Juvenile Delinquency Case: Adv. Santosh Kumar Mahato vs. Office of the Prime Minister and the Council of Ministers et. al, Writ No. 60 of the year 2061 BS, Date of Decision: 2062/10/09 BS, NKP 2064, DN: 7578
Case: Mandamus writ petition regarding juvenile justice
Plaintiff: Adv. Santosh Kumar Mahato
Respondent: Office of the Prime Minister and the Council of Ministers et. al
Decision Number: 7578
This case is related to the formation of specialized Juvenile Courts and the proper composition of Juvenile Bench.
Facts of the Case:
The Act Relating to Children 2048 and its Rules, 2051 were enacted to safeguard the rights and holistic development of children. Section 55 of the Act outlines the framework for a dedicated Juvenile Court, providing that until such a court is formed, each District Court must establish a Juvenile Bench comprising a District Judge along with social workers, child experts or child psychologists. On 2056/12/28, the Ministry of Women, Children and Social Welfare published a notice in the Nepal Gazette designating a Juvenile Bench in all districts consisting solely of the District Judge effective from 2057/01/01.
The petitioner filed a writ petition under Article 88 of the Constitution of the Kingdom of Nepal, 2047 arguing that a bench consisting only of a judge violates Article 11(3) of the Constitution, Section 55(5) of the Act and Articles 12 and 40 of the UN Convention on the Rights of the Child (UNCRC), 1989. The petitioner also claimed that the state had failed to fulfill its statutory duty and a prior court commitment from a 2054 writ petition to establish an independent Juvenile Court.
Legal issues:
- Whether the government’s gazette notice of 2056/12/28 regarding the formation of the Juvenile Bench contradicts the Constitution of the Kingdom of Nepal, 2047, the Act Relating to Children, 2048 and the UN Convention on the Rights of the Child, 1989?
- Whether a mandamus or directive order should be issued to establish dedicated Juvenile Courts and effectively monitor the order’s execution?
Decision of the Court:
Supreme Court:
As stated in Section 55(1) of the Act Relating to Children 2048, the responsibility to establish a juvenile court lies within the government. Accordingly, a directive order is issued in the name of the Office of the Prime Minister and the Council of Ministers to speed up the establishment of a juvenile court in accordance with that legal provision and to inform the Decision Implementation Branch under the Monitoring and Inspection Division of this Court of its action. A directive order was issued to the Decision Implementation Branch to actively oversee the execution of this directive.
Hence, the writ petition was upheld.
Principles Established:
- The juvenile bench which was established until the juvenile court was formed is not a permanent structure. It cannot be assumed that the government has fulfilled its duty by establishing only the juvenile bench without addressing the main structure, i.e. the juvenile court.
- Given that the Act itself has prioritized the establishment of a juvenile court and a written commitment to establish one has been made 5 years ago, the short-term arrangement regarding the establishment of a juvenile bench cannot be considered to have fulfilled the obligation of the government.
Relevance of the Case:
The case reinforces the mandatory nature of establishing distinct juvenile justice institutions over stopgap administrative measures. It marks a critical step toward implementing specialized juvenile courts in Nepal rather than relying solely on default district courts.
