Judicial Activism in Nepal (Analysis of the Development of Public Interest Litigation in Nepal )
Introduction
Judiciary is one of the major
institutions of the government and is according to the notion of separation of
power of government. Judiciary of any state involves in the interpretation of
the laws and administration of justice. Hence, judiciary is an institution
entrusted with the duty of dispensing justice. [1]
With the influence of many factors
in the society like industrial revolutions, growth of multinational
corporations, population growth and others, peoples’ life have gradually
shifted from individualistic to welfare laissez faire. The revolution for
liberty and democracy has also transformed the living of people and their
behavior. With that change in the society, it becomes obvious for the state to
act accordingly and so it becomes for its organs. Judiciary in this regard, has
also gradually transformed its role from indifference to that of activist.
In 1956 Justice Douglas[2]
wrote, “[T]he judiciary must do more than dispense justice in cases and
controversies. It must also keep the charter of government current with the
times and not allow it to become archaic or out of tune with the needs of the
day.” This signifies the broader scope of judiciary in its function and the
concept of judicial activism was brought into light.
According to the idea of judicial activism, judges should
use their powers to correct injustices, especially when the other branches of
government do not act to do so.[3]Such
a use of power is premised by the norms of constitutionalism. It is the concept
arised in the 20th Century where the judiciary becomes active in
protecting the rights of the people, ensuring non-discrimination in the
economic, social, cultural and environmental aspects of society, leading to the
development of progressive and equitable society by checking the arbitrariness
of the ruler.
Introduction To Judicial Activism:
Black’s Law Dictionary
defines judicial activism as “a philosophy of judicial decision making whereby
judges allow their personal views about public policy, among other factors to guide their
decisions, usually with the suggestion that adherents of their philosophy tend
to find constitutional violation and are willing to ignore precedents.
Judicial activism refers to
court decisions that go beyond application and interpretation of the law and
extend into the realm of changing or creating laws, or going against legal
precedents. These decisions are made based on the judges' personal philosophies
or political affiliations. When a judge makes a court ruling that is not in
accordance with constitutional or statutory law
or legal precedent,
that judge may be said to be "legislating from the bench." [4]
Justice Winder Holmes (USA)
–“ As the provisions of the constitution are not mathematical formulae having
their essence in their form…., it is to be gathered not simply by taking the
words and a dictionary, but by considering their origin and the line of
growth.”[5]
This signifies that the interpretation of constitution by the judiciary must
not always should confine within the mere words encoded in it rather the it
also should show its imagination and creativity and make the justice system move
up to the living reality of society.
Scope and extent
of Judicial Activism:
Judiciary holds the power of
defining and interpreting the constitution and other laws. Sometimes, there
might be found the prevalence of vague words and phrases in the constitution.
At that time, the role of judiciary is expected for its proper interpretation. Besides
this, the judiciary has also the responsibility to examine the existing laws
and a power to declare null and void the legal provisions which are
inconsistent with constitution. Similarly, the gradual change in the role of
the state from police state to welfare state, state promises its people to take
the welfare activities of the state upon its responsibility. At that time, the
state must be ready to take the positive role as directed by the laws and
constitution.
Hence, basically two types of approaches for
judicial activism can be found in this regard:
a.
Judicial Review
b.
Public Interest
Litigation
Public Interest
Litigation (PIL) :
Public Interest Litigation (PIL)
from its name refers to the litigation filed in a court of law for the
protection of the interest of the public in general.[6]
For any issue to be a subject matter of Public Interest Litigation, the matter
must be of public in nature. In the traditional conception of jurisprudence, it
was believed that only the person possessing the locus standii can file a
petition in the court within the limitation.[7]
However, the scope has broaden. Public Interest Litigation is nowadays
considered as an
“… instrument to bring such constitutionally envisaged social,
economic, justice within the rich or poor people through the enforcement of
public rights and duties. In facts, Public Interest Litigation intends to
promote public Interest, which demands that, the violation of socio-economics
and political rights of largest number of people who are poor, ignorant and
socially economically backward should not go unnoticed and un-readdressed.”[8]
The concept of Public
Interest Litigation has been developed from the concept of Judicial Review
which had declared the Ultra Vires the Action of the US Executive by the US
Judiciary in the case of Marbury v. Madison[9].
Similarly, in India, the concept of PIL was introduced by Indian Judiciary
through the judicial interpretation in the case of Mumbai Kamgar Sabbha v.
Abdulbhai Case (1976). Similarly it
gained its pace in India from the case of S.P. Gupta v. Sate of India[10]
where the court observed:
“…the court has to innovate new methods and devise new strategies
for the purpose of providing access to justice to large masses of people who
are denied their basic human rights and to whom liberty and justice have no
meaning. The only way in which this can be done by entertaining writ petitions
and even letters from public-spirited individual seeking judicial redress for
the benefit of persons who have suffered legal wrong or legal injury of whose
constitutional and legal rights have been violated.”[11]
“Any member of the public having sufficient interest can maintain
an action for judicial redress for public injury arising from breach of public
duty or from violation of some provision of the constitution or the law and
seek enforcement of such public duty and observance of such constitutional or
legal provision. This is absolutely essential for maintaining the rule of law,
furthering the cause of justice and accelerating the pace of realization of the
constitutional obhectives.”[12]
A brief history of the Practice of Judicial Activism in the
Judiciary of Nepal:
The practice of judicial
activism has been adopted by the Judiciary of Nepal from a very long time ago.
However, considerable activism is seen after the restoration of multiparty
democratic system of government after the peoples’ revolution of 1990 A.D. However, there are some examples of judicial
activism prior to 1990 A.D.
- During
1950 A.D
In early years of 1950,
judiciary remained as the “Pradhan Nyayalaya”[13].
It was under struggle with the King, Council of Ministers, political parties
and others. However, Chief Justice of
then Pradhan Nyayalaya Hari Prasad Pradhan in a case mentioned that the Civil
Liberties Act 2006, the Interim Government Act 1951 and the Supreme Court
itself were created to disprove that there did not exist a constitutional
system and the government could be run by executive ordinance. He resisted the
King’s prerogative to ask the Supreme Court to revise its judgements. Besides,
the court also filed several writ petitions against the Prime Minister, agencies
of Government and ministers on contempt proceedings. Such an expanding role of
judiciary in the back of its extraordinary jurisdiction was curtailed by the
amendment made in Pradhan Nyayalaya Ain by the Government.
- During
Panchayet Regime:
The Panchayet Regime is
characterized by the absence of political competence. So there was no question
of independence of judiciary in the practice. [14]However
in terms of judicial activism, a landmark event can be seen where the Supreme
Court held that the Rastriya Panchayat is not the highest legislative body and
the Supreme Court has the ultimate power to interpret the Constitution and the
legislations of Rastriya Panchayat can be subjected to judicial review.[15]
It held such a decision on the basis that the approval of King was a must for
the validity of any legislation.
During the Panchayet Regime,
the Seventh Amendment of 2043 in the Muluki Ain in the chapter of the Court Management
in No.10 has stated that any person can file a petition in the court if the issues
is related to public in nature. In the
case of Chandra Bahadur Thapa v. Kathmandu Nagar Panchayet, case concerning the
dispute of the Bhugol Park, this amendment was tried to be brought into practice
which stated that any person, with the permission of the court or His Majesty’s
Government, can file a petition on the issue of public interest not concerning
to the case where His Majesty’s Government is a party. But the provision could
not be active. The provision of taking permission from the government to file
the petition might be a reason for that.[16]
c.
After 1990 A.D. :
The promulgation of the
Constitution of Kingdom of Nepal 2047 broadened the horizon of judicial
activism. The extra-ordinary jurisdiction of the Supreme Court of Nepal
embodied in Article 88(2)[17]
specially designated role to entertain PIL petitions in the matter of public
interest. The article empowered the Supreme Court to issue necessary and
appropriate orders also for the settlement of any constitutional or legal
question involved in any dispute of public interest or concern or for the
enforcement of such a right. This provision of Article 88(2) has been virtually
lifted from the 2047 Constitution and transplanted in the present Interim
Constitution of Nepal 2063 in its Article 107(2).[18]
The application of Public
Interest Litigation in the light of Article 88(2) of the Constitution of
Kingdom of Nepal 2063 as well as the Article 107(2) of the Interim Constitution
of Nepal 2063 can be seen in the decisions by the Supreme Court of Nepal on its
landmark decisions in various cases. Some of the major decisions are as
follows:
This is one of the most
important leading case which is popularly known as “Ambassador’s Appointment
Case”. It was the first case which dealt with the concept of public interest
and locus standii to move the court for enforcement of any public interest. In
this case, the Supreme Court Opined that a dispute of public interest or
concern signifies a dispute related to the collective rights or concern of the
general public or any class of people. In order enter any dispute as a public
interest in the Supreme court, the dispute must be based on constitutional law.
The Court also declared that in order to ignite the jurisdiction of the Supreme
Court in these type of situation, the petitioner must establish ones’ “substantial
interest” or meaningful relation” with the subject matter of the dispute. The petitioner also require to convince the
court about one’s ability to duly represent the people concerned with the
public interest or concern involved in the dispute.
This case is generally
believed to have initiated the practice of PIL in Nepal (by extending the
meaning of right to life as also incorporating the right to a clean and healthy
environment)[21]. The
petitioner challenged environmental pollution and degradation caused by the
defendant industry and sought enforcement of the right of the public to live in
a healthy environment. Although the Supreme Court did not give specific relief
to the petitioner, it extended the meaning of the fundamental right to life and
held that since clean and healthy environment is an indispensable part of human
life, right to a clean and healthy environment is undoubtedly embedded within
the right to life. The Supreme Court also issued a directive to the government
to enact necessary legislation for the environmental Protection.
It is one of the famous and
most important case which is also known as ‘Marital Rape’ Case. The Supreme
Court found that the writ petition filed under the Article 88(1) represents all
married women and raised the questions pertaining to human rights and general
interest of married women which makes it an issue of public concern. It is a
leading PIL case which not only exhaustively deals with the concept and
philosophy of PIL but has also criticized the traditional outlook of male
domination in the society and has made tremendous contributions to restore the
dignity and honour of women. The Court in its verdict opined that the Muluki
Ain, in its definition of the crime rape, doesn’t seem to exempt forceful
sexual intercourse with one’s wife and held that any person should be held
criminally liable for perpetrating the inhuman crime of forceful sexual
intercourse of women against her wishes.
Conclusionn
On the light of
aforementioned information and the approach of Nepalese Judiciary in its move
to ignite and enhance judicial activism, it can be said that substantial
efforts have been made so far. Although the judiciary’s extraordinary
jurisdiction had been ensured in the Constitution after 2047 B.S. there can be
seen some major steps through which the Judiciary approached to define and
interpret the laws as per the context and the changes in the general principles
of laws in global arena. PIL in this regard, has been ensured only after the
promulgation of 2047 constitution. After a long debate in several leading
litigations in the Supreme Court, the court pointed out the basic elements for
an issue to be a public concern. In the light of the liberalization of locus
standii to file a petition in the Court of Law, the judiciary seemed to have
updated with the several international legal principles and case laws of
several countries. From the case of Surya
Prasad Sharma Dhungel v. Godawari Marbel Industries Pvt. Ltd.[23],
the judiciary has provided the broader perspective of right to life of a people
associated with the clean and healthy environment. The provision of Right to
Environment and Health[24]
in the Interim Constitution of Nepal 2063 is an obviously a result of the
awareness among the law makers due to such types of PIL filed when such wider
interpretation was not made in previous constitution. Similarly the case of Advocate Meera Dhungana V. HMG and Others[25] is a leading PIL case which not only
exhaustively deals with the concept and philosophy of PIL but has also
criticized the traditional outlook of male domination in the society and has
made tremendous contributions to restore the dignity and honour of women. This
has also its effect in the promulgation of Nepal’s national law on the domestic
violence.
Regardless of all these
contributions due to judicial activism through PIL in Nepal, there are certain loopholes
in it which can be subjected to criticism. For example, in the case of Sharmila Parajuli V. HMG and Others[26],
the judiciary lost a crucial opportunity to display judicial activism to
formulate and issue appropriate guidelines, pending enactment of a
comprehensive legislation in order to prevent sexual harassments of working
women at their workplace. It simply instructed the Executive to enact an
appropriate and comprehensive legislation on this issue.[27]
The Supreme Court of Nepal in this regard could take reference to the landmark
decision of Supreme Court of India in Vishaka and Others v. State of Rajasthan
and Others[28]which
in similar circumstances had developed some suitable guidelines having the
authority of law to create an environment against sexual harassment.
Judicial activism intends to
interpret the laws or constitution from the perspective of not only law but
also justice. It exempts the judiciary from the constraints and technicalities
of traditional system of judicial adjudication. Judicial activism and Public
Interest Litigation have integral relationship as both of them must go hand in
hand in order to render the contemporary justice. Judicial Activism through PIL
broadens the way for the participation of public spirited persons and conscious
citizens in the development process of just and equitable legal system.
Furthermore, it also enhances the capability of the Judiciary to establish an
updated legal adjudication. The judicial activism also makes the state aware to
perform its statutory and constitutional duties and obligations and limits it
from encroaching others jurisdiction. This also helps in the protection and
promotion of the interests and welfare of the depressed and deprived people.
The role of activism by the Judiciary of Nepal,
although has not been so long started, has come upon remarkable steps of its progression.
It has really broadened the scope f judiciary of Nepal and through its landmark
verdicts on PIL, it has proved that the judiciary is also capable for
initiating the changes in the legal systems. However, in certain aspects, it is
not seen so much efficient in performing the role of judicial activist as
expected.
[1] Essays on Constitutional Law, Nepal Law Society, Vol 28,
December 1998, “Judicial Activism and the Nepalese Experiment” Kalyan Shrestha,
1
[2] William Orville Douglas (1898 –1980) was an Associate Justice
of the United States Supreme Court. He is the longest-serving
justice in the history of the Supreme Court(36 years and 209 days).
In 1975, a Time article
called Douglas "the most doctrinaire and committed civil libertarian ever
to sit on the court."
[3] http://www.answers.com/topic/judicial-activism-and-judicial-restraint#ixzz1L6QSwA8v,
accessed on 1st May , 2011
[4] www.wisegeek.com/what-is -judicial-activism-htm, accessed
on May 1, 2011
[5] Essays on Constitutional Law, Nepal Law Society, Vol 28,
December 1998, “Judicial Activism and the Nepalese Experiment” Kalyan Shrestha,
7
[6] Dr. Ram Krishna Timalsena, Public Interest Litigation and
the Supreme Court of Nepal, Fifty Years of the Supreme Court of Nepal, Golden
Jubilee Publication 1956-2006, Supreme Court of Nepal, 2006, 121
[7] Advocate Meera Dhungana V. HMG and Others, Writ No. 55 of
the Year 2058 B.S.
[8] Goflos
cfjfh M Gofo / sfg"g;DalGw ;d;fdlos b[li6sf]0fx?, Gofokflnsf clws[t ;dfh,
sf7df8f}F, g]kfn, !@$
[9] Marbury v. Madison 1 Church 5 US 137(1903)
[10] AIR 1981 SC 149
[11] Goflos
cfjfh M Gofo / sfg"g;DalGw ;d;fdlos b[li6sf]0fx?, Gofokflnsf clws[t ;dfh,
sf7df8f}F, g]kfn, !@^
[12] NJA Law Journal, Nepal Judicial Academy, vol 1 NO.1, 2007,
52
[13] g]kfn
;/sf/sf] a}wflgs sfg'g @))$ sf] wf/f %# tyf g]kfnsf] cGtl/d zf;g ljwfg @))&
sf] wf/f #)-!_ df k|wfg Gofofno d'n'ssf] ;jf]{Rr cbfnt x'g]5 elg Joj:yf ul/Psf]
5 .
[14] Article 68 of the Constitution of Nepal 2019 has provided
the Supreme Court of Nepal the Writ Jurisdiction.
[15] The fact of the case started when the Supreme Court drew a
contempt proceeding against a member of legislature for making an objectional
statement in the legislature. The legislative also drew breach of privilege
action against the petitioner. The Supreme Court accepted the petition from the
petitioner.
[17] Article 88(2) of the Constitution of Kingdom of Nepal
2047-
[18] Article 107(2) of Interim Constitution of
Nepal 2063-The Supreme Court shall, for the enforcement of the fundamental
rights conferred by this Constitution, for the enforcement of any other legal
right for which no other remedy has been provided or for which the remedy even
though provided appears to be inadequate or ineffective, or for the settlement
of any constitutional or legal question involved in any dispute of public
interest or concern, have the extraordinary power to issue necessary and
appropriate orders to enforce such rights or settle the dispute. For these
purposes, the Supreme Court may, with a view to imparting full justice and
providing the appropriate remedy, issue appropriate orders and writs including
the writs of habeas corpus, mandamus, certiorari,
prohibition and quo warranto.
[19] NKP 810 (2048)
[20] NKP 169 (2052)
[21] NJA Law Journal, Nepal Judicial Academy, vol 1 NO.1, 2007,
66
[22] Writ No. 55 of the Year 2058 B.S.
[23] NKP 169 (2052)
[24] Article 16. Right Regarding Environment and Health: (1) Every person shall have the right to live
in clean environment.
[25] Writ No. 55 of the Year 2058 B.S.
[26] Writ No. 55 of the Year 2057 B.S.
[27] NJA Law Journal, Nepal Judicial Academy, vol 1 NO.1, 2007,
70
[28] (1997)
6 SCC, 242
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