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Constitution development of Nepal

Nepal, a South Asian landlocked and India's neighbouring country, has established itself as federal democratic republic through the promulgation of its constitution, possessing 35 parts, 308 articles and 9 schedules, on September 20, 2015.

It is noteworthy that country inculcated democratic values firstly through an armed revolution against autocratic Rana regime in 1951 and subsequent announcement of interim government and constitution by King Tribhuvan to provide legal framework until a constituent assembly was elected to form a new constitution. However, Nepal underwent a tumultuous history of constitutional development alongside uncertainty caused by dismantling of constitutions as a consequence of conflict between monarchy and constitutional democracy.

In fact, first attempt to form a constitution was not fulfilled due to death of King Tribhuvan; After that, in 1959, King Mahendra had promulgated a constitution with a special provision that King had the authority to capture entire executive powers during emergency by suspending either or both the houses of parliament and constitution. In 1960, king Mahendra suspended the constitution and Government of B P Koirala elected with two third majority , by invoking the same emergency provision. It has imprisoned B P Koirala for 8 years.

Moreover, in 1962,King Mahendra announced a new constitution that had brought about a new panchayat system, which established a high powered monarchy by curtailing political freedom of the people and banning political parties.

It was ended after 30 years, as an aftermath of pro democracy Jan Andolan-I (people's movement-I) launched by Nepali Congress(NC) and United Left Front( ULF) jointly for democracy and multiparty system. Consequently, King Birendra promulgated a new constitution of 1990, constituted by a nine member (including two royal representatives) commission with a provision for king to be relegated in constitutional monarch.

This constitution had established Nepal as a Hindu kingdom with imperfect balance of power and stipulated freedom of expression, judicial independence ,and party system. But despite these, it did not enshrined provisions for protection of minorities. As per provisions of this constitution, parliamentary election of 1991,1994, 1999 as well as local elections of 1992 and 1997 had been held.

But, Communist party of Nepal ( Maoist) (CPN-M) launched a people's war against unstable, ineffective highly centralized and upper caste dominated government. In which, King Birendra was assassinated on June 1, 2001 and his younger brother Gyanendra was crowned , who had usurped all the powers in February 2005 on the ground of failure of government from handling the violent rebellion.

Leaders were detained. In November 2005, that is the reason why Maoists and seven party alliance (SPA) had joined hands in New Delhi on 12 point understanding including election to constituent assembly, multiparty competitive political system, and peaceful mass movement against monarchy, with an objective to establish absolute democracy by ending autocratic monarchy. This SPA and Maoist alliance had launched Jan Andolan-ll (peoples movement-ll) ,which had forced King Gyanendra ultimately to surrender power and reinstate parliament.

It is noteworthy that on 21 November 2006 Comprehensive Peace Agreement was signed between SPA represented by Girija Prasad Koirala and CPN(M) which has ended the violent act of Maoist.

But in fact, all the previous constitutions had a short life due to failure to adopt participatory approach, which was tried to embrace by setting up of constituent assembly that was functioning as per the provisions of interim constitution, promulgated on January 15, 2007, as the first constitution proclaimed in the name of Nepali people, which was further amended twice for including provisions of federalism, and increasing seats of Madhesh province under proportional representation system.

More importantly, interim constitution has caused three major transformation:

  • From monarchy to republicanism
  • From civil conflict to peaceful politics,
  • From non-inclusive state mechanism to inclusive democracy.

In April 2008, election for first constituent assembly(CA-I) was held with 60% voter turnout , in which 28 international observation missions have observed the functioning of elections and European Union has conceived it as a generally calm and peaceful election. CA-I had 601 members in which, 240 members were to be elected through First past the post system (FPTP) and 335 members were to be elected from proportional representation system (PR) and rest of the 26 members were to be appointed by the council of ministers.

In CA-I, CPN (M) emerged as a single largest party, Ram Baran Yadav was elected as first president and Pushpa Kamal Dahal Prachanda as the first ever prime minister of new republic. It is noteworthy that CA-I has provided very well representation of all section of society as well as it has developed several caucus including women's caucus, Madhesi caucus which has brought them together to fight as injustice.

It has created one constitutional committee, 10 thematic committee and 3 procedural committees which have worked with International Institute of democracy and Electoral Assistance (International IDEA) and UNDP to make constitutional development systematic. In CA-I, a five member dispute resolution sub committee headed by Pushpa Kamal Dahal was established which has worked to create unanimity on the issue of federalism, legislature ruling system, and judicial system.

Except these provisions, constituent assembly has got unanimity on the issue of mixed system of government i.e. president as head of the state and prime minister as head of the government, bicameral legislature, constitutional court to handle federalism related disputes, and federal commission for demarcation of states. However, due to some other unresolved contentious issues, absence of political leadership, unrealistic timeline and rejection of 11 province model, CA-I dissolved without promulgating a constitution after two year original tenure and four extensions.

Furthermore, after that, interim government led by chief justice Khil Raj Regmi was formed in March 2013,which has organized election of second constituent assembly (CA-II) wherein Nepali Congress has emerged as single largest party. On 24 December 2013, four major parties have finalized 'four point deal' to insure promulgation of constitution within one year of time span. Sushil Koirala was elected as prime minister of CA-II, and five new committees were constituted- constitution records study and determination committee (CRDC), constitutional political dialogue and consensus committee( CPDCC), committee on citizen relation and public opinion collection (CCRPOC), committee on capacity development and resource management (CCDRM), and constitution drafting committee (CDC).

Furthermore, on the basis of 16 point agreement the preliminary draft constitution was tabled in the CA-II on June 30, 2015, which was deeply rejected by Madhesh based party due to unresolved issue of delineation of federal units. It is noteworthy that article 88 and 175 of draft constitution has enshrined provision for 1/3 reservation for women in federal parliament and provincial assembly, but citizenship provision that father should be a Nepali people for natural citizenship has caused again conflict and obstruction in promulgation of constitution.

In CA-II, finally seven province model has been embraced by adding Karnali provibce in six province model. Moreover, draft constitution was amended in constituent assembly by two third majority and finally on September 16, 2015 constitution bill was endorsed by two third majority with Madheshi parties boycotting the proceeding and Rastriya Prajatantra Party-Nepal voting against the bill. On 20 September 2015, president Ram Baran Yadav promulgated the constitution.

Salient features of the new constitution are as follow:

  • New constitution of Nepal of 2015 has abolished discrimination based on caste, religion, language, gender and racial untouchability by embracing multi caste, multilingual, multicultural and diverse geographical specificities, in order to protect and promote unity in diversity, social and cultural solidarity.
  • Tolerance and harmonious attitude based on the principle of proportional inclusion and participation, to insure equitable economy, prosperity and social justice was inculcated.
  • Multiparty democratic governance system, civil liberty, fundamental rights, human rights, adult franchise, periodic election, complete press freedom, and an independent, impartial and competent judiciary as well as rule of law have been insured through the constitution.
  • New constitution has stipulated the mixed system of government i.e. president as the head of the state and prime minister as the head of the government.
  • It has enshrined bicameral legislature with 275 member( 165 FPTP & 110 PR) lower house known as House of representatives and 59 member upper house known as National Assembly, in which 1/3 seats will be reserved for women as per the provisions enshrined under article 84(2) and quorum will be 1/4 of total members of the house.
  • As per article 127 of the Nepali constitution, judicial system will be consisted of supreme court, high courts and district courts. In which supreme court, with one chief justice and 20 other judges, will have the final power to interpret the constitution. Moreover, President shall appoint chief justice of Nepal for the tenure of 6 years on the recommendation of constitutional council and rest of the judges of the supreme court on the recommendation of judicial council.
  • Special powers regarding finance bill have been vested on lower house, and article 110 (2) stipulates that finance bill and bills concerning the security agencies including the Nepal army, Nepal police, shall be introduced only as a government bills.
  • Article 100 put forth the provision regarding vote of confidence and motion of no confidence. And article 114 insures the power of president to promulgate ordinance on the recommendation of council of ministers during off session period of parliament.
  • Part (31) article- 274 pointed out the provision for amendment of constitution by 2/3 majority, thereby it reflects the rigid characteristics of constitution.
  • Parts- 17, 18,19 enshrined the provision for local executive, local legislature as well as local financial procedure respectively, that can be conceived as manifestation of democratic decentralization.
  • Part(24) from article 245-247 provide for election commission to organize free and fair election in Nepal. Article 245 stipulates that there shall be one chief election commissioner and four other election commissioners to be appointed by president as per recommendation of council of ministers.
  • Public service commission has been provided constitutional provision under part (23) ; similarly National Human Right Commission (part 25) reflects the emphasis for human rights under Nepal's constitution.
  • Except these, constitution of Nepal has enshrined the provisions for national commissions in order to empower several vulnerable section of the society like: national women commission (article 252), national dalit commission (article 255), adibasi janjati commission(article 261) , national Madheshi commission ( article- 262), national tharu commission(article- 263) and national muslim commission ( article- 264) etc.
However, despite the provision for fundamental right of abolition of gender discrimination , citizenship provision that any child born to foreign national and nepali mother citizen will have to wait for many years as per federal laws to acquire citizenship but in case of , citizen father and foreign mother, the child and mother will be conferred citizenship without any pendency for years. That is quite discriminatory and stimulates patriarchal stances.

On this ground many ethnic groups including Madheshi have not been heard despite equality, and human rights' constitutional ratification, which has also obstructed the way of harmonious attitude. In final endorsement of draft constitution, many parties had boycotted, that reflected lack of unanimity too. Majoritarian tendency and lack of proper mechanism for reservation for backward including people of Tarai region have reflected the restraint before the entitlement theory of right, base of the constitution.

Moreover, Nepal's territorial rearrangement such as its delimitation of constituencies and its federal structure is not free of bias. In fact, Nepal has drafted many constitutions, which were thrown away after a short period of times in conflict between pro democracy parties and monarchy, due to lack of political participation of peoples and other democratic values, but in this constitution , popular sovereignty of Rousseau has been adopted, which is an attempt of long lasting constitution of a democratic federal republic and secular nation.

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