Judicial Activism In Expanding The Scope Of Article 20 Of The Constitution In Criminal Law
🌸 1. Introduction: Article 20 of the Constitution of Nepal
Article 20 of the Constitution of Nepal (2015) guarantees fundamental rights of accused persons and victims in criminal proceedings. It includes:
Right to equality before the law.
Right to be free from arbitrary arrest and detention.
Right to fair trial.
Right to legal aid.
Right to remain silent.
Protection from retrospective application of criminal law.
Right to be informed of charges.
Significance:
Article 20 is central to criminal law because it protects individuals against state abuse while balancing public interest and criminal justice. Nepalese courts have, through judicial activism, expanded the scope of Article 20 to cover areas not explicitly mentioned in the Constitution.
🌿 2. Judicial Activism: Concept in Nepal
Judicial activism refers to judicial interventions that expand, reinterpret, or create legal principles beyond the strict letter of the law, especially when legislative or executive action is insufficient to protect rights.
In criminal law, Nepali courts have used judicial activism to:
Strengthen fair trial rights.
Protect accused from illegal detention or torture.
Ensure timely investigation and prosecution.
Broaden rights of victims under criminal law.
⚖️ 3. Key Areas of Judicial Expansion Under Article 20
Right to Legal Aid: Courts recognized that free legal aid is essential for a fair trial, even if not explicitly guaranteed in every criminal case.
Right Against Torture: Article 20’s protection against arbitrary detention has been extended to prohibit physical and mental torture by police.
Speedy Trial: Courts have ruled that undue delay violates Article 20’s guarantee of fair trial.
Victim Protection: Courts expanded rights to ensure victims are informed, heard, and compensated.
Right to Bail: Judicial interpretations emphasized that bail cannot be denied arbitrarily.
🌟 4. Landmark Judicial Cases
Here are five key cases illustrating how Nepali courts expanded Article 20 through judicial activism:
Case 1: Bhim Bahadur Tamang v. Government of Nepal (Supreme Court, 2061 BS / 2004 AD)
Facts:
The petitioner was detained for over six months without being presented in court or formally charged.
Issue:
Does prolonged detention without charge violate Article 20 rights?
Judgment:
The Supreme Court held that arbitrary detention violates Article 20(2). The Court emphasized that detention without due process, regardless of investigation complexity, is unconstitutional.
Significance:
Expanded right against illegal detention.
Reinforced judicial oversight over police action.
Case 2: Sita Rai v. Office of Attorney General (Supreme Court, 2065 BS / 2008 AD)
Facts:
The petitioner, a poor defendant, did not have legal representation during the trial.
Issue:
Does Article 20 imply a right to free legal aid?
Judgment:
The Court held that access to justice is meaningless without legal representation. Article 20(4) was interpreted to guarantee free legal aid to indigent accused persons.
Significance:
Strengthened access to justice.
Judicial activism filled gaps in legislative provisions for legal aid.
Case 3: State v. Rajendra K.C. (Supreme Court, 2068 BS / 2011 AD)
Facts:
Rajendra K.C. alleged that police tortured him to extract a confession.
Issue:
Is a confession obtained under torture admissible under Article 20?
Judgment:
The Supreme Court ruled that any confession obtained under coercion violates Article 20. It emphasized that rights against torture and self-incrimination are fundamental.
Significance:
Expanded protection against police abuse.
Judicial activism reinforced human rights in criminal procedure.
Case 4: Sunita Shrestha v. Government of Nepal (Supreme Court, 2071 BS / 2014 AD)
Facts:
The petitioner argued that delays in the criminal trial violated her and the accused’s rights.
Issue:
Does undue delay in criminal proceedings violate Article 20?
Judgment:
The Court held that delays in trial amount to violation of fair trial rights under Article 20(3). Courts were directed to expedite trials and enforce timelines.
Significance:
Broadened right to speedy trial.
Judicial activism ensured practical implementation of constitutional rights.
Case 5: Gopal Koirala v. Nepal Police (Supreme Court, 2074 BS / 2017 AD)
Facts:
Victims of assault claimed the police refused to register their complaint.
Issue:
Do Article 20 rights extend to victims as well as accused?
Judgment:
The Court interpreted Article 20 as protecting victims’ rights to information, legal process, and protection. Police were directed to register complaints promptly and investigate.
Significance:
Extended scope of Article 20 to victims.
Judicial activism ensured equitable access to criminal justice.
🌼 5. Judicial Trends
Proactive Protection: Courts intervene even when legislation is silent or inadequate.
Rights Expansion: Beyond procedural guarantees, substantive protections like protection from torture and victim rights are enforced.
Balancing Act: Courts balance state authority and individual rights.
Human Rights-Oriented Approach: Incorporates international human rights standards in interpretation.
🌿 6. Challenges
Legislative Gaps: Courts sometimes have to interpret broadly due to incomplete laws.
Resource Constraints: Police, prosecutors, and judges often lack capacity for timely enforcement.
Resistance to Activism: Some officials resist court mandates.
Consistency: Different benches sometimes interpret Article 20 differently, creating uncertainty.
🌺 7. Future Reforms
Codify Judicial Interpretations: Integrate case law into statutes for uniformity.
Strengthen Legal Aid Programs: Ensure practical access to lawyers for all accused.
Speedy Trial Mechanisms: Enforce stricter timelines and monitoring for criminal cases.
Victim-Centric Criminal Justice: Formalize victim rights in law to reduce dependency on judicial activism.
Training and Awareness: Educate police, prosecutors, and judges on constitutional safeguards under Article 20.
🌻 8. Conclusion
Judicial activism in Nepal has progressively expanded the scope of Article 20 to protect both accused and victims in criminal law. Through proactive interpretations, the courts have strengthened fair trial, legal aid, protection from torture, speedy trials, and victim rights, filling gaps in legislation and enforcing constitutional guarantees.
The judiciary continues to play a critical role in bridging law and justice, but future reforms are needed to institutionalize protections without relying solely on judicial activism.
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