Jurisprudence Law at Nepal
1. Kesavananda Bharati Case (1973) - Constitutional Interpretation
This is an Indian case, but it had a significant impact on Nepal's jurisprudence, especially regarding the basic structure doctrine. While the case was decided in India, its principles were adopted and influenced constitutional interpretation in Nepal.
Facts:
Kesavananda Bharati, a religious leader, challenged an amendment to the Constitution of India that affected his religious establishment. The case revolved around whether Parliament had the power to amend any part of the Constitution, including fundamental rights.
Judgment and Impact on Nepal:
The Supreme Court of India held that the Parliament had wide powers to amend the Constitution but could not alter its "basic structure." This idea was later incorporated into the Constitution of Nepal (2015). This case established that some provisions of the Constitution, such as the federal structure, republicanism, and fundamental rights, are part of the "basic structure" and cannot be altered by simple amendments.
In Nepal, this principle came into play in cases involving the interpretation of constitutional amendments or the amendment of core principles, such as the abolition of monarchy and establishment of a republic.
2. The "Dhimale" Case (2004) - Social Justice and Equity in Nepalese Jurisprudence
This case focused on the legal status of a woman in a polygamous marriage and the question of her inheritance rights.
Facts:
Dhimale, a woman who was married to a man who already had a wife, contested the property rights after her husband's death. She sought her share of the property, arguing that she had been the legal wife for several years.
Judgment:
The Supreme Court of Nepal ruled in favor of Dhimale, holding that her rights to inherit property from her husband were valid, despite the existence of a prior wife. The Court reasoned that women in Nepal, especially in rural areas, had often been deprived of legal rights due to cultural practices. The judgment emphasized gender equality and women’s inheritance rights under Nepal's Civil Code and the Constitution.
Impact:
This case became an important landmark in the recognition of women's rights in the context of inheritance, reflecting the growing emphasis on gender justice in Nepalese jurisprudence.
3. The "First People's Movement" (2006) - Right to Self-Determination and Sovereignty
In the aftermath of the 2006 People's Movement (Jana Andolan II), which led to the abolition of the monarchy and the establishment of a federal democratic republic, several constitutional questions arose regarding the legitimacy of the king's power and the will of the people.
Facts:
The King had dissolved the parliament in 2002 and assumed absolute power. After years of struggle, a broad-based democratic movement pushed for the restoration of the monarchy, which ultimately led to the end of the monarchy and the adoption of a republican system.
Judgment and Outcome:
The Nepalese Supreme Court had to consider the constitutional validity of the monarchy and its position in the state structure. In a historic ruling, the Court upheld the people’s right to self-determination, which led to the King’s removal and the declaration of Nepal as a republic. The decision reflected an important shift in jurisprudence regarding the role of monarchy in the modern constitutional framework and affirmed the supremacy of popular sovereignty.
4. The "Bishnu Maya" Case (2015) - Right to Abortion
The case of Bishnu Maya revolved around a woman's right to abortion, an issue that had been debated within Nepal’s legal framework.
Facts:
Bishnu Maya, a woman who was denied an abortion under the pre-2015 laws, filed a case to assert her rights to terminate her pregnancy under certain conditions. At the time, Nepal's laws did not provide clear grounds for abortion, except in cases of danger to the woman's health or fetal abnormalities.
Judgment:
The Supreme Court of Nepal ruled in favor of expanding the grounds for abortion, recognizing women's autonomy over their reproductive rights. The decision interpreted the right to health and personal freedom as part of the right to life guaranteed under the Constitution of Nepal.
The Court recognized that the law had to evolve to reflect modern human rights principles, and emphasized women’s rights to safe and legal abortion, an issue that was later addressed comprehensively in the 2015 Constitution.
Impact:
This case significantly contributed to gender equality in Nepal, and the subsequent reforms allowed for abortion on demand up to 12 weeks of pregnancy, and in some cases, up to 28 weeks if the woman’s health is at risk.
5. The "Citizenship Case" (2008) - Right to Citizenship and National Identity
This case focused on the issue of citizenship for the children of women married to foreign nationals, especially in light of the constitutional provisions on nationality.
Facts:
The petitioner, a child born to a Nepali woman and a foreign national, challenged the law that denied him automatic Nepali citizenship. The law at the time gave Nepali citizenship only to children born to Nepali fathers. This created a situation where many children of Nepali women married to foreign nationals were denied citizenship.
Judgment:
The Supreme Court of Nepal ruled that the provisions of the Citizenship Act that discriminated against women were unconstitutional. The Court directed the government to revise the laws to ensure gender equality in the issuance of citizenship, affirming that children born to Nepali mothers should have the same rights as those born to Nepali fathers.
Impact:
This case led to a significant shift in the citizenship laws of Nepal, with reforms aimed at ensuring equal rights for women and their children under the Constitution of Nepal. It reflected the Court's commitment to gender justice and equal protection of the law.
Conclusion
These cases highlight the dynamic nature of Nepalese jurisprudence, which is continually evolving to address issues of constitutional rights, gender equality, self-determination, and human rights. Through these landmark decisions, the Nepalese Supreme Court has played a crucial role in interpreting the Constitution of Nepal, ensuring that laws and policies reflect the principles of democracy, equality, and justice. Each case further strengthens the foundation of Nepal's legal system and contributes to its ongoing journey toward social justice.
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