Jivesh Jha and Khagendra Tiwari
As a democracy, Nepal has state apparatuses to address the concerns of its people. Hospitals exist to treat ills and courts are there to provide remedy with judicial pills. However, neither courts nor hospitals can cure all ills with perfect judicial or medical pills.
Of late, people seem to place great trust either in hospitals for health and long life, or in courts for accessing justice. The rising number of public interest litigations (PILs) and writs show that public faith in the judiciary has grown over the years. This is a positive sign as the judiciary is counted as the resort for availing justice.
However, this also tells us something interesting that people often turn to courts with litigation because of failure of other branches of the state—the legislature and the executive—to meet the expectations of the people or for their gross failure in upholding the constitutional values.
PIL
The PIL refers to a legal proceeding initiated in a court poor to protect or enforce the rights or interests of the public or a particular segment of society. Unlike typical lawsuits, a PIL is filed not for personal gain but to seek justice on behalf of the public.
The petitioner is not dominus litis in PIL cases. The Supreme Court of Nepal has passed a plethora of judgments while considering PIL suits. It’s generally the relaxation of locus standi.
Articles 133 and 144 of the Constitution of Nepal empower the Supreme Court (SC) and the High Courts with extraordinary jurisdiction to issue necessary orders and writs. The decisions passed under PILs have played a dynamic role in advancing significant social and legal reforms over the years.
The case of Advocate Radhey Shyam Adhikari v the Office of the Prime Minister and the Council of Ministers and Others (NKP 2048 BS, Vol 12, Decision Number 4430) is considered as the first PIL case in Nepal where the SC held that petitioners need to have meaningful relations and substantial interest in the subject matter to file a PIL.
In the landmark case of Surendra Raj Pandey v Speaker of Gandaki Province and Others (080-WO-1175), the SC invalidated the Speaker’s decision to uphold the confidence vote secured by Chief Minister Khag Raj Adhikari, who had claimed support from 30 MLAs in a 60-member House.
The petitioner contended that a majority requires the backing of more than half the total strength of the House—ie, at least 31 members in a 60-member assembly. The respondents argued that the Chief Minister had obtained a majority of the members present and voting, specifically 30 out of 59 MLAs. The court, however, held that a vote of confidence must command the support of the majority of the total membership of the House, not just those present and voting. As a result, the confidence motion was deemed invalid and was set aside through certiorari.
In Hikmat Kumar Karki v Chief of the Province, Koshi Province, Biratnagar and Others (NKP 2081, Issue 10, Decision Number 11356), the SC held that a person holding the position of the Speaker cannot claim an additional or dual role as a Provincial Assembly member. The Speaker must remain limited to the role of Speaker.
In Sher Bahadur Deuba and Others v the Office of the President and Others (077-WC-0071), the SC reinstated the House the President had dissolved on the recommendation of then KP Sharma Oli-led government.
These are just a few representative cases where the apex court had to step in to uphold the constitutional values. These types of incidents have not occurred only in Nepal. India, too, has a long list of Supreme Court decisions correcting the injustices from the governments at the helm.
India’s case
The Supreme Court of India, by overruling its own decision in the State of Rajasthan v the Union of India (1977), held in the case of SR Bommai v Union of India (1994) that the presidential proclamation under Article 356 is subject to judicial review and that it is not an absolute but a conditional power and that no assembly can be dissolved before both the Houses of the Parliament ratify the proclamation. The imposition of Presidential rule and dissolution of the State Assembly cannot be done together, the SC further held.
The apex court in the case of Rameshwar Prasad v the State of Bihar (2006) held that the Governor has no power to decide the majority of the state legislative assembly. He is supposed to play a role in forming a government of a party or parties enjoying majority or confidence in the House and the deciding place for the matter is only the floor of the House, not the Raj Bhawan (Governor’s House).
Sabotaging constitutional values
Against this backdrop, there appears an important question: Why can’t we build a culture that respects and upholds constitutional values?
When government departments chase short-term benefits, and people are forced to challenge those decisions on constitutional grounds, it creates a climate where cases are filed against almost every governmental move. This leads to growing public distrust and a loss of faith in the government.
Yet, the PIL should not turn into a tool to earn publicity; it should not become something like “Publicity/Private-Interest Litigation.” In essence, it should be a virtuous weapon in the hands of the weak.
The way forward
The PIL is an effective tool to lower the barriers and augment trust between judiciary and people. Its sole purpose is to uphold the rule of law and constitutional values.
In a constitutional democracy, government actions should reflect moral values, constitutional rights and well-established principles. Introducing bills that promote bigamy or seek pardons for serious criminals will only lead to more PILs in the future—just like we have seen in the past.
The authors are judicial officers at Morang district court, Biratnagar
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