Doctrine of Necessity in Revolutionary Jurisprudence in light of Nepal’s Recent Interim Government
The Constitution of Nepal, in any constitutional debate, has never been this clear about the legitimacy of the government. Article 76 clearly and explicitly provisions that only a member of the House of Representatives can be a Prime Minister. The appointment of Sushila Karki is unconstitutional if based on this one simple and irrefutable article. However, Article 132(2) further states that anyone who’d already been Chief Justice is ineligible for any government position except as otherwise mentioned in the constitution. This constitutional prohibition is categorical, making Sushila Karki's appointment doubly unconstitutional.
After the decision was taken, many people contended that the President acted within constitutional bounds by invoking Article 60(3) and (4), which require the President to protect national unity and uphold the Constitution. It is said that he relied on the doctrine of necessity because there was no feasible alternative as the public mandate demanded that no major political party lead the interim government. Faced with that lack of any viable option and the extraordinary circumstances of a revolution, the President’s use of necessity was therefore justified. This part of the argument raises a few serious questions, viz.
(i) What does the Revolutionary Jurisprudence say?
(ii) Is the doctrine of necessity applicable in this context?
(iii) Does legislative intent confer on the President the power to invoke Article 60(3) and (4)?
In light of the first question, Revolutionary Jurisprudence is conceptualized as a branch of politico-legal thought which believes that the laws can be suspended or reshaped during the time of revolution. Here, the major component for revolutionary jurisprudence to be attracted is ‘revolution’. However, is the Gen-Z protest that we saw across the country on 8th and 9th of September a ‘Revolution’ in the political sense? I think that the change that occurred throughout the political sphere falls under the definition of “Political Uprising” and not “Revolution.” A Revolution is a fundamental and usually a broad change in political power or social structure which aims to replace the existing system (state, regime, social order) whereas, a Political Uprising is a more limited, often short-term protest or rebellion against particular policies, leaders, or events; which may seek reforms or immediate change rather than total replacement.
Moving towards Doctrine of Necessity, when no lawful, constitutional remedy exists and an imminent or grave danger threatens the survival of the state or fundamental constitutional order, a decision-maker may take otherwise unlawful/extra-constitutional steps to preserve the state and a court may then recognize those acts as valid under “necessity.” However, this doctrine is purely an exceptional doctrine which only comes into play when it surpasses various thresholds; one of them being “Absence of Constitutional Remedy.” This needs to be self-reflected on whether there is presence of appropriate constitutional remedy or not. I am of the opinion that a government could be formed by the President as per Article 76 (5) of the constitution with an independent member of parliament as the Prime Minister. In case of their inability to attain the majority, the parliament can then be dissolved well within the constitutional bound.
Now the third question on whether legislative intent confers on the President the power to invoke Article 60(3) and (4). In the Constitution of the Kingdom of Nepal, 2047, power was granted to the king to make necessary arrangements in case of a situation of political deadlock. The same power was misused by former king Gyanendra while suspending all political parties in Nepal. The provision was eliminated from the Constitution of Nepal, which clearly reflects the legislative intent not to vest the President with powers that could be misused, and instead established the president as a purely ceremonial head. Thus, Article 60 (3) and (4) cannot be vaguely interpreted so as to leave a chunk of residual power well within presidential bounds for further misuse or tyranny.
In conclusion, the interim government is formed above the coffin of seventy-four innocent Nepalese which must be respected. The primary way of honoring the lives of martyrs begins by respecting the ‘Constitution’, upon which the sovereignty of Martyrs rested.
About the Authors

Ashis Sapkota
Undergraduate Law Student at Nepal Law Campus, with a keen interest in socio-legal analysis of constitutional issue.
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