Civil and Criminal Law and Justice · Chapter 8
Study notes aligned to the official NEB syllabus.
Criminal justice in Nepal is very old. It is as old as organised society in the Kathmandu Valley. Its earliest layer belongs to the Kirat period. The Kirats are the oldest of the dynasties that Nepal's history traditionally counts. They are not thought to have left a written penal code. A penal code is a written set of crimes and their punishments. Their justice rested instead on custom and community practice (परम्परा र समुदायको चलन). Their wider cultural and moral tradition comes from an oral inheritance known as the Mundhum. An oral inheritance means teachings passed down by speech, not by writing.
The Kirat state was simple and based on family and kin. So wrongdoing was handled mostly by the community. It was not handled through a developed court system. The common teaching is that punishment was mild. It leaned towards fines, compensation and restitution (क्षतिपूर्ति). Compensation means a payment made to repair a harm. At most the punishment was exile. Exile means being sent away from the community. Death was not the usual punishment.
Here is an example of the spirit of this era. Take a serious wrong such as a killing. By the usual account, it was often answered by banishing the wrongdoer from the community. Or the wrongdoer paid money to the victim's family. The offender was usually not put to death. The aim was to restore the peace of the community. The aim was also to compensate the injured side. This is why this early system is remembered as fairly mild in its penalties.
The Licchavi period came next. It marks the move towards an organised state. Here the evidence is firmer. The Licchavis left stone inscriptions (abhilekh / अभिलेख). An inscription is writing carved on stone. These still survive today and can be studied. They show a settled royal government. In it the king was seen as the source of justice (न्यायको स्रोत). The king was helped by officials. Offences and their punishments were now recognised by the state. They were no longer left wholly to custom.
Religion shaped this period too. The Dharmashastra (धर्मशास्त्र) tradition is visible here. The Dharmashastra is the body of Hindu religious law. Because of it, law and morality were closely joined. The ruler had a duty to punish wrong and protect his subjects. This duty was called danda, the king's power to correct wrong. It became part of how people understood justice.
Here is how things changed from the Kirat era. Before, a dispute might be settled entirely within the village. Now that same dispute could be brought before royal officials. These officials acted under the king's authority. So the state took responsibility for justice. It was no longer only the community's job.
The Malla period is remembered most for one thing. It put social and legal order into a systematic, written form. Jayasthiti Malla is traditionally given the credit for this. He is said to have reorganised Valley society and law. He did this along the lines of Hindu Dharmashastra. He classified people and occupations. He laid down rules and graded punishments on that basis. Graded means the punishment changed by level or rank.
The code of conduct and judging from this era has a well-known name. It is the Manava Nyaya Shastra (मानव न्याय शास्त्र). People regard it as an early written statement of law and procedure in Nepal. Procedure means the steps a court follows to decide a case. Under the Mallas there were courts and officials. Their job was to settle disputes and award punishment. So criminal justice became more formal and record-based. It was no longer the custom-led practice of earlier times.
But the main feature of Malla justice was different. The system stayed caste-graded (जातमा आधारित). A caste is a fixed social group a person is born into. The kind and severity of a punishment depended heavily on the status of the parties. It did not rest on equality before the law. Equality before the law means the law treats everyone the same.
Here is an example. The same act could draw a different penalty. It depended on the caste of the offender and of the victim. So justice was tied to a person's place in the social order. It was not tied to the act alone. This is very different from the modern rule that all persons are equal before the law. This is the main way the Malla system fell short of a modern criminal justice system, despite its advances in writing down the law. Even so, the Mallas made real progress. They moved from unwritten custom towards a written, court-run order. This codifying tradition would later shape the national code of the Shah era.
The Shah kings unified Nepal. After this, justice was still run under royal authority. Now it covered the larger, united state. The key landmark of this era is the Muluki Ain of 1910 BS (1854 AD). It was issued under Jung Bahadur Rana. It was Nepal's first full written national code. A national code is one single law for the whole country. The Muluki Ain applied one body of law across the entire country. It covered both civil and criminal matters.
This was a major step towards uniform justice. Before it, rules and penalties changed from place to place. The Muluki Ain gave the kingdom one written law instead. But it still reflected the society of its time. It graded offences and punishments by caste and status. It did not treat all persons as equal. So the inequality of the earlier periods was carried into the first national code.
The modern criminal justice system is the result of later reform. This reform happened in the twentieth and twenty-first centuries. It slowly removed these old features. Caste-based discrimination in the law was abolished. The usual turning point is the 2020 BS / 1963 AD revision of the Muluki Ain. This marked the shift towards equality before the law. The judiciary also became independent. The judiciary is the system of courts and judges. Independent means the courts could decide cases free of government control. A separate prosecution service also grew. Prosecution means bringing a case against an accused person. This separated the job of investigating and prosecuting from the job of judging.
The present system rests on two main foundations. The first is the Constitution of Nepal 2015. It guarantees fundamental rights. These include the right against torture and the right to a fair trial. The second is the new codes that replaced the old Muluki Ain. These are the Muluki Civil Code 2074 and the Muluki Penal Code 2074 (2017). Both came into force in 2018.
Here is how far Nepal has travelled. Just compare the two ends of the story. In the earlier periods, the punishment for an offence could depend on the caste of the parties. Today the Penal Code is different. It defines the offence and its punishment in the same terms for everyone. Also, a person can be punished only for conduct that the law made an offence before it was done. This idea is called the principle of legality.
Together these give Nepal a modern, equality-based criminal justice system. It has written offences and punishments. It follows the principle of legality. It has a clear court hierarchy headed by the Supreme Court. A hierarchy means courts ranked from lower to higher. It also has reformative elements such as community service. Reformative means aimed at correcting the offender, not just punishing. All of this sits within a framework that treats every person as equal before the law.