High Courts of Nepal

History of the High Court of Nepal

The history of the High Court of Nepal can be traced back to the establishment of the Muluki Ain or National Code in 1854 by Jung Bahadur Rana, the first Prime Minister of Nepal. The Muluki Ain introduced a uniform legal system in Nepal and abolished the traditional caste-based laws. The Muluki Ain also established a three-tiered judicial system consisting of:

The Mukhya Adalat or Chief Court, was the highest court in Nepal. It consisted of five judges appointed by the Prime Minister. It heard and decided appeals from lower courts on civil and criminal matters.
The Madhyama Adalat or Intermediate Court, was a regional court established in each province. It consisted of three judges appointed by the Prime Minister. It heard and decided original cases on civil and criminal matters.
The Upa Adalat or Subordinate Court, was a local court established in each district. It consisted of one judge appointed by the Prime Minister. It heard and decided original cases on minor civil and criminal matters.

The Muluki Ain was revised several times in 1910, 1936, 1952, 1963, and 2017 to incorporate changes in the legal system and society of Nepal.

The current High Court of Nepal was established by the Interim Constitution of Nepal 1951 after the end of the Rana regime and the restoration of democracy in Nepal. The Interim Constitution provided for a Supreme Court consisting of a Chief Justice and four other Justices appointed by the King on the recommendation of the Prime Minister, and a High Court consisting of a Chief Judge and two other Judges appointed by the King on the recommendation of the Prime Minister, in each province. The Interim Constitution also gave the High Court the power to hear appeals from District Courts on civil and criminal matters, and to issue writs for the enforcement of fundamental rights.

The Interim Constitution was replaced by several constitutions in 1959, 1962, 1990, 2007, and 2015, which made some changes in the structure, composition, jurisdiction, procedure, and functions of the High Court. The current constitution is the Constitution of Nepal, 2015, which came into force on September 20, 2015, after the end of the decade-long civil war and the abolition of monarchy in Nepal. The Constitution of Nepal, 2015, provides for a federal democratic republic system in Nepal, with three branches of government: the executive, the legislature, and the judiciary.

Composition of the High Court of Nepal

The Constitution of Nepal, 2015 provides for seven High Courts in seven provinces of Nepal. Each High Court consists of a Chief Judge and other Judges as prescribed by law. The number of Judges in each High Court is determined by law based on the population, geography, workload, etc., of each province. The current number of Judges in each High Court is as follows:

Province No. 1: 11 Judges (including Chief Judge)
Province No. 2: 9 Judges (including Chief Judge)
Bagmati Province: 15 Judges (including the Chief Judge)
Gandaki Province: 9 Judges (including the Chief Judge)
Lumbini Province: 11 Judges (including the Chief Judge)
Karnali Province: 7 Judges (including the Chief Judge)
Sudurpashchim Province: 7 Judges (including the Chief Judge)

The Chief Judge and other Judges of each High Court are appointed by the President on the recommendation of the Judicial Council. The Judicial Council consists of five members: the Chief Justice as chairperson; the Minister of Law, Justice, and Parliamentary Affairs; the senior-most Justice of the Supreme Court; a senior advocate or a distinguished jurist appointed by the President on the recommendation of the Nepal Bar Association; and a senior advocate or a distinguished jurist appointed by the President on the recommendation of the Prime Minister as members. The Judicial Council recommends candidates for appointment as Chief Judge or Judge of High Courts from among those who have served as Chief Judges or Judges of District Courts for at least five years, or have obtained a bachelor's degree in law and practiced law as an advocate for at least ten years, or are distinguished jurists having worked for at least ten years in the judicial or legal field.

The term of office of the Chief Judge and other Judges of each High Court is until they attain the age of sixty-four years. The Chief Judge and other Judges may resign from office at any time by resigning from the President. The Chief Judge and other Judges may be removed from office by an impeachment motion passed by a two-thirds majority of the House of Representatives on the grounds of incompetence, misconduct, failure to discharge duties honestly, or physical or mental incapacity.

Jurisdiction of the High Court of Nepal

The Constitution of Nepal, 2015 provides for both appellate and original jurisdiction of the High Court over various types of cases. The appellate jurisdiction means that the High Court can hear and decide appeals from lower courts or other tribunals on questions of law or fact. The original jurisdiction means that the High Court can hear and decide cases that are directly filed before it, without going through lower courts or other tribunals.

The appellate jurisdiction of the High Court covers:

Appeals from decisions of District Courts or other specialized courts or tribunals on civil matters, criminal matters, revenue matters, service matters, etc.
Appeals from decisions of District Courts on writ petitions filed under Article 133 (1) (a) and (b) of the Constitution.

The original jurisdiction of the High Court covers:

Writ petitions filed under Article 133 (1) (c) and (d) of the Constitution for the enforcement of fundamental rights, or for any other purpose, as prescribed by law.
Cases involving disputes between local governments, or between local governments and provincial government, or between local governments and federal government, as prescribed by law.
Any other cases as prescribed by law.

Procedure of the High Court of Nepal

The Constitution of Nepal, 2015 lays down some general principles and rules regarding the procedure of the High Court. The specific rules and regulations regarding the procedure are prescribed by law or by rules made by the High Court itself.

Some of the general principles and rules regarding the procedure are:

The High Court shall sit in panels or benches of two or more Judges as determined by it. The Chief Judge shall assign cases to different panels or benches. The Chief Judge may also convene a full court consisting of all Judges to hear and decide important or controversial cases.
The High Court shall conduct its proceedings in public, except when it decides otherwise in special circumstances. The High Court shall publish its judgments, orders, decrees, rulings, opinions, etc., along with reasons thereof.
The High Court shall hear oral arguments from parties or their lawyers, as well as written submissions or briefs. The High Court may also seek opinions from experts, amicus curiae (friends of the court), intervenors (third parties with an interest in the case), etc., as it deems necessary.
The High Court shall apply constitutional provisions, laws, precedents, general principles of justice, equity, good conscience, etc., while hearing and deciding cases. The High Court shall also consider international treaties and conventions that are ratified by Nepal while interpreting laws.
The High Court shall have all necessary powers to do complete justice in any case before it. The High Court may issue any order or direction that is necessary for securing the ends of justice. The High Court may also review its judgments, orders, decrees, rulings, opinions, etc., on its motion or on an application made by any party within a reasonable time.

Functions of the High Court of Nepal

The Constitution of Nepal, 2015 provides for various functions of the High Court that are essential for the administration of justice and the protection of constitutionalism in Nepal. Some of these functions are:

Interpretation: The High Court interprets the meaning and scope of the constitution and laws of Nepal, and resolves any ambiguities, conflicts, or controversies that may arise from them. The High Court also interprets international treaties and conventions that are ratified by Nepal and harmonizes them with domestic laws.
Application: The High Court applies the constitution and laws of Nepal to specific cases and situations, and determines their validity, effectiveness, and consequences. The High Court also applies general principles of justice, equity, and good conscience to supplement or fill in any gaps in the constitution and laws.
Review: The High Court reviews the decisions of lower courts and other tribunals, and corrects any errors, injustices, or irregularities that may have occurred in them. The High Court also reviews the actions, policies, or legislation of other branches of government, and checks whether they are consistent with the constitution and laws of Nepal.
Protection: The High Court protects the fundamental rights and freedoms of the people, and ensures that they are not violated or infringed by any person or authority. The High Court also protects the separation of powers and checks and balances among the different branches of government and ensures that they do not encroach upon each other's domains or functions.
Enforcement: The High Court enforces its judgments, orders, decrees, rulings, opinions, etc., and ensures that they are complied with by all concerned parties or authorities. The High Court also enforces the constitution and laws of Nepal and ensures that they are observed by all persons or entities.

Conclusion

The High Court of Nepal is the second highest court in Nepal and the first appellate court for most of the cases in the country. The High Court also has original jurisdiction over some types of cases. The High Court plays an important role in ensuring justice, protecting fundamental rights, and interpreting laws in Nepal. The High Court consists of a Chief Judge and other Judges as prescribed by law in each province. The Chief Judge and other Judges are appointed by the President on the recommendation of the Judicial Council. The term of office of the Chief Judge and other Judges is until they attain the age of sixty-four years. The administrative head of each High Court is the Registrar. In addition to the Registrar, one Deputy Registrar, and four Assistant Registrars are appointed to lead different departments of each High Court and offer administrative assistance to the Court. Officers of each High Court are appointed by the Government of Nepal under the recommendation of the Judicial Service Commission.

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