Doctrine of Necessity and its Application in Nepalese Constitutional Law-An Overview

24 Pages Posted: 9 Apr 2012 Last revised: 23 Apr 2012

Date Written: April 9, 2012

Abstract

The Paper closely looks at the application of 'doctrine of necessity' in Nepalese Constitutional Law. This is an attempt to summarize those case laws which deal on the aspects of constitutional amendment when Nepal is passing through a phase of political and constitutional transition. On a close view, we observe that 'doctrine of necessity' was used as a single powerful tool to validate the constitutional amendments when it relates to extension of term of Constituent Assembly in Nepal which have been elected to draft and promulgate the new constitution. However, in one of the final verdicts, Supreme Court of Nepal has made it clear that 'doctrine of necessity' can not forever extend the term of Constituent Assembly.

The paper mainly deals with the Second, and Eighth to Tenth constitutional amendments in Nepal. The first few cases show that Nepalease courts were very enthusiastic to apply doctrine of necessity on the hope that 'end justifies the means'. However, when it became clear that the end is not so easy to achieve without applying some sorts of judicial pressure, the court took a slight turn to state that doctrine of necessity has no place for continuity when the executives and parliaments entrusted with the task of framing of new constitution are not serious about it.

In conclusion, the paper draws the attention of the readers that the Nepalese courts have incorrectly borrowed this principle which shall not do any good for constitutional law development in Nepal.

Keywords: Nepal, constitution, constitutional law, Nepalese constitutional law, history of constitutional law, development of Nepalese constitutional law

JEL Classification: K10, K40, K41

Suggested Citation

Dahal, Rajib, Doctrine of Necessity and its Application in Nepalese Constitutional Law-An Overview (April 9, 2012). Available at SSRN: https://ssrn.com/abstract=2037059 or http://dx.doi.org/10.2139/ssrn.2037059

Rajib Dahal (Contact Author)

Supreme Court of Nepal ( email )

Kathmandu
Nepal

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