Term paper on

Historical Development of judiciary in Nepal

Submitted to:
Asst. Prof. Amrita Gautam
Kathmandu School of Law, Bhaktapur

Submitted by:
Abiral Chand
B.A.LLB, 1st year
Blue Zone
Roll no 03
Kathmandu School of Law
 Acknowledgement:

I would like to thank Kathmandu School of Law for providing me this opportunity to carry out
this research. I am very thankful to my subject teacher, Prof. Amrita Gautam Madam, for her
continuous support and guidance.
Further, I am thankful to all my classmates, close friends, mentors for providing constant help
and motivation in completion of this term paper.
Table of content

Acknowledgement

Chapter 1
1.1 Objectives
1.2 Methodology
1.3 Limitations

Chapter 2

2.1 Genealogy of the Apex Court

Chapter 3
3.1 Conclusion
Chapter 1
1.1 Objectives
- To revisit the judicial developments in Nepal from 1997 BS to till now.
- To have knowledge about the progress legal and judicial system of the nation.
- To understand more about the changes in judicial structures in the course of time.

1.2 Methodology
The materials regarding this research have been collected through different cites relating to
researches of Judicial History of Nepal.
Several laws have been mentioned through the various municipal laws and constitutions of
Nepal.

1.3 Limitation
- This research doesn’t contain all the rules and regulations.
- Only those laws which are found to have vast difference has been incorporated here.
- Incorporation of all necessary laws was difficult to find due to lack of certain books and
research guide.
Chapter 2
2.1 Genealogy of the Apex Court
Muluki Ain1 1910 BS is considered as the first codified law of Nepal. And it is believed that,
from that very time the conscience to rule according to law was started. Before that, the state
used to be governed by the whim of the rulers (King/Ranas).
Although, the concept of rule of law was very much adopted my then Nepalese rulers, the
concept of separation of power and check and balances were still missing in Nepalese
governance system. All the authorities (legislative, executive & Judicial) were concentrated in
the hands of the rulers and there was no any mechanism to check or limit such absolute powers.
Before 1997 B.S. the judiciary didn’t have any independent existence. It was merely a part of
executive. PM(Ranas) used to be responsible for carrying out the task of justice dispensation.
However, in 1997 shrawan 1 under the premiership of Juddha Shumser JBR Pradhan Nyayalaya
was established through the issuance of a Sanad 2 according to which Bahadur Shumser JBR3
elected as the first Nyayadhish General of Nepal.
In 2009 Baisakh 26 Pradhan Nyayalaya Act, 2008 was issued (issued Laalmohar) but published
in Nepal Gazette on 2009 Poush 8. However, Hari Prasad Pradhan4 took oath on 2008 Poush 26.
Hence, he had to work on the basis of previous 1997’s Sanad till 2009 Poush 7(for 1 year and 5
months). Interestingly, Sec 30 of the Pradhan Nyayalaya Act, 2008 for the first time provided
the Writ Jurisdiction to the Pradhan Nyayalaya.
Similarly in 2013 B.S. Supreme Court Act, 2013 replaced the Pradhan Nyayalaya Act, 2008. As
per the notification of the Ministry of Law and Parliamentary Affairs published in Part 3 of the
Nepal Gazette dated Kartik 27, 2013, the Nepal Judicial Service (Formation) Rules 2013 was
issued for the first time in Nepal. These rules made several progressive changes in the judiciary
of Nepal by forming a separate Judicial Service making provision for the two categories (Shreni)
of Judicial staffs as Senior and Junior.

2.2 Structural Changes in Judicial System

1
https://www.himalkhabar.com/news/11058
2
https://www.newsofnepal.com/2019/05/09/209187/
3
https://www.lexnepal.com/news/detail/savatanatara-nayayapalkaka-itahasaka-salbta
4
https://supremecourt.gov.np/web/excjs
Later on, The Judicial Administration (Reform) Ordinance, 2030 BS established four Regional
Courts without making changes to the previously established zonal courts. In 2031, the
Ordinance got replaced by the Judicial Administration (Reform) Act, 2031. Later, Far-Western
Regional Court was established and became fifth Regional Court through an amendment made in
the Act.
After the success of People’s Mass Movement I, democracy was restored and The Constitution
of the Kingdom of Nepal, 2047 came into existence. This constitution restructured the court
system and provisioned for i) Supreme Court ii) Appellate Court iii) District Court. This
constitution was very much progressive about the Rule of Law, Independence of Judiciary and
Constitutional Supremacy for which it had made several meticulous provisions. The
Administration of Justice Act, 2048 made provisions relating to the establishment and
jurisdiction of the District and Appellate Courts.
Similarly, after the success of People’s Mass Movement II, The Interim Constitution of Nepal,
20635 was adopted based upon the political consensus (Comprehensive Peace Agreement)6. The
preamble7 of this Constitution envisioned the competitive model of multi-party democratic
system of governance, Civil Liberties, Fundamental Rights, Human Rights, Adult Suffrage,
periodic election, full press freedom, Independent Judiciary and Rule of Law. Assimilating these
core values incorporated in the preamble, this Constitution encapsulated the provisions relating
to Judiciary under Part 10 which very much similar to the 2047’s Constitution.
As, 2063’s Interim Constitution was temporary in nature, the Constituent Assembly (2nd)
successfully promulgated the new Constitution of Nepal on Asoj 3 2072 B.S. This newly
promulgated Constitution almost changed the entire polity of the country, by restructuring the
previous unitary form of governance to Federal Democratic Republic. In the same way, in order
to make the state organs compatible with the newly adopted polity, several changes were
introduced for the first time in the constitutional history of Nepal.
For Instance, the Judiciary was structured into 3 tier court8 system replacing the previous
Appellate Court with High Courts in each Provinces9. These High Courts got more empowered10
than the previous Appellate Courts. It incorporated with the appellate jurisdiction, writ
jurisdiction, power to issue appropriate order for the enforcement of Fundamental Rights or other
Legal Rights, power to settle any legal question involved in any dispute of public interest or

5
https://ag.gov.np/storage/postFile/Constitutional-Law-Source-Material-2075-with-Cover_1575192032.pdf page 30
6
https://peacemaker.un.org/sites/peacemaker.un.org/files/NP_061122_Comprehensive%20Peace%20Agreement
%20between%20the%20Government%20and%20the%20CPN%20%28Maoist%29.pdf
7
https://www.lawcommission.gov.np/np/wp-
content/uploads/2021/03/%E0%A4%A8%E0%A5%87%E0%A4%AA%E0%A4%BE%E0%A4%B2%E0%A4%95%E0%A5
%8B-%E0%A4%85%E0%A4%A8%E0%A5%8D%E0%A4%A4%E0%A4%B0%E0%A4%BF%E0%A4%AE-
%E0%A4%B8%E0%A4%82%E0%A4%B5%E0%A4%BF%E0%A4%A7%E0%A4%BE%E0%A4%A8-
%E0%A5%A8%E0%A5%A6%E0%A5%AC%E0%A5%A9.pdf
8
Constitution of Nepal Article 127(1)
9
Constitution of Nepal Article 139(1)
10
Constitution of Nepal, Article 144
concern, power to originally try and settle cases and test judgements referred for the
confirmation. In this way the brief history of the Nepalese Judiciary can be summarized.
 Chapter 3
3.1 Conclusion

Before 1997 BS, there was no any independent judiciary in Nepal. All the executive, legislative
and judicial powers were concentrated in the hands of single authority. However, gradually the
concept of Rule of Law, Separation of power & Check and Balance and Independent Judiciary
took roots in the Nepalese society. It led to make several developments in the Judicial System of
the Country in order to make the justice dispensation more effective and accessible.
But, due to the political instability in the country, the judiciary gone through several
unprecedented changes in a very short period of time.
However, the new Constitution of Nepal (2072 B.S.) has made several provisions to bring
political stability and institutionalize Rule of Law, Constitutional Supremacy, Democracy,
Transparency as well as free, fair and independent judiciary. Therefore, we can be hopeful to
witness more efficient, free, fair, impartial, independent and professional Judiciary in upcoming
days.