Election Law Case: Advocate Kamlesh Dwivedi v. Prime Minister & Cabinet Secretariat, NKP 2064, Vol. 49, No. 7, P. 827, DN: 7866
Case: Certiorari and related reliefs ( Constitutional)
Petitioner: Advocate Kamlesh Dwivedi and et al.
Respondents: Government authorities, Legislature-Parliament and Others
Decision Number: 7866
This case concerns the constitutional validity of Section 19(g) of the Constituent Assembly Member Election Act, 2064, which disqualified certain persons from contesting the Constituent Assembly election based on an Inquiry Commission report.
Facts of the Case:
After the political changes of 2062/63, the Government formed a High-Level Inquiry Commission under the Inquiry Commission Act, 2026, headed by former Supreme Court Justice Krishna Jung Rayamajhi, to investigate acts committed during the suppression of the People’s Movement and to recommend legal action against persons found responsible.
Later, the Constituent Assembly Member Election Act, 2064 was enacted. Section 19(g) provided that a person holding a political appointment who was shown guilty in the Inquiry Commission’s report for matters such as loss of life or property, misuse of power or position, human rights violations, or misuse of the national treasury would be considered ineligible to become a candidate in the Constituent Assembly election.
Several political figures who intended to contest the Constituent Assembly election challenged this provision before the Supreme Court. They argued that an Inquiry Commission only investigates and makes recommendations; it does not have the authority to determine criminal guilt or impose punishment. They further argued that making a person ineligible for election merely because the Commission’s report showed that person as guilty, without a judicial decision, violated the constitutional right to equality, freedom, justice and due process, including the principle that a person should not be treated as guilty until guilt is established through legal proceedings.
The petitioners therefore asked the Supreme Court to declare Section 19(g) unconstitutional and void and to prevent the authorities from using that provision to deny them the right to participate in the Constituent Assembly election.
Legal Issues:
1. Whether Section 19(छ) of the Constituent Assembly Member Election Act, 2064 was consistent with the Interim Constitution of Nepal, 2063.
2. Whether an Inquiry Commission report could, by itself, be used to declare a person ineligible to contest an election without a judicial decision.
3. Whether the provision violated the constitutional rights to freedom, equality and justice and the principle of separation of powers.
Decision of the Court:
Supreme Court:
The Supreme Court held that an Inquiry Commission is not a judicial body. It cannot declare a person legally guilty.
The Court held that Section 19(g) was unconstitutional. It disqualified a person from contesting an election solely on the basis of an Inquiry Commission report, without a judicial decision. This violated the constitutional rights to freedom, equality and justice.
Therefore, the Court declared Section 19(g) of the Constituent Assembly Member Election Act, 2064 unconstitutional and void under Article 107(1) of the Interim Constitution, 2063.
Principle Established:
An Inquiry Commission is a fact-finding and recommending body, not a court. Its report cannot by itself be treated as a judicial finding of guilt or used to impose a legal disability such as election disqualification. Any determination of guilt carrying legal consequences must be made through a proper judicial process.
