Nepali Legal System · Chapter 4
Study notes aligned to the official NEB syllabus.
Before Nepal had a single written code, justice came from three things. It came from custom, from religion and from the orders of rulers. It varied from place to place. It also varied from community to community.
The earliest known rulers of the Kathmandu valley were the Kirats. They gave justice mostly through custom and their oral tradition, the Mundhum (मुन्धुम). Disputes were settled by elders, not by any written statute. No written code survives from this age. So what we know of Kirat law comes from custom and later references. Most of it was customary and community based. For example, think of a quarrel over land or family in a Kirat village. It would be put before the community elders. They decided it by accepted usage, not by any written rule.
In the Licchavi period, things began to change. Royal inscriptions (abhilekh) started to record rules on land, taxation and administration. The Hindu Dharmashastra came to shape ideas of justice and duty.
The medieval Malla period brought the first serious attempts at written legal regulation. King Jayasthiti Malla is remembered for codifying social conduct and caste-based rules for the valley. This was an early example of a ruler setting down order in written form.
In the Gorkha kingdom, King Ram Shah (राम शाह) made a famous body of rules and reforms. They are known as Ram Shah ka Thiti (राम शाहका थिति). They covered the administration of justice, standard weights and measures, interest on loans and social order. His reign became linked with fair justice. A saying is attributed to it: "if you do not get justice, go to Gorkha" (न्याय नपाए गोर्खा जानु). Traditional methods were also used in this era. One was oaths. Another was ordeals (दिव्य परीक्षा), in which a person's guilt was tested by a physical trial. Local institutions also helped decide guilt and settle claims.
The decisive step toward a modern legal system was codification. Prime Minister Jung Bahadur Rana toured Europe. After he returned, Nepal adopted its first comprehensive, country-wide code. This was the Muluki Ain of 1910 BS (1854 AD). For the first time, one written law applied across the whole country, at least in form. It treated civil, criminal, family and procedural matters together. This meant something new. In principle, the same written rule could be pointed to in Kathmandu and in a distant district alike. But its substance was unequal. It rested on Hindu Dharmashastra. It legally graded people by caste. It prescribed different treatment for different groups. So its equality was only formal.
Just over a century later, the state replaced it. The new code was the New Muluki Ain (नयाँ मुलुकी ऐन) of 2020 BS (1963 AD). It was promulgated under King Mahendra. Its great achievement was to end legal discrimination. It abolished caste-based legal discrimination and untouchability in law. It made the law formally equal for all citizens. For example, the old code had fixed different punishments by caste. The New Muluki Ain removed them. So the same offence now in principle drew the same penalty for everyone.
The New Muluki Ain served as the backbone of Nepali law for over half a century. It was finally replaced by two modern codes. These are the Muluki Civil Code 2074 and the Muluki Penal Code 2074. They came into force in 2075 BS (2018 AD). With their accompanying procedure codes, they now form the general civil and criminal law of Nepal. These codes gather and modernise the scattered law. So today a Nepali judge deciding a contract, a partition or a theft turns to these 2074 codes.
Nepal's constitutional development runs through seven constitutions.
The Government of Nepal Act of 2004 BS (1948) was the first attempt at a written constitution. It came under the Rana regime. But it was never truly implemented.
After the fall of the Ranas came the Interim Government of Nepal Act of 2007 BS (1951).
The Constitution of the Kingdom of Nepal 2015 BS (1959) introduced an elected parliamentary government. But it was soon displaced. The Constitution of Nepal 2019 BS (1962) took its place. It established the party-less Panchayat system under the King.
The restoration of multiparty democracy produced the Constitution of the Kingdom of Nepal 2047 BS (1990). This was a constitutional monarchy. Sovereignty was vested in the people.
After the second people's movement came the Interim Constitution of Nepal 2063 BS (2007). Under it the monarchy was abolished and a republic was declared.
Finally the Constituent Assembly promulgated the present Constitution of Nepal 2072 BS (2015 AD). It establishes Nepal as a federal democratic republic. It guarantees fundamental rights in Part 3. It places itself at the top of the legal order as the fundamental law of the land.
The overall direction is easy to see. It is an example of gradual change. Sovereignty moved step by step. It passed from the Rana rulers and the King toward the people. Under the present Constitution the people are sovereign. Even the state must act within the law.
Seen together, the three strands of this chapter tell one connected story.
In the pre-codification era, law was scattered, customary and religious. It differed from community to community. So a dispute in a Kirat village and a dispute in the Gorkha court might be settled by quite different rules.
The Muluki Ain line then gathered the law into a single written code. The first was in 1910 BS (1854) under Jung Bahadur. The next was the caste-free New Muluki Ain of 2020 BS (1963) under Mahendra. The last was the modern Muluki Civil Code 2074 and Muluki Penal Code 2074. Each step made the law more uniform. Each step also made it more equal.
The constitutional history did the parallel work at the level of fundamental law. It carried Nepal from Rana autocracy to a federal democratic republic. In that republic the Constitution of Nepal 2015 is supreme. For example, think of a citizen today. He enjoys a single, equal civil and criminal law under the 2074 codes. He also enjoys a set of enforceable fundamental rights under the Constitution. Neither of these existed in the pre-codification era.
So the development of the Nepali legal system is best understood as one long movement. It moved from scattered custom toward a unified, codified and constitutional order. It moved from graded, unequal rules toward equality before the law.