If past practices are anything to go by, the judiciary has delivered a plethora of landmark rulings in defense of the people’s cause. It has dispensed justice without discrimination, welcomed public grievances, and issued judgments consistent with established legal principles and human rights, thereby fulfilling the aspirations of aggrieved parties.
Article 133 of the Constitution of Nepal confers broad powers on the Supreme Court to issue appropriate orders and writs in the name of the State and concerned parties. This provision may be regarded as the “appropriate proceeding clause” of the Constitution. In this respect, the apex court exercises extraordinary jurisdiction to advance justice through various writs and orders.
Landmark rulings
In Sunil Babu Pant v Government of Nepal and Others (2007), the Supreme Court (SC), while considering a Public Interest Litigation (PIL), recognized transgender and LGBTIQA+ individuals as a “third gender,” ensuring their legal identity and access to services, education, and voting. The Court also directed the government to end discrimination based on sexual orientation and gender identity and held the State accountable for past abuses. Through this decision, the apex court protected the human rights of sexual minorities and advanced the principle of equality. This case illustrates how PIL can empower citizens and drive a nationwide social change.
Another landmark example is Meera Kumari Dhungana v His Majesty’s Government [NKP 2052, Issue 6, Decision No 6013] which addressed gender equality in inheritance rights. The SC issued a directive to the government to draft and present a bill to Parliament ensuring equal rights for women to parental property.
Similarly, Surya Prasad Dhungel v Godavari Marble Industries highlighted the connection between the right to life and the right to a clean and healthy environment, reinforcing environmental protection as a constitutional concern. Environmental conservation was one of the objectives of the applicant, so the applicant had locus standi for the prevention of the environmental degradation, ruled the court.
These cases illustrate how PILs have become a powerful instrument for promoting justice, equality, and environmental sustainability in Nepal.
In Advocate Radhey Shyam Adhikari v Office of the Prime Minister and Council of Ministers and Others (NKP 2048, Decision Number 4430), the SC held that Petitioners need to have meaningful relations and substantial interest in the subject matter to file a PIL.
Global precedent
The first notable PIL case in India was Hussainara Khatoon v State of Bihar (1979), which highlighted the inhumane conditions in prisons and resulted in the release of over 40,000 undertrial prisoners, establishing the right to speedy justice as a fundamental right.
Gideon v Wainwright, 372 US 335 (1963), is a landmark decision by the US Supreme Court that significantly expanded the right to legal representation and is often cited in discussions of public interest litigation and access to justice. The US Supreme Court unanimously ruled in Gideon's favor, holding that: “The Sixth Amendment guarantees the right to legal counsel, and this right is fundamental and essential to a fair trial. Therefore, states are required under the Fourteenth Amendment to provide an attorney to defendants in criminal cases who cannot afford one.”
Professor Abram Chayes coined the term “public law litigation” in the US context in 1976.
Way forward
A PIL refers to a legal proceeding initiated in a court to protect or enforce the rights or interests of the public or a particular section of society. It involves matters where the public or a segment of the community has a legal interest that affects their rights or obligations. Unlike typical lawsuits, a PIL is not filed for personal gain but to seek justice on behalf of the public. It should not be misconstrued as “publicity interest litigation.” A PIL must genuinely serve the public interest, not private interests.
So, it is high time we adopt institutions and mechanisms to ensure the effective implementation of court verdicts. Without such measures, judicial decisions risk becoming toothless and merely cosmetic. As a democracy, Nepal must uphold court rulings in both letter and spirit, for the state is founded on the rule of law and constitutionalism.
Nitika Chaudhary
BBA LLB
Manmohan Technical University (MTU), Biratnagar
