January 11, 1964 THE ECONOMIC WEEKLY Nepal's New Legal Code Satish Kumar

Nepal's new legal code (Muluki Am) promulgated by King Mahendra in August last year U a landmark in the social and political development of Nepal. It codifies and consolidates the country's taws, hitherto dispersed and, to a great extent, ambiguous. For the first time, it sanctifies the principle of equality before law by abolishing the repugnant sys- tern of deciding: the punishment for crimes according to the caste of the person involved. It forbids child marriage and polygamy and grants property rights to women. All these reforms were long overdue and mark the culmination of Nepal's transition into the modern wouId which began with the overthrow of the autocratic rule of the Ranas in 1951,

'THE past 15 years in Nepal have decided to strengthen himself against consonance with current social and seen many exciting events. The rivals by modernising his adminis­ political requirements, polished it overthrow of the automatic, century- tration and Government, Almost the and made it more compact and old Kana regime in 1951 marked first thing he did on his return from precise. Subsequently the Ain was the beginning of a new epoch. But England was to set up an official reprinted a number of times with- a period of political instability Kausal (Council) to codify Nepal's out any major change during the followed, which ended in 1959 when laws, This Kausal consisted of rule of Prime Ministers Chandra a government elected on the basis about 230 persons, including the Shamsher (1901-29), Bhim Sham- of adult franchise was formed. This state pundits of law and nrdigion, sher (1929-32) and Juddha Sham­ government was, however, unexpec­ important civil and military officials, sher (1932-46). tedly dismnissed in December I960 and experts in medical science and and all political parties were ban­ astronomy. The deliberations of the No Change for 80 Years ned. In December 1962, the King Kausal. continued for nearly three Between 1886 and 1963, there­ promulgated and enforced a new years. The outcome was that law fore, law had not undergone any constitution based on the Panchayat in Nepal, till then merely composed change in Nepal. And in 1951, when system, "suitable to the genius of the of commands and occasional pro a new era began, the antiquated Nepalese people". This constitution mulgattons by the rulers, was now Muluki Ain was a great anachro­ had hardly begun to function when embodied in a bulky and compre­ nism. Jang Bahadur's Ain, in its the new Muluki Ain was announced. hensive document which came to be introduction, had laid down that known as the Muluki Ain. 'caste' would be as important a cri- With the change of political sal­ teriou as 'crime' in deciding puni­ tern in 1951, social change was in­ The chief object of Jang Baha­ dur's Muluki Ain as declared in its shments. It said: "Henceforth, to evitable. The sudden and rapid ex­ all the people, high and low, the posure of Nepalese society to the introduction was to eliminate dis­ crimination in punishments to peo- punishment awarded must be uni­ modern world, the expansion of form, in accordance with the crime education, and changing social pie. of different ranks for the same offence. All officers of the state and caste of the persm". While values made the existence of centu­ the death sentence could be pro­ ry-old social laws an anachronism. were enjoined to adhere strictly to the provisions of the Ain, and those nounced on everyone else, a Brah­ The reform of law was, therefore, man, however grave his crime, was long overdue. To understand the found guilty of contravening it weir liable to be dismissed and exempt from it. Further, the Prime new code of August 1963, it would Minister could make law supersed­ be necessary to know something fined Rs 500, or imprisoned. Mini­ sters and officers were called upon ing or violating the provisions of about the previous code and its the Ain. At places, in the old Ain, origins. to suggest, from time to time, amendments and additions to this the judicial power of hearing First Ain Ain which would be adopted at appeals was vested in the Prime Minister, the Mukhtiyar or the Law was first codified in Nepal yearly intervals. Talukwala. Such provisions were in tire middle of the nineteenth cen­ Thus, Jang Bahadur's Ain codi­ clearly against all notions of a tury by Jang Bahadur, the first Rana fied Nepal's civil and criminal law modern democratic Government Prime Minister, Coming to power for the first time in Nepal's history with separation of powers and func­ in 1846 after the murder of a large — and made it uniformly appli­ tions between various organs. They number of senior civil and military cable to the whole country and to were also against the letter of the officers, Jang Bahadur was anxious all ranks of people (with the im­ new constitution promulgated in to consolidate his power. While he portant exception of caste as a basis 1962 by King Mahendra. took steps to eliminate all opposition of discrimination; this will be re­ within the country, he was careful ferred to later). Jang Bahadur's A serious defect of the old Ain to maintain good relations with the Ain was thoroughly revised in 1886 was that this was not the. whole law. British. He visited England in 1851 during the rule of Prime Minister For, a number of laws and profce- and familiarised himself with the Bir Shamsher (1885-1901). The re- dufral rules having the force of law efficient administration there. He vision brought the Ain further in were issued later in the form of

62 THE ECONOMIC WEEKLY January 11, 1964

Khadga, Nisana, Sanad and Sawal among various other or new chap- pcrty, whether she was a widow or by the Prime Minister and other ters. not, etc. According to the new Ain, officers. Some of these hew laws End of Caste Discrimination any adult women can sell or trans­ superseded the provisions of the old fer her property, whether parental Through its social reform mea­ Ain and some were supplementary or earned, according to her will. to them. Thus, in spite of the sures the new Ain ushers hi a new codification in 1850 and 1886, the era of social development. These The significant provisions of the law as inherited by Nepal from the measures are in accordance with new Ain as mentioned above indi­ Ranas was a combination of the the objectives and principles of the cate the advance the new Ain Ain, and numerous Khadga and State's social policy as described hi makes over the previous one. But Nisana, Sanad and Sawal, At times the new constitution, e g, the aboli­ some Nepalese have alleged that by even judges found it difficult to tion of untouchability, child marri­ abolishing caste as the. basis of trace a particular piece of law. To age, and polygamy. Caste discrimi­ civil and criminal law, the Ain has do away with such anomalies, and to nation is abolished by prescribing done great harm to Hindu religion. bring about some badly heeded legal for an offence the same punishment But this criticism cannot be taken reforms, King Mahendra appointed for all the castes. Child marriage is seriously. In the first place, the a Law Commission under the chair- prohibited by fixing the minimum new constitution clearly mentions manship of Attorney General Sham- age for marriage of boys tfnd girls that Nepal is a Hindu State and bhu Prasad Gyawali. This commis- at 18 and 14 respectively. But the that only a follower of the Hindu sion, helped by the work of the law most significant reform is the aboli­ religion and Aryan culture can be commissions appointed since 1951, tion of polygamy. This, however, the King of Nepal. Further, the produced a draft which was accepted seems to be an experimental mea­ constitution also guarantees the by the King and decreed as the new sure as its violation is punishable fundamental right to practice one's Muluki Ain. by only seven days' imprisonment religion. No one is permitted, how­ or a fine of fifty rupees. And re- Basic Objectives ever, to convert another person. marriage is permitted if the first The chapter entitled Adal specifi­ The basic objectives of the new wife does not bear a child cally prohibits conversion from the Ain, as described by the Secretary within ten years of marriage, or Hindu religion to any other. The of the law commission, are: (i) to suffers from leprosy, etc. Another same chapter further protects the consolidate in the Muluki Ain of very interesting provision of the citizen's religion in Article 10: all previous laws of the Ain, Sanad, new Ain is that there must not be "No person can interfere or cause Sawal, etc; (ii) to eliminate from a difference of more than twenty interference by any means in the the existing Ain the provisions relat­ years between the ages of the bride social customs and traditions of ing to the Prime Minister, Mukhti- and bridegroom. Till now a man any other person. Any person doing yar and Talukwala (because they of sixty in Nepal could marry a so would be liable to one year's are inconsistent with the political set girl of seven. imprisonment or one thousand up under the new constitution) and Divorce is permissible if (i) the rupees fine". to decentralise authority; (iii) to husband or wife conspires to cause The new Ain has won almost un­ bring the Ain into conformity with death or serious physical injury to animous commendation, August 17. existing conditions; (iv) to moder­ the other; (ii) the husband and when it came into force, was a day nise methods of punishment; and wife live apart but without mutual of celebration throughout the (v) to make the Ain conform to consent for a period of three years country. There were, however, a the new constitution (which gua­ or more; (iii) the husband keeps few dissident voices. The "Dharam rantees equality of law to all citi­ another woman; (iv) the wife has Raksha Mahamandal" (Conference zens irrespective of religion, colour, illicit relations with another man; for the Protection of Religion) sex, caste, etc) and to remove 'caste' (v) the two agree to a divorce. opposed it on the ground that its as a basis of determining punish- provisions were contrary to tradi­ merits. The new Ain is silent about widow remarriage. But according to the tion (National News Agency, May The new Ain. like the previous Secretary of the Law Commission, 28). The Nepal Women's Organi­ one, is divided into five parts, but "the fact that the Ain does not pre­ sation expressed dissatisfaction with the classification is more scientific vent it makes remarriage possible the Ain because it did 'not provide aVid precise. Part one is introduc­ for those widows who want it of for registration 'of marriages and tory, giving the name of the Ain, their own accord". The new Ain prescribed very mild punishment the date of enforcement, the defini­ prevents any one from forcing a for polygamy. According to one tions of words, etc. Parts two, three woman to marry. If the woman prominent Nepali daily, caste orga­ and four deal with Procedural Law, concerned files a suit, such a marri­ nisations were deeply perturbed. Civil Law and Criminal Law. res­ age will be declared void and the The same paper also reported that pectively. Part five contains pro­ guilty person will be punished. on the day of the enforcement of visions about dissolution of previous the Ain, posters barring entry to laws, etc. In the process of codi­ The new Ain has also liberalised untouchables were seen at the gates fication and reform some chapters the law regarding the property of the Pashupatinath bemple, while of the previous Ain have been re­ rights of women. The previous Ain a restaurant in Kathmandu put up moved, the names of some have imposed many restrictions on the a "For Hindus Only" sign. Some been changed, and the provisions of sale of property by women — de­ opponents of Mahendra wanted to some others have been redistributed pending on her age, type of pro- know why the National Panchayat 63 January 11, 1964 THE ECONOMIC WEEKLY

was not consulted on the Ain. Some demand that the King should have cularly common in the rural areas others contended that social re­ postponed the Ain and consulted the where it is economically advanta­ forms were meaningless in a land National Panchayat. But a revolu­ geous to the peasants. It adds to of gross economic inequalities. tionary and progressive measure their man-power in the fields. What- Political Criticism like the new Ain was not likely to ever the punishment, it would be meet with the instantaneous appro­ difficult, therefore, to enforce the Most of these criticisms stem val of a heterogeneous assembly anti-polygamy law in the rural from vested interests. The orthodox like the National Panchayat. The areas. In Kathmandu valley edu­ religious circles are naturally per* King, in his a"nxiety to reform the cated opinion can be mobilised turbed at the destruction of institu­ law at the earliest opportunity, against this institution. But a poly- tions which benefited them. The made full use of the interim powers gatnist has to pay only fifty rupees anti-Royalists are similarly bound of law-making vested in him under or undergo seven days' imprison­ to criticise every action of the Kfng, Article 93 of the constitution. ment for another wife. Mahendra promulgated the new Ain before April 14 (when the first But the criticism of the Nepal This notwithstanding, the Ain is session of the National Panchayat Women's Organisation that punish- a great step forward. Some of its was inaugurated) when he had the ment for polygamy is very mild is provisions arc obviously transition­ sole power to make laws. There justifiable. Polygamy, though al or experimental in nature. That may be some justification in the widely prevalent in Nepal, is parti­ is both necessary and desirable.

Around Bombay Markets Patchy Performance Thursday, Morning

DALAL STREETS performance Anxiety about the Prime Minister's it showed a net gain of Rs 7.75 per last week was a patchy one, health touched off considerable has­ 3 quintals over the week. The quite promising in parts but poor ty selling on a few occasions and spread between the March and May in some other respects. Turnover the selling was quite pronounced on contracts gradually increased from was not bad though activity was vir­ Wednesday evening. The market Rs 8.75 to Rs 12, the distant posi­ tually confined to a few speculative turned a little steadier when the tion being quoted at a discount re­ counters. Tata Chemicals, National latest medical bulletin reported a- flecting mainly the poor prospect of Rayon and Telco were the outstand­ satisfactory improvement in the tenders in the nearby March con­ ing bright spots and they struck Prime Minister's health. The debate tract. Normally, the distant contract new high levels in the major up­ on the Congress Working Commit­ should be quoted at a premium in swing. Improved production and tee's draft resolution on democracy order to cover the cost of carrying hopes of decontrol helped to sustain and socialism has been quite a tame cotton during this period. bullish sentiment in Steels though affair and once the market is reliev­ higher levels encountered consider­ ed of anxiety about Shri Nehru's Last week's improvement in futu­ able resistance. Automobile shares health, equity prices can be expected res was due more to heavy short rallied after a mild setback follow­ to push ahead in quite a significant covering than to any aggressive bull ing the Prime Minister's vague hint manner. Of course much will de­ support. Bear covering seemed to about setting up an automobile unit pend on how the Finance Minister have been touched off by the con­ in the public sector. Bank shares will modify the fiscal policy in tinuing strength in the spot mate­ tried to steady up after the uneasi­ order to stimulate production, saving rial. Keen spinner demand for ness caused by excited talks about and investment. The market is anxi­ quality cottons has pushed up the nationalisation of banks. The so- ously awaiting to know how T T K prices of superior varieties very near called cash market continued to be is going to tackle the question of the ceiling. Most varieties are quo­ completely listless though there ap­ unaccounted money which has long ted at levels where buying for stock peared to be a modest revival of in­ been agitating his mind. building is not remunerative in that terest in new issues which are now the cost of carrying cotton would being placed on the market. Cotton. push up prices beyond the statu­ tory ceiling. The keen demand for Futures Hit New High All eyes were on Bhubaneswar indigenous superfine varieties is due last week. But it was not for watch­ AFTER minor technical adjust­ to the shortage of imported cottons. ing the progress of the debate on ments the cotton futures mar­ While the scope for any further ap­ the draft resolution on democracy ket pushed its way into new high preciable rise in spot cotton prices and socialism. The market was deep­ ground last week. The March con­ seems limited as prices are already ly concerned over the health of the tract which had reacted from Rs fairly close to the ceiling, not many beloved Prime Minister who has 737.25 on 26th December to Rs 727 observers are inclined to expect any been advised complete rest. Market on 2nd January was up again at a big decline from the current levels sentiment was swayed more by Shri new high of Rs 738.75 on the 6th in the immediate future. Nehru's health bulletin than by and thereafter moved irregularly what the Congress leaders had to between Rs 738 and Rs 734.50. At Export sales registered no to 4th say on democracy and socialism. its Wednesday's closing of Rs 737.50 January are placed at 1.10 lakh

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