Nepal's New Legal Code

January 11, 1964 THE ECONOMIC WEEKLY Nepal's New Legal Code Satish Kumar Nepal's new legal code (Muluki Ain) promulgated by King Mahendra in August last year is 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 worId 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 un 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), Bhirri 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 dismissed in December 1960 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 Am 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 au 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 arid 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 the 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 Nepali 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 wds 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 and 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- ever, to convert another person. Basic Objectives 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.

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