nepal.

1 Legal System

Law is a system of rules that are created and enforced through social or

governmental institution to regulate behavior of person. Where the legal

system is the legal framework in relation to law of the society. It is also

regarded as the subsystem of the social system which includes structure,

institution and process relating to law. It elaborates the rights and

responsibilities in a variety of way. The legal system indicates that a

system of law is something more than merely the sum total of all the

rules valid in a given country at any given time. In each legal system

traditions, beliefs, recognition, social ethos, milieu, climate, people’s

need and aspirations are considered as an essence of it without which

legal system will not stand and function.

2 Nepalese Legal System

The Nepalese legal system has its own peculiarity in this globalized

worlds founded in a long run of time from ancient time to present. The
origin, historical background, development, predominant characteristics,

mode of thought in legal matter, especially the distinctive institution, the

kind of source acknowledged and the way it handles them, its ideology,

and interaction with the religion and geography have shaped out to this

complex system. Prior to reception of foreign legal system, common law

and civil law in Nepal, the religious scripture had high position in

adjudication. Nepalese legal system historically resembles to civil law in

many respect, the great law giver in civil law were the academicians

from the universities in the form of codification, so in Nepal where

codes were produced in the form of religious codes.

Nepalese legal system after reception of foreign legal system became

more complicated as we have today. The present constitution of Nepal

has made effort to adopt some extent of socialist legal system. The

precedent has high position, judicial review on test of constitutionality of

legislation, independent, fair and effective judiciary, adversarial

investigative system, codes, categorization and respect on legal

profession are some features of Nepalese legal system.

3 History of Nepalese Legal System

The history of Nepalese legal system comprises the period from the

Gopal dynasty to present Federal Democratic Republic state, covering

about 3000 years long legal historical journey. As opined by historical

and anthropological school of jurisprudence with the evolution of

political society, legal system immediately evolves out to control the

human behavior, though they may be in the form of ethical or religious

values. Maine has suggested six stages of development of law; rulers

under the divine inspiration, customary law, law under the priest,

codification, legal fiction and legislation ([ CITATION Hen61 \l 1033 ]. We can

see the similar passage of legal development in context of Nepalese legal

system too. The legal system what we have today, it not the product

obtained from the vacuum or created within specific period of time

rather gradual evolution, diffusion, historical change, reception have

shaped our indigenous legal system into modern Nepalese legal system.

The historical evolution of Nepalese legal system is in continuing

process though it has passed a series of period of rulers. With change in

political regime, the legal system too gets changed either drastically or

to some extent as per the will of new political rulers and governing

system. In Nepal there is subsequent change in the ruling dynasty and

the governing system there have been changes in the legal system too.

The Gopal and Mahispal were the two consecutive dynasty who ruled in

Nepal as the first and second, have no historical evidences for legal

system. It does not mean that they had not legal system, but there is no

such evidences to establish their legal system. But there should be some

sort of controlling and ruling mechanism, though it might be primitive.

4 The other ruling periods were are the Kirat period, the Lichchhavi
period, the Malla period, the shah period .
5 The legal history of Nepal possesses the indigenous legal system and
jurisprudence. Nepalese legal system in the early phase was guided
by Hindu law only. Hindu Sastra, local custom and tradition,
occasional orders of the rulers were the sources of law in the past.
Nepalese legal system seems to have been evolved and developed
independently over a long period of time and has become the history
of nation.
6 Nepalese Legal System is developed over a long period of time
independently on the basis of religious scriptures like Vedas, Shrutis
and Smritis of Manu, Yagyavalkya, Narada and Bhrihaspati before
the reception of foreign laws. After the reception, Nepali Legal
System has gone through many difficulties and changes, which has
resulted the existing Nepali Legal System. Development: Nepali
Legal System developed independently on the basis of existing
 customs and Religious texts. Mundhum, Shrutis, Smritis and
Dharmashastras were the principal reference for Justice during the
development of Legal System from the period of Kirats to Shahs.
The history of the Nepalese legal system is discussed as below:
The Kirat Period

There is no unanimous opinion on the date and period of Kirat rulers in

Nepal, who defeated the Mahispal. The capital of Kirat period was in

Gokarna, they ruled for 1,118 years, the first king Yalamber came to rule

before 12 year the starting of Kaliyug ([CITATION Din10 \p 29 \l 1033 ]. According

to the great historian Baburam Acharya, the ancient period in Nepal

starts from 750 B.C., and from 307 B.S. the Lichchhavi period

starts[CITATION Rew37 \p 10 \l 1033 ]. From the different views of scholars, we

can conclude that the Kirat period extended from the end of Mahispal to

the beginning of Lichchhavi period in Nepal. This implies Kirat Period

is concerned with 4th century of Bikram Sambat to 7/8th centuries prior to

AD.

7 Legal System during the Kirat Period (before Lichchhavi period)

Nepal's legal historians and experts claim that except during the Kirat

period, which is placed some centuries before the beginning of the

Christian era, Nepalese history generally presents one type of legal

system: the classical Hindu system [ CITATION Bip19 \l 1033 ]. When we see

anthropologically, the legal system during these period was based upon

the contemporary social system; the agricultural mode of production

where the controlling and regulating mechanism was guided by God's

inspiration, customary practices and to some extent of codification too.

This can be grouped as the theological natural law was prevailing. In

such society, the duty of king is to protect and please the subject, if he

cannot he shall be punished by the god, for which king become abided

by moral, ethical and divine duties.

The inspiration of god in Kirat period was based upon the Mundhum, the

holly scripture for Kirat founded on the teaching of 'Angsimang' (lord)

Yehang continued by Angsimang Sodhungen Lepmuhang and

Angsimang Kangdenhang.1 The 'mundhum' was equivalent to 'Bedas' for

Kirat, the ultimate source for ruling and running the justice system too2.
1

2
Mundhum had two separate parts, first, thugsung: it is prior to written

culture and used to be oral (equivalent to shruti), and second, Pesab:

wriiten scripture3[CITATION Ima03 \p 19 \l 1033 ]. The latter was divided into four

sub parts; Shokshok, Yehang, Sapji, and Sap mundhum.

Teachings of Yehang4[ CITATION Cha67 \l 1033 ]:

The first lord in Kirat community is the 'angsimang Yehang' who taught

eight disciplines guidance of society with order, peace and security. The

'angsimangs' who are the lords, messengers of god, morally sound, ideal;

guides occasionally to human society in favor of god.

Incest and Kinship: The sexual relationship within the blood relation is

crime, the bone shall decay and suffers from the disease. As well no

sexual intercourse among the factitive relation too.

Carrying rituals: Over of profane: menstruation after over of period,

nascent mother- 3 days and 4 days for infants daughter and son

respectively. Death of family member- 3 and 4 days for male and female

respectively free from the jutho, for infant on the same day when priest

carries the possession.

3

4
Justice system: A 'tumyang' (chieftan) in each village, who used to

adjudicate the disputes. All human shall end off as the animals when

there is no justice. In absence of spiritualism, there cannot be justice, its

source is omnipresent light, the god. The god will be angry when justice

is distorted, and one dies earlier by falling of his life.

Civil Disputes: The civil disputes are to settle from the 'Tumyang' the

local senior mediators. The ‘tumyangs’ are to be selected from the

assembly of all the local people, who used to work as the representative

of the higher authority, the ‘hang’, the King. When tumyang distorts the

justice, he shall be punished by god in one side, while the god will bring

the justice to victim in another side. The person who is in injustice shall

have to wait for treat of god.

Crimes and punishment: Not to steal, quarrel, cunning, proud, greed,

and prostitute. No one should speak abusively and do any bad things.

the society was more homogenous, mechanical solidarity was there

under the inspiration of god, where custom plays very important role in

the justice system. So was in the context of legal system under Kirat

Period.
1. Lichhavi Period:
2. Lichchhavi’s who were coming from Baisali of India conqurerd

Kirats than rule in Kathmandu. This period is assumed as a golden

era that develops social, political and economical aspects. They ruled

on the basis of Hindu dharma and they follow the Veda and other.

History of that period can be found from the inscriptions on stones or

pillars and tamrapatra. The inscription of Narayansthan, Handigaun,

Kel Tole, Ganeshwore etc. makes the reference of the smritis of

Brihaspati smriti, Manu smriti, Yama smriti etc. The inscription of

Chagunarayan has the Dharma, Karma and Yasha. Administration of

justice was based on decentralization system. In Central level

administration there are different offices like Antarasan or

Paramasan, Dowarik or Pratihar and Adhikaran (Courts). Similarly

in Provincial level administration there are Drang, Tala, Bishaya etc.

And in Local level administration there are Panchali, Birtawala,

Chatbhat etc. Mainly there were five heinous crimes named murder,

adultery, theft, treason, and abetment etc. There was 4 kinds of

 punishment exist like baghdand, dhikdanda, arthadanda and

badhadanda. Sanad, customary law, dharmasastra are considered as

the sources of law.

3.
4. Lichhavi conquered Kirats and began to rule in the Kathmandu
valley. The judicial system of Lichhavi period was highly influenced
by Kirat period but Lichhavi had taken out in the modified vision.
There was the king on the top in Lichhavi period. The king was
directly responsible for the centrally ruled territories. The Shilalekh
(inscription on stones or pillars) and other historical materials are the
sources of Lichhavi history. King Supuspa was the first King but
Mandev, Amsuvarma, Jay Dev etc are the major figure of that
dynasty.
Though there was the provision of Panchkhat, the different historians
have different views regarding constitute of Panchakhat. According to
Rewati Raman Khanal, Panchakhat were theft, robbery, murder, treason,
and sexual relation with others wife (adultery - anuchit sambandha or
unethical relationship). The provision of fine in penal system was
derived from code of Manu and Yangyavalkya. There were four types of
punishments: Bagdanda (reprimand of words), Dhikdanda (public
reproach), Arthadanda (monetary fine) and Badhdanda (corporeal
punishment including death penalty). 5
The judicial administration was divided into three parts. They are as

follows;

A. Central level administration

5
1)   Antarasan or Paramasan

2)   Dowarik or Pratihar

3)   Adhikaran (Courts)

      i) Purbadhikaran (Eastern Tribunal)

      ii) Pashimadhikaran (Western Tribunal)

     iii) Mahadhikaran

     iv) Bhattadhikaran

      v) KutherAdhikaran

     vi) SulliAdhikaran

    vii) LigwalAdhikaran

   viii) MapchowkAdhikaran

B. Provincial level administration

     1)   Drang

     2)   Tala

     3)   Bishaya (District Administration)

     4)  Aathkulak

     5)  Sutradhar

C. Local level administration

       1)   Panchali (Village Administration)

       2)   Birtawala and Aryasangh

2) Chatbhat

II) Crimes and punishment system

In this period, Hindu dharma had played the great influence in criminal

law. Five heinous crimes (Panchaaparadh) include adultery, theft,

murder, treason and giving company to these crimes. The crimes can be

classified into following ways.

o Crime against king

o Crime against property

o Crime against public

o Crime against human

o Sexual offence

o Crimes against religion

Punishment was considered as harsh. If any person does crime then

hes/her family subject to punishment. Punishment can be done in

following degrees:

 Pratham Sahas (Low degree of punishment)

 Madhyama Sahas (Middle level of punishment)

 Uttam Sahas (High degree of punishment)

Punishment was done in accordance the caste based system. It

depends upon the gravity of crime. The norms and standards of Hindu

dharma follows when punishment was done. Mainly there were 4 types

of punishment system was prevail in that period:

 Baghdanda: Reprimand of oath

 Dhikdand: Public reproach

 Arthadanda: Monetary fine

 Badhadanda: Physical punishment including capital

punishment

Crimes against human considered as the heinous crimes. Hindu law

maker’s divided homicide into two parts named Intentional and

Accidental. These two homicides also divided into Unintentional and

Justifiable.

III) Sources of law:

A source of law was found custom, tradition, dharma sastra, sanad

and so on. Some of them are following given.

 Sanad: written order of King

 Dharmasastra: Veda, Manusmriti, Yagyabalkya smriti, Brihaspati

smriti, Yama smriti

 Customary law: Custom, tradition, usuage

 Rajagya: King’s order

The administration of justice was carried out according to the

procedure prescribed by the memoire treaties of Manu, Yama,

Brihaspati and Sukra. Therfore, the religious pundits had very

important role in the interpretation of these religious texts. When the

law of Dharmashastras was inadequate royal charters were issue as

Sanads.

IV) Impact of Lichchhavi period over current Nepalese legal system:

  Bagdanda: Children Act,2075 it was a kind of punishment.

 Monument Protection Act, 2014 and Guthi Act,2033 are the

continuation of Lichchhavi period.

 Oath taking provision

 Evidence Act,2031 sec 47

V) Negative aspect in Lichchhavi period

 No participation in rule that king only vital play in governing in

judiciary and administrative.

 Sati system, slavery, polygamy, child marriage were exist.

 Traditional, conservative

 Punishment system was not based on criminal jurisprudence

 Justice is based on caste system that it is not equal to all.

Administration of justice was based on decentralization

system. Panchali (Preliminary courts) was in village level

which settles the primary level of dispute. Kings’s bench

named Antarashan which herad the appeal of decision of

panchali. Dware was the representative of king in local level.

Dware settle minor cases and have the delegated power of

administrative and judicial power from the king. Pratihar who

link between the people and king. Kuther settles the cases

relating to land and it collects the tax like agricultural tax.

Lingwal settles the dispute relating to water supply supply

and irrigation. Solla has the jurisdiction relation to the five

heinous crimes(Panchakhata). Mapchok Considered as

family court related with the marriage and divorce. Five

heinous crimes (Panchaaparadh) include adultery, theft,

murder, treason and giving company to these crimes. There

are 4 types of punishment Baghdanda, Dhikdand,

Arthadanda, Badhadanda was exist. There was strict liability

system and considered as the primitive and traditional legal

system.
5. Malla Period:
The Mallas were originally the rulers from the Indian principalities.
Like Lichhavi, Shakya, Koliya and other dynasty, Malla also came into
Nepal for shelter from India. At first, they settled at western region of
Nepal. The laws and rules during the Malla dynasty were based on
Hindu scriptures and customs. Kings used to issue Sanads (Sanads were
royal charters delegating judicial and administrative powers to local
bodies and officials). Malla kings were orthodox Hindu. They were so
religious that one of the Malla Kings of Jumla, Prithvi Pal Malla liked to
call himself as ‘Dharmapal’ (Dharma Keeper).
The differences in Malla reign than Lichhavi is Malla kings themselves
developed some rules based on Vedas, Smritis, Dharmasastras and other
religious scriptures of Hindu. Manu smriti, yagyavalkya smriti and
Brihaspati smritis were in practice during Lichhavi period. However, the
Narada smriti had been the foremost source of law in Malla period. As
per some historians, ‘Manab Nyaya Sastra’ of Jayasthiti Malla was a
simple version of Narad smriti6 and was made with the help of experts
on the basis of Hindu scriptures in 1437 BS. ‘Manab Nyaya Sastra’ was
divided into 17 parts, including rules of marriage, partition of property,
cast system , birth and other ceremonies (for eg: Pasni, Chudakarma,
Bratbandh etc), Karani (intercourse), occupation, land management,
administration of justice etc.
The 'Medieval Period' is believed to have started in the history of Nepal
after the Nepal Sambat began in 936 BS. The period from 936 BS to
1825 BS (unification of Nepal) and the period after the end of the
. Legal System During Malla Period
6
The Malla Period is a glorious era in the history of Nepal. Mallas
developed trade and commerce, industry, religion, culture and legal
system. They reached a high level of perfection in the fields of art and
architecture. A feudal administrative structure was imposed, dominated
by an aristocratic elite whose powers at times overshadowed those of the
sovereign. Below them, Brahmins and Chhetris monopolized all offices
of profit around the palace. Next on, the social ladder were the traders
and farmers, divided into 64 strictly enforced occupational castes. 7 A
detail legal system during Malla period elaborated in the following sub
topic;
2.2.1 Contribution of Malla Kings in Legal System
Malla period is important for the development of art, trade, culture, law
and many other aspects. Below are some of the contributions made by
some Malla kings,
Jitamitra Malla: He established rules related to agriculture such as
mutual help in sowing crops, building irrigation channel, irrigating turn
wise. Violation of such rules would amount to fine. 8
Ranajit Malla: He Prioritized religious endowments
called guthi arranged for long-term support of traditional forms of
worship or ritual by allowing temple or vihara lands to pass down
through generations of the same families.9
Siddhi Narsingha Malla: Thithi for dispute settlement.10

10
Sri Niwas Malla: He penalized non-compliance of citizen duties when
state requires so, such as to build up fort, to build and repair bridges, to
fight for state, to pay tax etc. 11
Mahindra Malla: Commenced silver Coin named Mahindra Malli. He
prohibited gambling, and practiced dispensing of justice at local level by
the local authority called Thakali. 12
Pratap Malla: His contribution is remarkable on foreign relation, trade
and treaty.13 This opened the door for influence of other legal systems
open ours.
Jayasthiti Malla: He was one of the most famous Malla kings. He has
made grade contribution in social, economic and legal reforms. He
formed a committee to codify Nyayabikasini (Manav Nayasastra)
constituted by Kritinath Upadhyaya, Rajhunath Jha, Srinath Bhatta,
Ramnath Jha and Jaitu Verma. It is the landmark document for
reformation social and judicial function. 14 It consisted four types of
laws; Griha Nirnaya, Chetra Nirnaya, Jat Nirnaya and Manav
Nyayasastra.15
Nyayabikasini consists twenty-one chapters. For the convenience the
chapters are classified as follows;16
Civil Criminal Miscellaneous
On Bona Vacantia On On Document and
Punishment Scrutiny

11

12

13

14

15

16
 On Wage On Gravity On Guarantee
of offense
On Renumeration On Theft On Court Proceeding
On land On Rights duties and
Kidnapping Function of Kings
On Possession On On death rituals
Gambling
On Construction of On
building Marriage
On husband and wife On Rape
On Partition
On women’s share and
property
On Inheritance
On debt
On General Transaction
On Donation and Gift
On Trade and Commerce
On Compensation

2.2.2 Sources of Law

Hindu theologies and Manab Nyayasastra were the main sources of law.
Likewise, Narad smriti had special influence on legal and social system.
Hindu customs and traditions were the guiding components of the entire
social system. Similarly, Royal edicts (Rajagya) and Sanads
promulgated by the kings were important sources of law. Hence the
major sources of law during Malla period can be stipulated as follows;
17
-
 Religious scriptures: Hindu theologies and Manab Nyayasastra
were main source of law.
 Narad smriti had special influence.
 Hindu customs and traditions.
 Royal edicts (Rajagya)
 Sanad promulgated by the king.
Mall made a remarkable contribution in Nepalese legal system.
Their legal system was based on Hindu philosophy. Various Malla
kings made different reforms in multiple aspect of legal systems
such as; court system, thitis, judicial officials, decentralized
judicial services etc. However, contribution of Jayasthiti Malla
outshined all others. The first codified law (Manabnyayasastra)
was promulgated by him. It is even claimed to be the first codified
law of south Asia. A details legal system is laid down in it based
on caste system.

Very distinct court system are found in Malla period such as;
Kotilinga, Itachapali, and Dhansar and Takshar. Likewise, précised
judicial designation were assigned judicial authority at different
levels, where king was the apex judicial authority. Some of the
crimes were lucidly stipulated and offence were assigned
accordingly as per their gravity. Punishment was mainly guided by
retributive theory. Physical, Monetary, Verbal, caste degradation
were the major forms of punishment. Though Malla’s legal system

17
 has been criticized as been primitive, unscientific, superstitious,
guided by religion and caste system, but we cannot belittle
significance of its relative contribution adduced to contextuality of
the society.

Shah period:
In the history of Nepal, after Malla period, Nepal was ruled by royal
dynasty, Shah King. Though various genealogies have described the
ancient history of royal dynasty in different ways, the Gorkha royal
dynasty is believed as the genesis of the Sisaidiya Rajputs of Chitaur,
India18. It is stated in history that in the very beginning, Shah were Khan
from Chitaur, India. Kulmandan Khan got the first title 'Shah' by the
emperor of Delhi as he had nexus to the emperior of Delhi and later his
offspring continued the same title. It is also stated that When Malla King
were ruling in Kathmandu Valley (during 16 th Century), Baise/Chaubise
Rajya in Western Nepal like Bhirkot, Nuwakot, Dhor, Garo, Satahu,
Kaski, Lamjung, Gorkha etc. were ruled by Shah King. 19 According to
Bishal Khanal (quoted in footnote), Yashobrahma Shah was the King of
Lamjung and he had two sons named Narahari Shah and Drabya Shah.
After the demise of Yashobrahma Shah his elderly son, Narahari Shah
became the King of Lamjung as a successor. Later his younger son,
Drabya Shah, conquered Ligligkot (the place which was ruling by
Ghale/Gurung), in a race competition and then won Gorkha state by

18

19
defeating Khadka King in a war and became the founding King of
Gorkha state on 25th Bhadra, 1616 B.S ultimately. He had named Gorkha
after the name of Gorakhnath.20
Introduction of His Majesty King Ram Shah (1643-1690)21

In Nepal’s modern history, the national unification is that watershed

which marks the
beginning of a conscious journey towards the amalgamation of diverse
social, cultural and
geographical factors to create a unified nation. Before unification, Nepal
was divided into several
principalities and petty kingdoms. King Prithivi Narayan Shah of
Gorkha laid the foundation of
unified modern Nepal in 1825 BS. Before the unification of Nepal, the
common feature among
the principalities was the recognition of law based on the
Dharmashasthra viz Veda smirities,
puranas, commentaries, usage custom, sanads were issued. Where
Dharmashasthras customs
usage were silent in particular needful situation. King Prithivi Narayan
Shah assigned the
responsibility of justice to Dharmaadhikari, Dittha and Bichari mainly.
King was the foundation
of law and justice. He established both the trial and appellate courts in
all provincial and district

20

21
level courts. Pundits of Brahmin caste were appointed as representatives
of Dharmadhikari, who
were responsible for the application of law and religion in all cases.
Principles of equality were

ignored; the caste system was prevalent, and criminals were treated in
accordance with their
caste status. The king and his descendants ruled the country with the
help of the royal edicts
(Panjapatra), customs, conventions, and moral law, local custom, and
religious instruments. The
laws before the codification (country code) were based on Hindu
religious texts and practice, and
disputes were settled by the village chieftains, pundits, and local land
lords. His great
contribution is Dibyopadesh delivered covering different sector. The
Legal system of this period
was primarily based on Dharmashastra. Dharma, the science of law,
justice and rational
principles is not synonymous with Religion.
There is no compiled law in Nepal before 1910 B.S till the reign of King

Surendra Bir Bikram Shah . The order or directives or sanad sawal

( executive orders) were issued by the rulers and were deemed to be

law. The Muluki Ain was prepared with the help of religious priests and
learned persons of Sanskrit and was enforced. Although, a new codified

law was promulgated, it was not a secular law rather it was a religious

law. It was prepared being based on religious customs, social traditions

and other customary traditions which prevailed at that time. Hinduism

was deliberately chosen as the basis of the society that reinforced

traditional societal system based on caste hierarchy and male

dominance. The Muluki Ain ,1910 continued till 1963 so, Nepalese legal

system is completely shaped according to the Hindu religion. The

Muluki Ain of 1910 B.S. was also based on Dharmashastra.

In Nepal’s modern history, the national unification is that watershed

which marks the beginning of a conscious journey towards the
amalgamation of diverse social, cultural and geographical factors to
create a unified nation. Before unification, Nepal was divided into
several principalities and petty kingdoms. King Prithivi Narayan Shah of
Gorkha laid the foundation of unified modern Nepal in 1825 BS. Before
the unification of Nepal, the common feature among the principalities
was the recognition of law based on the Dharmashasthra viz Veda
smirities, puranas, commentaries, usage custom, sanads were issued.
Where Dharmashasthras customs usage were silent in particular needful
situation. King Prithivi Narayan Shah assigned the responsibility of
justice to Dharmaadhikari, Dittha and Bichari mainly. King was the
foundation of law and justice. He established both the trial and appellate
courts in all provincial and district level courts. Pundits of Brahmin caste
were appointed as representatives of Dharmadhikari, who were
responsible for the application of law and religion in all cases. Principles
of equality were ignored; the caste system was prevalent, and criminals
were treated in accordance with their caste status. The king and his
descendants ruled the country with the help of the royal edicts
(Panjapatra), customs, conventions, and moral law, local custom, and
religious instruments. The laws before the codification (country code)
were based on Hindu religious texts and practice, and disputes were
settled by the village chieftains, pundits, and local land lords. His great
contribution is Dibyopadesh delivered covering different sector. The
Legal system of this period was primarily based on Dharmashastra.
Dharma, the science of law, justice and rational principles is not
synonymous with Religion.

King Prithivi Narayan Shah the Great, (1742-1775) spent most of this
time for the unification of Nepal. Yet he could devote some of his
thoughts towards law and justice as well.

Unification of Nepal by King Prithivi Narayan Shah also helped in the

systemization of judicial administration. In every district, a Kachari
(court) was set up manned by Dittha, Bichari, and Pandit. They decided
cases in cooperation with Amali, the administrator in the district.
Dharmadhakari was the highest judicial functionary who either gave his
final decision or submitted usually major and important cases, before the
King for the final decision. The chief Dharmadhikari sat in the King
Court at the center. King Prithivi Narayan, not only unified the country
but also made legal and judicial reforms in the country. He abolished
almost all earlier courts. He established many courts in most of the
district. Besides, he established new courts at the capital. Though,
Kotlinga and Itachapli courts were continued. His system was more or
less followed until the Ranas. The laws and institutions left by King
Prithivi Narayan Shah were by and large maintained by his royal
decedents with necessary amendments and modifications till Jung
Bahadur seized power and became Prime Minister after a bloody
massacre in 1846 during the reign of King Surendrea Bikram Shah. The
Kind had to delegate all his powers to the Prime Minister Jung Bahadur
who became supreme in all spheres, i.e. executive legislative judicial
and so like. He brought significant changes in the court organization in
Nepal. He composed many court of more or less quasi-judicial nature.
Normally military officials were deputed as chief of the courts. Besides,
he formed Kausala (Law Commission) and later on, it was converted
into a central court. Similarly, he made a unified code on civil and
criminal procedure. The court came into effect from 22 December 1854.

 
III.         Dissemination of the Muluki Ain

In 1883, the Muluki Ain (Country Code) was promulgated which

amended and codified all laws of Nepal- civil and criminal including
religious and customary. It also abolished the much-abused method of
trial by ordeal which was in vogue in those days and about which Brain
H. Hodgson has given a graphic account in his works.

The Muluki Ain was originally accompanied by three special enactments

one relating to the throne known as the GADIKO AIN, another relating
to the affairs of the state known as the RAJAKO AIN ( the law of the
King) and the third one relating to the affairs of the armed forced known
as the JANGI AIN.

The preamble to the Muluki Ain throws light on the conditions of those
times particularly in respect of the administration of criminal justice and
thereby shows the necessity of the legislation. There was no uniformity
in the disposal of cases similar cases being decided differently at
different times. Therefore, it became expedient to promulgate a code so
that all persons of whatever rank could be punished uniformly according
to their crime and none should be awarded a lesser or a higher penalty
than that ordained by law. Brahmins, and women were, however,
exempted under the MULUKI AIN, from capital punishment in lieu of
which they had to undergo Damal i.e., life imprisonment with
confiscation and some other legal consequences when convicted of
capital crimes.

So far as criminal law is concerned, India also in 1860, seven years after
the promulgation of MULUKI AIN. In Nepal a Penal Code under the
British Government which did not attempt to codify the then existing
criminal law of the land but on the other hand defined crimes and
prescribed punishments for all sections of the people irrespective of race,
caste, sex or creed.

In the absence of authentic documents it is difficult to say what

prompted or inspired Prime Minister JUNG BAHADUR to produce
voluminous Muluki Ain so swiftly and within seven years of his coming
to power whether, on his return journey from England, his tour of France
where he might have been appraised of the Napoleon Code or his close
association with the British Government which was actively considering
enactment of a penal code for British India, or his absolute authority 
under a legal framework. Perhaps, it would be nearer truth to summaries
that the third factor, i.e. his self-interest dictated Prime Minister JUNG
BAHADUR to take this course. It may be worthwhile to note that the
King while affixing his Lalmohar ( red seal of assent ) on his epoch-
making Muluki Ain commands his subjects and commits himself too
follow the Muluki Ain.

 
IV. Later Developments:

THE MULUKI AIN, 2020 is main pillar of the Nepalese Legal system
during the Rana regime more than a century. This is based on the
supremacy of the prime minister’s powers and principles of punishment
are according to caste. Though, necessary amendments and
modifications were happen during the rana regime.

Some of the improvements brought about by the succeeding Rana Prime

Minister got the bulky and detailed Muluki Ain redrafted in a hand and
abridged from for promulgation in 1886. During Prime Minister
Chandra Shamsher’s rule the practice of “SATI” (burring alive the wife
on pyre with the dead husband) and the practice of slavery were made in
the Muluki Ain was initiated on a five-year trial basis in 1931 by Prime
Minister Bhim Shamser and after a trial of total fifteen years the
abolition was finally confirmed by duly amending the Muluki Ain in
1946 during the reign of Prime Minister Padma Shamsher.

The judicial reforms made by the Prime Minister Juddha Shamsher in

1940 separated the judiciary from the executive branch of the
Government except at the higher level. Pradhan Nyayala became the
highest court of the land but not the final court since its decisions could
be revised by the Prime Minister constituting himself as the court of last
resort under established procedures. Any case, decided by the Prime
Minister, would be the end of litigation and the case could not be
reopened. Thus, finality of the judgment was ensured.
Padma Sahamsher, who became Prime Minister in 1945, initiated some
constitutional reforms including a Constitution viz. “Nepal Sarakar
Baidhanik Kanoon 2004”, which he could not enforce. The year 1951
makes the end of Rana regime and the beginning of a democratic era
under the supreme leadership of Shah Kings.

 
V.    After the Period of 1951:

So far as the development of the Nepalese legal system after 1951 is

concerned, late King Tribhuvan Bir Bikram Shah Deva and late King
Mahendra Bir Bikram Shah Deva both gave noteworthy contributions.
King Tribhuvan enacted laws to make the judiciary independent and the
Pradhan Nayalaya as the highest and the final court of the land, but has
ever since revised himself decisions of the highest court of land but has
only commanded the highest court to revise own decisions according to
law as and when necessary under established procedures.

 It was, however, during King Mahendra’s rule that extensive legal and
judicial reforms were carried out. He was the first monarch of Nepal to
give a constitution to his people as the fundamental law of the nation.
All laws would invalid that consistent with the provisions of the
constitution. Hence, the previous Muluki Ain was replaced by preparing
a new Muluki Ain based on the principle of equality before law and
doing away with cast and other religious consideration. There was spate
of legislation including the acts relating to the Supreme Court and the
subordinate courts. King Mahendra publicly declared that there must be
complete rule of law in Nepal. The legal profession, which had begun to
develop in Nepal in only 1951, received its first statute i.e. the Legal
Practitioners Act, in 1968. Simultaneously, various law-marking bodies
and law administering agencies were created at different levels with
necessary powers under the Constitution and the laws. The list includes
the then Rastriya Panchayat as the Central legislature, the Mantri
Parishad as the central executive and Sarbocha Adlat as the Supreme
Court.

All this has helped the Nepalese Legal System to expand further and
adopt more modern legal concepts to meet the needs of the changing
Nepalese society without losing its identity. It would be no exaggeration
to say that this has been possible mainly because of the Muluki Ain,
which has served not only as a Common Criminal Code but also as a
Common Civil Code equally applicable to Hindus, Mohammedans and
others in personal law matters such as marriage, adoption, inheritance,
succession, etc. This has brought homogeneity in the legal system.

But certain trends in legislation are disquieting from the juristic point of
view. Recent amendment in the Muluki Ain to introduce capital
punishment for certain crimes may be cited as an example. What was
accomplished fifty-years ago even in an autocratic regime was thrown
away with one stroke of pen in the present democratic set-up without
seeking public opinion on the bill of such a far reaching consequence
and without placing before the public in general convincing statistic of
growing crime rate. On the other hand, latest trend in countries with
capital punishment is to abolish it from their legal system as far as
possible.

 
VI. After the period of 1990

After 1990, the multi-party democracy in Nepal was restored and some
major changes were introduced in the arena of Nepalese Legal system.
The mode of legal system started to change through the constitutional
reforms. The basic structure as designed by the 1990 Constitution is as
follows:-

Constitutional monarchy
Multi-party democracy

Rule of law

Protection of human rights

Independent and competent Judiciary

In order to achieve the above objectives, all the Nepalese laws, made
under the Constitution, also started to mend in accordance with the tune
of the constitutional norms. Many discriminatory laws were amended as
per the declaratory order of the Supreme Court. In this respect, many
discriminatory provisions remaining in different chapters of the Muluki
Ain, 2020 were also amended with equal legal provisions to men and
women. For example, before the amendments, women would be
provided only a less right in comparison to that of men in women’s
property right provisions, discriminatory punishment provisions, etc.

 
Modern Trend (Nepalese Legal System in Transition)

Many other changes are brought scene in recent time. Nepalese

Parliament has just declared Nepal to be a secular state. Most of the
constitutional powers of the King are also suspended and curtailed by
the declarations of the Parliament. The demands of Constitutional
Assembly and Republican type of Government system have become the
current hot issue of debate in these days.

 
Constitution

In Nepal, the present Constitution is “The Interim Constitution of

Nepal”, which came into force on January 15, 2007. It is an “Interim”
Constitution as it is intended to exist only until a new Constitution has
been made by the people of Nepal through the Constituent.

Read the Interim Constitution of Nepal, 2007, here.

Read the old Constitutions of Nepal, here.

Executive

Nepal is a multi-party republic. The President (as the head of state)

performs his/her duties in accordance with Part (4a) Article 36(A)
through 36 (k) of the Constitution and laws in force. The position of
Prime Minister (head of government) is held by Dr. Baburam Bhattarai.
The day to day functioning of the government is done by the Prime
Minister appointed by the Parliament.

According to Article 37 of the Interim Constitution the executive power

of Nepal shall, pursuant to this Constitution and other laws, be vested in
the Council of Ministers. The Council of Ministers also performs the
responsibility of issuing general directives, controlling and regulating
the administration of Nepal subject to the Constitution and other laws.

Legislature

There is a unicameral Parliament in Nepal, which consists of 330

members. The Parliament performs its responsibilities through three
main committees- (a) Thematic Committee, (b) Procedural Committee
and (c) Constitutional Committee. The thematic committees are Preserve
National Interest Committee, Form of Legislative Body Committee,
Cultural Social Commitments Committee, Natural Reso. Fina. Right &
Pub Rev. Committee, Struct Constitutional Bodies Committee, Judicial
System Committee, Restruct State & Dist. State Power, Protection Fund.
Rights Minority Marginalized Communities, Fundamental Rights &
Directive Principles, etc. There are committees like Committee on
Citizens, Public Opinion Collection & Coordination Committee,
Capacity Building & Source Management in the Procedural Committee.

Read details on the Parliament, here.

Law Making Process in Nepal

As of now Nepal has got seven constitutions in her constitutional

history. The constitutional history

of Constitutional Bodies in Nepal can be highlighted as below:

 Nepal Government Legitimate Law, 2004

No provision of constitutional bodies.

 Nepal’s Interim Governance Legislation, 2007

Provision of public service commission to recruit and select candidate

for bureaucratic service.

 Constitution of the Kingdom of Nepal, 2015

Provision of Public Service Commission

((Constituency Determination and Election Commissions and Auditor

General. Not exclusively

recognized as the constitutional body)

 Constitution of Nepal, 2019
 1) Summarize the History of leagel system of Nepal.

1 Legal System

Law is a system of rules that are created and enforced through social or governmental institution

to regulate behavior of person. Where the legal system is the legal framework in relation to law

of the society. It is also regarded as the subsystem of the social system which includes structure,

institution and process relating to law. It elaborates the rights and responsibilities in a variety of

way. The legal system indicates that a system of law is something more than merely the sum

total of all the rules valid in a given country at any given time. In each legal system traditions,

beliefs, recognition, social ethos, milieu, climate, people’s need and aspirations are considered as

an essence of it without which legal system will not stand and function.

2 Nepalese Legal System

The Nepalese legal system has its own peculiarity in this globalized worlds founded in a long run

of time from ancient time to present. The origin, historical background, development,

predominant characteristics, mode of thought in legal matter, especially the distinctive

institution, the kind of source acknowledged and the way it handles them, its ideology, and

interaction with the religion and geography have shaped out to this complex system. Prior to

reception of foreign legal system, common law and civil law in Nepal, the religious scripture had

high position in adjudication. Nepalese legal system historically resembles to civil law in many

respect, the great law giver in civil law were the academicians from the universities in the form

of codification, so in Nepal where codes were produced in the form of religious codes.

Nepalese legal system after reception of foreign legal system became more complicated as we
 1) Summarize the History of leagel system of Nepal.

1 Legal System

Law is a system of rules that are created and enforced through social or governmental institution

to regulate behavior of person. Where the legal system is the legal framework in relation to law

of the society. It is also regarded as the subsystem of the social system which includes structure,

institution and process relating to law. It elaborates the rights and responsibilities in a variety of

way. The legal system indicates that a system of law is something more than merely the sum

total of all the rules valid in a given country at any given time. In each legal system traditions,

beliefs, recognition, social ethos, milieu, climate, people’s need and aspirations are considered as

an essence of it without which legal system will not stand and function.

2 Nepalese Legal System

The Nepalese legal system has its own peculiarity in this globalized worlds founded in a long run

of time from ancient time to present. The origin, historical background, development,

predominant characteristics, mode of thought in legal matter, especially the distinctive

institution, the kind of source acknowledged and the way it handles them, its ideology, and

interaction with the religion and geography have shaped out to this complex system. Prior to

reception of foreign legal system, common law and civil law in Nepal, the religious scripture had

high position in adjudication. Nepalese legal system historically resembles to civil law in many

respect, the great law giver in civil law were the academicians from the universities in the form

of codification, so in Nepal where codes were produced in the form of religious codes.

Nepalese legal system after reception of foreign legal system became more complicated as we