TribhuvanUniversity

National Law College

BA LLB
Third Semester
Constitutional Law
By Prithvi Nath Rai
Pre-constitutional Laws and Norms

There are some eminent principles, norms and values which

govern the society and state even in the absence of constitution.
Such kinds of norms and values are treated as part and parcel of
living society, which are considered as pre-constitutional laws and
norms. Some of those pre-constitutional laws and norms are
discussed as follows:
1. Kirat's Mundhum:
Kirat dynasty is taken as a starting point of Nepalese history, at
that period there was not any written law and Kirat ruler
government with the help of customary law based on traditions,
socio-cultural values and belief of Kirat society and their holy
religious text Mundhum. The main source of law was Muthum at
that period. The Kirat thought Dharma as integral part of justice.
According to Kirat believe, God himself for the betterment of
Pre-constitutional Laws and Norms

human being authored Mundhum. As a result, rules of Mundhum

were obligatory. The king was said to be the representative of god
and administration of justice was considered as the prime duty of
the king. So at that period the main source of law Mundhum was
existed as a written form of law and other sources of law were
based on unwritten law.
2. Dharmashastra under Lichchhvi Period
Lichhavi ruler had started to govern their society on the basis of
Hindu Dharmashastra. Main sources of law were sruti, smriti,
Dharmashastra and custom. Later kings began to promulgate
laws, in the form of Rajagya or royal edicts and sanads, with the
advice of Dharmadhikari and pundits with the objective of
providing fair justice. When the law of Dharmashastra was
inadequate royal edict were issued as sanad for a particular
Pre-constitutional Laws and Norms

subject matter. So in this period, there was not any separate

codified law but the religious texts were considered as a supreme
law and many new laws were incorporated in written form on
Silalekha, Tamrapatra etc. that’s why the existence of written law
can find in this period.
3. Various Smrities under Medieval Period:
After the Lichhavi period medieval period was started in Nepal.
Nepal was divided into numerous kingdoms and the ruler of the all
kingdoms and principalities were Arya Hindus, so they governed
their kingdoms on the basis of Hindu Dharmashastra. The primary
sources of law of that period were Hindu religious texts, customs,
traditions, royal edicts and sanads. The smiriti of Manu, Narad,
Yajnavalkya and Brihaspati were followed by most principalities
and kingdoms, whereas Narad smirti had been the foremost
Pre-constitutional Laws and Norms

source of law. The king Jayastithi Malla of Kathmandu had prepared

a legal code known as "Manab Nayasastra" based on Narad smirti,
it was the remarkable event in the history of codified law in Nepal.
Shah Kings were ruling Gorkha kingdom at that period and king
Ram Shah was famous for good administration and justice. It was
the popular sayings that 'go to Gorkha if justice is lost and go to Kasi
if education is lost'. He has composed the legal code of 36 sections.
The legal provisions of his code seem very practicable and based
on scientific system. He made law for weighting scale, measurement
scale and money lending.7 It was also important step in the process
of codification of law in Nepalese legal history.
 Pre-constitutional Laws and Norms

Manab Nyayashastra:
 In Malla Period, Jayasthiti Malla promulgated “Manab Nayasastra”
as the first code in Nepal.
 - Cast and gender again was the basis of punishment, rights
and duties.
 - The intensity of criminal act was not the basis of punishment
but the status of offender was looked into.
 For Example: A Sudra marrying a high caste woman was either
condemned to death penalty or penis was cutoff.
 - Law was made and interpreted by Pundits. In west, however,
law was made by King and military officials.
 Therefore, ancient Nepalese law was heavily influenced by orthodox
values of dharma, whereas in western countries positive law emerged
as separate and independent regime.
Pre-constitutional Laws and Norms

Panjapatra:
After Kot Parva, Jung Bahadur snatched the state power
from the king as Panjapatra. Through this document
delegated authority was given to the then Rana Prime
Minister by Surendra Bir Bikram Shah. Since then autocratic
dynastic rule was found to have been exercised by various
Rana Ministers and Prime Ministers for 104 years. During
that period de facto sovereign powers were abused by
Ranas. Besides reshuffling of portfolios, the placement and
displacement of authorities are found to have been
gerrymandered due to their vested interests and abuse of
authority under Panjapatra.
Pre-constitutional Laws and Norms

4. National Code under Modern Period till 1910 BS

The modern period of Nepalese legal history starts after
unification of kingdom of Nepal up to enactment of first legal code,
1910 BS. During this period also Nepal was governed mainly
through the principles of Hindu Dharmashastra prevailing in Nepal
since ancient Lichhavi period. Local custom and traditions were
followed when Dharmashastra was silent and vague, the royal
edicts (sanads) were issued when necessary to regulate new
norms, which were unknown to both Dharmashastra and
customary laws royal sanads (edicts) became major source of law
which transformed unwritten customs and traditions of different
castes and communities into written form.
Pre-constitutional Laws and Norms

It was the first codified law of Nepal and with the

promulgation of this code the system of codification of
law was started in Nepal. It was the first exhaustive
and comprehensive written code in Nepalese legal
history. This legal code had 163 chapters and covered
about 1400 pages. It dealt not only with criminal and
civil law but also provided provisions relating to
administrative law, family law, land law; regulation for
the management of revenue administration, land
survey etc.
Pre-constitutional Laws and Norms

This code was not codified in vacuum. It was based on

Hindu Dharmashastra, customary law and royal edicts
promulgated in different times, it was the first step
towards blending traditional customary law making
process with western legislative process. The concept
of justice according to law was introduced by this code
and the concept of rule of law was also recognized
through this document. One of the major aims of this
code was to bring uniformity among the laws practiced
in the different parts of the country and to some extent,
it had been fulfilled.
Pre-constitutional Laws and Norms

This code was in operation up to 2020 B.S. with some

major and minor amendments from time to time. After
promulgation of this code system of written law was
started in Nepal and Nepal has adopted the means of
codification to enact laws. During the period of 1910 to
2007B.S. (before success of democratic movement)
various laws had been made which were also based on
religion, culture and usage of Nepalese society like first
legal code so up to this period Nepalese laws were
developed indigenously and traditionally.
 Constitutional History of Nepal

1. Government of Nepal Act, 2004/1948 (Nepal

Sarkarko Baidhanik Kanoon, 2004)
The Government of Nepal Act, 2004 is known as the
first constitutional fundamental law of the country
comprising 6 Parts, 68 Articles and 1 Schedule. It was
promulgated on Mansir 13, 2004 BS (26/01/1948 AD)
by the then liberal Prime Minister Padma Shamsher
Jung Bahadur Rana and it came into force from
Baishakh 01, 2005 BS (13/04/1948 AD). During that
time, the then king Tribhuvan Bir Bikram Shah was
preceding his 26th anniversary of his regime.
1. Government of Nepal Act, 2004/1948 (Nepal Sarkarko
Baidhanik Kanoon, 2004)

The first constitution of Nepal did not curtail any

prerogative rights of Rana Prime Ministers rather it
continued to such prerogative rights as an
inalienable and unalterable right. One proverb was
quite popular during that time: there was neither
any medicine for ultimate death nor any option or
way out to the order. It is quite obvious that Rana’s
verbal order used to be considered as the coercive
means of law, which is more coercive than
Austinian command of sovereign.
1. Government of Nepal Act, 2004/1948 (Nepal Sarkarko
Baidhanik Kanoon, 2004)

Sadly speaking this constitution was the

outcome of six experts where three of them
were from Indian origin and rests were
Nepalese. So, it is not unjustifiable to state that
the first constitution of Nepal was under the
sever influence and interest of Indian
hegemony. Bhardari assembly (assembly of
Ranas' brothers, relatives, well wishers) and
national assembly were made under so called
bilateral parliamentary system.
1. Government of Nepal Act, 2004/1948 (Nepal Sarkarko
Baidhanik Kanoon, 2004)

The most undesirable misuse of powers was to

dethrone to king Tribhuvan replacing him by his own
second grandson, Gyanendra Shah on Kartik 22, 2007
BS (Nov. 07, 1950 AD). Then after arms force
movement rapidly took place in Nepal. The movement
triggered throughout the country as a result the then
Nepal Government was pressurized by Indian
Government for necessary dialogue and initiation. The
committee formed for negotiation with Indian
Government was to convince the following agendas:
 1. Government of Nepal Act, 2004/1948 (Nepal Sarkarko
Baidhanik Kanoon, 2004)

a. There would be immediate political reformation in the

government,
b. The people's representatives would be represented in
the government and
c. The prince, Gyanendra Shah would be the king in
Nepal.
But rather than convincing to their agendas, the then
Nepal Government got imposed by Indian
Government and they had to return on Mansir 22,
2007 BS (Dec. 07, 1950 AD) under the following
agendas:
 1. Government of Nepal Act, 2004/1948 (Nepal Sarkarko
Baidhanik Kanoon, 2004)

1. The new Constitution was to be formed by composing

one legitimized Constituent Assembly through the
election on the basis of adult franchise,
2. The new government was to be formed under
chairmanship of Rana Prime Minister along with
people's representative (Nepali Congress),
3. The then His Majesty's King Tribhuvan was to be made
the king of Nepal,
4. All the political detainees were proposed to be freed and
5. The right to form the political organization was
considered to be privileged to the people.
2. The Interim Government of Nepal Act, 2007/1946 (Nepal
Antarim Shasan Bidhan, 2007)

104 years long autocratic Rana regime since 1903 BS

(1846 AD) to 2007 BS (1950 AD) that got dethroned
forever after the promulgation made by the then king
Tribhuvan for the sake of democracy in the name of
Nepalese people. Similarly the Interim Constitution of
Government Act of Nepal, 2007 or new organic law did
not only repeal to the Government Act of Nepal but
also perished forever to the despotically and arbitrarily
provisioned under the Panjapatra (Royal Edict), which
were obtained from the King in 1903 BS (1846 AD) by
the then Prime Minister Jung Bahadur Rana as well as
other Rana Prime Ministers.
2. The Interim Government of Nepal Act, 2007/1946 (Nepal
Antarim Shasan Bidhan, 2007)

Since then legislative, executive and judiciary rights

came again under the power of king. This is how,
pioneering doctrine of political science the king in
council is found to have been initiated. The Interim
Government of Nepal Act comprising 7 Parts, 73
Articles and 1 Schedule was issued on 29/12/2007 BS
(11/04/1951 AD) for the management of transitional
period. The constitutional provisions in respect of
amendment, emergency etc. were highly misused by
the king. The amendment of the Interim Government of
Nepal Act was made up to six times.
2. The Interim Government of Nepal Act, 2007/1946 (Nepal
Antarim Shasan Bidhan, 2007)

The Interim Government of Nepal Act was enacted for

the purpose of mere interim regime in the interim period.
So, there was urgent requirement for the enactment of
constitution in order to manage the accountable and
elected government. As a result, one election drafting
commission was formed by the drafting members Mr.
Bhagwati Prasad Singh (Chairperson of Public Service
Commission), Mr. Surya Prasad Upadhyay (General
Secretary, Nepali Congress), Mr. Hira Prasad Joshi
(Nepali Congress), Mr. Randhir Subba (Chairperson,
Gorkha Parishad), Mr. Ramraj Pant (Principal, Nepal Law
Campus) including constitutional expert, British Sir Ivor
Jennings.
2. The Interim Government of Nepal Act, 2007/1946 (Nepal
Antarim Shasan Bidhan, 2007)

The Interim Government of Nepal Act was enacted as the

outcome tripartite negotiation made between Nepali
congress, Ranas and the then His Majesty in the foreign
land i.e. Indian soil. The constitution was framed till the
preparation of next 'permanent' constitution. This
constitution was amended in 2008 BS for the first time, next
second amendment was held on 2009 BS and the sixth
amendment took place in 2015 BS. The Interim Government
of Nepal Act, 2007 was considered as an active
monarchical constitution under which all the powers were
centered in the king. Similarly amended constitution gave
much more discretionary powers to the king. The
constitution was also termed as imported constitution.
3. The Constitution of the Kingdom of Nepal, 2015/1958 (Nepal
Adhirajyako Sambidhan, 2015)

When the debate of constitution making process

became completed after handing over such right to the
king, since then the prerogative right was found to have
been exercised by the then king Mahendra for the first
time in the history of Nepalese constitutionalism. As a
result, the Constitution of the Kingdom of Nepal,
2015/1958 was promulgated by king Mahendra on
Thursday, Falgun 1st of 2015 BS (16/12/1958 AD) as
the third constitution of Nepal comprising 10 Parts and
77 Articles.
3. The Constitution of the Kingdom of Nepal, 2015/1958 (Nepal
Adhirajyako Sambidhan, 2015)

As it is known that the first constitution was enacted under the

influence and domination of Indian interest whereas it was
under the instruction and framework of British Expert, Sir Ivor
Jennings. It is not unjustifiable to mention that the constitution
was framed as a model of British Parliamentary Democratic
system.
Besides, this constitution provisioned an assembly of people's
representative and upper assembly (Mahasabha) under
bilateral parliamentary system. Unfortunately the Nepalese
people remained helpless again when the then king Mahendra
suspended almost all Articles having constitutional rights on
01/09/2017 BS (15/12/1960 AD) by using his prerogative rights
and political parties were restricted to enhance their political
rights.
3. The Constitution of the Kingdom of Nepal, 2015/1958 (Nepal
Adhirajyako Sambidhan, 2015)

King Mahendra banned to all political parties by using

Article 45 and stating the slogan that the move was taken
for the 'Suitability of Nepalese Soil' in order to promote his
vested interests. It was considered as an unexpected and
unfair coup by the king in the history of Nepal that swept
away all the loyalty of monarchism.
Nepal Special Management Act, 2017 was issued on Poush
29 2017 BS (Jan. 12, 1961 AD) with the sheer motive of
'Good Governance of Nepal Kingdom' and 'Reigning in
Special Circumstances'. For the foundation of such unfair
motive all important democratic provisions of the
constitution had been suspended by the king's declaratory
speech on Mangsir 25, 2018 BS (Dec. 10, 1961 AD).
 3. The Constitution of the Kingdom of Nepal, 2015/1958 (Nepal
Adhirajyako Sambidhan, 2015)

 As a result, that Nepal Special

Management Act, 2017 was in force as
real constitution not the constitution.
Therefore, the Constitution of the
Kingdom of Nepal had been practically
ended two years ago and it was legally
expired after the promulgation of the
Constitution of Nepal, 2019 BS (1962
AD).
The Constitution of Nepal, 2019/1962
(Nepalko Sambidhan, 2019 BS)

The Constitution of Nepal, 2019/1962 is

the best example of gifted constitution in
the world. This constitution was declared
on 1st of Poush 2019 BS (16/12/1962
AD) by the then king Mahendra based on
the constitutional draft headed under the
chairmanship of Rishikesh Shah. This
constitution was enacted comprising 20
Parts and 96 Articles.
The Constitution of Nepal, 2019/1962
(Nepalko Sambidhan, 2019 BS)

King Mahendra issued this constitution in 1962

AD abolishing all political parties and drawing on
the ancient Panchayat system for the structure of
local and regional government. While
recognizing local councils, or Panchayat, the
1962 Panchayat Constitution contained even
stronger assertions of royal power than the
previous constitutions. Once again, the king
retained unilateral power to suspend the
constitution during emergencies, as well as the
power to amend the constitution.
The Constitution of Nepal, 2019/1962
(Nepalko Sambidhan, 2019 BS)

Due to monarchical constitution, the multiparty

democratic system was changed into party less
(Panchayat) democratic system. This constitution
came into force for 30 years along with 3 major
amendments. Rather than in keeping the view of
removing some drawbacks and demerits, the first
amendment of constitution was to introduce the Party
less Panchayat system in 2023 BS (1966 AD). After
the death of king Mahendra, his successor, king
Birendra initiated for constitutional reformations by
maintaining fundamental principles and its efficacy
where the commission comprising seven members
The Constitution of Nepal, 2019/1962
(Nepalko Sambidhan, 2019 BS)

headed by Mr. Anirudra Prasad Singh was made to

provide necessary recommendation to the kings as
people's spirit and this amendment was to establish for
Commission of Abuse of Authority and 'Gaun Phark
Abhiyan' (Back to Village Campaign) in 2032 BS (1975
AD) in order to promote the monarchism and its
aristocratic regime. The most importantly 'Gaun Phark
Abhiyan' was to hit the political freedom due to which
the students' revolution emerged throughout the
country in 2032 BS (1975 AD) even if the Students'
Movement was brutally suppressed. While students'
movement was rising in the climax, the government
The Constitution of Nepal, 2019/1962
(Nepalko Sambidhan, 2019 BS)

and their government officials tried to dominate by

welcoming the gun fires. Those gun powders, tear
gases and savagely killings of the braved students
heightened revolution in 2035/36 BS (1978/79 AD) in
way that made the king to rethink about his operation.
The king was compelled to liberate his strategy in order
to resolve the ongoing violent movement. As a result,
the king had to announce for referendum either to
choose the party less Panchayat system or multi party
system, which could become able to freeze the
movement for the time being.
The Constitution of Nepal, 2019/1962
(Nepalko Sambidhan, 2019 BS)

The referendum was supposed to be held in 2036 BS but

it got prolonged due to some conspiring reasons.
Eventually, the referendum was held on Baishakh 20,
2037 BS (May 02, 1980 AD). It was pre-settled planning
whereby declaration was made in favor of Panchayat
system. By considering people's voice and fresh
students' movement, the autocratic rulers restored some
of the democratized provisions under the constitution by
the 3rd amendment of constitution in 2037 BS (1980 AD).
The provision relating to electoral system of the few
members for the Rastriya Panchayat (parliament) in
accordance adult franchise was one of the most
praiseworthy achievement of the movement.
The Constitution of Nepal, 2019/1962
(Nepalko Sambidhan, 2019 BS)

But the movement was continuously being suppressed

and revolution was also being carried out
concomitantly. After the students' movement of 2036
BS, the students' movement of 2042 BS (1985 AD)
was more powerful and spectacular in comparison to
other students' movements. But the students'
movement initiated from Falgun 07, 2046 BS (Feb. 18,
1990 AD) became quite historical and benchmark by
breaking the undefeated record against brutality,
despotism and monarchism.
The Constitution of Nepal, 2019/1962
(Nepalko Sambidhan, 2019 BS)

Behind this reason, there was strong support of Nepali

Congress, Nepal Communist Party Marxist Leninist (NCP
ML at present UML and … after coalition of UML and
NCP MC), Nepal Communist Party, Mashal including
various leftist politicians and political activists. Nepali
Congress convened one especial conference was from
Magh 05 to 07, 20146 BS (Jan. 18 to 20, 1990 AD) by
calling to Indian leader Chandrashekhar as a
distinguished guest. The wave of movement went in very
violent, strong and consolidated form when the peaceful
demonstration was suppressed tyrannically by the
government on Falgun 07, 2046 (Feb. 18, 1990 AD).
The Constitution of Nepal, 2019/1962
(Nepalko Sambidhan, 2019 BS)

Gradually the movement was supported by laborers,

farmers, government employees, doctors, lawyers,
females and even from the students of school levels.
By that time, the movement was going quite further
even by ignoring curfew order. As a result, the king
Birendra was compelled to hold the tripartite
negotiation (King, Congress and Leftists) i.e.
Congress leaders Mr. Krishna Prasad Bhattarai, Mr.
Girija Prasad Koirala, Communist leaders Ms.
Sahana Pradhan, Mr. Radha Krishna Mainali and the
King Birendra.
 The Constitution of Nepal, 2019/1962
(Nepalko Sambidhan, 2019 BS)

The features of The Constitution of the Kingdom of

Nepal, 2019 are as follow:
 Fundamental Rights and Duties,
 Nepal as Sovereign, independent monarchial Hindu
Kingdom,
 Citizen based on descent and naturalized citizenship,
 Executive power of King,
 Directive principles of Panchayat System,
 Supreme Court and
 Special provision for Constitutional amendments.
The Constitution of the Kingdom of Nepal, 2047/1990 (Nepal
Adhirajyako Sambidhan, 2047)

One hand, suspension of fundamental rights, restriction

to political parties under coup of 2017 by the king was the
climax of despotism, in the other hand, people’s inherent
rights like independence, freedom, liberty, right to self-
determination and the like fundamental factors along with
international scenario led by the people for democracy.
Nepalese people wanted to restore their suspended
rights and revive all the fundamental rights. For the
restoration of democracy, they did not care their own
lives. So, many of the freedom fighters during the course
of bringing the democracy got martyrdom by eliminating
30 years long panchayat system on 26th Chaitra, 2046
BS (08/04/1990 AD).
The Constitution of the Kingdom of Nepal, 2047/1990 (Nepal
Adhirajyako Sambidhan, 2047)

As a result, king Birendra was forced to create the

Constitutional Reform Commission comprising 9
members considering the success of People's
Movement -I and changing scenario of the country.
The Constitution of Kingdom of Nepal, 2047
comprising Part -23, Articles 133 and Schedules -3, did
not only remain for 5th historical constitution of Nepal
but also considered as the outcome of tripartite
agreement (i.e. Leftist, Nepali Congress and the King)
for the political consensus. Despite having its own
significance for the resolution of the then conflicting
situation, it could not remain away from pros and cons.
 The Constitution of the Kingdom of Nepal, 2047/1990 (Nepal
Adhirajyako Sambidhan, 2047)

 Pro-democracy protests, from both the right

and the left, ultimately prompted the monarchy
to make concessions in a new constitution in
1990. This constitution brought back a multi-
party parliamentary system, and for the first
time, granted elected officials genuine power
independent of the king. However, the 1990
Constitution left the door open to significant
assertions of royal authority, including the
invocation of emergency powers.
The Constitution of the Kingdom of Nepal, 2047/1990 (Nepal
Adhirajyako Sambidhan, 2047)

By 1995, Maoist rebels were organizing in rural areas,

protesting the monarchy, and calling for a-people‘s
republic. The insurrection became increasingly violent
over the next ten years, contributing to political
instability in the elected government. In 2001, King
Gyanendra declared a state of emergency and sent the
army to fight the Maoist insurgency. Attempts to
negotiate a peace failed in 2003, and ultimately, in
2005 the King invoked emergency power and assumed
full control of the government.
 The Constitution of the Kingdom of Nepal, 2047/1990 (Nepal
Adhirajyako Sambidhan, 2047)

The features of the Constitution of Kingdom of Nepal,

2047 are as follow:
 Guaranteed fundamental rights and freedom of the
citizen,
 Sovereignty vested in the people,
 Independent judiciary,
 Constitutional Monarchy,
 Multi-party system and
 Rule of law.
The Interim Constitution of Nepal, 2063/2006 (Nepalko Antarim
Sambidhan, 2063)

As the Constitution of the Kingdom of Nepal, 2047

is considered basing on catalytic factor of coup
made by the then king in 2017 causing party less
Panchayat system, so called referendum and the
like, similarly the Interim Constitution of Nepal,
2063 is considered as the catalytic factor of coup
made by king Gyanendra basing on the Article 127
of under the constitution of the Kingdom of Nepal,
2047 besides the Maoist movement, Terai
movement and much more dissatisfactions of
ongoing constitutional lacunas.
The Interim Constitution of Nepal, 2063/2006 (Nepalko Antarim
Sambidhan, 2063)

So, after overwhelming success of Popular People's

Movement -II, one Constitutional Drafting Committee
was formed under the coordination of former justice of
Supreme Court comprising representatives of the
political parties who took part in the movement.
And such drafting committee enacted the Interim
Constitution of Nepal 2063 comprising Part -25, Article
-167 and Schedules -4. The Interim Constitution was
issued by the parliament house on 01/10/2063 BS
(15/01/2007 AD) for the proper management of interim
time period till the next constitution to come through the
Constituent Assembly.
The Interim Constitution of Nepal, 2063/2006 (Nepalko Antarim
Sambidhan, 2063)

The basic concept of rule of law was well founded in the

constitution of Nepal 1990, which established some basic
principles and guidelines to which foundations are built upon
and Nepalese judiciary has already tried though many cases to
point out the provisions by which rule of law well defined.
In regard of constitutional path, there are new constitutional
framework and its legitimacy in two different ways. Firstly, the
ground for legitimacy of the new constitution making process is
not anymore the constitution of 1990 but the people's mandate
and another, was the Proclamation is a re-interpretation and
evolution of the preamble's "spirit" and in the same way; the
revolution has taken a "Constitutional Path."
 The Interim Constitution of Nepal, 2063/2006 (Nepalko Antarim
Sambidhan, 2063)

 King Gyanendra, under intense political pressure,

reinstated parliament, and the parliament voted
unanimously to curtail royal power. Shortly
thereafter, a peace agreement was reached with
the Maoists, and they were, in turn, invited to
participate in an interim government. The new
government immediately moved to replace the
1990 Constitution. Plans were announced to draft
and adopt an entirely new constitution-one that
stripped the monarchy of power and created a
federalist, secular state.
 The Interim Constitution of Nepal, 2063/2006 (Nepalko Antarim
Sambidhan, 2063)

In the meantime, an Interim Constitution was adopted.

This document currently serves as the Constitution of
Nepal, and apparently will continue to do so until a more
permanent constitution can be formed and approved.
The main feathers of Interim Constitution of Nepal 2063,
regarding to rule of law is as follow:
 Prepared and Promulgated on behalf of the people,
 State Power and Sovereignty vested in the people,
 Executive power in the Council of ministers,
 Provision for Election of the Constituent Assembly,
 Human Rights Commission as a constitutional organ,
 The Interim Constitution of Nepal, 2063/2006 (Nepalko Antarim
Sambidhan, 2063)

 The chief of Army recommended by the Council of

Ministers,
 Religious secularism,
 Nepal is defined as an independent, indivisible,
sovereign, inclusive and complete democratic state,
 Provision of fundamental Rights,
 Formation of unicameral legislation,
 Prime Minister to call and conclude parliament
convention, and to present annual programs and policy of
the government,
 Formation of Security Council headed by Prime Minister
 The Interim Constitution of Nepal, 2063/2006 (Nepalko Antarim
Sambidhan, 2063)

 Home Ministry and other Ministries as indicated by

Prime Minister,
 The Amendment of the Constitution would be made
only by two third of the majority of parliamentarians,
 The Council of Minister to appoint Ambassadors and
other Special Representatives,
 Prime Minister is to conferee upon title, honor, and
decoration on behalf of the state,
 Provision of Referendum on any issue that hold
national importance,
 The Interim Constitution of Nepal, 2063/2006 (Nepalko Antarim
Sambidhan, 2063)

 The Council of Ministers resumes power to

remove difficulties that should be approved by
parliament or constituent assembly within a
month,
 Prime Minister to use all executive powers of
head of the state and
 The existing House of Representatives and
National Assembly would automatically be
dissolved with the promulgation of this
constitution.
The Constitution of Nepal, 2072/2015 (Nepalko Sambidhan,
2072)

Ultimately the Constitution of Nepal, 2072/2015 came

into existence despite various pros and cons appeared
during the process of enacting and delivering the most
awaited constitution of Nepal under the history of
constitutionalism. The de-facto constitution got its de-
jure validity throughout the country after passing the
constitution by majority numbers of people’s
representatives in the parliament even if this is
considered as the outcome of 16 pact agreement
between Nepali Congress, UML, UCML and Madhesi
Forum besides people’s mandate through constituent
assembly .
The Constitution of Nepal, 2072/2015 (Nepalko Sambidhan,
2072)

No doubt, it was 2072/06/03 (20/09/2015 AD), which has been

milestone in respect of historically constitution formed by
Nepalese citizens (people) for the first time ever in the Nepalese
constitutional history. This constitution seems voluminous
comprising 35 Parts, 308 Articles and 9 Schedules. This is the first
constitution, which has been promulgated under the will of
Nepalese people. No sooner constitution came into force then
India started bargaining for the inclusion of their vested interests.
When they (India) failed to fulfill their ill desires through
constitution as a result they created embargo and blockade
against Nepal depriving the Nepalese people from national festival
causing scarcity of fueling materials like gas, diesel, petrol etc.
and other necessary goods.
Salient Features of the Constitution of Nepal, 2072/2015

At present we have newly enacted constitution. This

constitution is considered as the touchstone, which has
been promulgated by the people's representatives in
Nepal for the first time by declaring People's Republic
state. By provisioning 35 Parts, 308 Articles and 9
Schedules have not only reflected the significance of
comprehensive people's rights but also guaranteed the
general will of the people under federal structures of the
state. In spite of having for and against debate amongst
various political parties and constitutional experts for the
recognition of constitutional validity and its enforcement,
it bears the following features, which are as follows:
 Salient Features of the Constitution of Nepal, 2072/2015

i) Constitution as the Fundamental Law of Land

The Constitution of Nepal, 2072/2015 has incorporated the spirit
of supremacy of law. No law is above the constitution. If any law
enacted or goes against the law, such law may become ipso facto
inoperative or invalid to the extent of its inconsistency with the
spirit of constitution.
ii)Declaration of Federal Republic State
No previous constitution had declared about the provision of
federal republic state. But this constitution has historically
replaced all the previous constitutions by stating to the country as
the federal republic state. So our country is also one of the federal
states in the world having republicanism by replacing
monarchism.
 Salient Features of the Constitution of Nepal, 2072/2015

iii)Progressive Constitution
The main beauty of constitution is its progressiveness in nature. It has
ignored the unitary system of government which was straight jacketed
since a long time and in place of it, the interim constitution has adopted
federal system of government, secularism, inclusiveness etc.
iv)Personifying the most Democratized Spirit in the Preamble under the
Constitution
Generally preamble of constitution reflects all sorts of reasoning for its
existence. This is the first constitution which has comprehensively
incorporated the spirit of constitutionalism under its preamble. The
preamble has embodied democratized system of government based on
the peoples' popular mass movement 2062/063 (2006/007) and
constituent assembly which covers people's sovereignty, secularism,
inclusiveness, federalism etc. headed by republicanism replacing to
unitary system of government.
 Salient Features of the Constitution of Nepal, 2072/2015

v)Written Constitution
The Constitution of Nepal is in the form of written constitution, which
has 35 Parts, 308 Articles and 9 Schedules. It is introduced as federal
republic constitution for the first time in Nepal. Ever since the
Government Act of Nepal, 2004/1947 came to be enforced in Nepal,
the history of constitutionalism is known as the written constitution.
vi)Republic Constitution
Ever since the first meeting of Constituent Assembly declared the
country as a Republic State by the decision held on 15 th day of
Jestha, 2065 BS (May 28, 2008 AD), then the monarchism is
considered to have been replaced by the republicanism. However
Interim Constitution has constitutionally declared the state as federal
country, which has also been justified by the constituent assembly too
by letting constitution of Nepal, 2072/2015.
 Salient Features of the Constitution of Nepal, 2072/2015

vii) Constitution Enacted by the people's Representatives of

Constituent Assembly
It is considered that the Interim constitution is the foundation of
People's Popular Movement -II. People's Movement compelled to
the then government to due priority for their inherent rights, norms
and values as relevant to the global scenario. As a result the
Interim Constitution, 2063/2006 came into existence under
unanimous consensus of all the political parties that paved the
way for constituent assembly under which the Constitution of
Nepal, 2072/2015 has been possible to come into force from
2072/06/03 i.e. Sep. 20, 2015.
 Salient Features of the Constitution of Nepal, 2072/2015

viii)Provision of Inclusive Democracy

The Constitution has adopted inclusiveness by incorporating
constitutional provision of multilingual, multi ethnic besides special
provision to women, Dalit or Silpi (oppressed group), indigenous people,
Madeshi (the people of Terain region), people of the backward classes
and disable person (differently capable person) for their participation in
the decision making level.
ix)Secular Constitution
This Constitution does not hold the high degree of its value just because of
incorporating so many fundamental rights and inclusiveness of different
people rather it has been very pioneering to bench mark with its historical
decision for making the provision of secularism by accepting religious
tolerance to all religions. All the previous constitution of Nepal except
Interim Constitution were silent in regard to secular constitution rather
there was the provision of Hindu Kingdom of Nepal in the constitution
prior to this.
 Salient Features of the Constitution of Nepal, 2072/2015

x)Federal Democratic System of Government

After the declaration of this constitution, Nepal has entered into
federal democratic system of government. By accepting the
general will of the people and by replacing unproductively
manifested unitary system, now Nepal has entered into the federal
structure of government.
xi)Provision of Referendum
Right to self determination is considered one of the pioneering
natural rights, which privileges the individuals for utilizing their
discretion of selecting the issue of their own choice. If the two third
majority of the total members in the federal legislature take a
decision that it is necessary to make a decision on any matters of
national importance through referendum, a decision may be
reached on such matters through referendum – Article 275.
 Salient Features of the Constitution of Nepal, 2072/2015

xii)Incorporation of Comprehensive Fundamental

Rights
Fundamental right is the transcendental matter. It is
also known as inherent right. This is the first
constitution in history of Nepal which has
comprehensively covered the fundamental rights.
Article 16 to Article 48 deals with fundamental rights
like right to live with dignity, freedom, equality,
communication, education, culture, social justice etc.
fall under the Part 3 of the constitution, which are
broadly associated with inalienable human rights.
 Salient Features of the Constitution of Nepal, 2072/2015

xiii)Incorporation of State's Responsibilities, Directive Principles

and Policies
The Constitution incorporates the State's Responsibilities,
Directive Principles and Policies in Article 49 to 55 under the Part
4 of the constitution.
xiv) Democratization of Army
Previously Nepal Army was known as Royal Nepal Army, where
headship of army was headed by the then king. Unlike the then
period, the today's Nepal Army is formed democratically which is
patriotically loyal and sincere towards Nepalese people. Such
directive principles and policies considered as the guidelines of
the state promoting peace, security and tranquility in the state for
the welfare society.
 Salient Features of the Constitution of Nepal, 2072/2015

xv)Provision of Parliamentary Hearing for the Appointment of

the Highest Posts (Portfolios)
One of the distinctive feature of this constitution is parliamentary
hearing. In the case of appointment of the highest post (portfolios)
of the constitutional bodies, ambassadors and judges of Apex
Court, there shall be parliamentary hearing for their accountability
& justifiability. They need to clarify over the complain in case of
charge made against them.
xvi) Provision of Constitutional Bench
There shall be a Constitutional Bench in the Supreme Court. The
Bench shall comprise of the Chief Justice and other four Justices
appointed by the Chief Justice on the recommendation of Judicial
Council – Article 137.
 Salient Features of the Constitution of Nepal, 2072/2015

xvii) Provision of National Human Right Commission as

Constitution Body
There shall be a National Human Rights Commission in Nepal
consisting of the Chairperson and four other members – Article
248.
xviii)Prohibition on the imposition of restrictions on political
parties:
Any provision, law or the decision that prohibits formation,
registration and operation of political parties under Article 269,
and generate or cause to be generated publicity in order to secure
public support and cooperation from the general public for
ideology, philosophy and program of the parties, shall be deemed
against this constitution and shall ipso facto be void – Article 270.
 Salient Features of the Constitution of Nepal, 2072/2015

xix) People's Sovereignty

Another noteworthy provision of the Constitution is that the
sovereignty and the state authority of Nepal shall be vested in the
people of Nepal.
xx) Adult Franchise (Suffrage):
Every citizen or individual who have attained the age of 18 years
or above, may have right to vote in the general election to select
their representatives. So right to vote is also considered as the
part and parcel of fundamental right, which is provisioned under
this constitution.
 Salient Features of the Constitution of Nepal, 2072/2015

xxi) Special Provision of Judiciary

The Judiciary under the new Constitution is integrated in nature.
There will be Supreme Court with 21 justices, provincial high
courts with judges as defined by law and district courts with
judges as defined by law. There shall also be judicial bodies at the
local government level, and alternative dispute resolution
mechanisms will be encouraged to play a role to settle disputes.
A Constitutional Bench of the Supreme Court shall comprise of
five justices to adjudicate disputes between federal, provincial and
local bodies, electoral disputes of federal and provincial
assemblies, and any other serious cases as the Chief Justice
deems appropriate to be heard by the constitutional Bench.
Salient Features of the Constitution of Nepal, 2072/2015

The Judicial Council is formed comprising of the Chief Justice, the

Law Minister, one representative from the Nepal Bar Association,
one representative of the Prime Minister, and one senior most
justice of the Supreme Court. The Judicial Council appoints the
judges of all the courts, except at the local government level, and
also has the responsibility of transfers and disciplinary action.
For criminal prosecution and advice to the Government, there will
be an Attorney General at federal level and Chief General in each
province, appointed by the Prime Minister and the Chief Minister
respectively.
 Salient Features of the Constitution of Nepal, 2072/2015

xxii) Local Executive and Parliament

The executive of the Local Gaunpalika entities is composed of
directly elected chair, vice-chair and ward members. Besides such
ward members, there will be four women and two from Dalit or
Janajati communities nominated by the elected executive for five
years. Municipalities are also composed in a manner similar to the
Gaunpalika with mayor, ward members and nominated members.
It is required that there are two women representatives elected in
all the wards of the Gaunpalika and municipalities. The mandatory
election of two women from each ward makes 40 percent
representation of women form each ward makes 40 percent
representation of women at the local structure.
Salient Features of the Constitution of Nepal, 2072/2015

There shall be judicial committee composed of five persons

headed by the vice-chair Gaunpalika or deputy mayor of
municipalities. It is not clear whether the mandate and function of
the committees is to be defined under federal or provincial or local
laws.
There is an additional layer of governance in the form of the
District Assembly and Gaunpalika and municipality. The
members are to be provided through election by the Gaunpalika
and municipalities.
 Salient Features of the Constitution of Nepal, 2072/2015

xxiii) Inter-relation of Federation, Provinces and Local Structure

The inter-relationships among the entities of the federal system
are to be based on cooperation, coexistence and coordination
among the Federation, provinces and local structures -Art. 232.1.
However, the Federal Council of Ministers can suspend or
dissolve the provincial executive and provincial assemblies for six
months under certain conditions - Art.232. Further, there shall be
Inter-Province Council to settle the political disputes between
federation, province and local structures, to be composed of the
Prime Minister, Home Minister, Finance Minster, and the chief
minister of the respective provinces. Furthermore, as mentioned
above, there will be a Constitutional Bench in the Supreme Court
to settle the disputes between the Federation, provinces and local
structures.