Advocate Dr. Chandrakant Gyawali v. Office of the President and others
September 20, 2025
min read
Introduction of the Case
This case was heard by the Supreme Court of Nepal, Constitutional Bench in 069-WO-0976. The petitioners were Advocate Dr. Chandrakant Gyawali, former President of the Constitutional Lawyers’ Forum (CLAF), a permanent resident of Gulmi district, and Advocate Omprakash Aryal, Secretary of CLAF.
The respondents were the Office of the President, Sheetal Niwas, Kathmandu, and the Chairperson of the Interim Election Council of Ministers (IEC), Shital Niwas and Singha Durbar, Kathmandu, along with other relevant state authorities.
The matter was adjudicated by a bench consisting of:
This case was heard by the Supreme Court of Nepal, Constitutional Bench in 069-WO-0976. The petitioners were Advocate Dr. Chandrakant Gyawali, former President of the Constitutional Lawyers’ Forum (CLAF), a permanent resident of Gulmi district, and Advocate Omprakash Aryal, Secretary of CLAF.
The respondents were the Office of the President, Sheetal Niwas, Kathmandu, and the Chairperson of the Interim Election Council of Ministers (IEC), Shital Niwas and Singha Durbar, Kathmandu, along with other relevant state authorities.
The matter was adjudicated by a bench consisting of:
- Hon. Chief Justice Kalyan Shrestha,
- Hon. Justice Sushila Karki,
- Hon. Justice Baidyanath Upadhyay,
- Hon. Justice Gopal Parajuli, and
- Hon. Justice Omprakash Mishra
The petition challenged the President’s order of Baadha Adkaau Fukaune (removal of constitutional obstacles) issued on the recommendation of the Council of Ministers by President Dr. Ram Baran Yadav on 2069/12/1 B.S. (March 2013) under the Interim Constitution of Nepal, 2063. The order enabled elections for the Second Constituent Assembly after the dissolution of the First Constituent Assembly.
Facts of the Case
Following the dissolution of the first Constituent Assembly without promulgating a constitution, Nepal entered into a prolonged constitutional and political deadlock. After the failure of the First Constituent Assembly, and with no parliament in place, the political parties agreed to form an Interim Election Council of Ministers to oversee elections for a Second Constituent Assembly.
In this context, the Interim Election Council of Ministers, led by Chairperson Khil Raj Regmi (then also Chief Justice) government recommended that the President issue an order of Baadha Adkau Fukaune, which was a constitutional device used in the Interim Constitution to remove legal and constitutional obstacles in order to hold elections for a new Constituent Assembly. President Dr. Ram Baran Yadav then issued an order under Article 158 of the Interim Constitution (Baadha Adkau Fukaune) to remove constitutional obstacles.
Regmi was then appointed as Chairperson of this Interim Council of Ministers while still holding the office of Chief Justice. This meant that one person was simultaneously exercising the highest judicial authority and the head of executive government.
The President’s order thereby enabled, the Election Commission led by then Chief Election Commissioner Neel Kantha Upreti to proceed with preparations for the second Constituent Assembly elections. The election for Second Constituent Assembly was successfully held in November 2013 and a second Constituent Assembly was formed, which later promulgated the Constitution of Nepal in 2015.
The petitioners, however, challenged the legality and constitutionality of the order issued by President while appointing Khilraj Regmi. They argued that; the order was ultra vires i.e. the Interim Constitution, did not empower the President to remove obstacles in this manner once the Constituent Assembly had been dissolved. The order also violated the principle of separation of powers, as the President exercised authority that rightly belonged to the legislature or the sovereign people. The order was a fraud on the Constitution, as it created a path for political actors to bypass constitutional provisions.
The petitioners sought a writ of certiorari, mandamus, and quo-warranto against the President’s office and the Interim Council of Ministers, requesting the Court to quash the order as unconstitutional.
The respondents argued that the order was issued in the extraordinary circumstances of deadlock to protect state continuity and to avoid a constitutional vacuum. They defended it as a necessary measure under the “Doctrine of State Necessity” and emphasized that subsequent events, including the successful election of the Second Constituent Assembly and the adoption of a new Constitution, had already validated the order.
Legal Questions
The Court had to decide on several fundamental questions:
1. Whether the President’s order of Baadha Adkau Fukaune was consistent with the Interim Constitution of Nepal, 2063.
2. Whether there existed a legitimate constitutional basis for the President, on recommendation of the Council of Ministers, to remove constitutional obstacles after the dissolution of the first Constituent Assembly.
3. Whether the order could be justified under the Doctrine of Necessity and whether extraordinary political circumstances allowed the head of state to act beyond explicit constitutional authority.
4. Whether the act of removing obstacles constituted an encroachment on the sovereignty of the people and violated the separation of powers.
5. Whether the petition retained relevance once the second Constituent Assembly was elected and a new Constitution promulgated.
Decision (Ratio)
The Supreme Court dismissed the petition and upheld the President’s order. The Court reasoned as follows:
The order was issued in a unique constitutional vacuum, where the failure of the first Constituent Assembly to promulgate a constitution had created an extraordinary crisis. The normal constitutional framework could not provide a solution.
The President had acted on the recommendation of the Council of Ministers, not independently, and therefore did not overstep into legislative or judicial authority. The doctrine of necessity was also deemed applicable in this case, as the state had to avoid collapse and ensure continuity of democratic governance. Holding elections for a new Constituent Assembly was essential to preserve the sovereignty and the democratic order. The formation of the second Constituent Assembly, which then promulgated the Constitution of Nepal 2015, effectively validated the order. The petition had therefore lost practical relevance once the new Constitution came into force.
The Court also highlighted judicial restraint, noting that while adjudicating on political questions that had already been resolved by sovereign political processes (i.e., elections and constitution-making) could undermine the legitimacy of the judiciary.
However, Justice Karki has explicitly acknowledged that the Interim Constitution did not provide a clear textual authority for the President to issue the Baadha Adkau Fukaune order after the Constituent Assembly was already dissolved. She noted that by stepping into this vacuum, the President (and Council of Ministers recommending it) effectively exercised powers that normally belong to the legislature. While she ultimately upheld the act under the doctrine of necessity, she framed it as an encroachment upon separation of powers. The principle of separation of powers (शक्तिपृथकीकरणको सिद्धान्त) was mocked/undermined because a single individual (the Chief Justice) was made both the head of the judiciary and the executive government.
Similarly, Justice Upadhyay reasoned that necessity could justify such action in this unique context, but if repeated, it would distort the constitutional balance by giving the executive (through the President and Council of Ministers) power that properly belongs to the sovereign legislature or the people. He described it as a departure from the principle of separation of powers, warning that it should not become a norm and judiciary should be cautious regarding the precedent it sets.
So, while the Court as an institution upheld the President’s order under the doctrine of necessity, individual judges and lawyers acknowledged it as a setback for separation of powers. The key point was that, although justified as a temporary necessity, the precedent was constitutionally troubling because it concentrated executive and judicial power in a single body.
Analysis
This judgment is a critical moment in Nepalese constitutional history where the judiciary relied heavily on the Doctrine of Necessity and the Principle of Constitutional Pragmatism. First, the Court acknowledged that the Interim Constitution did not explicitly provide the President with the power to remove obstacles once the Constituent Assembly was dissolved. Yet, the Court treated the situation as a constitutional emergency where rigid adherence to text would have jeopardized the overall state functioning. Secondly, the Court’s reliance on subsequent validation, the fact that elections were held and a new Constitution adopted also suggests an approach akin to the “Doctrine of Fait accompli” in constitutional adjudication. While this reasoning secured political stability, it also raised questions about the limits of judicial review in extraordinary political contexts.
Third, the Court leaned on judicial restraint. It reasoned that, since the political process had already produced a functioning constitutional order, judicial intervention could only create further instability. In this way, the Court balanced its role as guardian of the Constitution with the practical realities of political compromise. Critically, however, one may argue that the judgment blurred the line between constitutional fidelity and political expediency. By upholding an act that was arguably ultra vires, the Court legitimized executive interference beyond constitutional limits. This could set a precedent for future overreach by political actors under pretext of necessity. The Court however prioritized stability and continuity over strict constitutionalism.
Conclusion
The case of Advocate Dr. Chandrakant Gyawali v. Office of the President and others (069-WO-0976) is a landmark in Nepalese constitutional jurisprudence. It shows how the Supreme Court of Nepal balanced between textualism, doctrine of necessity, and judicial restraint during a time of constitutional vacuum. By dismissing the petition, the Court effectively closed the chapter on the issue of Interim Constitution, allowing Nepal to transition toward its new constitutional order under the 2015 Constitution.
Facts of the Case
Following the dissolution of the first Constituent Assembly without promulgating a constitution, Nepal entered into a prolonged constitutional and political deadlock. After the failure of the First Constituent Assembly, and with no parliament in place, the political parties agreed to form an Interim Election Council of Ministers to oversee elections for a Second Constituent Assembly.
In this context, the Interim Election Council of Ministers, led by Chairperson Khil Raj Regmi (then also Chief Justice) government recommended that the President issue an order of Baadha Adkau Fukaune, which was a constitutional device used in the Interim Constitution to remove legal and constitutional obstacles in order to hold elections for a new Constituent Assembly. President Dr. Ram Baran Yadav then issued an order under Article 158 of the Interim Constitution (Baadha Adkau Fukaune) to remove constitutional obstacles.
Regmi was then appointed as Chairperson of this Interim Council of Ministers while still holding the office of Chief Justice. This meant that one person was simultaneously exercising the highest judicial authority and the head of executive government.
The President’s order thereby enabled, the Election Commission led by then Chief Election Commissioner Neel Kantha Upreti to proceed with preparations for the second Constituent Assembly elections. The election for Second Constituent Assembly was successfully held in November 2013 and a second Constituent Assembly was formed, which later promulgated the Constitution of Nepal in 2015.
The petitioners, however, challenged the legality and constitutionality of the order issued by President while appointing Khilraj Regmi. They argued that; the order was ultra vires i.e. the Interim Constitution, did not empower the President to remove obstacles in this manner once the Constituent Assembly had been dissolved. The order also violated the principle of separation of powers, as the President exercised authority that rightly belonged to the legislature or the sovereign people. The order was a fraud on the Constitution, as it created a path for political actors to bypass constitutional provisions.
The petitioners sought a writ of certiorari, mandamus, and quo-warranto against the President’s office and the Interim Council of Ministers, requesting the Court to quash the order as unconstitutional.
The respondents argued that the order was issued in the extraordinary circumstances of deadlock to protect state continuity and to avoid a constitutional vacuum. They defended it as a necessary measure under the “Doctrine of State Necessity” and emphasized that subsequent events, including the successful election of the Second Constituent Assembly and the adoption of a new Constitution, had already validated the order.
Legal Questions
The Court had to decide on several fundamental questions:
1. Whether the President’s order of Baadha Adkau Fukaune was consistent with the Interim Constitution of Nepal, 2063.
2. Whether there existed a legitimate constitutional basis for the President, on recommendation of the Council of Ministers, to remove constitutional obstacles after the dissolution of the first Constituent Assembly.
3. Whether the order could be justified under the Doctrine of Necessity and whether extraordinary political circumstances allowed the head of state to act beyond explicit constitutional authority.
4. Whether the act of removing obstacles constituted an encroachment on the sovereignty of the people and violated the separation of powers.
5. Whether the petition retained relevance once the second Constituent Assembly was elected and a new Constitution promulgated.
Decision (Ratio)
The Supreme Court dismissed the petition and upheld the President’s order. The Court reasoned as follows:
The order was issued in a unique constitutional vacuum, where the failure of the first Constituent Assembly to promulgate a constitution had created an extraordinary crisis. The normal constitutional framework could not provide a solution.
The President had acted on the recommendation of the Council of Ministers, not independently, and therefore did not overstep into legislative or judicial authority. The doctrine of necessity was also deemed applicable in this case, as the state had to avoid collapse and ensure continuity of democratic governance. Holding elections for a new Constituent Assembly was essential to preserve the sovereignty and the democratic order. The formation of the second Constituent Assembly, which then promulgated the Constitution of Nepal 2015, effectively validated the order. The petition had therefore lost practical relevance once the new Constitution came into force.
The Court also highlighted judicial restraint, noting that while adjudicating on political questions that had already been resolved by sovereign political processes (i.e., elections and constitution-making) could undermine the legitimacy of the judiciary.
However, Justice Karki has explicitly acknowledged that the Interim Constitution did not provide a clear textual authority for the President to issue the Baadha Adkau Fukaune order after the Constituent Assembly was already dissolved. She noted that by stepping into this vacuum, the President (and Council of Ministers recommending it) effectively exercised powers that normally belong to the legislature. While she ultimately upheld the act under the doctrine of necessity, she framed it as an encroachment upon separation of powers. The principle of separation of powers (शक्तिपृथकीकरणको सिद्धान्त) was mocked/undermined because a single individual (the Chief Justice) was made both the head of the judiciary and the executive government.
Similarly, Justice Upadhyay reasoned that necessity could justify such action in this unique context, but if repeated, it would distort the constitutional balance by giving the executive (through the President and Council of Ministers) power that properly belongs to the sovereign legislature or the people. He described it as a departure from the principle of separation of powers, warning that it should not become a norm and judiciary should be cautious regarding the precedent it sets.
So, while the Court as an institution upheld the President’s order under the doctrine of necessity, individual judges and lawyers acknowledged it as a setback for separation of powers. The key point was that, although justified as a temporary necessity, the precedent was constitutionally troubling because it concentrated executive and judicial power in a single body.
Analysis
This judgment is a critical moment in Nepalese constitutional history where the judiciary relied heavily on the Doctrine of Necessity and the Principle of Constitutional Pragmatism. First, the Court acknowledged that the Interim Constitution did not explicitly provide the President with the power to remove obstacles once the Constituent Assembly was dissolved. Yet, the Court treated the situation as a constitutional emergency where rigid adherence to text would have jeopardized the overall state functioning. Secondly, the Court’s reliance on subsequent validation, the fact that elections were held and a new Constitution adopted also suggests an approach akin to the “Doctrine of Fait accompli” in constitutional adjudication. While this reasoning secured political stability, it also raised questions about the limits of judicial review in extraordinary political contexts.
Third, the Court leaned on judicial restraint. It reasoned that, since the political process had already produced a functioning constitutional order, judicial intervention could only create further instability. In this way, the Court balanced its role as guardian of the Constitution with the practical realities of political compromise. Critically, however, one may argue that the judgment blurred the line between constitutional fidelity and political expediency. By upholding an act that was arguably ultra vires, the Court legitimized executive interference beyond constitutional limits. This could set a precedent for future overreach by political actors under pretext of necessity. The Court however prioritized stability and continuity over strict constitutionalism.
Conclusion
The case of Advocate Dr. Chandrakant Gyawali v. Office of the President and others (069-WO-0976) is a landmark in Nepalese constitutional jurisprudence. It shows how the Supreme Court of Nepal balanced between textualism, doctrine of necessity, and judicial restraint during a time of constitutional vacuum. By dismissing the petition, the Court effectively closed the chapter on the issue of Interim Constitution, allowing Nepal to transition toward its new constitutional order under the 2015 Constitution.
About the Authors
Abhiruchee Lamsal
Abhiruchee Lamsal, is currently studying B.A.LL.B at Nepal Law. She is interested in legal philosophy, gender justice and is also a freelance writer.
View all posts by Abhiruchee Lamsal