LAW5303 Constitutional Law-II — Unit 1: Constitutional History of Nepal — Pre-Constitutional History of Nepal; Constitutional History of Nepal; Major Events of Nepalese Constitutional History; Basic Features of the Constitution of Nepal

Unit 1: Constitutional History of Nepal — Pre-Constitutional History of Nepal; Constitutional History of Nepal; Major Events of Nepalese Constitutional History; Basic Features of the Constitution of Nepal

1. Pre-Constitutional History of Nepal

The era before written constitutionalism — governance by conquest, custom and code:

1. The unification and the Shah state (1743–1846): Prithvi Narayan Shah’s Gorkhali unification (the 1768 Valley conquest its symbol) built a Hindu kingdom governed by the king’s direct decree, the royal priest-and-court advisory apparatus, and customary law’s diversity — a centralized kingship over a multi-legal realm (Comparative Law’s four-layer palimpsest, Semester 3, in its oldest stratum);
2. The Muluki Ain (1854): not a constitution but the subcontinent’s pioneering national legal code — Jung Bahadur’s post-European-tour codification: one text for all cast and community, hierarchy-aware but uniform-promise (Property Law’s and Nepali Legal System’s recurring ancestor); the Ain‘s discipline: officials’ discretion curbed by written provision — legality without constitutionalism;
3. The Rana system (1846–1951): the Kot Parva (1903 BS) establishing hereditary executive prime-ministership — the king retained, the state captured; governance by sanads, shree-3‘s decrees and the civil code’s machinery; no written limits, no rights, no courts independent of the executive — the century the word “constitution” itself was forbidden currency in public discourse;
4. The reform eddies: the 1940s’ martyrs’ movement (Shukraraj Shastri, Dharma Bhakta, Dashrath Chand, Gangalal — the four martyrs of 1941) and the Government of Nepal Act, 2004 BS (1948) — the Rana regime’s eleventh-hour constitutional gesture: a written document with an “Advisory Assembly” — too little, too late: the revolution of 1951 already organizing.

2. Constitutional History of Nepal

The seven constitutional documents (the ladder every exam answer climbs):

1. Interim Government of Nepal Act, 2007 BS (1951): the Delhi Compromise’s text — the Rana-King-Congress tripartite settlement after the 1951 armed revolution; a constitutional monarchy for the first time; the interim legislature and council of ministers; the promise of a “constituent assembly” made and deferred (the 1951–59 decade’s broken thread);
2. The Constitution of the Kingdom of Nepal, 2015 BS (1959): the first democratic constitution — fundamental rights, bicameral parliament, an elected government under the crown; the 1959 general election (B.P. Koirala’s majority) and the document’s fatal flaw: the crown’s reserve powers — the 1960 coup’s constitutional doorway (18 months of parliamentary democracy);
3. The Constitution of Nepal, 2019 BS (1962): the Panchayat system — partyless “guided democracy”: the king supreme; Raj Sabha, Rastriya Panchayat, class-based panchas; fundamental duties and directive principles without justiciable rights; the 1979 student movement and the 1980 referendum (reform rejected, choice retained); the 1980s’ creeping liberalization (the 2042-BS referendum-era amendments) — thirty years of constitutionalism without democracy;
4. The Constitution of the Kingdom of Nepal, 2047 BS (1990): the Jana Andolan’s settlement — constitutional monarchy + multi-party parliamentary democracy; the sovereign people; justiciable fundamental rights; an independent judiciary with the Supreme Court’s residual judicial-review power (the 2047 Court’s era of activism — PIL’s Nepali childhood); the document’s 1990s’ practice: the Maoist war’s 1996 beginning, the 2002–05 dissolution spiral, the 2005 royal takeover — the monarchy’s own constitution weaponized against it;
5. The Interim Constitution of Nepal, 2063 BS (2007): the Jana Andolan-II settlement (2006) — the 12-point agreement’s constitutional form: the Constituent Assembly promised; the monarchy suspended (then abolished by the first CA’s 2008 declaration); the secular, federal, republic commitments planted; the 33-point structure of interim governance — the 2008–15 era’s scaffold;
6. The Constituent Assembly era (2008–2015): the first CA elected (601 members; the 240/335/26 formula), the republic declared (28 May 2008), the integration-and-rehabilitation negotiations, the first CA’s failure (2012) — the dissolution over federalism’s design (the “identity vs. viability” dispute); the second CA (2013) and the 16-point cross-party accord’s endgame;
7. The Constitution of Nepal, 2072 BS (2015): promulgated 20 September 2015 (3 Asoj 2072) by the second CA — the first constitution made by a constituent assembly in Nepal’s history; the earthquake-year’s urgency; the post-promulgation turbulence (the Madhes movement’s protests over the boundary-and-citizenship settlements; the first amendment 2072 itself) and the document’s consolidation: the 2017 local elections’ three-tier rollout (the federalism’s operational birth — the first local elections in twenty years), the 2018 governments, and the constitutional practice now in its second decade.

3. Major Events of Nepalese Constitutional History (the memory ladder)

Year (AD)	Event	Constitutional meaning
1846	Kot Parva; Jung Bahadur’s rise	Hereditary executive premiership; kingship emptied
1854	Muluki Ain	First national legal code; written law’s empire
1948	Government of Nepal Act (2004 BS)	First written constitutional document (Rana-authored)
1951	Revolution of 2007 BS; Interim Government of Nepal Act	Rana era ends; constitutional monarchy begins
1959	Constitution of 2015 BS + first general election	First democratic constitution; first elected government
1960	Royal dismissal of the Koirala government	Democratic constitution’s first death
1962	Constitution of 2019 BS	Panchayat: partyless guided democracy
1979–80	Student movement; national referendum	Reform debated; Panchayat retained
1990	Jana Andolan; Constitution of 2047 BS	Multi-party democracy + constitutional monarchy
1996–2006	The armed conflict	The state’s greatest constitutional stress test
2005–06	Royal takeover; Jana Andolan-II; Interim Constitution 2063	Monarchy’s endgame; CA promised
2008	First CA; republic declared (28 May)	Nepal a federal democratic republic
2012–13	First CA dissolves; second CA elected	The federalism deadlock and the second chance
2015	Constitution of Nepal promulgated (20 September)	The CA-made constitution; the current order

4. Basic Features of the Constitution of Nepal (2072 BS / 2015)

1. Sovereignty in the people and the Constitution as the supreme law (Article 1: any law inconsistent is void to the extent of inconsistency);
2. Federal democratic republican polity (Article 4-family: the republic’s declaration institutionalized) with three tiers of government — federation, provinces, local level (Article 56) — the exclusive-competence schedules (Articles 57–58: Schedules 5–9) and the cooperative, coexistence-and-coordination federalism (Article 232(1));
3. Secular, socialist-oriented state commitments (the preamble’s contested-and-settled formulas: secularism’s “protection of religion-and-culture” reading; the socialism-oriented economy as directive, not orthodoxy);
4. Comprehensive justiciable fundamental rights (Articles 16–46: thirty-plus rights — dignity, equality, freedom, justice, remedies — Unit 2) and enforceable-state duties (the 3-year implementation duty of Article 47);
5. Directive principles, policies and responsibilities (Articles 49–51) as non-justiciable governance guides (Article 55) — the welfare state’s aspirational face (Unit 3);
6. Inclusion as constitutional architecture: proportional representation throughout (the electoral system’s closed-list inclusion groups — Article 84(2); the one-third women’s rule — Article 84(8)); the rights of women, Dalits, children and minorities as enumerated rights (Articles 38–42); the inclusion commissions of Part 27;
7. The mixed electoral system (first-past-the-post + proportional representation — Articles 84, 176) and the parliamentary executive’s confidence conventions (Articles 76, 100, 188 — Unit 4);
8. An independent judiciary with the Supreme Court as the final interpreter (Article 128) and the constitutional-review machinery (Article 133; the Constitutional Bench — Article 137) — Unit 6;
9. Constitutional bodies as accountability architecture (CIAA, Auditor General, PSC, Election Commission, NHRC — Unit 7) and the Constitutional Council’s appointment machinery (Article 284);
10. A semi-rigid amendment design (Article 274): the ⅔-of-existing-members rule, the unamendable core (sovereignty, self-rule, territorial integrity, popular sovereignty) and the provinces’ veto over their boundary-and-Schedule-6 changes — with the basic-structure doctrine’s judicial shadow (Unit 7);
11. Constitutionalized political parties (Articles 269–270) and the free press, independent constitutional commissions and the “balanced” emergency regime (Article 273: the time-limited, approval-bound, rights-respecting emergency — Unit 4).

Model Questions

1. Write an essay on the constitutional history of Nepal from the Muluki Ain to the Constitution of 2015. (15)
2. “The Constitution of 2015 BS failed not for want of rights but for want of power limits on the crown.” Discuss. (10)
3. Trace the road from the Interim Constitution of 2007 to the promulgation of the Constitution of 2015, including the first Constituent Assembly’s failure. (15)
4. Explain the basic features of the Constitution of Nepal (2015). (15)
5. Short notes: (a) Muluki Ain 1854; (b) Panchayat constitution; (c) 16-point agreement; (d) Secularism in the 2015 Constitution. (4×5)

---

📚 Get the complete notes: Download the full Constitutional Law-II PDF (all units) — Law Info Nepal Original Notes Series.