JUDICIAL ACTIVISM IN NEPAL

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General Background
•The term "Judicial Activism" came into existence in the twentieth century to describe the act of judicial legislation i.e. judges involve in making positive law.
•Judicial activism is the term used for the active role played by the court in a situation where statutory law is silent or even contrary.
•In its early stage, judicial activism emerged in a form of judicial review, later on judiciary's active role in social life. Nowadays, public interest litigation (PIL) is an important area of judicial activism.
•The present Constitution of Nepal provides fundamental rights provision for the special protection of women, children, aged, disable, marginal masses and disadvantage groups, and socio-economically deprived people.
•It establishes an independent of judiciary equipped with the power of judicial review in order to realize social, political and economic justice. It has states that anyone can argue that right of locus standi has been sufficiently liberal and all people of Nepal have secured these rights. Similarly, Article 133(2) of the constitution is the sole constitutional provision regarding PIL. It is defined as extra-ordinary jurisdiction of the Supreme Court. According to this Article, Supreme Court shall exercise its power of PIL in following conditions: The Constitution of Nepal, Article 133(1)

Basic Component of Judicial Activism of Public Interest Litigation

•Independent of Judiciary
•Judicial Self-Restraint
•Judicial Creativity
•Locus Standi
•Rule of Law
•Supremacy of the Constitution and Judicial Review

•HISTORICAL DEVELOPMENT OF JUDICIAL ACTIVISM IN NEPAL
•Judicial Activism under the Pradhan Nyayalaya Act, 2008
-This Act was the first step towards ensuring the separation of the executive from the judiciary
-The notion of judicial activism was started with the appointment of the first Chief Justice of Hari Prasad Pradhan of the Nepal.
-The creative role of Chief Justice Hari Prasad Pradhan had made the judiciary as a separate and independent institution of Nepal.
•The Constitution of Kingdom of Nepal, 2015
•It had the provision of the judicial review.
•Article 54 of the constitution empowered Supreme court to declare any provision of an Act or any other law as void to the extent of its inconsistency with the constitution.
•It had guaranteed the fundamental rights to the citizens with view for establishing a welfare state.
•It had remained in existence only for 4 years.
•The Constitution of Nepal, 2019
•The Constitution of Nepal, 2019 Article 11(1) guaranteed that a person shall not be deprived of his life of personal liberty save in accordance with law.
•Yagya Murti Banjade v. Chairman of Bagmati Special Court, Durga Das Shrestha and others.
•The Supreme Court has played activist role for the protection of personal liberty and individual freedom of the citizens.


•The Constitution of Kingdom of Nepal, 2047
-This constitution has clearly separated the judiciary from the executive and legislative organs of the state.
-It had guaranteed fundamental rights to the citizen
-This constitution is landmark constitution in the history of judicial independency in Nepal.

•The Interim Constitution of Nepal, 2063
•The Interim Constitution of Nepal, 2063 is the federal democratic republican Constitution at first in the constitutional history of Nepal.
•It separates judiciary form the executive and legislative, judicial power will be exercised by the court and other judicial institution only.
•Articles 107 confer the Supreme Court extra-ordinary jurisdiction
-Article 107(1) is related to the powers of judicial review.
-Article 107(2) is related to the remedies.
•The Constitution of Nepal
•The Constitution has provision of Right to obtain constitutional remedies in the manner set forth in Article 133 or 144 for the enforcement of the rights conferred by the Constitution.
•The Constitution has provision of Jurisdiction of High Court in Article 144 also
-the High Court may issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.
-The High Court shall, in accordance with the Federal law, have the power to originally try and settle cases; hear appeals and test judgments referred for confirmation.
-Other powers and procedures of the High Court shall be as provided by the Federal law.
•Major Trends of Judicial Practice Regarding Judicial Activism
•Radheshyam Adhikari v. Cabinet Secretariat and others
-Ambassador's appointment case
-Nobody can be deemed to have right to bring before this court for judicial determination any dispute regarding any matter in which he has no meaningful relationship and substantial interest. meaningful relationship and substantial interest.
•Meera Gurung et al. v. Department of Immigration and others.
-This decision is landmark decision in the gender equality perspective.
•Man Bahadur Bishwkarma v. His Majesty's Government and others
-The Court has declared ultra vires of the discriminatory provision of section 10(a) of the Chapter on 'Adal' of New Civil Code inconsistence with constitution. 
-The Supreme Court has been playing active role to eradicate the untouchability in the society. 
•Bal Krishna Neupane v. P. M. Girija Prasad Koirala and others
-The Supreme Court has liberalized the locus standi.
•Gopal Sivakoti v. HMG, Ministry of Finance and others.
-This case is attached with Right to information.
•Meera Dhungana v. His Majesty's Government and others.
-  Daughter can be entitled to a share in parental property
•Surya Prasad Dhungel et.al v. Godawari Marble Industries and Other
-Right to live in healthy and clean environment
•Madhav Kumar Basnet v. HMG Ministry of Supplies and Others
-It is the first case in public interest litigation of death of starvation issues.
-ICESCR, 1966
•Meera Dhungana v. HMG Ministry of Law, Justice and others.
-  Court has stated that marital rape is also a punishable crime
•Sapana Pradhan Malla v. HMG, Council of   Ministers and others
-it guarantee the right to privacy of the citizens
•Sunil Babu Pant v. Office of Prime Minister, Council of Minister et al
-The Supreme Court has ordered an issue in the name of government to form law to give status for third gender and to make necessary amendments.
•Prakash Mani Sharma v. Office of Prime Minister, Council Ministry et al
- This decision has determined the following things as fundamental rights: food, clothing, health, residence,  drinking water, education, social security.
Lastly,
•Nepalese Supreme Court has been playing activist role to promote and protect fundamental rights of citizens and to provide socio-economic justice according to changing needs of the society in various cases,
•however, it seems mechanical rather than creative in some extend.
•Though, in some cases court played active role to protect and promote socio-economic justice and fundamental rights, however, some of the decisions of Supreme Court are not consistent and uniform in the context of judicial activism.
•Court should play activist role  for the judicial activism upon the information by any means, but our judiciary is shown to be waiting for the application from the citizen.
-Judiciary should be independent for the application of constitutional provisions of judicial review and writ jurisdiction.
-Decisions of Court should be uniformed in respect to the protection of fundamental rights of citizen.
-Judges should be trained and sensitized regarding the application of extra-ordinary jurisdictions uniformly.
-People should be aware about the legal rights, constitutional rights and fundamental rights as well as public interest litigation in greater extend.

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