Public Interest litigation under Nepalese Legal system

Seminar-1 (Doctrinal)

Submitted To:

National Law College B.A.LL.B. Program,

Faculty of Law, Tribhuvan University

Sanepa Height, Kathmandu

(In the Partial Fulfillment of Requirement for B.A.LL.B. Degree)

Submitted By:

Diprashun Subedi

Seventh semester

TU Registration Number: 8-2-1012-29-2020

 Letter of Recommendation

This is to certify that Mr. Diprashun Subedi has prepared this Seminar-1 (Doctrinal) on title
Public Interest litigation under Nepalese Legal system under my supervision for the partial
fulfillment of the requirement of Seventh Semester B.A.L.L.B Program of Tribhuvan University.
He has fulfilled all the criteria’s provided. I wish him success in his future endeavors.

I hereby recommend the concerned authority to accept the report for its further evaluation.

Date: …………..., 2025 …………………

Mr. Kamal Pokhrel
(Supervisor and Lecturer, NaLC)
 List of Cases

Nepalese Cases

1. Bharat Bahadur Pandey and Others vs. the Western Goswara no. 1.
2. Bisheshwar Prasad Koirala vs. the Magistrate of Kathmandu.
3. Lieutenant General Mrigendra Shumsher vs. The Magistrate of Kathmandu.
4. Yagya Murti Banjade vs. Chairman of Bagmati Special Court, Durta Das Shrestha and
Others.
5. Special Officer Manmohan Lal Singh of the Special Police vs. the Central Regional
Court.
6. Sarvagya Ratna Tuladhar vs. the Chairman of the National Panchayat and Others.
7. Meera Gurung and Andrews Swarjman vs. Department of Immigration and Others
8. Man Bahadur Bishowkarma vs. His Majesty's Government and Others
9. Meera Dhungana vs. HMG Ministry of Law, Justice and Others
10. Annapurna Rana vs. District Court of Kathmandu and others.
11. Sapana Pradhan Malla and Other vs. Ministry of Law Justice and Others.
12. Sapana Pradhan Malla vs. His Majesty of Government of Nepal, Council of Ministers
and Others
13. Sunil Babu Pant vs. Prime Minister and Council of Ministry and Others
14. Prakash Mani Sharma vs. Prime Minister and Council of Ministry and Others
15. Liladhar Bhandari, et. al vs. Prime Minister and Council of Ministry and Others
16. Subodhaman Napit vs. Prime Minister and Council of Ministry and Others
17. Narayan Prasad Devkota vs. Prime Minister and Council of Ministry and Others
18. Prakash Mani Sharma vs. Prime Minister and Council of Ministry and Others
19. Deepak Bhattari vs. Prime Minister and Council of Ministry and Others
20. Nabindra Raj Joshi vs. Prime Minister and Council of Ministry and Others
 Acknowledgement

I express my sincere gratitude to all the authors and learned personalities, whose writings have
been cited in this study. I heartily appreciate those authors whose writings though are not cited
but helped and inspired me in making my vision clear and reaching on conclusion.

I would like to express my special thanks to my research supervisor and teachers for providing
me proper feedback and guidance on my research paper. His valuable feedback and suggestions
during the period of research preparation have helped me to complete my research paper
successfully.

I am very grateful to all the classmates and senior for their co-operation and suggestions. Last
but not the least; I am very grateful to my family members for their support and constant
encouragement.

I would also like to thanks National Law College for designing the course in such a way that has
provided such a wonderful opportunity to regulate this research. Finally, without being supported
by all of those mentioned above the Seminar-1 (Doctrinal) would not have come into this final
shape.

Therefore, acknowledgement is due to all forever.

Yours sincerely,

Diprashun Subedi
Preface

Table of Contents
Introduction.................................................................................................................................................1
1.1 General Introduction.........................................................................................................................1
1.2 Statement of the Problem.................................................................................................................3
1.3 Objective of the Study.......................................................................................................................4
1.4 Scope and Limitation of the Study.....................................................................................................4
1.5 Significance of the Study....................................................................................................................5
1.6 Methodology of the Study.................................................................................................................5
1.7 Review of Literature...........................................................................................................................5
1.8 Organization of the Study..................................................................................................................7
CHAPTER-2..................................................................................................................................................8
Conceptual Framework of Judicial Activism................................................................................................8
2.1 General Background of Judicial Activism...........................................................................................8
2.2 Meaning and Definition of Judicial Activism......................................................................................9
2.3 Kinds of Judicial Activism.................................................................................................................11
2.4 Meaning and Definition of PIL.........................................................................................................13
2.5 Nature of PIL....................................................................................................................................15
2.6 Relation between Judicial Activism and PIL.....................................................................................16
2.7 Basic component of Judicial Activism and PIL..................................................................................17
2.8 Judicial Activism, Public Interest Litigation and Rule of Law............................................................22
CHAPTER 3.................................................................................................................................................23
LEGAL FRAMEWORK OF PIL IN SOME OTHER COUNTRIES.........................................................................23
3.1 PIL related Law in United States:.....................................................................................................23
3.2 In United Kingdom...........................................................................................................................25
3.3 In India.............................................................................................................................................27
CHAPTER 4.................................................................................................................................................31
HISTORICAL DEVELOPMENT OF PIL IN NEPAL............................................................................................31
4.1 Pradhan Nyayalaya Ain 2008 B.S......................................................................................................32
4.2 Supreme Court Act 2013 B.S............................................................................................................32
4.3 Government Cases Act 2017 BS.......................................................................................................32
4.4 Constitution of Nepal 2019 BS.........................................................................................................32
4.5 Country Code 2020 BS.....................................................................................................................33
 4.6 The Constitution of the Kingdom of Nepal 2047 BS.........................................................................33
4.7 Interim Constitution of Nepal 2063 BS............................................................................................34
CHAPTER 5.................................................................................................................................................37
EXISTING LEGAL FRAMEWORK OF PIL IN NEPAL........................................................................................37
5.1 Constitutional Provisions.................................................................................................................37
5.2 Legal Provisions Relating to PIL........................................................................................................38
CHAPTER 6.................................................................................................................................................40
ANALYSIS OF THE TREND OF PIL IN NEPAL.................................................................................................40
6.1 PIL as an Instrument of Socio-economic Justice in Nepal................................................................40
6.2 Some instances of Judicial Activism in Public interest litigation by Supreme Court of Nepal...........41
6.3 An Analysis of the Constitutional Provisions Regarding Judicial Activism and PIL in Nepal..............45
CHAPTER 7.................................................................................................................................................50
FINDINGS, CONCLUSION AND SUGGESTIONS............................................................................................50
7.1 Findings............................................................................................................................................50
7.2 Recommendation............................................................................................................................52
7.3 Conclusions......................................................................................................................................54
Bibliography...............................................................................................................................................55
Constitutions and Legislation:................................................................................................................55
Books and Dictionary:............................................................................................................................55
Articles/Journal:.....................................................................................................................................56
 CHAPTER-1

Introduction

1.1 General Introduction

In modern democratic state, constitution is the supreme law. Constitution is the whole system of
government of a country, the collection of rules which establish and regulate and govern the
government. The organs of the stale like legislature, executive and judiciary have important role
in state performance. Judiciary has to make balance between the legislature and executive as
these organs are basically political in nature. The role of judiciary is commonly understood as
settling of disputes between adversaries within the limits of the law according to language of the
law: Law laid down in particular time, would not be suited in the pace of time to that society
values, which guided the society, would be changed and may not be suitable to the social need.
So, the judiciary has to mold and shape the principles of law to meet the needs of people without
either legislating of changing the law The constitutional mandate to judge is that while discharge
their duties they should keep in view the social and economic objectives, which the constitution
seeks to protect, promote and provide as embodied in law1

Dr. K.L. Bhatia” Judicial Activism and Social Change” ed. Deep and Deep Publication, (1990), p.10

1
from this concepts, judicial activism has emerged.

Judicial activism in 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
is an important area of judicial activism Judiciary can play active role in the writ jurisdiction and
appeal jurisdiction also. Developing countries like Nepal, judiciary has to play active role to
provide socio-economic justice to people. Hence, pace of judicial activism depends upon the
socio-economic condition of the society.

Generally, Judicial Activism means active role of judiciary Judicial Activism and PIL are twin
concept in single framework and both are interrelated as well as complementary to each other.
PIL, is a product of creative judicial engineering, which has extended the frontiers of
fundamental right and socio-justice to the marginalized masses. Judicial activism takes it as a
normal assertion of their judicial powers, a part of judicial review authority, result of judicial
creativity and the necessary inbuilt mechanism to uphold the rule of law and canons of natural
justice. Generally, judicial activism falls into two categories. The first consists of evolving new
principles, new concepts, new legal maxims and new belief going beyond and sometime even
alien to the hitherto known and evolved jurisprudence and substantive and procedural law.

In England the first case of judicial review appeared in 1610, in Dr. Bonham's case2. In this case
the charter of the Royal College of Physicians, which was passed by parliament, authorized that
professional society to panelize any amount levied was payable to the national treasury, with the
remainder being utilized by the society itself in accordance with the charter. Bonham a member
of society was detained on charge of not paying the penalty imposed on him for non-compliance.

Judicial review has emerged at first, the active role played by the supreme court of America in
the Marbury vs. Madison case. Judicial review is the institution, which guarantees constitutional
supremacy by ensuring the power of the Supreme Court to pass judgment on the validity of
legislation. In actual cases and controversies, which fall to be determined by it? Thus, the
constitution is to be brought off as some form of higher law, which binds government at all
levels3

2
Dr. Bonham,8 Rep. 114a 1610(UK)
3
L. Cranch, 137(1803)

2
In India, Judicial activism through PIL is to provide various types of relief to under trial
prisoners, to improve the conditions in protective homes for women, to check custodial violence,
for the release of bonded labor, for the enforcement of labor laws, for environment protection
and conveyed the message to all government agencies to control abuse of power and mal-
governance.

In context of Nepal, there is provision for the special protection of women, children, aged and
socio-economically deprived people under Art. 38 of the constitution. Similarly, Constitution of
Nepal 2072 ensures social, economic and political justice is the foundation of state. The
constitution establishes an independent judiciary equipped with the power of judicial review in
order to realize social, political and economic justice. Article 133(1) of the present constitution
states that anyone can argue that right of locus standi has been sufficiently liberal and all people
of Nepal have secured this right. Similarly, Article 133(2) of constitution is the sole
constitutional provision regarding PIL. It is defined as extra-ordinary jurisdiction of Supreme
Court. According to this article, Supreme Court shall exercise its power as PIL following
condition.

 For the enforcement of the fundamental fights conferred by this constitution,

 For the enforcement of any other legal right for which no other remedy has been provided
or for which the remedy even though provided appears to be inadequate or ineffective,
 For the settlement of any constitutional or legal question involved in any dispute of
public Interest or concern,
 For the realization of the socio-economic justice,
 For the enforcement of directive principle

Pursuant to this article, the Supreme Court has made some significant decisions. It is necessary
to examine and evaluate those decisions on the basis of theory and concept of the concerned
field. This paper has made an effort to make original contribution in this area.

1.2 Statement of the Problem

Judicial activism is not universal concrete conceptual framework and it depends on the
conscience of judges. The judiciary, by using the constitutional power of interpreting law, can put
checks upon other two branches of the government. Nepalese judiciary has only a short
constitutional history in respect of excising the power of judicial review. Our constitution has

3
explicitly expressed commitment to establish social justice system. In this back ground the
followings are the basic problems which have motivated to conduct comprehensive study on this
subject matter

i. Whether the constitutional provision is sufficient to address the issue of PIL. and
socio-economic justice through judicial activism or not.
ii. Judicial activism and judicial self-restraint are equally important to maintain the
balance between various organs of government and judiciary. How far Supreme Court
is able to maintain this balance? And in which grounds?
iii. The decisions of Supreme Court are not consistent and uniform in the context of
judicial activism.
iv. After the commencement of the Constitution of Nepal, the judiciary has been playing
activist role to promote and protect the socio-economic justice and fundamental rights
of weaker section of the society and other field of jurisprudence. What is the new
trend of Supreme Court regarding the judicial activism?

1.3 Objective of the Study

i. To study about the role of Supreme Court to protect the fundamental rights through
judicial activism.
ii. To analyze the trend of Supreme court for regarding the judicial activism ensuring the
social, economic, gender and environmental justice especially after the commencement of
the Constitution of Nepal 2072.
iii. To mention brief study of the judicial activism some other countries (UK, USA and
India).
iv. To find out the problems and to recommend the proper suggestions for proper exercise of
judicial activism.

1.4 Scope and Limitation of the Study

Main objective of this paper is the fulfillment of the academic requirement of BALLB 4" year It
is difficult to cover all the issues, aspects, notion and dimensions about the subject matter. So, it
is limited only with the role of the court and constitutional and legal provisions relating to social
justice through the judicial activism. This study is mainly focus with Nepalese court practices
relating to social justice. For the purpose of identifying the general trends of the court in the
intended subject matter, judicial decisions made by the Supreme Court to publish in Nepal
4
Kanoon Patrika. But, the limitations of study have analyzed the current constitutional provision.
The judicial trend has been analyzed from the enforcement of the Constitution of Nepal 2072.
The brief study has been made with the judicial activism of UK, USA and India.

1.5 Significance of the Study

The study has made an effort to study the jurisprudential basis of the judicial activism. It has
analyzed the role played by the Supreme Court through judicial activism in order to provide
civil, political as well as socio-economic justice to the Nepalese people. Some suggestions which
are considered to be adopted by the concerned authorities also are made. The study will be useful
to the students, teachers, law makers, layers, judges, researchers, governmental official, INGO,
NGOs and those persons and authorities who are interested to acquire the knowledge on the
judicial activism in Nepal.

1.6 Methodology of the Study

This study is based on doctrinal research method The Supreme Court decisions and constitutional
and legal provisions have been analyzed. So, the analytical method is also adapted. The study is
conducted by applying both the primary and secondary information. Primary information's are
gathered from constitutions, acts; rule Supreme Court decisions have published in Nepal Kanoon
Patrika or Supreme Court Bulletins, and law reports (these are the primary sources of law)
Likewise, secondary information is collected from books, articles and commentaries and website
as well. These articles were collected from Nepal Law College Library, Central Law library,
Central library, and Library of the Judicial Service Training Centre and so on.

1.7 Review of Literature

To prepare this research work, various books and articles were collected and reviewed. No single
book or any article is sufficient or helpful to shape such research document. The books and
articles related to the concerned topic were reviewed are mentioned below:

Books

Dr. Bal Bahadur Mukhiya, "Comparative Jurisprudence", Theory and Recent Trend of
jurisprudence social economic and political dimension of law, Mrs. Malati Mukhiya and Agam
Mukhiya, 2004. This book analyses PIL and judicial activism from jurisprudential point of view.
It has analyzed various aspects of PIL and judicial activism jurisprudence. The author has also
tried to prove PIL and judicial activism as a legal assistant and its relation with due process.

5
Surya Dhungel et al, "Commentary on the Nepalese Constitution", review in Nepal
(Evolution & Experiments) DeLF lawyers in 2000. This commentary aims to help to understand
the philosophy of the constitutional jurisprudence. In the commentary, the authors have tried to
analyze all the aspects of the constitution of kingdom of Nepal 2047. So, the book has proved to
be useful to justify PIL and judicial activism as the essential component of the Nepalese
constitution jurisprudence.

Dr.Hari Bansha Tripathi, "Fundamental Right and Judicial Review in Nepal" Pairavi
Publication, Kathmandu, 2000. In this book author has described fundamental rights and judicial
review and has analyzed PIL, judicial activism and related decision of the supreme court of
Nepal.

Surendra Bhandari, "Court Constitution and Global Public Policy a study on Nepalese
perspective" First publication 1999, Democracy Development and Law, Anamnagar
Kathmandu. In this book author has described the nature and characters of PIL and judicial
activism and analyzed some decision of Supreme Court of Nepal relating to PIL and judicial
activism.

Ram Krishana Timilsena, "Some Land Mark Decisions of the supreme court of Nepal",
2006. This book has contained English translation of some of the selected decision of the
supreme court of Nepal. The book disseminates judicial information about the major court
decision which is related with PIL and Judicial activism issue.

Dr. K.L. Bhatia, "Judicial Activism and Social Change", Deep and Deep publication, Rajauri
garden New Delhi, 1990. In this book, the writer had analyzed the basic concept of judicial
activism and social change basically in Indian Context.

M.P. Jain, "Constitutional Law of India" Wadha Company, Nagpur India, 1994. In this book,
the writer has described the judicial practice and constitutional provision of Indian constitution.

Articles

Dr. Hari Bansh Tripathi, "Public Interest Litigation in comparative perspective", NJA law
journal 2007. In this article, the author discusses the conceptual aspects of PIL. and judicial
activism bringing out their salient features and examines the rational and comparative practice in

6
Nepal, India, and USA and so on. He also traces its history and development of PIL in the USA
and UK.

Justice Kalyan Shrestha, "Judicial Activism and the Nepalese experiment" essay on
constitution law vol. 28, 1998. In this article, the author discusses the conceptual aspects of
judicial activism bringing out their salient features and examines the rational and comparative
practice in Nepal, India and USA and so on.

Mohan Banjade, "Constitutional Framework of PIL and Adversarial System," Essay on

Constitutional Law Nepal Law Society vol. 18, 1988. The article gives a clear explanation of the
conceptual part of judicial activism and PIL. It also explains the origin of judicial activism and
PIL. on another jurisdiction like India and USA and so on.

In all the literature available to review in the course studies have been produced before the
commencement of The Constitution of Nepal 2072. It is necessary to continue study and observe
in this field. Therefore, this study is different from previous researches and book published. This
has tried to contribute originally.

1.8 Organization of the Study

The study is divided into six different chapters. The First chapter deals on preliminary part of the
study, which includes about the objective methodology etc. of the study. The Second Chapter is
focused on the concept. meaning and techniques of judicial activism and social justice. The
Third chapter explains how the concept was developed and to what extent it is exercised in
different countries like United Kingdom, America and India. The Forth Chapter deals about the
constitutional framework and development of the judicial activism by different constitutional
regime of Nepal. Chapter Five gives a brief study about the judicial activism after promulgation
of the Constitution of Nepal, 2072 and the Six chapter includes findings, conclusion and
suggestions.

7
 CHAPTER-2

Conceptual Framework of Judicial Activism

2.1 General Background of Judicial Activism

The historical aspect of judicial activism is as old as the court starts to provide the justice
according to the natural law. Without any fixed provision of natural justice, no judicial justice
can be emerged. Modern concept of judicial activism was first originated in England's court on
the name of equity and natural justice. At that time, there were no sufficient safeguards of people
in statutory laws. But it got nourishment on the soil of America. In that country, judicial activism
is as old as the UK. The Supreme Court of USA formally developed the doctrine of judicial
review. Judicial activism first appeared as the form of judicial review. In Marbury vs. Madison,
which has been called “the rib of the constitution and wherein delivering opinion of the court.
Chief Justice Marshall said it is emphatically the province and duty of the judicial department to
say what the law is.”4 In India, the doctrine of judicial activism was introduced by justice
Krishna lyer in 1976, for the first time by making sweeping observations in Mumbai Kamgar
Sabha vs Abdul Bhai case without giving it nomenclature. But, the most important and unique
authority of the active role was delivered by Supreme Court in Menaka Gandi Case. In 1978,
whereby it was practically submitted the due process clause. 5 Supreme Court of India has been
playing active role by conversion of letters written even by third person of newspaper reports
into in petitions case, such as Asiad case, Bandhua Mukti Morcha case, Bihar Blinding case and
other case. Through the judicial activism, Supreme Court of India has extended the fundamental
rights of the people and liberalized the locus standi.

In Nepal, Pradhan Nyalaya, under the Interim Government of Nepal Act 2007, played active role.
The first chief justice of Nepal Hari Prasad Pradhan is credited with the introduction of judicial
activism in the Nepalese judicial culture. Hari Prasad Pradhan displayed judicial activism in the
4
Supra note1
5
Ibid p. 245

8
famous case of Bharat Bahadur Pandey and others vs. Bada Hakim of western Goswara No. 1
(2010) and asserted that for the interim period The Civil Rights Act 2006 Even without specific
legal or constitutional provision of judicial review, Chief Justice Hari Prasad Pradhan asserted
the apex court's inherent power of judicial review and invalidated section 1(s) of the regulation
relation to the commissioner/ magistrate of the Kathmandu Valley, 2010. 6 Under The
Constitution of Nepal 2019, Supreme Court has become passive to protect the fundamental rights
of the citizens. However, in that period, the Supreme Court had played active role in some
fundamental rights cases. After the promulgation The Constitution of Kingdom of Nepal, 2047,
the Supreme Court had played the active role to protect the fundamental rights and civil liberties
of the citizens. Likewise, after the promulgation The Constitution of Nepal, 2072 Supreme Court
has played active role to protect the fundamental rights and civil liberties of the citizens.

2.2 Meaning and Definition of Judicial Activism

Judiciary is that organ of the state, which interprets the constitution, act, rules and regulation.
Court of law are the product of constitutions and the instrumentalities for fulfilling the ideals of
the state enshrined therein, for the dynamic practice of the constitution, and to meet the
necessities of the people in changing context, judiciary has to mould and shape the principle of
law to meet the needs of the people without legislating on changing the law. 7 The expression
judicial activism has eluded definition as an abstract concept. It means different things to
different people. To some, it means dynamism of judges, to some others it implies judicial
creativity and still to some it means bringing about a social change and to some brings about a
social revolution, though judiciary, to some it is a sort of Cultural Revolution.

According to Dr. A. S. Anande "Judicial Activism involves the role of judges in a given system
as an instrument for developing the law to make it useful and relevant in an ever-changing
society because the process of judging is a never ending phase in the development of law and
this development which is aimed at bringing about social change is a part of the role of a judge
as a creator." Judicial activism therefore in that sense implies judicial creativity. 8

According to Webster Dictionary, "Judicial Activism means being active the role of judiciary in
interpreting existing law as a living concept to do complete justice in a cause by providing for

6
Hari Bansh Tripathi, “Fundamental Rights and Judicial Review in Nepal” Pairavi Prakashan, (2002), p. 297
7
Supra note 1
8
Ibid p. 11

9
the felt needs of the time and implementing the rule of law when the existing law appears to be
deficient requiring the filling of the gaps appears to be the true meaning of judicial activism" 9

Judicial activism is a term used by political commentators to describe a tendency by judges to

consider outcomes, attitudinal preferences, and other public policy issues in interpreting
applicable existing law. Formally, judicial activism is considered the opposite of judicial
restraint, but it is also used pejoratively to describe judges who endorse a particular agenda.
Although alleged activism may occur on many ways, the most debated case involves courts
exercising judicial review to strike down statutes as unconstitutional. Black's Law Dictionary
defines judicial activism as an "A judicial philosophy which motivates to depart from strict
adherence to judicial precedent in favors of progressive and new social policies but are not
consistent with the restrain expected to appellate judge."10

Judicial activism refers to court decisions that arguably go beyond applying and interpreting the
law and extend into the realm of changing or creating laws, or going against legal precedents.
Arguably these decisions are made based on the judge's personal philosophies or political
affiliations. When a judge makes a court ruling that is not in accordance with constitutional or
statutory law or legal precedent, that judge may be said to be "legislating from the bench" When
a judge is thought to hold back from being a "judicial activist," he or she may be said to have
exercised judicial restraint. Though the term "judicial activism" may be applied to any number of
legal and governmental systems in the world, we can use the United States system as an
example. In the US, a system of "checks and balances" is imposed to prevent any one of the three
branches of the federal government (i.e. the executive branch, the legislative branch, and the
judicial branch) from becoming too powerful. Under the separation of powers doctrine, Congress
has the power to create laws whereas the judicial branch is charged with applying the law, and
interpreting those parts of the law that might have been drafted in a vague way. Where that line
between legal interpretation and creation of the law is, is often a matter of vigorous legal debate.
Often those arguments lie upon political lines"11

Often, one can categorize examples of judicial activism as liberal judicial activism or
conservative judicial activism. Some might argue, for example, that the Supreme Court's
9
J.S. Verma, “New dimensions of Justice”, Universal Law Publishing Co. Pvt. Ltd, Delhi (2000), p. 62
10
Black, Henry Compbell, “Black’s Law Dictionary,” ed. West Publishing Company, (1990), p. 847
11
htt://www.eisegreek.com.what-is. judicial-activism.htm, Visited on 2 March 2025

10
decision in Heller where the right to bear arms as granted by the Second Amendment was held to
be an individual right as opposed to a right meant to be conveyed upon regulated militias.
Alternatively, some may argue that the holding in Roe which made abortion a woman's
individual right went against a strict interpretation of the Constitution which didn't expressly
convey that right. Some rulings that are arguably examples of judicial activism, however, are
supported by both liberals and conservatives. The ruling in Brown vs. Board of Education which
eliminated segregation in public schools may be one such example.

2.3 Kinds of Judicial Activism

Judicial activism is a kind of role played by the judiciary. According to justice P.N. Bhagwati,
judicial activism can take many forms and thinks that technical and juristic are two important
forms of activism and that no legal system can survive in modern age without providing some
scopes to the judge to exercise these two forms of judicial activism. According to him, it is
necessary to go beyond these two forms of activism and third of form is social activism.12

i. Technical Activism: In this activism judiciary plays its active role in technical ground.
To justice Bhagawati, technical activism consists of declaration by judges of freedom to
have recourse to wide range of techniques and choices. We think such as activism is
technical because it is concerned merely with keeping justice techniques open ended, it
does not specify when and for what purpose a judge can have recourse to this wide range
of techniques and choices a judge may never exercise this freedom or may exercise it
very rarely. Technical activism increased the power of the judiciary.
ii. Juristic Activism: Juristic activism concerned with the creation of new concepts
irrespective of the purpose they serve according to PN. Bhagawati 13 Common law which
has been fashioned and refashioned to deal with new claims and demands and which has
developed new concepts and invented new principles is an example of development of
juristic activism. In this kind of justice activism, the judge is not concerned with the
social consequences generated by the creation of new concepts and principles or with the
question as to whom these new concepts and principles will serve. This kind of activism
offers significant sources of judicial power to the judge who thinks that it is the duty of

12
Mool Chandra Sharma, “Justice P.N. Bhagwati, Court Constitution and Human Rights,” Universal Book Traders,
(1995), P. 45
13
Ibid p.47

11
 the judiciary to interpret according to the social needs and aspirations. It can be used as
the sources of judicial power.
iii. Social Activism: Social activism is directed towards the achievement of social justice.
The concept of socio-economic justice embodied in the constitution is the basic guideline
for the social activism. According to Justice P.N. Bhagawati, 14 Social activism is exercise
of judicial power within the framework of constitutional values, which is directed
towards achievement of social justice noting absence of any scientific study of this kind
of activism. Social activism is the outcome of directive principle of constitution. Social
activism is that kind of exercise of judicial power, which is inspired as well as geared to
serve the cause of social justice remaining within the framework of constitutional values,
objectives and goals.15 A question arises, which court is the active court. The court giving
new meaning to a provision so as to suit the changing social or economic conditions or
expanding the horizons of the rights of the individual is said to be an active court. In this
context judicial activism can be positive as well as negative.
iv. Positive Judicial Activism: This kind of activism judiciary has been playing active role
positive way. A court engaged in altering the power relation to make them equitable is
said to be positively activist.16 In this sense the decision of the US Supreme Court in
Brown vs Board of education is an example of positive activism. In this case Supreme
Court held that segregation on the ground of race was unconstitutional and void A judicial
interpretation that furthers the rights of the disadvantaged section or imposes curbs on
absolute power-of-the-state or facilities access to justice is a positive activism. 17 This kind
of activism court will expand the limitation of right and powers of the court. This leads
the society a step ahead.
v. Negative Activism: This kind of activism insists upon the status quo of society. A
court using its ingenuity to maintain the status quo in power relation is said to be
negatively activist. The decisions of the US Supreme Court in Dred Scott v Standford or
Lochner vs. New York were the examples of negative judicial activism. 18 In Dred Scot

14
Ibid p. 54
15
Ibid p. 58
16
S.P. Sathe, “Judicial Activism in India Transgressing Borders and Enforcing Limits”, Oxford University Press (2002),
p. 6
17
Ibid p. 7
18
Ibid p. 5

12
 case the Supreme Court upheld slavery as being protected by the right to property and in
Lochner, it held a law against employment of children as violation of the due process
clause of the constitution. Negative activism does not lead the society towards the
progressive mode.

There are two aspects of judicial activism19

a. Libertarian Activism: This activism is oriented to exercise the judicial power

to protect individual liberty. Judiciary is the protector of the fundamental right
from the undue encroachment from the executive, the activist role played by
the judiciary to protect fundamental right is libertarian activism. It can be
played through the judicial review of legislation and executive action.
b. Equalitarian Activism: This activism is oriented to social justice by uplifting
of lower and depressed class in social economic justice Judiciary has been
playing active role to provide the social economic justice to the citizens
through PIL.

2.4 Meaning and Definition of PIL

In general definition, pubic interest litigation means concern to the people in general; it is not
related to the specific person or institution. It benefits the whole society or nation. It is not
possible to define PIL. in single definition. However, there are some definitions below.

Black's Law Dictionary defines "public interest litigation means a legal action initiated in a court
of law for the enforcement of public interest in which the public or class of the community have
pecuniary interest or some interest by which their legal rights of liabilities are affected. It does
not mean anything so narrow as mere curiosity, or as the interest of the particular localities which
may be affected by the matters in question. Interest shared by citizens generally in affaires of
local, state or government."20 From this definition we can say that public interest litigation means
the right or interest of people or community. It is not the interest of any particular person.

American council for public interest institution has defined PIL as public interest law is the name
that has recently been given to efforts to provide legal representation to previously

19
Bal Bahadur Mukhiya, :Comparative Jurisprudence” Pub. Mrs. Malati Mukhiya and Agam Mukhiya (2004), p.
205
20
H.C. Black ‘s Law Dictionary” 5th edition, (1979), p.1106

13
unrepresentative groups and interests Such efforts have been undertaken in recognition that the
ordinary market place for legal services fail to provide such services to significant interests such
group and interests include poor, environmentalists, consumers, social and ethnic minorities and
others.21 Different writers and jurist has defined PIL differently. Prof Upendra Baxi has used the
term social action litigation, (SAL). In different cases, chief Justice P.N. Bhagwati (India) has
used the term public interest litigation (PIL) but he has expressed that it is proper to say social
interest litigation, (SIL) at least in Indian context. Soil Sorabjee, Ex-Attorney General of India,
has made difference between PIL. and SAL. He observes that in PIL the collective rights of the
public are affected and there may be no direct specific injury to any member of the public as
such. The redress sought in PIL. is in respect of injury to public.22

Likewise, justice PN. Bhagwati in S.P. Gupta vs Union of India case, has described the PIL as
where a legal wrong a legal injury is caused to a person or to a determinate class of persons by
reason of violation of any constitutional or legal right or any burden is provision or without
authority of law or any such legal wrong or legal injury or illegal burden is threatened and such
person or determinate class of persons is by reason of poverty, helplessness disability or socially
or economically disadvantage position, unable to approach the court for relief any member of the
public, can maintain an application for appropriate direction order or writ in the high court under
article 226 and in case of breach of any fundamental rights of such person or determinate class of
persons, in this court under article 32 seeking judicial redress for the legal wrong or injury
caused to such person or determinate class of person. 23 Like this many jurists and judges have
defined the PIL. in India.

In Nepal there is not any actual definition of PIL, neither in the constitution nor in any act, rule
and regulation. PIL has defined by the Supreme Court in its decision in some cases.

In Nepalese context Ambassador Appointment case is the First PIL case after the commencement
of The Constitution of the Kingdom of Nepal, 2047. In this case PIL has defined as, the court
spoke that the PIL case is the one in which the interest or concern is not limited to particular
individual or group of individuals rather it denotes to the dispute related to the people at large or

21
Narayan Bahadur Khadka, “Public Interest Litigation Issues and Supreme Court of Nepal” Advocacy, LAJ year 1
vol.3 p. 30
22
Ibid p. 1-2
23
Harischandra Subedi. “Public Interest Litigation, Meaning and Use” Kannoon vol.22 Lawyers club, p. 62

14
the community of the kingdom of Nepal. This is the fundamental distinction, based on this the
court determines whether a dispute is a PIL or a Private litigation. 24 Later Supreme Court has
defined this case in numbers of cases. PIL has its own characteristics. In this case the strict rule
of locus standi has abandon.

2.5 Nature of PIL

PIL is a new emerging subject of constitutional jurisprudence in public interest litigation case the
parties cannot be fixed. Persons who are interested in the matter of public importance or concern
can file the petition, on the side of those people who are affected or victimized. In this case, time
limitation is not required, liberalization of locus standi is its main characteristics. Public interest
litigation in contrast to private interest litigation is a litigation in which a person, though not
aggrieved personally, brings an action on behalf of the oppressed, exploited or downtrodden
masses for the redress of their legal grievances.25 The nature and scope of the public interest law
may be universal rather it should be worked out according to the situation of the particular
country. A model developed in one country may not exactly be fit to the situation of the other. By
the same token, it can be said that Anglo-American model may not be the same to the Nepalese
political, social and Economic situations. What will be the agenda for PIL who will be the main
actor, what will be the target or strategy for it. Who will be the beneficiary are the pertinent
questions to be worked out before the decision. PIL is essentially a co-operative or collaborative
effort.26

In modern judicial approach, PIL is the methods of measuring the development of judicial
institution and law. Unlike the traditional adversarial method, the major innovations in PIL. have
taken place both in procedural and substantive areas. PIL itself empowers the court to soften the
rigors of procedure as expedient in a given fact situation and deal with the matter appropriately. 27
According to prof. Abram Chayes of Havard University, following are the characteristics of the
PIL.

i. The scope of the lawsuit is not exogenously given but is used primarily by the court and
parties.

24
Surendra Bhandari, “Court Constitution and Global Public Police,” Democracy Development and Law, (1999),
p.76
25
Mohan Banjade, “PIL on Conceptual Framework”, Essay on Constitutional Law Vol. 17, Nepal Law Society, p. 3
26
Ibid
27
Supra note 25 p. 65

15
 ii. The party inquiry is not historical and adjudicative but predictive and legislative.
iii. Relief is not conceived as compensation for the past wrong in a form logically derived
from the substantive liability and confined in its impact to the immediate parties, instead
it is forward looking, fashioned ad hoc on flexible and broadly remedial lines, often
having important consequences for many persons including absence.
iv. In PIL the remedy is not imposed but negotiated.
v. The decree does not terminate judicial involvement in the affair. Its administration
requires the continuing participation of the court.
vi. The judge is not passive, his function is limited to analysis and statement of governing
legal rules He is active, with responsibility not only for credible fact evaluation but for
organizing and shaping the litigation to ensure a just and viable outcome.
vii. The subject matter of the lawsuit is not a dispute between private individuals about
private rights but a grievance about the operation of public policy.28

In our Context, in Radheshyam Adhikari vs. HMG cabinet secretariat and others29 in this case,
Supreme Court has described the nature and definition of PIL as follows:

i. There should be substantial interest and meaningful relation.

ii. True representation of public at large.
iii. General interest and fascination are not adequate.
iv. There should be reasonable and adequate cause.
v. PIL-cannot be sued while the concerned group remains reluctant

2.6 Relation between Judicial Activism and PIL

Judicial activism is the active role played by the judiciary. Through the judicial activism,
judiciary liberalizes the locus standi, prohibit certain petitions. Liberalizing the locus standi,
judiciary widened the jurisdiction of the court with the judicial activism, judiciary can play
active role in public interest. Public interest litigation is area in which the judiciary can play
active role. By giving the directive order to the Government, by developing the guidelines to the
legislature, judiciary can play active role. Judicial activism and PIL. are interrelated; PIL. is the
form of judicial activism. The concept of public interest litigation and judicial activism are

28
Madhav Kumar Basnet, “The Role of the Judge in the Public Law Litigation”, Annual Survey of Nepalese Law
Vol.5 (2003), p. 201
29
NKP 2048, Vol.12 p. 810

16
interrelated and to some extent, even complementary to each other. In no other area has judicial
activism got its fuller expression than in that of public interest litigation. Public interest litigation
is a product of creative judicial engineering, which has extended the frontier of fundamental
rights and social justice to the marginalized masses.30

When we speak of judicial activism, we are immediately reminded of the innovation of public
interest litigation. PIL and judicial activism go hand in hand, because PIL itself is the result of
judicial activism The innovation PIL has liberalized the concept of locus standi for those who
want of sound economic conditions are deprived to have access to court to seek justice to their
just grievances. Any public interest spirited individual of social action group through the new
innovative PIL, strategies is allowed move the court for seeking redressed to the genuine
grievances are restituting rights claim and entitlements of the power down hidden, ignorant and
illiterate.31 So, the judicial active and public interest litigation are interrelating to each other.

2.7 Basic component of Judicial Activism and PIL

i. Independence of Judiciary

Independence of judiciary means judiciary free from external and internal influence. If the
judiciary is not independent, it cannot function properly, to protect the fundamental rights of the
people. Judiciary must be separated from the executive and legislative organ of the state. It must
be separated from the other organs of the state. If judiciary is not independent, it cannot maintain
rule of law also. Judicial activism is the outcome of the independent judiciary. If the judiciary is
not independent, it cannot play active role. Independent judiciary can only protect the
fundamental rights from the illegal encroachment of the executive. The idea of judicial activism
is deeply rooted with the idea of independent judiciary Independence is the highest state of mind
and activism in the process. It is moreover, a matter of imagination also. If it is true that there are
no such things as void in law some imagination has to be there to fill up that gap. 32 In written
constitution, judiciary has to play a role of guardian of the constitution. So, the independence of
judiciary is the main component of judicial activism and PIL.

30
Supra note 6 p. 297
31
Supra note 1, p. 158
32
Kalyan Shrestha, “Judicial Activism and the Nepalese Experiment,” Essays on Constitutional Law Vol.28 p. 3

17
ii. Judicial Restraint

Judiciary is the guardian of the constitution. To make the constitution and law dynamic, judiciary
has to interpreted with the changing needs of the society. But when interpreting the law judiciary
has to keep in mind the norms of self-restraint which is called judicial restraint. Judicial restraint
means the trends of the judiciary in which, judiciary limits its power to exercise itself Judicial
activism and judicial restraint are two faces of the same coin. Judiciary discharges its function
only in cases brought to the courts. Unless a case is brought to the court by an aggrieved, no
occasion arises for the judiciary to act, this first cheek. The next and most important check is the
functioning of the judiciary in open court. The open hearing with the assistance of lawyer is a
significant fact of public interest aided by the media publicity and right of fair comment is
another check. Judicial restraint rises the achieving of jurisprudential progress by making
minimal change in the existing law.33 Judicial activism is the process by which new juristic
principle are evolved to update the existing law, to bring it in conformity with the current needs
of the society and thereby to meet the constitutional purpose of advancing public interest under
the rule of law. It is therefore, obvious that judicial activism, rightly understood and practiced
with judicial restraints is the felt needs of the present time and it has gained acceptability of the
people, the ultimate sovereign because it meets the constitutional purpose of public well and
public interest.34 So, the judicial activism without judicial restraint creates judicial anarchism. So,
judicial restraint is the important aspect of judicial activism.

iii. Judicial Creativity

Judiciary is that organ of the state, which dispenses the justice according to the law. Court cannot
make law; court can only find and implement the law Common law tradition denied that judges
were lawmakers. This traditional view has been changed and the role of judges is not limited
only to find law. The American realist movement exploded this myth and boldly asserted that the
judges made law. The experience of the united state Supreme Court in interpreting the open
textured expressions such as equal protection of law in the fourteenth Amendment or due process
of law, in Fifth Amendment very clearly illustrated the law-making function of the court. Now it
is no more disputed that judges make law.35 Nowadays judge has to play active role in the sense
33
J.S. Verma, “New Dimensions of Justice”, Universal Law Publishing Co. Pvt. Ltd. Delhi, (2000) p. 62
34
Ibid p. 65
35
Dr. K.L. Bhatia, “Judicial Activism and Social Change” ed. Deep and Deep Publication, (1990), p. 90

18
that judges not only interpret and apply the law, they also have the power to create and originate
and that they shall and they must put this power. According to Justice P.N Bhagwati for Supreme
Court of India creativeness and activism are essential requirements. Judicial creativity and
judicial awareness of social needs and social requirements are inseparably connected. 36 Court
must interpret the law with the needs or social change. Social needs lead the court to play
creative role. It is the duty of the court to fill gap between the constitution and legal provision
and social needs. So, through the creative role, judiciary can play active role.

iv. Locus Standi

Locus standi means rights to present before the court. In other words, it means litigation to stand
in the court. Judicial activism has liberalized the strict rule of locus standi. Through the judicial
activism judiciary has extended the traditional rule for locus standi, in which only aggrieved
person has the litigation. There are such fields in which any particular person has not been
affected but in reality, it has affected to the whole society. To protect such rights is the duty of
judiciary. Judicial activism extended the theory of locus standi and through public interest
litigation judiciary can also play active role. 37 The liberal rule of locus standi has helped social
action groups to come to court on behalf of disadvantaged section of society. Group, which is
devoted to public interest, can run to the court. In a sense, PIL is relaxation of traditional rule of
standing in public law, In traditional model of adjudication the rule of standing plays central role.
Now judiciary has realized that if justice is to be made available to the poor needy and ignorant
then narrow concept of locus standi is to be modified. This realization led to the evolution of the
concept of public interest litigation. Through the public interest litigation, court can play active
role to secure justice to the underprivileged, socially and economically handicapped individual
and poor.

v. Rule of Law

Rule of law means supremacy of law Rule of law is capable of different interpretation by
different people and it is this feature, which renders an understanding of the doctrine elusive of
all constitutional concepts, the rule of law is also the most subjective and value laden. Rule of
law in short is the supremacy of law without debate and it denotes the state where everyone
36
Mool Chandra Sharma, “Justice P.N. Bhagwati, Court Constitution and Human Rights,” Universal Book Traders,
(1995), p. 28
37
Supra note36, p. 194

19
respects the law and the state and citizen are obliged personally or collectively. Rule of law is the
supremacy of law with human beings. It directs the human being to conduct the behavior
according to the law and if imposes the restriction to the government. 38 For the citizen, the rule of
law is both prescriptive, dictating the conduct required by law and protective of Citizens-
Demanding that government acts according to law. 39 AV Dicey has propounded three main
aspects of rule.

a) No man is punishable or can be fully made to suffer in body or goods except for a distinct
breach of law established in the ordinary legal manner before the ordinary courts of the
land. In this sense the rule of law is contrasted with every system of government based on
the exercise by person, in authority of wide, arbitrary or discretionary powers of
constraint.
b) No man is above the law. Every man and woman whatever be his or her rank or
condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of
the ordinary tribunals.
c) The general principle of the constitution (as for example right to personal liberty or the
right to public meeting) are with us the result of judicial decisions determining the rights
or private persons in a particular case brought before the courts.40

Nowadays, the concept of rule of law is dynamic one. Due to the widened of the human right
concept, the area of rule of law is also widening. Nowadays rule of law means not only all under
the law, no man is above the law. Judiciary can play active role in the system of rule of law or for
maintaining rule of law to implement the criminal law, to provide the socio-economic justice to
the poor people. To avoid the state of lawlessness, the rule of law is a means, which can be
achieved by the judicial activism.

vi. Supremacy of the Constitution and Judicial Review

Judicial review means the power of the court to void the laws and regulation in consistency with
constitution. If such powers are not granted to the court, then the fundamental law of the land has
no more in existence. Judicial review has narrow and wide meaning. In its narrow usage,
especially since its adoption in the American Constitutional System, Judicial Review has been
38
Hillaire Barnett, “Constitutional and Administrative Law”, Lawman India Pvt. New Delhi, (1996), p. 79
39
Ibid
40
Ibid

20
used to indicate the institutional arrangements by which the court of law pronounce judgment on
the constitutional validity of the disputed pieces of legislation enacted by the law-making organ
VIZ, the legislature. Judicial Review implies a comprehensive judicial enquiry an examination of
the action of the legislative, executive and administrative branches of government, with the
specified purpose of ensuring their conformity to the specified constitutional provision, in an age
of increased importance of administrative law. Judicial Review is not term of art, but means to
"Judicial Scrutiny and determination of the legal validity of instruments, acts, and decisions." 41
Judicial review means scrutiny of the acts of other organs of government by the court to make
sure that they act within the limits of their competence has originated in England where the
courts reviewed. The fundamental principles of individual liberty were laid down through the
decisions of the courts. Although in England the courts did not hold the acts of parliament
invalid.42 Judicial activist is inherent in judicial review. Whether it is positive or negative
activism depends upon one's own vision of social change. Through the judicial review, the
judiciary plays the vital role to protect minorities' rights, social and national interest Judicial
review is basically the product of judicial activism.

In The Constitution of Nepal 2019, the inability of the Supreme Court to review legislation was
based on British practice. During the Panchayat era, a number of cases, including that of Dr.KI.
Singh vs. HMG showed the reluctance of the Supreme Court to test the constitutionality of any
law.43 Under the interim government act, the Pradhan Nayalaya had declared some act voids in
its inconsistency of The Interim Government Act, 2007 BS. In Nepal the preceding constitution
of 2019 is not expressly provide for the Supreme Court the power of Judicial review. The
Constitution of Kingdom of the Nepal 2047, Clause (1) of article (88) equips the Supreme Court
with power of judicial review. It empowered the Supreme Court to have any law or any part there
of declared void on the ground of inconsistency enjoyment of the fundamental rights, conferred
by the constitution or an any other ground, and extra ordinary power shall rest with the Supreme
Court to declare that law as void either ab initio or from the date of its decision if it appears that
the law in question is in consistent with the constitution. Same provision is provided in The
Interim Constitution of Nepal 2063, Clause (1) of article 107. The same of also provided in the
Article 133 of The Constitution of Nepal 2072.
41
S.N. Ray, “Judicial Review and Fundamental Rights”, Eastern Law House Calcutta (1974), p. 13
42
Supra note 17 p. 29
43
Surya Prasad Dhungel et al, Commentary o the Nepalese constitution, DeLF (1998), p.479

21
2.8 Judicial Activism, Public Interest Litigation and Rule of Law
Judicial activism and PIL. both are mechanism of socio-economic and other kinds of justice. In
judicial activism the court interprets the law and provides justice for the perspective of not only
law but also justice. It is also an attempt at freeing the judiciary from the constraints and
technicalities of traditional system of judiciaries. PIL is thus kind of concept in which anyone
can reach to the court for the enforcement of general interest of public. In it the rule of 'locus
standi is not applied Judicial activism and PIL are co-relative concept. These concepts are
derived for the real justice for disadvantages so these are relative concept of rule of law.

CHAPTER 3

LEGAL FRAMEWORK OF PIL IN SOME OTHER COUNTRIES

22
PIL is an age-old system with a history dating back to Roman times. It was confirmed for the
first time in the legislation of the United States of America. This Chapter will examine about
Legal framework of Public Interest Litigation in some countries other than Nepal.

3.1 PIL related Law in United States:

The term public interest litigation was first used in the USA in the late 1960s, when special type
of case sought to represent the underrepresented or unrepresented interests of the society in the
court. It comes as part of the greater movement of public interest law that included legal aid
movement, resolution, lobbying and so on.

Modern form of PIL developed in the United States of America in the late 1960. So, it is saying
that Public Interest law has been a uniquely prior to the emergence of the concept of PIL; there
exist administrative agencies, which were considered as the major forums to represent public
interest in USA. Referred to as the Fourth Headless Branch of the state after the Executive, the
Legislature and the Judiciary they were entitled to regulate the powerfully organized private
sectors. Their job specifically was to better serve the interest of the public.

They had to discharge a variety of functions ranging from dispensation of social benefits to
multinationals, protection of the environment and interest of the consumer. There are many cases
through which PIL has been developed in the U.S.A. the traditional view of locus standi has been
liberalized by the court through PIL cases. In the late 1960 in response to changed social
economic and political environment, the American Supreme Court gradually began to liberalize
procedural rules in appropriate cases.

The period of judicial activism in its present sense has commenced in America form 1954 in the
case of Brown vs. Board of Education44 . In this case, Supreme Court of America unanimously
struck down the laws of segregation of Negroes particularly in the field of public education by
striking down the old age doctrine of "Separate but equal" by holding that separate educational
facility for Negroes were in heavenly unequal and deprived them of the equal protection of laws
guaranteed by the fourteen amendments, more than half the cases decided by American Supreme
Court fall into category of basic human rights. The separate but equal doctrine is inherently
unequal. It is against the basic human rights. This decision Supreme Court of America is

44
Brown vs. Board of Education.

23
landmark decision in American judicial history. Supreme Court has overruled in the case of
Plessy vs. Furgerson after the 60 years. Court has provided to justice through PIL.

In the case of Plessy vs. Furgerson45, Supreme Court of USA uphold the separate but equal
doctrine although the constitution has made the provision of equality doctrine, Supreme Court
clear that the doctrine of equal but separate practicing in public school, railway services etc. It is
not against the equality provision of the American constitution. There was reluctant of decision
of the American Supreme Court regarding the doctrine of equality.

All PIL cases in America, even those involving constitutional issues, start at the district court
level and travel upward to the Supreme Court level. But sometimes the rules of appellate
procedures allow some cases to go in appeal directly to the Supreme Court if they involve any
issue of major public interest and the apex court grants the permission for the same. These days
the American Courts are generally not opened to PIL issues unless some statute specifically
authorizes them.

The most significant area of new public interest law in the USA was about the protection of
environment. Some of this growth was due to the recognition of a right to sue under existing
laws, but much of it was based on new substantive laws governing pesticides, clean air, and clean
water. The National Environmental Protection Act, which, for the first time, required all federal
agencies to consider the environmental impacts of their decisions. Although much of the
environmental work involved the courts, the efforts of environmental groups (and other public
interest organizations as well) also focused on what the agencies were doing in reaching their
decisions, as well as on how Congress writes and amends the law relating to the protection of
environment.

In Environment Defense Fund v. Environment Protection Agency case 46, a group of scientists
filled a suit against the mosquito control commission alleging adverse environment impact on
wildlife by the extensive use of D.D.T. the court granted a one-year ban on the use of it, which
was later, made permanent by the country.

45
Plessy vs. Furgerson
46
Environment Defense Fund v. Environment Protection Agency

24
In the case of Roe vs. Wade47 , Supreme Court has ruled that the restrictive abortion legislation
violated the constitutional due process. A few months back, US Supreme Court has given a very
original activist ruling that teasing of the working women in their offices by their bosses and
colleagues violates their rights to equality in matters of survive enshrined in constitution.

American Supreme Court has been maintained rule of law and to protect the constitution. Court
has provided to justice accordance with on the basis of constitution and law through PIL.
American Supreme Court has been playing activist role through PIL. The Supreme Court has
developed judicial review and public interest litigation as a means for providing the socio -
economic justice and protects and promotes the fundamental rights of the people through
litigation process of judicial activism in lawlessness situation. The gap fulfilled by judiciary
through PIL in the America, American Supreme Court is guardian of the constitution too.

Whereas PIL is gaining popularity in developing countries it is relatively losing its charm and
appeal in the American context. These days the American Courts are generally not open to PIL
issues unless they are specifically authorized by some statute. Unless there is a very specific
statutory PIL scheme the American courts are today generally reluctant to entertain PIL petitions.
Some critics say that the things have come to such a pass that describing today someone as 'an
activist judge' in the USA is often regarded an insult or a censure. Unlike in the 1960s and 1970s
when the American society was in favor of activist judges, today the Americans generally resent
the very idea of judicial activism and rather subscribe to the view that a judge should only
interpret and apply the law, and not legislate from the Bench.48

3.2 In United Kingdom

The development of PIL in the United Kingdom is mainly a story of the evolution of the
rule of locus standi. The changed circumstances of 1970 forced English courts to
liberalize the doctrine of locus standi. The strict doctrine of "locus standi" originally laid
down by the Anglo-Saxon law only provided remedy if one had suffered a 'legal injury. In
1970, a number of liberal judges, including Lord Denning, who is credited to be chiefly

47
Roe v. Wade
48
Dr. Hari Bansh Tripathi, Public Interest Litigation in Comparative Perspective, NJA LAW JOURNAL, Vol. 19,
57, (2007).

25
responsible for this liberalization, came forward to extend the meaning of the term locus
standi enabling the activists to approach the court.49

Through some cases like R. v Thomas Magistrate's Court ex parte Greendaum 50, the
movement of PIL in United Kingdom emerged and developed. In 1957, Lord Denning
departing from the old test of strict doctrine of locus standi granted standing to a
newspaper seller in regard to a dispute over a pitch in a street market.

The ruling made in the famous Blackburn cases by Lord Dennig went a long way to
liberalize the rule of locus standi to Raymon Blackburn, a public spirited person, who
brought a series of cases to the court and, through a danger of obscene publications being
seen by his children, just as by any one's children.

In yet another case relating to pornographic films were being exhibited in London and the greater
London Council was doing nothing to stop them. Expressing the opinion that as a citizen of
London Blackburn, whose children faced a danger of being harmed by those pornographic films,
had sufficient interest to move the court. What Lord Denning further observed and focused
adequate light on the nature of PIL.

He regarded it as a matter of high constitutional principle that, "if there is good ground for
supposing that a government department or a public authority is transgressing the law, or is about
to transgress it, in a way which offended or injuries thousands of injured can draw it to the
attention of the court of law and seek to have the law enforced, and the courts, in their discretion,
can grant whatever remedy is appropriate."

Naim Ahmed, a Bangladeshi researcher, has raised an interesting point that the success of the
English activists in terms of PIL appears to have been less pronounced than that of the
Americans for two reasons. One reason is the difference of legal and political culture- the
Americans are more litigation oriented than the English. Another reason involves the history of
the English Administrative Law which had become conservative and non-adventurous during
and after the II world War, and its development could start only during the 1960s. It was for this

49
LORD DENNING, THE DISCIPLINE OF LAW, Butterworths, London, ( 1979).
50
5 LGR 129 (1957)

26
reason that the Administrative Law took some time to adjust with the growing demands of social
justice.51

3.3 In India
In the last three decades, the concept of PIL has been evolved, nurtured and implanted in the
constitutional adjudicatory process by the supreme court of India. The development of PIL in
India is believed to have been influenced and inspired by the development of its counterpart in
America. The development of PIL in India is believed to have been influenced and inspired by
the development of its counterpart in America. SK Agrawal holds the view that the inspiration
for PIL in India came from the American experience.52

The role of public interest adjudicatory process by the observance of constitution disciplines and
limitations has been vital. In the administration of justice to the socially, economically and
politically disadvantage sections of the society the concept of PIL has helped in the making
various constitutional rights of people in India.

The concept of public interest litigation (PIL) is suited to the principles enshrined in Article 39 of
the Constitution of India to protect and deliver prompt social justice with the help of law. Before
the 1980s, only the aggrieved party could approach the courts for justice. After the emergency
era, the high court reached out to the people and devised a means for any person of the public
(or NGO) approaching the court to seek legal remedy in cases where public interest is at stake.
Bhagwati and Justice V. R. Krishna Iyer were among the first judges to admit PILs in court.
Filing a PIL is not as cumbersome as a usual legal case; there have been instances when letters
and telegrams addressed to the court have been heard as PILs.53

The first public interest case in the Indian Supreme Court was filed by Kapila Hingorani, a senior
advocate, in 1979 in the form of a writ of habeas corpus, Hussainara Khatoon v. State of Bihar 54,
bringing to light the fact of unlawful detention of 18 prisoners who were suffering detention
awaiting trials for very long periods. This writ petition ultimately led to the revelation of over
80,000 such prisoners who were languishing in various prisons for long awaiting their trial to
start.
51
Dr. Hari Bansh Tripathi, Public Interest Litigation in Comparative Perspective, NJA LAW JOURNAL, Vol. 19,
59, (2007).
52
SK AGRAWALA, PUBLIC LITIGATION IN INDIA: A CRITIQUE, Indian Law Institute, New Delhi, 8, (1985).
53
https://en.wikipedia.org/wiki/Public_interest_litigation_in_India
54
AIR 1979, (S.C. 1360)

27
It was in Fertilizer Corporation Kamgar Union v. Union of India 55 that the terminologies 'Public
Interest Litigation' and 'epistolary jurisdiction' were first used by Justice Krishna Iyer. Justice
Iyer had declared in this case, "law, as I conceive it, is a social auditor and this audit function can
be put into action only when someone with real public interest ignites the jurisdiction. 56

In Indian Judiciary, many judges led by justice Krishna Iyer and PN Bhagwati displayed a strong
sense of social consciousness and become a part of a nationwide movement for large service.
Justice Bhagwati, an eminent judge of the Indian Supreme Court justifies the reasons for the
growth of PIL in the following words:

"…...the reason is that the weaker sections of Indian humanity have been deprived of justice for
long years; they have had no access to justice on account of their poverty, ignorance and
illiteracy. They are not aware of rights and benefits conferred upon them by the constitution and
the law. On account of their socially and economically disadvantages position, they lack the
capacity to assert their rights and they do not have the material resources with which to enforce
their social and economic entitlements and combat exploitation and injustice. The majority of the
people of our country are subjected to this denial of access to justice and, overtaken by despair
and helplessness, they continue to remain victims of an exploitative society where economic
power is concentrated in the hands of a few and it is used for perpetuation of domination over
large masses of human beings. This court has always therefore, regarded it as its duty to come to
the rescue of this deprived and vulnerable section of Indian humanity in order to help them
realized their end, their oppression and exploitation."

Recently, the supreme court of India in the state of Uttaranchal v. Balwant Singh Chaufal57
mapped out the development of PIL jurisprudence in the last three decades wherein it noted three
phases of its development.

Phase-I: It deals with cases of this Court where directions and orders were passed primarily to
protect fundamental rights under Article 21 of the marginalized groups and sections of the
society who because of extreme poverty, illiteracy and ignorance cannot approach this court or
the High Courts.

55
Fertilizer Co Kamgar Union (Regd.) v. Union of India, 1981 AIR 344, 1981 SCC (1) 568.
56
PM BAKSHI, PUBLIC INTEREST LITIGATION, Ashoka Law House, New Delhi, 5 (2004).
57
State of Uttaranchal v. Balwant Singh Chaufal

28
Phase II: It deals with the cases relating to protection, preservation of ecology, environment,
forests, marine life, wildlife, mountains, rivers, historical monuments etc.

Phase-III: It deals with the directions issued by the Courts in maintaining the probity,
transparency and integrity in governance.

J. Bhagwati, in S.P. Gupta vs. Union of India 58," allowing among 48 others petitions of lawyers
against a circular of the Ministry of Law and Justice on ground of violation of or threat to the
independence to judiciary, held: "Any member of the public having sufficient interest can
maintain an action for judicial redress for public injury arising from breach of public duty or for
the violation of some provision of Constitution or the law and seek enforcement of such public
duty and observance of such constitutional or legal provision."

In the case of M. C. Mehta vs. Union of India 59, series of issues about the environmental
protection was brought by the petitioner Mr. M. C. Mehta demanded that yellowing and
blackening of the Taj Mahal due to industrial emission generator sets etc., and seeking direction
of the court for appropriate preventive measures court has decided that Taj Mahal is part of
national and international cultural heritage and must be preserved and protected from damage
due to environmental pollution. Environment measures must be applied to protect the
environment and eco-system. Court gave the direction that 292 polluting industries must change
over to natural gas as an industrial fuel. Court ordered that the industries, which are not in a
position to obtain gas connections, should stop. Functioning and reallocate themselves beyond
the Taj Trapezium Zone. In this decision, the Supreme Court had protected and preserved
cultural heritage of the Taj Mahal. Court provides activist role for the protection of environment
of Taj Mahal Zone through PIL.

The case of A. K. Gopalan vs. State of Madras 60 decided by the Supreme Court of India is related
to the right to life and personal liberty. In this case, question was whether Article 21 envisaged
any procedure lay down by a law by a legislature of whether the procedure should be fair and
reasonable. Sup Court has stated that procedure must be fair and reasonable. Supreme Court has
that the word "law" in Article 21 means not only enacted law but incorporate principles of
natural justice so that a law to deprive a person of his life of li cannot be valid unless it
58
AIR 1982, (S.C. 149)
59
M. C. Mehta vs. Union of India
60
AIR, SC 27, (1950)

29
incorporates this principle in the laid down by reasonable of the law of preventive detention
ought to be judge under Article 19 and procedure should be fulfilled reasonable manner. The
Supreme Court had played activist role to protect fundamental rights of people through PIL.

In the case of Maneka Gandhi vs. Union of India 61, Maneka Gandhi has not been given the
opportunity of hearing, seeking to make Article 21 much more meaningful. Court has established
nexus between Articles 14, 19, 21 of the constitution. Court played activist role to expand the
Article 21. Right to life and personal liberty to deprived a person of his personal liberty the
procedure must be rights, just, fair and no arbitrary fanciful or oppressive. Supreme Court
declared that right to travel abroad falls under Article 21 of the constitution. It has attributed its
findings to rights of man at natural law.

In Bandhu Mukti Morcha v. Union of India62, S.C. of India ordered for the release of bonded
laborers. In Murli S. Dogra v. Union of India 63, court banned smoking in public places. In a
landmark judgement of Delhi Domestic Working Women’s Forum v. Union of India 64, Supreme
Court issued guidelines for rehabilitation and compensation for the rape on working women. In
Vishaka v. State of Rajasthan65 , Supreme Court has laid down exhaustive guidelines for
preventing sexual harassment of working women in place of their work.

Thus, the credit goes to some activist judges like Krishna Iyer and PN Bhagwati of the Indian
Supreme Court for revolutionizing the whole concept of PIL. PIL is now deeply rooted in the
Indian judicial system and has become a permanent feature of the humanitarian jurisprudence.
The impact of the Indian experiments in PIL has been also felt in a number of SAARC countries
which have common law based legal systems.66

61
AIR SC 597, (1978).
62
Bandhu Mukti Morcha v. Union of India
63
Murli S. Dogra v. Union of India
64
Domestic Working Women’s Forum v. Union of India
65
Vishaka v. State of Rajasthan, AIR 1997 SC 3011.
66
Dr. Hari Bansh Tripathi, Public Interest Litigation in Comparative Perspective, NJA LAW JOURNAL, Vol. 19,
62, (2007)

30
 CHAPTER 4

HISTORICAL DEVELOPMENT OF PIL IN NEPAL

Our legal system is based in traditional Hindu jurisprudence. It has some elements of both the
common law and the continental system. It is neither fully influenced by the common law nor by
civil law. Before evolution of the first codified law (Muluki Ain 1910), Nepalese legal system
was based on religious writings, customs, royal ordinance etc. So, these things also influenced
the first code of Nepal. Hindu jurisprudence also permits that any person is free to complain
about specific violation of the law even though he is not the victim of such violation.67

Some public interest-oriented judgments and legal provisions were there in the record of the
Nepalese legal system. As ancient legal system of Nepal was based on Hindu scripture and there
was no difference between law and Dharma. In Hindu Philosophy, the protection of the public
interest used to be protected by judicial activism. Brihaspati Smriti has mentioned that the judges
should not rely only on Sastras (laws) rather they should use their wisdom to uphold Justice.

Muluki Ain (Civil Code) 2020 also supported that provision and permits to file a case with
permission of the court. According to that section, all cases which are named to be filed by
government must be filed by the government. Additionally, the government could file any case
concerned to its interest or of public concern. If the government does not file the case in such
issues any person can file a case with permission of the court".68

With the passes of time, Nepalese Judiciary has been gradually developing in its pace. Its gradual
development also covers systematic and continuous development of Public Interest Litigation in
Nepal. It is very difficult to trace the point form when the Nepalese legal system actually began
and the philosophy of PIL became the essential component of Nepalese legal system, because no
authentic document is available in this respect.

The legal system of Nepal is essentially of indigenous growth. Prior to 1910 BS, the whole
system was influenced from Hindu philosophy and based on indigenous customary law. Nepal
formally entered into the age of codified law with the promulgation of Muluki Ain 1910 B.S. But

67
Binod Bashyal, Public Interest Litigation and Nepalese Practice, NEPAL LAW REVIEW, Vol.23, 202, (2017)
68
Muluki Ain 2020, Adalati Bandobasta, section 10

31
we cannot find any provision about PIL in the Muluki Code of 1910 BS. Pradhan Nyayalaya Ain
of 2008 BS tried to recognize some aspect of PIL in first time in legal history of Nepal. If we
observe the concrete status of development of PIL in Nepal, only in 2047 BS we can found its
strong evidence of its origin and development. However, in this chapter we will discuss briefly
about historical development of PIL in Nepal.

4.1 Pradhan Nyayalaya Ain 2008 B.S.

The PIL jurisprudence started to be recognized by the constitution and the judiciary only after the
promulgation of Pradhan Nyayalaya Ain 2008. The purpose of the Act was said to separate the
judiciary from the executive and make the judiciary independent. The Pradhan Nyayalaya, set up
on Baisakh 26, 2009 BS and then judicial activism displayed by the Pradhan Nyayalaya through
the first tenure of CJ Hari Prasad Pradhan went a long way in safeguarding individual freedom,
and social justice to the citizens. Through this, the judiciary became able to practice own active
role.

4.2 Supreme Court Act 2013 B.S.

A Landmark development the judicial field was introduced in the name of Supreme Court Act
2013 BS which enabled the establishment of Supreme Court with a view to protecting and
nourishing the rights and liberties of the people. According to the Act, the extraordinary
jurisdiction of the court included the power to issue writs or other suitable order for the
enforcement of legal rights guaranteed to the citizens or others, but there was not clear provision
of PIL.

4.3 Government Cases Act 2017 BS

Government Cases Act came into force in 1960 AD (2017 BS). This Act had some provisions to
file the cases against the crime of state. There was a list of cases in which any person could give
the information to the government officials. But it didn't formally address the PIL issues in it.

4.4 Constitution of Nepal 2019 BS

Before promulgation of the Constitution of Nepal 2047 BS, the Constitution of Nepal 2019 was
in force. Article 71 of the Constitution also confer extraordinary jurisdiction on the Supreme
Court compared to Article 88 of the 2047 Constitution. The scope of Article 71 of the 2019
Constitution was very narrow and limited. The concept of Locus standi was not widened, so PIL
could not be developed.

32
4.5 Country Code 2020 BS
At the time of promulgation of the code in 2020 Bhadra 1, no any provisions were incorporated
in this Law. In 2043, the Country Code's section 10 of the court procedure provision was
amended. In this amendment new provision was introduced. It mentioned that any cases
concerned to public concern any person could file a case with the permission of the court.
Through the amendment the legislature had made t with the provision to liberalize the traditional
rule of locus standi but this provision was not sufficient for PIL. It is related only to protection
from encroachment of public property from the private property.

4.6 The Constitution of the Kingdom of Nepal 2047 BS

The Constitution of Kingdom Nepal 2047 established independence of Judiciary which is one of
the pillars of the state .The Constitution of the Kingdom of Nepal, 2047 B.S. was the first
Constitution in Nepal giving Constitutional recognition to the PIL under the Article 88 .Article
88(2) of the constitution of Kingdom of Nepal 2047 BS empowered the Supreme Court to issue
necessary and appropriate order and also for the settlement of any dispute of public interest or
comers for the enforcement of such a right. Exercising the extra-ordinary power granted by
Article 88 of the Constitution, the SC had declared almost all the pre-unconstitutional laws
which were inconsistent with the 2047 Constitution void.

Article 88 of the Constitution of the kingdom of Nepal, 2047 BS opened up the avenue for PIL in
Nepal. Article 88 reads:

(1) Any citizen of Nepal may file a petition in the Supreme Court to have any law or any part
there of declared void on the ground of inconsistency with this Constitution because it imposes
an unreasonable restriction on the enjoyment of the fundamental right conferred by this
Constitution or on any other ground; and the Supreme Court shall have extraordinary power to
declare that law to be void either ab initio or from the date of its decision if it appears that the
law in question is inconsistent with this Constitution.

(2) The Supreme Court shall, for the enforcement of the fundamental rights conferred by this
Constitution or for the enforcement of any other legal right for which no other remedy has been
provided or for which the remedy even though provided appears to be inadequate or ineffective
or for the settlement of any Constitutional of legal question involved in any dispute of public
interest or concern, have the extraordinary power to issue necessary and appropriate orders to

33
enforce such right or settle such dispute. For these purposes, the Supreme Court may, with a
view to imparting full justice and providing the appropriate remedy, issue appropriate orders and
writs including the writs of habeas corpus, Mandamus, Certiorari, prohibition and quo-warranto.

The application of Public Interest Litigation in the light of these constitutional provisions can be
seen in the decision by the Supreme Court of Nepal on its landmark decisions in the landmark
case of Radheshyam Adhikari v. Secretariat of the Council of Ministers and Others 69 in 2047 BS.
It was the first case which dealt with the concept of public interest and locus standi to move the
court for enforcement of any public interest. In this significant case, Court focused for the
meaningful relationship, Substantial Interest, and the proper representation on Litigation as the
basic condition for filing the PIL.

The constitution 2047 opened the door of new horizon for the PIL in two ways. The first is in the
legal ground and second is in the politico constitutional ground. Legally in the first time in the
history of Nepal, the constitution of 2047 had provided an extra-ordinary power to the SC to
issue any kind of order which it deems appropriate in any subject matter related to public interest
or concern. While on the Politico-constitutional ground the constitution of 2047 which was the
result of people's movement provided the fully judicial independency, the provision of separation
of power, the concept of constitutionalism, rule of law and social justice. 70

4.7 Interim Constitution of Nepal 2063 BS

Jurisdiction of the SC under Interim Constitution of Nepal 2063 has the power to have judicial
review of law and settle disputes of public concern. Article 107 of the Interim Constitution of
Nepal 2063 is the venue of PIL in Nepalese Law. Article 107(1) of this constitution argues that
right of locus standi has been sufficiently liberated and all people of Nepal have secured these
rights through the constitution Article 107(2) of the constitution is the sole constitutional
provision regarding PIL. It is defined as extra ordinary jurisdiction of Supreme Court. According
to article 107(1) and 107(2) of the Interim Constitution of Nepal, Supreme Court shall exercise
its power as PIL on the following conditions:

(i) For the enforcement of the fundamental rights conferred by the constitution

69
Radheshyam Adhikari v. Secretariat of the Council of Ministers and Others, NKP, 2048, p.810
70
SURIYA P.S DHUNGEL, COMMENTARY ON THE NEPALESE CONSTITUTION, DeLF Lawyer's Inc.,
Kathmandu, 453, (1998).

34
 (ii) For the enforcement of any other legal rights for which no other remedy has been
provided or for which the remedy even though provided appears to be inadequate or
inefficient and for the settlement of any constitutional or legal question involved in any
dispute of public interest or concern.
(iii) For the realization of the socio-economic justice and
(iv) For the enforcement of directive principle.

Article 107 of the Constitution mentioned:

1. Any Nepali citizen may file a petition in the SC to have any law or any part there of declared
void on the ground of inconsistency with this Constitution because it imposes an
unreasonable restriction on the enjoyment of the fundamental rights conferred by this
Constitution or on any other ground, and extra-ordinary power shall rest with the SC to
declare that law void either ab initio or from the date of its decision if it appears that the law
in question is inconsistent with the constitution.71

2. The SC shall, for the enforcement of the fundamental rights conferred by this Constitution,
for the enforcement of any other legal right for which no other remedy has been provided or
for which the remedy even though provided appears to be inadequate or ineffective, or for the
settlement of any constitutional or legal question involved in any dispute of public interest or
concern, have the extra-ordinary power to issue necessary and appropriate orders to enforce
such rights or settle the dispute. For these purposes, the SC may, with a view to imparting full
justice and providing the appropriate remedy, issue appropriate orders and writs including the
writs of habeas corpus, mandamus, certiorari, prohibition and quo warrant. 72

After the Interim Constitution of Nepal 2063, Constitution of Nepal (2072) is currently
implementing constitution. This constitution has promulgated for ending all forms of
discrimination and oppression created by the feudalistic, autocratic, centralized, unitary system
of governance. Such as it has mentioned in the constitution that being committed to socialism
based on democratic norms and values including the people's competitive multiparty democratic
system of governance, civil liberties, fundamental rights, human rights, adult franchise, periodic
71
The Interim Constitution of Nepal, 2063, Article 107 (1).
72
Ibid, Article 107 (2).

35
elections, full freedom of the press, and independent, impartial and competent judiciary and
concept of the rule of law, and build a prosperous nation. Constitution of Nepal 2072 is highly
concerned to fulfill the interest of the Public. The legal provisions under the present constitution
of Nepal will be discussed in another Chapter under the heading of existing Legal provisions of
PIL in Nepal.

36
 CHAPTER 5

EXISTING LEGAL FRAMEWORK OF PIL IN NEPAL

After commencement of the present constitution of Nepal, Supreme Court has been playing
significant role of it in the field of public Interest. This Constitution incorporates the
constitutional provision regarding PIL under extra-ordinary jurisdiction of Supreme Court and
High court of Nepal. It has been playing significant and remarkable role in promoting the social
justice, Liberty, Gender issues, Environment Conservation, E-commerce, Alternative Education
System, Pandemic management, etc.

Existing Legal framework of PIL in Nepal will be discussed under this chapter in brief.

5.1 Constitutional Provisions

Article 133 and 144 of the constitution of Nepal is provisioned to assure the public interest through the
means of Writ Petition. According to Article 133 of the Constitution of Nepal 73,

1. Any citizen of Nepal may file a petition in the Supreme Court to have any law or any part
thereof declared void on the ground of inconsistency with this Constitution because it
imposes an unreasonable restriction on the enjoyment of any fundamental right conferred by
this Constitution or on any other ground, or to have any law or any part thereof made by a
State Assembly declared void because it is inconsistent with any law made by the Federal
Parliament or to have any law or any part thereof made by a Municipal Assembly or Village
Assembly declared void because it is inconsistent with a law made by the Federal Parliament
or the State Assembly, and the Supreme Court shall have an extra-ordinary power to declare
that law to be void either ab initio or from the date of its decision if the law appears to be so
inconsistent.
2. The Supreme Court shall, for the enforcement of the fundamental rights conferred by this
Constitution or of any other legal right for which no other remedy has been provided or for
which the remedy even though provided appears to be inadequate or ineffective or for the
settlement of any constitutional or legal question involved in any dispute of public interest or
concern, have the extraordinary power to issue necessary and appropriate orders, provide
appropriate remedies, enforce such right or settle such dispute.

73
Constitution of Nepal (2072).

37
3. Under the extra-ordinary jurisdiction under clause (2), the Supreme Court may issue appropriate
orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo
warranto.

In the first time in the history of Nepalese constitutional practices, Court other than the apex
court (Supreme Court) has the jurisdiction to hear the writ petition and can issue the appropriate
orders in the interest of the public. Article 144 of the constitution of Nepal grants this power to
the high court of Nepal. It states:

i. The High Court shall have the power to issue necessary and appropriate orders, for the
enforcement of the fundamental rights conferred by this Constitution or for the
enforcement of any other legal right for which no other remedy has been provided or for
which the remedy even though provided appears to be inadequate or ineffective or for the
settlement of any legal question involved in any dispute of public interest or concern,
ii. For the purposes of clause (1), the High Court may issue appropriate orders and writs
including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.

Beside this provision of Writ, many provisions under the part 3 of the constitution of the Nepal
are concerned to fulfill the interest and social justice of the common public of Nepal. According
to article 42 of the constitution, the socially backward women, Dalit, indigenous people, indigenous
nationalities, Madhesi, Tharu, minorities, persons with disabilities, marginalized communities, Muslims,
backward classes, gender and sexual minorities, youths, farmers, laborers, oppressed or citizens of
backward regions and indigent Khas Arya shall have the right to participate in the State bodies on the
basis of inclusive principle.

5.2 Legal Provisions Relating to PIL

1. Administration of the Justice Act 2073 BS.

Section 8 of the Administration of the Justice Act incorporates the provision of Jurisdiction of the
High Court, this section under sub-section 8(1) provides, the High Court shall have the power to
issue necessary and appropriate order by hearing over the application filed in accordance with
Sub-Article (1) of Article 144 of the Constitution.74

74
Section 8(1), Administration of the Justice Act, 2073.

38
 2. Supreme Court Rules 2074 BS.

Supreme Court Rules 2074 has made the provision to deal with the writ petition that can be filed
on the basis of Article 133(2) of the constitution of Nepal. In rule no. 33 of the supreme court
rules 2074, it asserts, " Any citizen of Nepal can file a petition to the registrar supreme court in
following issues after submitting the court fees as mentioned in the schedule 3 of the rule.

i. Any citizen whose Constitutional right according to the article 133 (2) has been infringed,
S/he can file petition for the enforcement of the fundamental rights conferred by this
Constitution for of any other legal right for which no other remedy has been provided or
for which the remedy even though provided appears to be inadequate or ineffective.
ii. Any citizen who has meaningful relationship and Substantial Interest to the issue that is
filed according to the Article 133(2) of the constitution.
3. The Muluki Civil Procedural Code 2074 B.S.

Section 91 of the Code has mentioned about the locus standi in the case of Public Interest. This
section reads,

91. Plaint may be made by anyone in the case of a dispute involving public interest or
concern:

1. Notwithstanding anything contained elsewhere in this Act, any person may, with the leave of
the court, file a plaint on a dispute involving the right, interest or concern of the Government of
Nepal, Provincial Government or Local Level or public interest or concern.

2. In order to obtain a leave pursuant to sub-section (1), a separate petition shall be filed along
with the plaint.

(3) If a petition is made for the leave pursuant to sub-section (2), the court shall decide such a
matter on the same day on which such a petition is made.

39
 CHAPTER 6

ANALYSIS OF THE TREND OF PIL IN NEPAL

6.1 PIL as an Instrument of Socio-economic Justice in Nepal
PIL has been playing great role in field of Social Justice by relaxing the traditional rule of locus
standi. Any public-spirited citizen or social action group can approach the court on behalf of the

oppressed classes. It is working for the welfare of every section of society. It’s the sword of
every one used only for taking the justice. The innovation of this legitimate instrument proved
beneficial for the developing country like Nepal. PIL has been used as a strategy to combat the
atrocities prevailing in society. It’s an institutional initiative towards the welfare of the needy

class of the society. PIL has radically altered the traditional judicial role so as to enable the court
to bring justice within the reach of the common man.

Although there was a system of conventional private litigation but this system was unable to
address the need of the entire population of Nepal. This is the reason that PIL is introduced in
judicial system to achieve those goals that are not been achieved by traditional tools. There are a
large number of populations which are not capable to approach judiciary through complex
judicial procedure, so PIL work as window for those who are unable to reach via door. It
provides direct access to the civil society to participate to bring social changes via judiciary. The
impact of PIL is wider than the private litigation. It has provided a ladder to the disadvantaged
section of society to have access to justice in speedy manner.

PIL has become an instrument of social transformation. It is helpful in bringing justice within the
reach of poor, disadvantaged and vulnerable people. Moreover, PIL has been developing as an
instrument of social justice. In fact, its intention is to uphold the public interest by providing
social-economic justice to a large number of people who are poor, lacing in knowledge of the
law, socially and economically deprived of and who would not normally approach the court. Our
Supreme Court has been able to discharge its social responsibility through PIL. There are various
sectors of social justice in which the Supreme Court has given landmark decisions for the
promotion of social justice for the Nepalese people.

40
6.2 Some instances of Judicial Activism in Public interest litigation by Supreme Court of
Nepal
The first case in the history of PIL is regarded as the Case of Bhugol park in 1962. In this case
Kathmandu Town Panchayats plan to construct the building in Bhugol Park. It was challenged on
17 may 1966. The petitioner raised purely public interest questions, like the park was being used
by the people as a place of jogging, sunbath and playground. Then the court did not enter into the
merit and dismissed the case on another ground but not on locus standi.

Some of the landmark cases by the Supreme Court of Nepal are:

1) Surya Prasad Sharma Dhungel on Behalf of leaders Inc. Pvt. Ltd. vs. Godavari
Marble Industries Pvt. Ltd. et al.75

The writ petition was filed for the stopping the environmental pollution activities of Godavari
Marble Industries. In this case, the writ petitioner pleaded that the mining activities of the
Godavari Marble Industries is causing environmental pollution to the area and has threatened the
right to life to the people of that area. The petitioner invoked the public interest litigation clause
of the constitution. The Court said that as it is one of the policies of the state as envisaged in the
constitution under the Directive principles and policies of the state' that the state shall give
priority to the protection of the environment and also to the prevention of further damage to the
environment due to physical developmental activities, the writ petitioner had locus standi in this
case. In this case the SC has made core decision and aptly observed the following: "Taking into
account the sensitive, humanitarian issue of national and international importance such as the
protection of the environment of Godawari area, we found that effective and satisfactory
corrective activity has not taken place. Therefore: It is appropriate to issue this directive in the
name of respondents to enforce the minerals Act, 2042 BS, enact necessary legislation for
protection of air, water, sound and environment and to take action for the protection of the
environment of Godawari area. As a result, the environment protection of the environment
protection act and its regulation have been enacted and enforced. So, it is one of the landmark
decisions of regard to the environmental Justice.

2) Yogi Naraharinath et.al. vs. Prime Minister Girija Prasad Koirala et al.76

75
NKP, Golden Jubilee Special Issue, Supreme Court of Nepal, Kathmandu, at 169, (1995).
76
NKP 2053, Vol. I, at 33.

41
This writ petition was filed for the conservation of natural and cultural heritage of Devghat of
Chitwan district. The goverment provides 42 bigaha lands with forest located at the northern side
of Naraynghat Bazar in Chitwan District to the international society for medical college on lease
for forty-nine years. The writ petitioners claimed that the land being provided to the collage was
situated in a place of importance for environment protection and preservation of archeologically
important materials. So, the decision by the government to provide such land to a college was
against the provision of Art.26 (4) of the constitution. In this case, the Division Bench of the
Supreme Court declares that the decision of the government to provide the land to the medical
college is invalid. On the court decision it is clear that the area of land is important on the ground
of historically, religiously, archeologically and ecologically. Court had instructed the HMG to be
followed by the Directive principles and policies of the state as a guideline. After this decision
government had cancelled the lease agreement. It has brought positive impact for the
environmental protection in the Devghat region.

3) Sunil Babu Panta V. Government of Nepal

The decision given below was handed down in a case filed by Mr. Sunil Babu Panta of the Blue
Diamond Society and others on behalf of lesbian, gay, bisexual, transsexual and intersex
(LGBTI) people where the petitioners prayed for the issuance of an order of mandamus in order
to provide the gender identity on the basis of their gender feelings and to recognize their
cohabitation as accordance with their own sexual orientation.

Here, the Supreme Court acknowledges the growing ascendance of the notion that homosexuals
and third gender people are not mentally ill or sexually perverts. Therefore, their rights should be
protected and they should not be discriminated in the enjoyment of rights guaranteed by the
constitution and human rights instruments. The Court holds that it is an appropriate time to think
about decriminalizing and de-stigmatizing the same sex marriage as according to it. The Court
takes the view that that no one has the right to question how do two adults perform the sexual
intercourse and whether this intercourse is natural or unnatural and that …the way the right to
privacy is secured to two heterosexual individuals in sexual intercourse, it is equally secured to
the people of third gender who have different gender identity and sexual orientation. The court
further holds that gender identity and sexual orientation of the third gender and homosexuals
cannot be ignored by treating the sexual intercourse among them as unnatural. The court takes

42
the view that selection of sexual partner or fixing of marital relation is a matter falling entirely
within the ambit of the right to self-determination of such an individual. It also seems to be in
favor of gradual internalization international practices in regard to the enjoyment of the right of
an individual in the context of changing global society and practices of respecting the rights of
minority. It calls upon the state to create appropriate environment and make legal provisions to
enable the LGBTI people enjoy fundamental rights and insert provisions in the constitution. 77

4) Narayan Prasad Devkota vs. Prime Minister and Council of Ministry and Others78

The petitioner had demanded to stop exporting gravel and sand towards India, and to stop crasher
industries which were being run randomly affecting environment The Supreme Court had
guaranteed the right of environment as a fundamental right. Government should arrange
necessary undertakings to let citizens be alive in fresh environment. It is not reasonable for the
government to give permission to certain person to utilize natural resources un naturally on
account of nameless revenue this not good to utilize natural resources creating havoc in the life
of all citizens of public interest. The natural resources based on public trust doctrine should not
be handed over to certain person with a objective to make rich. So. construct one effective law to
prevent random use of natural resources Crasher industries should be allowed to run only after
the recommendation of experts which would prove of effect in environment. This verdict ensured
the right of citizen to enjoy in clean environment It also stopped the random use of natural
resources which would create natural imbalance Is this way, the court played active role.

5) Prakash Mani Sharma vs. Prime Minister and Council of Ministry and Others

The petitioner had demanded right to food to come under right to live under dignity The person
also demanded compensation for the victims of starvation. The Supreme Court had decided that
all citizens should enjoy with the right to live under dignity. The right to freedoms becomes in
complete on the absence right to food. This verdict established right to food as a fundamental
right. The government should create the environment of equal access for every citizen over food
after it is recognized as a fundamental right. It determined the following things as fundamental
rights:

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a. Right to food,

b. Right to clothing,

c. Right to health,

d. Right to residence,

e. Right to drinking water,

f. Right to education,

g. Right to social security.

It is directed on the name of government to manage necessary arrangements for the future
starvation and the court also asked government to supply food in the physically disadvantaged
places and to forward necessary steps to supply food to the affected person by natural disorder.
Here, the court determined new fundamental rights. It also protected the fundamental rights. In
this way, the court played active role to provide social justice.

6) Deepak Bhattarai vs. Prime Minister and Council of Ministry and Others79

The petitioner demanded to develop ability of the physical handicapped persons. The person also
demanded to establish one disable protection center for each development region. The verdict of
the Supreme Court stated that the responsibility of government is to enable people to utilize all
rights equally. The physically handicapped persons should be developed by the provision of law.
The deprived citizens should be facilitated according to equity and distributive policy. Positive
discrimination should be considered among the disabled persons and their record should be kept
throughout the country to formulate policies to conduct integrated social security. To do welfare
undertakings for the development or infrastructure of blind people is compulsory. It is directed
for the modification of disabled service work plane for the effective implementation of disables
welfare. It maintained equality of citizens. It also protected blind persons. It determined the
responsibility of government by judicial activism.

7) Nabindra Raj Joshi vs. Prime Minister and Council of Ministry and Others

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NKP 2068, Vol.4 p.679

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The petitioner had demanded the guarantee of the right of fresh environment by managing
garbage of Lalitpur municipality and Kathmandu metropolitan. The Supreme Court stated that
the government and its organs should perform its effective role to solve the problems which
affect public life. The responsibility of nation should have long term vision for the effective
management of capital's garbage. Government should act to manage garbage in coming days
according to Autonomous Government Act. To avoid negative impact on environment,
government should enhance the concept of bio-diversity, sustainable development and
distribution of natural resources on the basis of equity. Garbage management Act should be
formed as fast as possible along with such policies and programmed which protect other cities of
country. It protects the right to live in fresh environment. The Supreme Court provides
environmental justice by its judicial activism.

During the Constitution of Nepal 2063, Supreme Court has played active role in protecting the
fundamentals rights of people. It has provided gender justice, environmental justice by judicial
activism. The Court exercised its extra-ordinary power of judicial review. The court protected
natural justice and it also declared void to those law inconsistent to the spirit of the constitution.
The verdict of court also played the role of filling gap on the absence of law. Supreme Court
became liberalized on the rules of locus standi. Among the vital roles of the court, it recognized
extra fundamental rights. Finally, we can say that under the prevailing constitutional framework,
Supreme Court has been playing the creative role in maintaining the rule of law.

6.3 An Analysis of the Constitutional Provisions Regarding Judicial Activism and PIL in
Nepal
There was no special provision of judiciary as separate organ after the commencement of the
Interim Government of Nepal Act 2007, though article 32 provided the provision of judiciary On
the basis of this article the Pradhan Nayalaya Act, 2008 was promulgated and it established
Pradhan Nayalaya in the form of apex court. The Constitution of Kingdom of Nepal 2015 B.S
established Supreme Court as a separate organ of nation. It has the provision of judicial review in
article 54. This Constitution declared that all laws inconsistency with it shall be void to the extent
of their inconsistency.

The constitution of Nepal, 2019 was based on party less Panchayat system. All the powers of
legislature, executive and judiciary were vested in the king. Even though the judiciary was a

45
separate organ of the state, Supreme Court could not review all decisions of the majesty however
it played active role The Constitution of Kingdom of Nepal 2047 included separate judicial
power in article 88 firstly. PIL had got constitutional status by 2047 in the constitutional history
of Nepal. Through this provision court protected people's fundamental rights. Supreme Court
enforced fundamental rights. Supreme Court played active role on the basis of this article.

We can observe various types of judgments in this regard which were mentioned above and are
mentioned under.

The Constitution of Nepal, 2072 has provision to establish an independent and competent system
of justice to ensure the concept of rule of law and PIL into a living reality. Article 46 comprises
the provision of right to constitutional remedy which is enforced by article 133. Article 133 has
constitutionally recognized the jurisprudence of PIL. Through the PIL, court can play activist
role to protect fundamental right of people. According to this article Supreme Court can entertain
any matter of public issue. Article 144 and 148 has the provision of PIL jurisdiction to High
court and District Court respectively,

After the promulgation of Pradhan Nayalaya Act, judiciary started to play active role. The
commencement of constitution of Nepal 2015 gave continuity to the active role of court. After
the commencement of the constitution of Nepal 2019, in some cases Court played active role to
protect and promote socio-economic justice and some cases court showed traditional view and
reluctant. After the commencement of The Constitution of Kingdom of Nepal 2047,
constitutionally court was competent and court also played active and vital role to fill the gap of
law, policies and programs for the protection and promotion of weaker section of society in
different areas. This provision has been repeated in The Interim Constitution of Nepal 2063 and
the Constitution of Nepal 2072, legally it is considered sufficient for court system.

 An Analysis of the Judicial Practice Regarding Judicial Activism

Pradhan Nyayalaya had been creating active role to protect the fundamental rights of the people
for protecting the personal liberty and freedom. The third constitution in the development of the
constitutional history came in 2015. Under this constitution, we cannot find many remarkable
and noteworthy decisions in this field. After the two years' practice of this constitution. The
Constitution of Nepal, 2019 came into effect. Under this constitution, Supreme Court became

46
unable to play active role as the Pradhan Nyayalaya had played. In the early stage of its
establishment, the Supreme Court had been playing the active role to protect the personal
freedom of the people Court had shown sensitiveness to protect the freedom of the people by
various court decisions.

Supreme Court's playing creative role asserted its authority and restrained the special police from
interfering in the affairs of judicial administration, which is the requisite for the independence of
the judiciary. The analysis made above tells us that Supreme Court during the constitution of
Nepal, 2019 played active role in protecting the fundamentals rights of the people. Court has
exercised its extra-ordinary power of judicial review in the case of violation of natural justice,
refusal of right to legal representation, non-disclosure of grounds of arrest, dismissal under a
wrong law inconformity with the procedure prescribed by law. There was lack of consistency of
the decisions made by the judges of the Supreme Court and was unable to liberalize the rules of
locus standi also. We can say that under the prevailing constitutional framework Supreme Court
had been playing the creative role in maintaining the rule of law.

During the Constitution of Nepal 2047, Supreme Court played active role in protecting the
fundamentals rights of people. The Court exercised its extra-ordinary power of judicial review.
The court protected natural justice and it also declared void to those laws inconsistent to the
spirit of the constitution. The verdict of court also played the role of filling gap on the absence of
law. Supreme Court became liberalized on the rules of locus standi. Finally, we can say that
under the prevailing constitutional framework, Supreme Court had been playing the creative role
in maintaining the rule of law.

The Constitution of Nepal 2072 has included clear provisions of the independence of the
judiciary as well as PIL. Court has exercised its extra-ordinary power of judicial review
according to article 133, 144 and 148. The court has fulfilled the gap of law through the judicial
activism. The court has performed the role of parliament by its judicial activism. The Supreme
Court has ordered to form law to give status for third sex and make necessary amendments The
court has decided that the conjugal life is inherent right of people. Hence, the court has ordered
the government to form and amend necessary law to recognize third sex along with their
marriage life performing its active role. The court has also asked to conduct effective program of
public awareness. Court has protected the fundamental right of reproductive health and it also

47
determined the responsibility of state. It has created the environment to get treatment free of cost
for women. The right to property is fundamental right so, the forceful utilization of others
property would be illegal and role of government should be intervening to normalize such
conditions. It provides justice to the affected citizens of conflict protecting individual liberty and
personal property. It also imposed rule of law in state. The equal opportunity should be provided
for men and women. All fundamental rights are equal. It provides the concept of gender justice.
It would be ultra vires if the constitution is not applied accordingly and it is the duty of every
citizen to uphold this constitution. It is understood that the equal opportunity should be provided
for men and women. Reproductive health is established as fundamental right. Individual can
enjoy with their liberty in connection with bearing child. Here, Reproductive health was
established as fundamental right through judicial activism. The constitution amendment can be
achieved by certain procedures. It determined the basic structure of constitution. It found out the
infrastructure of independent judiciary. The parliamentary hearing is managed according to the
doctrine of check and balance. It established and protected the right of women to get life partner
according to their own. It abolished superstition and it advocated the choice of life partner on the
acceptance of two sides. Court guaranteed gender justice by judicial activism. It also stopped the
random use of natural resources which would create natural imbalance. Court determined new
fundamental rights. Court has played active role to provide social justice. The man who is born
by citizenship holder of Nepal can get citizen ship by the name of mother. Court has decided to
maintain gender equality between male and female and protects fundamental rights proving
judicial activism. It maintained equality of citizens. It also protected blind persons. It determined
the responsibility of government by judicial activism. It protects the right to live in fresh and
healthy environment. The Supreme Court provides environmental justice by its judicial activism.
Supreme Court is enabling to liberalize the rules of locus standi also. We can say that under the
prevailing constitutional framework Supreme Court has been playing the creative role in
maintaining the rule of law by various court decisions.

Thus, Supreme Court has provided natural justice, socio-economic justice, gender justice,
environment justice and to protect the people's fundamental rights and introduced new
fundamental rights also by various court decisions through judicial activism. The gap of law has
fulfilled by court decision through judicial activism. Judiciary has maintained rule of law in the
state. It is effective mechanism to control the government from abusing power It is related to rule

48
of law and Constitution is related to legality of power. Supreme Court has taken extra-ordinary
process of judicial activism. Thus judiciary has played active role by various court decisions in
Nepalese context and guardian of constitution. Finally, by observing and analyzing the
constitutional provision and decisions of the Supreme Court, Supreme Court is considered as the
custodian of the constitution and protector and promoter of fundamental right of the citizens. The
decision of supreme court are not consistent and uniform in the context of judicial activism
because in some cases court played active role to protect and promote socio-economic justice
and fundamental rights and some cases court showed traditional view and reluctant.

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 CHAPTER 7

FINDINGS, CONCLUSION AND SUGGESTIONS

7.1 Findings
This seminar paper highlights a number of crucial findings about the Public Interest Litigation in
Nepal and its trend. The findings of the study are put in a nutshell as follows:

 First of all, judicial activism was introduced in England from Dr. Bonham's case in 1610,
in America from Marbury vs. Medision case in 1803 and India from A.K. Gopalan vs.
store of Madrass case in 1950.
 In Nepal, the judicial activism started to be recognized by the constitution and the
judiciary only after the promulgation of Pradhan Nayalaya Act 2008. Judiciary had
played activist role through judicial activism
 The Constitution of Kingdom of Nepal 2015 had provision that the Supreme Court was
the apex court in the hierarchy of the court for the first time.
 After the commencement of The Constitution of Nepal 2019, Supreme Court had played
activist role in some cases and reluctant in some case.
 The Constitution of Kingdom of Nepal 2047 was the first constitution in Nepal in which
PIL had given constitutional recognition under the article 88 exercising the extra-ordinary
power. Supreme Court has provided socio-economic justice, gender justice, and
environmental justice. It has protected fundamental rights of people through judicial
activism.
 The Constitution of Nepal 2072 has repeated previous constitutional provision: the
constitutional recognition to the PIL under the article 133, 144 and 148, exercising the
extra-ordinary power. Supreme Court has provided socio-economic justice, gender
justice, and environmental justice. It has protected fundamental rights of people through
judicial activism.
 The duty of the court is to fill the gap between the constitution and legal provision and
social needs.

50
 Judiciary has to play a role of guardian of the constitution
 Judicial activism is the outcome of the independent judiciary.
 Judicial activism and PIL is the main weapon of democracy.
 It is the control mechanism of the abuse of government power.
 It is related to rule of law, constitution is related to legality of power
 Judicial activism and PIL are an example of the functioning of separation of powers in
modern governmental system.
 It is often said that there can be no constitution without fundamental rights and there can
be no fundamental rights without the power of judicial activism and PIL.
 The government is unable to give the impression that there is a government in state that
works in the real sense.
 The judiciary has left the place for criticism, it is seemed mechanical rather than creative.
 Even though the court has no any active role for the formation of law, sometime, the
court has performed the role of parliament by its judicial activism.
 It is more modern, more deliberative, more advanced than PIL.
 Judicial activism has given status for third sex and it also protected the right and liberty
of third sex.
 Reproductive health and environment to get treatment free of cost for women are also
determined as fundamental rights
 Providing justice to the affected citizens and protecting individual liberty, personal
property is guaranteed by imposing rule of law in state.
 Judicial activism has protected the spirit of constitution.
 Judicial activism-maintained balance and equal opportunity for men and women
protecting their fundamental rights. It also advocated gender justice.
 Constitution can be amended meeting certain procedural process. Each constitution
contains basic structure in unstated form Parliamentary hearing is managed according to
the doctrine of check and balance.
 Right of women to get life partner according to their own is secured. Marriage is
performed after the consensus of two parties.

51
  Right to food, right to clothing, right to health, right to residence, right to drinking water,
right to education and right to social security are identified as new fundamental rights.
Providing social justice is known to be the function of court.
 Citizenship can be obtained by the name of mother.
 The responsibility of government is to secure the rights of physically handicapped
persons.
 To live in fresh and healthy environment is the fundamental right of citizen.
 Judicial activism is the creativeness of competent judges and court. Judicial activism is
the creativity of the judiciary. PIL itself is the result of judicial activism.
 The decision of supreme court are not consistent and uniform in the context of judicial
activism because in some cases court played active role to protect and promote socio-
economic justice and fundamental rights and some cases court showed traditional view
and reluctant.

7.2 Recommendation

On the basis of the study and findings, the researcher would like to give suggestion as follows:

1) Recommendation to Judiciary:

 Supreme court has to develop an elaborative guideline on PIL

 Judgment should not be vague and judges should focus on execution of the orders rather
than on theory for advancement to meet the spirit of the constitution and rule of law,
 Judgment should identify responsible authority and assign their respective roles
 Judiciary has to develop the judicially manageable standard in issuing the
Order/decisions in writ petition of PIL. It is needed to be institutionalized.
 Judiciary must concentrate for resources and capacity required for implementing the PIL
orders.
 The decisions of Supreme Court should be consistent and uniform to need of the
context.

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2) Recommendation to OPMCM:
 Cooperation and coordination between different ministries should be made effective and
strong.
 Sufficient resources and logistical support should be provided to the decision execution
section of the OPMCM.
 The implementation part of guidelines, Policies, Strategies, action plan and development
Plans related to environment should make effective.
 The monitoring process should be effective and continued.

3) Recommendation to Government Attorney office:

 Decided judgments and issued directive orders must be forwarded to concerned parties on time. .
 Mutual cooperation and coordination between the different authorities of GON must be
promoted.
 The monitoring process should be effective and continued.

4) Recommendation to respective Ministries:

 There must be strong political desire to implement PIL orders by respective ministries.
 There must be mutual cooperation and coordination between authorities of GON.
 PIL orders should be implemented making an action plan thereof.
 Government must accord high priority accorded to implement PIL orders Separate record
keeping system should be developed in respective ministries
 There must be mutual cooperation and coordination between authorities of GON.

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7.3 Conclusions
Public Interest Litigation is a kind of cooperative and collaborative litigation involving the court,
Public Interest Litigation is a litigation filed to protect the interest of the public at large. It was
emerged by the judicial activism of the American Courts in 1960s. The commendable success of
PIL in the USA subsequently influenced other judiciaries of the world. First major example of
PIL dated back to 1870 in New York City. Development of PIL is unique contribution of
American Judges who have developed this concept through interpretation.

Judicial activism is the soul of PIL. The purpose of the PIL is to ensure public interest and
protection of legal or constitutional rights of disadvantaged and oppressed group and to render
social and economic justice to them. The concept of PIL was introduced in Nepal by inserting the
provision in the chapter of Court Management in the Muluki Ain 2020.

The Supreme Court of Nepal from the very beginning of constitutional recognition to PIL, it has
been playing vital positive role in interpreting it and contributed to make a separate PIL
jurisprudence in Nepal. The Supreme Court of Nepal has delivered several landmark judgments
over the disputes brought before the court in the name of PIL under Article 88 (1) and (2) of the
Constitution of the Kingdom of Nepal, 2047 B.S, under article 107(1) and 107(2) of the Interim
Constitution of Nepal and under Article 133 and 144 of the constitution of Nepal, there is provision to
assure the public interest through the means of Writ Petition.

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The Pradhan Nyalaya Act 2008

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The Interim Constitution of Nepal, 2063

The Constitution of Nepal, 2072

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