Doctrine of necessity and its applications by nepalese sc.a brief look

The Doctrine of Necessity in Nepal – Frequent Amendments in Interim Constitution, and
finally Supreme Court’s realization – a brief case study1

The recent constitutional development in Nepal only points out to me a chain of judicial
inconsistencies and bizarre reaction to socio-political developments. To my knowledge, there are
few case laws where ‘doctrine of necessity’ was invoked by the highest Judiciary of the Country.
The first one was, when Supreme Court had to approve of the actions taken by the then King
Gyanendra Of Nepal who took the help of Article 127 of the then, Constitution of Nepal, 1990
(Nepal Adhirajyako Sambidhan, 2047 BS – Nepal follows a different Calender System called
Bikram Sambat) to usurp the power from democratically elected government. Though the
Supreme Court did not directly entertain and address the issue on the garb of prohibition by
Constitution on the actions taken by His Majesty, but more or less, it made clear that such
actions were required at that time.

Thereafter, people came to streets demanding restoration of democracy and dissolved parliament
and when king realised that he cannot handle it anymore, democracy was restored and parliament
was reinstated2. The reinstated Parliament replaced the old Constitution of 1990 by Interim
Constitution of 2007 and decided that an election for Constituent Assembly (CA) will be held to
frame a Constitution of ‘New’ Nepal. The election was conducted in April, 2008 and CA started
functioning from 2008 May. Originally, the CA was constituted for a period of two years with a
mandate that a new Constitution for ‘New’ Nepal would be framed by then. But, Article 64 of
Interim Constitution of Nepal, 2007 also created a provision stating the tern of CA can be
extended by further six months in case the task of constitution framing is not completed due to
the reason of proclamation of state of emergency in Nepal.

For your ready reference, Article 64 reads as below:

1
This can be called an informal information note/compilation from constitutional and legal view point in Nepal.
This is a copyrighted work of Advocate Rajib Dahal. Please cite in your research with prior permission and with
sufficient disclosure of copyright holder. For suggestions and feedbacks, please reach me at rajib.dahal@gmail.com
2
The reinstatement of parliament was also questioned before the highest court of the country and court cumulatively
replied that ‘doctrine of necessity’ calls for revival of house and king has such power.

1

“64. Term of the Constituent Assembly - Unless otherwise dissolved earlier by a resolution
passed by the Constituent Assembly, the term of the Constituent Assembly shall be two years3
from the date of its first meeting.

Provided that the term of the Constituent Assembly may be extended for up to six months by a
resolution of the Constituent Assembly, in the event that the task of drafting the Constitution
is not completed due to the proclamation of a State of Emergency in the country.” (Unofficial
Translation of Nepalese Text of the Interim Constitution, 2007)

Therefore, legally, the term of the CA was for two years and it was supposed to get over by May,
2010. By 2010, Nepal is/was supposed to have a new constitution.

Within the first two years and even today, the political parties in Nepal were mainly occupied
with the fighting among them to grab power. Only thing which was evident on them was their
lack of seriousness and political apathy. As expected, they again failed to perform their duties
and there was no other way than extending the term of the CA. There was no case of any
proclamation of emergency and therefore, the basic requirement as per Constitution to extend the
term of CA was not fulfilled. However, all the political parties went ahead, passed a resolution in
the CA and extended its term by ONE year4. This is how CA got life until 2011 May/June.
(Another one year life after it got expired in 2010 May/June after two years of its election in
2008 May/June.)

Thereafter also, as expected, the bunch of political thugs, if I may say so in distress and anguish,
completely failed to complete their duties. Once again, they extended CA’s term by another 3
months, from 2011 May to August, 20115.

On this background, you may understand why the doctrine of necessity was given life to in
Nepalese Constitutional Development. I have already mentioned about how doctrine of necessity
came into picture for the first time in recent times in Nepal. But that was under the old
3
Two years has been replaced by Three years after Eighth Amendment of the Interim Constitution of Nepal, 2007.
This has been discussed in detail in later portion of this Article with judicial opinions.
4
By 8th Amendment of the Constitution.
5
By 9th Amendment of the Constitution.

2

Constitution of 1990. Under the Interim Constitution of 2007 (in some places, may also be
referred as ICN or ICN, 2007 or ICN, 2063), Writ Petitions were/have been filed before Apex
Court for deciding different constitutional amendments and on these writs, Doctrine of Necessity
found its place.

Therefore, this note will discuss the case laws from Nepalese Supreme Court which had applied
the doctrine of necessity when validity of Constitutional Amendments under ICN, 2007 was
questioned before it:

Case No. 1:

In the writ Petition No. 2064-WS-0029, in the matter of Advocate Subodh Man Napit v.
Government of Nepal and Others, the issue before Apex Court was whether the CA has the
power to conduct proceedings against judges who will be elevated to Supreme Court from
Appellate Court or when they are picked from fraternity at the Bar. This was a very strange (at
least to me!) and newly introduced provision and Writ Petitions were filed before SC to strike
down the constitutional validity of this one. This provision of Parliamentary proceedings against
judges was not there in original ICN, 2007 when it was promulgated on January 15, 2007. The
provision for parliamentary proceedings was inserted in the Constitution by Second
Amendment of Constitution on June 13, 2007.

The exact provision that was challenged under the Interim Constitution of 2007 was Article 155
and that reads as below:

“155. Hearing for the officials of constitutional bodies and provisions regarding citizenship -

(1) Prior to appointment to constitutional posts on the recommendation of the Constitutional
Council according to this Constitution, and to * the appointment of the Judges of the Supreme
Court and ambassadors, there shall be a parliamentary hearing in accordance with the
provisions of the law.

3

(2) In order to be eligible for appointment to constitutional positions under this Constitution, a
person must be a citizen of Nepal by descent or birth or by naturalization and have lived in
Nepal for at least ten years.” (Unofficial Translation of Nepalese Text of the Interim
Constitution, 2007)

* Amended on 2064 BS, Jestha 30 (June 13, 2007) by the Interim Constitution of Nepal
(Second Amendment), 2064, to include reference to appointments of judges and ambassadors.

Against above provision and against such hearings that took place in Nepal, when writ was
preferred, the Hon’ble Supreme court held that Article 155 is constitutional and refused to strike
it down. In one of the Paragraphs of the order, SC made use of ‘doctrine of necessity’ to say
what it wanted to say.

The paragraph goes like this: (Unfortunately, SC has not given paragraph numbers but in the
order which I downloaded from SC’s website, the judgement has spread over 66 pages and I am
quoting from page 29.)

“…………other than those things, for managing intervening period and for the necessary
preparation and writing of constitution which is based on principles of democracy,
republicanism, federalism; Constitution can be amended by following the constitutional
procedure mentioned in Article 148 based on ‘in furtherance’ and ‘doctrine of necessity’……”

While delivering the verdict, the Apex Court refused to strike down the constitutional provision
regarding parliamentary hearings before judges are appointed in the Apex Court.

4

Case No. 2 (Two Cases have been discussed here):

Analysis of Judgement arising under Writ Petition No. 066-WS-0050 & Writ No. 066-WS-
0056

· Both these Writ Petitions deal with the 8th Constitutional Amendment of ICN, 2007.
· The 8 th Constitutional Amendment of 2067 Jestha 14 (May 28, 2010) had extended the
term of Constituent Assembly by one year time period, i.e. from June, 2010 to June,
2011.
· In Writ Petition No. 066-WS-0050, SC upheld the 8 th constitutional amendment
relating to one year extension of the term of CA. The verdict was given by a bench of
three judges and they are of the opinion that CA term can be extended until the time
Constitution is ready.
· In Writ Petition No. 066-WS-0056, SC struck down (?) the 8th constitutional
amendment relating to one year extension of the term of CA based on the ground that
even in extreme emergency, the term could be extended only by six months time period.
The verdict was given by a bench of five judges and they are of the opinion that CA
term cannot be perpetually extended but only based on the doctrine of necessity and
within the restrictions imposed by Constitution.
· In Writ Petition No. 066-WS-0056, though the SC strikes down the extension of the
term of CA, it does not issue any directions to that effect as the extended CA’s term had
already come to almost an end by the time verdict was delivered.
· Please note that Writ Petition No. 066-WS-0056 does not arise as a review of verdict
under Writ Petition No. 066-WS-0050. Both the matters arise under separate Writ
Petitions but during the hearing of Writ Petition No. 066-WS-0056, the bench takes note
of outcome of Writ Petition No. 066-WS-0050 and in the end, when verdict is delivered
in Writ Petition No. 066-WS-0056; it modifies/reverses the verdict of Writ Petition No.
066-WS-0050.

5

In the matter of Advocate Vijaya Raj Sakya v. President of Nepal, Mr. Ram Baran Yadav,
Office of the President, Sital Niwash, Kathamndu and Others and in Advocate Kamlesh
Dwivedi v. President of Nepal, Mr. Ram Baran Yadav, Office of the President, Sital Niwash,
Kathamndu and Others (Writ No. 066-WS-0050), the matter before the SC was whether the
Eighth Constitutional Amendment of ICN, 2007 was valid. The Eighth Constitutional
Amendment had replaced the phrase ‘two years’ by ‘three years’ in an Article which originally,
at the time of promulgation of ICN, 2007 had stated that the term of the CA would be for a
period of two years. The Apex Court upheld such amendment. It seems that few of the
respondents in the matter, in their defence and reply, submitted that such amendment is valid
also on the ground of ‘doctrine of necessity’. In page 7 of 36 pages judgement (downloaded from
Website of Supreme Court of Nepal: http://www.supremecourt.gov.np/ ), though it is not clear
but it seems to me that Ministry of Federal Administration, Administration of Constituent
Assembly and Culture AND Ministry of Law and Justice submitted that ‘unless there are some
provisions which are clearly mentioned as unamendable in the constitution itself, all other
provisions of the constitution can be amended as per the necessity, and therefore……………..’.
Though the court approved of such amendment, I could not see any such paragraphs in the
judgement where court based its reasoning on the ‘doctrine of necessity’. (My Point is the
argument of Respondents and Views of Court is not clearly forth coming. However, overall
understanding from the judgement is that CA has power to amend Constitution till the time
new Constitution is not promulgated.)

The SC has decided another matter in relation to the Eighth Constitutional Amendment of ICN,
2007 where the procedural issue arose as to whether the nomenclature of CA should be as
Parliament when it presents bills, passes them into law and publishes them into Nepalese
Gazette. Of Course, the petition and verdict also extensively deals with the substantive nature of
the 8th Amendment.

The matter was decided in Advocate Bal Krishna Neupane v. The Office of the President,
Maharajgunj, Kathmandu and Others and Bharatmani Jangam v. The Office of the President,
Maharajgunj, Kathmandu and Others (Special Writ No. 066-WS-0056).

6

In this case, one of the interesting arguments of the petitioner on procedural aspect was as
follows6:

“The Preamble of the Eighth Amendment of the Constitution which was published on 14th Jestha,
2067 BS (i.e. on May 28, 2010) on Nepalese Gazette has mentioned that this Amendment has
been issued as per Article 83 (1)7 of Interim Constitution of Nepal, 2007. Article 83(1) is not an
Article for Constitution Amendment. The right to Constitution Amendment has been provided by
Article 1488. The Constitutional Provision governing Constitutional Amendment is that Article
148(1) states that a bill can be presented in a Legislature Parliament for amendment or deletion
of any Article of the Constitution and as per Clause (2) of same Article, the bill presented under
Clause (1) shall be deemed to have been passed if have been voted in favour by two-third of the
members out of total members of Legislature Parliament present. Therefore, the defendant will
get power to amend Constitution by virtue of Article 148 alone. Article 83 will only give power to
the CA also to act as a Legislature Parliament – i.e. in a dual role as CA and Legislature
Parliament. This Article (Article 83) does not empower Parliament to amend the Constitution.”

The above arguments are on the procedural issues.

To appreciate the judgement regarding substantive issues, it is pertinent to note down two
Articles in ICN, 2007 and they are Article 64 and Article 82, among others. In Article 64 of ICN,
it has been mentioned that the duration of CA shall be two years from the date of its first meeting
and can be extended for a period of another six months in case of emergency whereas Article 82
mentions that the functioning of the CA shall cease from the date of promulgation of
Constitution passed/drafted by CA.

6
The facts have been stated in brief to understand the subject matter of the contention.
7
“83. Acting in the capacity of Legislature-Parliament - (1) Not withstanding anything contained elsewhere in this
Part, the Constituent Assembly shall also act as Legislature-Parliament as long as the Constituent Assembly
remains in existence, and the Constituent Assembly may constitute a separate committee to conduct necessary
regular legislative functions.”
8
“148. Amendment of the Constitution - (1) A Bill regarding amendment or repeal of any Article of the Constitution
may be presented in the Legislature-Parliament.
(2) The Bill shall be deemed passed if the Bill so presented is approved by at least two-thirds majority of the total
number of existing members.”

7

So, these two articles can run counter to each others. What will happen if Constitution is not
promulgated within 2 years 6 months? Can Article 82 save Article 64 or Will Article 64 kill
Article 82? Harmonious Interpretation? This needs serious discussion but the judgement fails to
do.

In the judgement, the ‘doctrine of necessity’ and ‘the doctrine of compulsion’ have been
extensively discussed and these two principles, again, get a very vibrating life. The Court refers
the situation as ‘inevitable necessity’.

The Court, in page 32 of the judgement adds a caution that doctrine of necessity can be invoked
only in exceptional situations where it can be proved that all that was done was as mandated by
law and with all utmost efforts. While looking at Article 64 of ICN, it says that literal
interpretation of the Article is to be applied as its meaning and content are simple and
unambiguous. Therefore, the court states that the provision contained in Article 64 is a
mandatory and not just a directory or guiding provision. Therefore, the ruling in Writ Petition
No. 066-WS-0050, which had held that two years time period envisaged in Article 64 to be a
directory, has been overruled to that extent.

Let’s recall the events here. CA term expired in June, 2010 and its term was extended by a year
2011, June by Eighth Amendment of the ICN, 2007 which amended Article 64 of the ICN, 2007.
Against this, when a writ was preferred, the SC gave its verdict on 2011, May three days before
the extended period of one year came to an end9.

The Hon’ble SC held that the extension of the term of CA for a period of more than six months is
not per Constitution. But, SC refused to strike and nullify the actions taken by CA within the last

9
Not to be confused, there are two judgments relating to validity of 8th Constitutional Amendment. The first one is
by a bench of three judges decided in (Writ No. 066-WS-0050) and second is by bench of five judges decided in
(066-WS-0056). The second judgement overruled the previous judgement on 8th Amendment of Constitution but in
effect, they produced the same result. The one year extension of CA term was held valid by bench of three judges but
that was declared invalid or rather undesirable by bench of five judges. Surprisingly, SC refused to strike the
actions taken by CA in that period as there were only three days left for CA to complete that one year extended term
on the day of verdict (interesting and beyond understanding).

8

11 months and 27 days on the ground that since majority of time period have elapsed, and
‘doctrine of necessity’ demands that those actions taken, though the extension of term of CA
itself is unconstitutional, are valid. This is in my humble opinion and with due respect to Apex
Court, is a completely flawed decision.

On this context, the ‘doctrine of necessity’ has come to take its place in Nepalese Constitutional
Law development.

In the opinion expressed by the Hon’ble Court, it will be proper and legal to extend the term of
CA only for a period of six months when the tenure are extended with bonafide intention. The
SC added that there is a limitation on the power of CA when it comes to extension of its tenure
and that has been clearly permitted only for a period of six months. Therefore, in any
circumstances, the tenure of CA cannot be extended for a period of more than six months on the
ground of non-completion of the task of framing of new constitution.

Any extension of term of CA should be within the timeline permitted by Interim Constitution of
Nepal, 2007 and adherences to such limitations are mandated by the law, the court further added.
The innumerable extension of CA term on the guise of need for drafting of Constitution cannot
be valid as it goes against the fundamental principle/norms incorporated within the constitution
and will also be against the desires and directions expressed by sovereign people during the
electoral process.

It is pertinent to note here that the Interim Constitution of Nepal, under Article 64, provides that
the term of CA would be of two years and only when the drafting of constitution is incomplete
owing to the proclamation of emergency, the CA can pass a resolution to that effect and can
extend its term by another six months, noted the Supreme Court.

The Court further held that the limitation clause incorporated in the Constitution under Article 64
points to a very significant message that the term of CA can be extended only for six months and
not for a time indefinite, and that is also only in the situation of proclamation of emergency.

9

While putting down its verdict, the court has acknowledged that it is not easy to formulate a
common political roadmap among the political parties with diverse background and ideologies.
Therefore, it has been noted that despite maximum genuine efforts by all political parties, if the
task of drafting of constitution is incomplete and if there is no other viable alternatives than the
extension of the term of CA, the same can be resorted to under Article 64 of Nepalese
Constitution, however, subject to limitation provided therein.
Therefore, it gives a message to me that SC resorted to a very liberal interpretation and gave a go
ahead in extension in CA’s term despite there not being any proclamation of emergency. But,
any extension cannot exceed for more than six months time period.

In its verdict, the court has also cautioned the political parties that any unnecessary extension of
term of CA would be the subject matter of judicial review by the court.

The Court held, “the issue would be always under the subject matter of scrutiny within Judicial
Review and therefore, the CA must complete its main task of framing of constitution with special
activism. It must complete the task by adhering to the objectives, directive principles and basic
foundation and structures of Interim Constitution of Nepal, 2007.”

This judicial pronouncement has disagreed with the views expressed by Special Bench (‘SB’)
earlier consisting of Justice Balram KC, J. Girish Chandra Lal, and J. Praksh Wosti. The three
member SB of SC had earlier held that the CA cannot be dissolved unless the new constitution is
drafted and promulgated. The judgement by FB clearly writes that the FB cannot agree with the
views expressed by SB earlier and therefore, the earlier verdict/opinion expressed by SB will be
specifically overruled, though both the verdicts arise under 8th Amendment.

However, as said earlier, the FB did not agree with the main prayer of the petitioners. The court
reasoned that out of 12 months time period for which the term was extended, the time of 1 month
and 28 days have already elapsed and in this circumstance, if the prayers of the petitioners are

10

heeded to, then, the actions undertaken by CA would be affected on one hand, and on the other,
when there are only three days left to expire the period of one year, the remedy asked for would
not produce any fruitful results. Therefore, the writ petitions have been dismissed and disposed
off.
Case No. 3:

Analysis of Judgement arising under Writ Petition No. 067-WS-0071

· The Hon’ble Supreme Court upheld the 9th Constitutional Amendment of Interim
Constitution of Nepal, 2007
· The 9 th Constitutional Amendment had extended the term of Constituent Assembly by
three months (from June, 2011 to August, 2011)

Had the CA been able to draft and promulgate new constitution, the matter would have been put
at rest but since they could not do within extended period of one year, Constitution (Ninth
Amendment) Bill was presented and passed by CA which extended the term of CA by further
three months. The term was extended from June, 2011 to August, 2011.

Against this amendment, again a writ petition was filed before SC of Nepal. SC passed a verdict
upholding the validity of Constitutional Ninth Amendment Act.

The ICN, 9 th Amendment was challenged in the matter of Advocate Bal Krishna Neupane v.
The Office of the President, Maharajgunj, Kathmandu and Others and in the matter of
Bharatmani Jangam v. The Office of the President, Maharajgunj, Kathmandu and Others.

On August 28, 2011; SC of Nepal has upheld the 9th Constitutional Amendment of ICN, 2007
which had extended the term of CA by further three months from 2011, June to August, 2011.
By quashing the petitions filed by Advocate Bal Krishna Neupane, and by Bharat Mani Jangam,
the SC, again, applied the doctrine of necessity to uphold the constitutional validity of 9th
Amendment.

11

The SC, by following its own precedent, the verdict of May 25, 2011 (judgement arising out of
WP No. 066-WS-0056 – See Case No. 2 at Page 6 for detailed discussion), held that there are
no needs and circumstances to change May 25 verdict that interpreted Article 64, stating that the
CA term cannot be extended for more than 6 months after its original term comes to an end. The
SC held that CA can extend its term by six months time period in a state of emergency or as per
the ‘doctrine of necessity’.

In the page 4 and 5 of the judgment, the Bench quotes its observation which was expressed in
Writ Number 066-WS-0056 (delivered on May 25, 2011 and discussed under case No. 2 at page
6).
Quote

The making of the constitution is a very difficult task. It is not so easy to create a common
document amongst political parties which have different ideologies and principles. Along with
the making of the constitution, the responsibility of establishing peace in the long run must have
been very challenging. In this situation, despite being focused and even with the maximum efforts
being put together, if the time granted for making of constitution is not sufficient, then, when the
extension of the term of the constituent assembly is required to be amended under Article 64
based on the doctrine of necessity, it is mandatory and proper to amend the constitution keeping
into mind the restrictive phases and the time lines enshrined under Article 64. Because even so
only when the country is in a difficult situation, the constitution has put a restriction on the time
limit that the term of the CA cannot be extended beyond the period of six months and in an
ordinary situation, the CA’s time period cannot be extended beyond the period of six months by
showing some extraneous reasons merely on the ground that the work of writing of constitution
is not over.

There is a way out in the Constitution that the term of the CA can be extended by a period of 6
months when an emergency is declared in the country. In this circumstance, on those occasions
other than the one envisaged in the constitution, if we are to accept the lengthening of term of
CA because of some other reasons by amending the provisions relating to the Amendment of the

12

Time Period of Constituent Assembly, then, there will be the possibility of emergence of more
than one way on extension of term of CA. Even in the case of extreme necessity, it is not possible
to sideline the underlying principle imbibed in Article 64. This is so, why because the makers of
ICN have not provided/seen any possibility of extension of CA’s term by more than six months
irrespective of the nature of emergency in the country. The makers have deliberately and
consciously put an embargo of six months on the extension so as to not give any leeway on its
misutilisation or misapplication of the provisions on the ground of one or another kind of
emergency. Therefore, the extension of the term of CA cannot be for more than six months. The
provision seems to be inserted in the constitution so as to check the illegal extension of the terms
in the name of emergency and such provisions are inserted in the constitution to make the term
of the CA – a limited and definite. The makers of the ICN have given an utmost priority to the
making new Constitution in Nepal and such provisions have been inserted (by them) to finish
such work as soon as possible. If we are to dismiss the underlying principles envisaged in Article
64 of ICN and to understand that ICN can be amended as many times and as many periods
without any restrictions, then, it will be a cold slap on the basic dreams and expressions of our
ICN makers. In a democratic set up governed by constitutional provisions, the legislature has to
implement and act even taking into consideration & without causing any displacement the basic
desires and structures that were expressed while making the constitution. This should be
followed even when the legislature parliament sits for the amendment of constitution. Otherwise,
in the name of emergency (by imposing some sorts of emergency!) or by amending the
constitutional provisions for ‘Amendment of the Constitution’ – by one way or the other – there
will be a possibility of an exit way for the CA to extend its time period for indefinite time. There
is a necessity to have unshakable faith on the spirit imposed through the language of Article 64
of ICN, 2007 and that is the people should be able to make their own constitution themselves at
the earliest. This is an underlying irrefutable principle in Article 64. Therefore, it will be against
the sovereign people’s desire expressed through election and against the direction/mandate of
people, and against the basic principles of ICN IF Article 64 is amended to give continuity to the
term of CA or IF term of CA is unnecessarily extended again and again.

13

Even when the submissions are made that the term of CA has been extended based on the
‘Principle of Necessity’, the question will always arise whether such necessity exists at all and
that will be always the question of ‘Judicial Review’. Therefore, the CA, in the process of
completing its main task of formulating and promulgating Constitution of this country, must
show a special activeness and must adhere to the objectives, spirit and desires expressed in ICN,
2007 and must respect the people’s mandate and directions.

Unquote

After reproducing the literature on the need of urgency in the promulgation of Constitution and
its ties with Doctrine of Necessity, the court records that the defendants have submitted the
progress reports in constitution drafting process. By referring to the submission made by
Ministry of Law and Justice, the judgment records that as per the report, very substantial
progress has already been made but some small things are to be sorted out which have been
incomplete because of some political differences. Thereafter, the judgement writes one more
sentence,

“In addition to that, regarding the directions shown by our verdict while disposing writ petition
on the matter arising under the constitutional validity of 8th Amendment10, we have to take it on a
positive note that the Constitutional Amendment has been brought for extension of the terms of
CA for a short period of time.”11

Regarding the principle of necessity, in page 9 of the judgement in second paragraph, the bench
writes that it is not an ordinary situation/incident to stamp the validity of extension of term of CA
based on ‘doctrine of necessity’. It has been further stated in the judgement that the CA has been
unable to give its best efforts in drafting of constitution and there are not enough evidences of
maximum try to make people believe that CA and CA members are working in the directions

10
in Writ Number 066-WS-0056
11
Please note that the 8 th Constitutional Amendment had extended the term of CA by 12 months where as the 9 th
Amendment has extended the term only by 3 months. This one statement gives us an indication on whose favour the
verdict may come, but of course with some riders! for the sake of justification.

14

mandated by people. The judgement shows its displeasure by mentioning that the defendants
have been unable to show their sensitivity towards the points raised in the judgement arising out
of WP No. 066-WS-0056.

In the end, in the last paragraph of the judgement, after showing displeasure on various issues -
like slow pace of constitution drafting, insincerity of law makers in making constitution, wasting
too much of time in competition for executive posts, not being able to answer why further time
period is to be given for CA, the bench refuses to strike down the 9th Constitutional Amendment
and states,

“Therefore, based on the analysis carried above and based on this court’s view expressed in the
judgement arising out of WP No. 066-WS-0056 also with regard to ‘Doctrine of Necessity’, we
cannot agree with the prayers of striking down the constitutional validity of 9th Amendment of
Interim Constitution of Nepal, 2063. Therefore, the writ application is rejected and disposed
off…….”

Case No. 4:

Analysis of Judgement arising under Writ Petition No. 068-WS-0014
(The Judgement is available in English in Nepal’s Supreme Court Website12. At the top of the
judgement, it has been mentioned,
“Those state organs exercising the power delegated by the sovereign people shall have no right
to use the doctrine of necessity as a tool of defense for concealing there repeated omission of
duty and long indecisiveness having direct impact on the fate of nation and her people.”)
Finally, the Hon’ble SC has woken up to find the mischief of ‘doctrine of necessity’.

· In this case, the Hon’ble Supreme Court had to consider the constitutional validity of 10 th
Amendment of Interim Constitution of Nepal, 2007.
· The 10th Constitutional Amendment had extended the term of Constituent Assembly by
three months from September, 2011 to November, 2011)

12
http://www.supremecourt.gov.np/download/Constitution_Assembly_Case.pdf

15

In its summary of judgement, the court has mentioned as below:
· Where there is a clear specification of time limit, the action thereof must be done or
completed within the time limit so specified. The time period stipulated in Article 64 of
the Interim Constitution for the making of a Constitution through Constituent Assembly
must not be taken as a formality or a show.
· While framing the Interim Constitution, its framer had a fine speculation on the necessity
of time specification in order to cause the timely promulgation of it. If this truth is
undermined and attempted to draw an archaic interpretation of the original spirit of
Article 64 of the constitution to mean that the right to amend constitution includes also
the right to extend time period again and again by pushing the task of
promulgating……………..constitution into uncertainty, it shall go against the mandate
given by the people. It is also unreasonable through the view point of the constitutional
jurisprudence to unusually extend its time period by the Constituent Assembly itself so as
to create a limitless and uncertain situation.
· It is in fact a legitimate expectation of people to be assured in the timely making of the
constitution when the Constituent Assembly itself has announced the work plan and time
schedule of bringing the constitution in order to satisfy the just expectations of the
people. Any agency which is bestowed with a historical liability of making constitution is
bound to respect such legitimate expectation of the people and become responsible to
fulfill the pledges accordingly. If it fails to fulfill its responsibility within the time frame
so prescribed and extends time limit again and again on its own accord this trend not only
develops a situation of uncertainty and dilemma but also raises question in the legitimacy
of its work. One of the key features of democratic rule is to provide also a government
accountable to the people in such a rule, the pledges made before the people are required
to be fulfilled. In the failure of which people shall have right to ask the reason why? In
this it will be wise to take and perceive the present writ petition as part of seeking the
reply of that accountability.

16

· The respondent agencies are found reluctant and differed to fully capitalize the intent of
the constitutional interpretations made in the decisions with clear expression and called
for demonstrating their worthiness. Although both the earlier writs were vacated,
however, there were made elaborative discussions on the legitimacy of the amendment of
Article 64 and defined doctrine of necessity including the time limitations and are based
on clear justification of the fact auxiliary to it. No serious attention was found paid on the
reasoned proposition made by this court and the judicial viewpoints expressed in them. In
such a situation, a conclusion derived only taking their vacation as threshold cannot be
held as worthiness to claim that the frequent amendments in Article 64 is recognized and
given validity.
· It is worthless to repeatedly mention that the only duty of CA is to make constitution. The
mere echoing of such a gospel time and again will not help to reach a meaningful
conclusion. It is equally unwise to neglect Article 64 and state that the tenure of the CA
will be terminated only after the CA makes constitution and brings into operation. In fact,
the intention of Article 82 is not to prolong the time period and make it uncertain by
effecting frequent amendments in Article 64 nor such rationality of extending the CA
term up to the unknown future will be logical.
· It is not a judicially manageable subject about whether to form a new CA in pursuant to
Article 63 of the Interim Constitution, 2063 resorting on the fact that the making of
constitution is not possible by the existing CA or give it continuity and ratify the
commitment it may make for writing a constitution within a fixed time period by
conducting referendum or think about other options available to the people to ensure their
right of making a new constitution. Since it is purely a political issue, the solution thereof
must be sought by the political level remaining within the boundary of constitutional
framework, not going beyond it.
· There is likely to be created a situation of looming suspicion and doubt among Nepali
people about whether the issues associated with democracy, peace, prosperity and the
major economic and social changes also may fall into the crisis of overall problems to be
furthered along with the continuation of transitional period . To free the people from such

17

a fear, there is no option available to the court for now other than giving assurance of
coming new constitution through the existing CA itself. This court is not also in favor of
making an attitude of continuing such an agency forever as universal and option less
which cannot fulfill its major responsibility of bringing a constitution till the uncertain
future. Any agency or body created under the constitution by assigning certain duties and
responsibilities will have also a fixed reasonable time limit and duration, the present
Constituent Assembly also cannot be an exception to it.
· Any individual or institution liable to discharge the assigned duties and responsibilities
when fails to do so by his incapacity or due to arising a situation beyond control is
referred to as a circumstance beyond control. It is the very intent of the doctrine of
necessity. If such a situation cannot be neglected or avoided and it compels to take a
decision and if such a decision would not have been lawful even in a normal situation and
the reasonableness and legality of occurrence of such a condition is when substantiated
by the time and situation, the doctrine of necessity could be attracted. Provided that, the
doctrine of necessity cannot be applied in concealing one's own fault, inaction and the
problems created by one.
· It does not shove! (Or serve?) to any lively organization to take the doctrine of necessity
as tool of defense for one’s own miscreants. The constitution always hopes the positive
response and liveliness on its and its components’ doings. The constitution is such a
lively instrument which bears the capacity of operating the whole state mechanism
actively and dynamically even when there are possibilities of arriving multifold of
obstacles, a hardships and difficulties across the life of the nation. So, a constitution does
not imagine a situation of lifelessness of the state which impairs the whole process by
considering the one and the same problem as the never ending one.
· The aspirations of Nepalese people to bring about a new constitution through the
Constituent Assembly, the fund consumed by the state to date after the initiation of
constitution making process and to secure the achievement CA has accomplished up to
now in course of drafting the constitution are the most significant constitutional
responsibilities to be carried out by this court. It is natural to expect that all possible

18

efforts will be made to promulgate the constitution within the time period extended by the
tenth amendment. In otherwise condition, it will be more appropriate and justifiable to
provide the last opportunity to the present CA if it needed the additional time period in
order for the completion of remaining works and bring about the constitution.

The Special Bench of Supreme Court consisting of five Justices had to deal, once again, the one
more Constitutional Amendment of Nepal – i.e.; the 10th Constitutional Amendment which had
extended the term of CA by three more months from September, 2011 to November, 2011. The
Constitutional Amendment was brought on 14.05.2068 BS (31st August, 2011).

The matter arises in relation to a Writ Petition in Bharatmani Jungam & Others v. The Office
of the President & Others (68-WS-0014).
In Page 19 of the Judgement, the Hon’ble SC writes,
“This court is not in favor also of making a view of continuing such an agency as universal and
optionless which cannot fulfill its major responsibility of bringing constitution till the uncertain
future. Any agency or body created under the constitution by assigning certain duties and
responsibilities will have a fixed reasonable time limit and duration, the present constituent
Assembly also cannot be exception to it.”

From the above paragraph, I see the seriousness of the Court and am inclined to think that the
Court is going to set a time limit within which CA must promulgate a Constitution!

Reacting on the frequent power struggles among the political parties and change in
Governments, the Hon’ble Court writes,

“It is not the intent of the Interim Constitution to cause frequent amendments to the constitution
and extend its term and establish it as a everlasting institution by putting priority only in the
forming and dissolving the government in capacity of Legislature-parliament by showing oneself
reluctant towards the key responsibility ignoring the task of making the constitution. The Article

19

64 of the constitution had no such speculation nor does the doctrine of necessity recognize this
type of trend.”

Thereafter, in many Paragraphs, the Court keeps on repeating, reiterating and reminding the
present CA that it is their duty to write a new Constitution in Nepal and the CA must do this
within the reasonable timeline prescribed.
The Court also states that on the name of necessity, there cannot be indefinite extension of term
of CA and therefore, the court states that CA shall be given a last extension of six months
maximum period and there shall not be any more extension on the term of CA. That means, the
present CA must draft and promulgate Constitution in Nepal by May, 2012 and court believes
that it can do so. But, in the case that the CA is unable to promulgate a constitution within the
final timeline, then, it has to search the way for acceptable political situation and not for further
extension of term of CA.

The Court does not clearly state what the government and CA should do in case they fail to
promulgate a new Constitution within the given timeline. However, the Court believes that such
way outs are political in nature and found not through court directives but by political
deliberations. Therefore, finally, the Hon’ble Court states,

“……………………………..Now therefore the Constituent Assembly shall ascertain the
achievements made after the formation of present CA those yet to be finalized in relation to
making the constitution and so as not exceed the duration stipulated by the restrictive Clause of
Article 64 of the Interim Constitution of Nepal, 2063 and the time period likely to be actually
needed for the last chance and complete the task of constitution making within the said period
and , in case the writing of the constitution could not be completed within the given period, the
tenure of CA will be ipso-facto terminated thereafter. Hence, this (directive) order is issued in
the name of respondents, the chairperson of the Constituent Assembly and the Government of
Nepal, Office of Prime Minister and the Council of Ministers, to conduct or have conducted
necessary activities and make required arrangement either for conducting referendum under

20

Article 157 or for holding election of the fresh Constituent Assembly or any other
arrangements as provided in the constitution.

Therefore, as per the above verdict, the CA must draft and promulgate Constitution in Nepal by
May, 2012.

The case under discussion is in relation to extension of term of CA by three months from
September, 2011 to December, 2011. The SC had no other option but to approve such
amendment (The Judgement is delivered on 25th November, 2011) with lots of displeasure and in
its verdict, SC makes it clear that another maximum six months extension can be given (after
December, 2011) which effectively means the CA must perform by May, 2012. Or, it shall
perish!

Thereafter, 11th Amendment of the Constitution has been passed in November, 2011 to extend
the term of CA by another six months from December, 2011 to May, 2012. As per the above
verdict, this six months time period is a last opportunity for CA to fulfill what it had promised
four years back in 2008, May – CA Elections.
Remember that there are in total 4 Amendments of ICN, 2007 only to extend its term. They are:
A. 8 th Amendment of ICN – extended term of CA from 2010 June to 2011, June (1 year)
B. 9 th Amendment of ICN – extended term of CA from 2011 June to 2011, August (3 months)
C. 10th Amendment of ICN – extended term of CA from 2011 September to 2011, November (3
months)
D. 11th Amendment of ICN – extended term of CA from 2010 December to 2012, May (final 6
months!)

After the above verdict, the Office of PM and Chairman of CA cum Legislature Parliament
wanted SC to review its verdict. Initially, SC refused to register a review application/petition on
the matter. Against this rejection to register a review application, when another application was

21

preferred, SC, a bench of Single Judge, (J. Kamal Narayan Das) rejected the application and held
that refusal to register a review application is proper and legal13. Therefore, it can be well said
that the term of CA will finally expire on end of May, 2012.

Thereafter, the last date for CA in Nepal to act legitimately and if possible, to promulgate
constitution is unchanged and stands to be end of May, 2012. The Activists Advocates deserve a
pat on their back for making Courts, finally aware on the ill-effects brought by doctrine of
necessity and hopefully, the last verdict would be the graveyard for this unmeritorious (il) legal
principles in Nepalese Legal and Constitutional History.

If political parties have even a trace of honesty and seriousness, it will be a defining moment in
Nepalese History – another less than two months. Barring personally me, Nepalese people have
still some hope that we will be getting a New Constitution in Nepal if political parties show
genuine interest in performing their duties. If not, we are left with no options except to expect
some heavenly intervention. This is how Nepalese Political system is marching backwards! In
the recent past.

Regarding Constitutional Law Development, most of the time, the reasoning of the courts
revolves around aspiration and their own desires to see new Constitution. There are not enough
precedents cited in judgement to back their writings. The Learned Justices put down a
continuous circle of arguments – what CA is expected to do on the hope that the CA understands
its responsibility. But, finally, SC realised that the drama of ‘necessity’ and ‘compulsion’ would
not be a strong fortress forever for CA to hide its incompetency. Thereafter, the deadline was
inserted in functioning of CA.
The positive is that SC did not insert a cutoff date for CA on the basis of ‘doctrine of necessity’!!

13

http://www.thehimalayantimes.com/fullNews.php?headline=SC+deals+death+blow+to+executive%E2%80%9A+le
gislature+&NewsID=325893

22

This, in a way, small victory for people like me who have no respect for this autocratic principle.

© Rajib Dahal, Advocate. I can be reached at rajib.dahal@gmail.com

23

Against the doctrine of Necessity, I had earlier written a small Article in telegraphnepal.com
which you can read from the link below:
http://www.telegraphnepal.com/views/2011-09-21/nepal:-unnecessary-doctrine-of-necessity.html

24

Doctrine of necessity and its applications by nepalese sc.a brief look

Recommandé

Recommandé

Contenu connexe

Tendances

Tendances (20)

Similaire à Doctrine of necessity and its applications by nepalese sc.a brief look

Similaire à Doctrine of necessity and its applications by nepalese sc.a brief look (20)

Dernier

Dernier (20)

Doctrine of necessity and its applications by nepalese sc.a brief look