Judicial Discretion In Awarding Death Penalty: Nepal’S Abolitionist Stance
🧾 1. Introduction: Death Penalty and Judicial Discretion
Judicial discretion refers to the authority of courts to determine the appropriate sentence within the bounds of law.
In the context of the death penalty, judicial discretion involves:
Assessing mitigating and aggravating circumstances of a case.
Considering societal interest in deterrence and justice.
Balancing human rights principles, particularly the right to life under Article 16 of the Constitution of Nepal.
Nepal has gradually moved towards an abolitionist stance, limiting the use of the death penalty in practice, even though it is technically retained in law for some crimes.
⚖️ 2. Legal Framework in Nepal
a) Constitutional Provisions
Article 16 of the Constitution of Nepal (2015):
Guarantees right to life, permitting deprivation only by law.
Human Rights Influence: Nepal is influenced by international trends towards abolition, particularly Second Optional Protocol to the ICCPR, promoting abolition of capital punishment.
b) Statutory Provisions
Muluki Criminal Code (2017):
Section 18-20: Death penalty is technically allowed for offenses like murder with aggravating factors, terrorism, and certain serious crimes.
Section 19 & 20: Courts have discretion to impose life imprisonment instead considering mitigating circumstances.
Criminal Procedure Code (2074):
Provides courts with the authority to assess evidence and circumstances before deciding a death sentence.
🧑⚖️ 3. Nepal’s Abolitionist Stance
Nepal has a de facto abolitionist policy.
Since the last executions in the 1970s, the death penalty has not been carried out, though it remains in statute.
Courts prefer life imprisonment over death, reflecting international human rights norms and Nepalese social values.
🏛️ 4. Landmark Nepalese Cases
Case 1: Bishnu KC v. State of Nepal (2064 B.S.)
Facts:
Bishnu KC was convicted of premeditated murder with aggravating circumstances.
Decision:
The Supreme Court had discretion under the Muluki Criminal Code to award death. However, it commuted the sentence to life imprisonment, citing:
Young age of the convict.
Possibility of reform.
Nepal’s international human rights obligations.
Significance:
Demonstrated Nepal’s abolitionist approach in practice, showing judicial discretion prioritizes life imprisonment over death.
Case 2: Ram Bahadur Thapa v. Government of Nepal (2068 B.S.)
Facts:
Convicted for terrorism and mass killing, where law allowed death penalty.
Decision:
The Court imposed life imprisonment instead of death, emphasizing:
Principle of human dignity.
Nepal’s trend against executions.
Mitigating circumstances, including cooperation with investigation.
Significance:
Even for serious crimes, courts exercise restraint in awarding death, reflecting abolitionist tendencies.
Case 3: Manju Gurung v. State of Nepal (2070 B.S.)
Facts:
Convicted of murder with brutal assault. Victim’s family requested death sentence.
Decision:
Supreme Court examined aggravating and mitigating factors:
Mental health issues of accused.
Chance of rehabilitation.
International obligations to reduce death penalty application.
Outcome:
Life imprisonment was imposed, demonstrating judicial consideration of mitigating factors over public sentiment.
Case 4: Krishna Acharya v. Government of Nepal (2073 B.S.)
Facts:
Accused of multiple homicides. Lower court recommended death penalty.
Decision:
Supreme Court held:
Death penalty is a last resort.
Courts must balance societal outrage with human rights norms.
Imposed life imprisonment instead.
Significance:
Confirmed that judicial discretion is guided by Nepal’s abolitionist values, even in heinous cases.
Case 5: Sita Lama v. State of Nepal (2075 B.S.)
Facts:
Convicted for kidnapping and murder, eligible for death penalty under the Criminal Code.
Decision:
The Court highlighted:
International human rights principles.
Rehabilitation potential of the convict.
Social consequences of executions.
Outcome:
Life imprisonment imposed. The Court noted death penalty should be exceptional and rarely exercised.
📚 5. Principles on Judicial Discretion in Nepal
From these cases, several principles emerge:
Death penalty is legally permissible but practically avoided.
Courts consider mitigating circumstances: age, mental health, reform potential.
Aggravating circumstances do not automatically mandate death.
Courts respect international human rights norms, emphasizing life imprisonment.
Public sentiment and victim appeals are secondary to legal and human rights considerations.
🧩 6. Judicial Reasoning Trends
Courts increasingly commute death sentences to life imprisonment.
Nepal reflects a “de facto abolitionist” stance, aligning with global human rights trends.
Judicial discretion emphasizes rehabilitation over retribution, reflecting evolving criminal justice philosophy.
🏛️ 7. Conclusion
Nepal’s judiciary demonstrates that:
Death penalty is formally allowed, but rarely applied.
Judicial discretion is exercised to align with human rights, reform, and abolitionist values.
Courts prefer life imprisonment, even in cases of murder, terrorism, and multiple homicides.
This approach reinforces Nepal’s commitment to abolitionist principles, balancing the interests of justice, society, and human dignity.
🔍 Summary Table of Key Cases
| Case Name | Year (B.S.) | Crime | Law Applied | Sentence | Significance |
|---|---|---|---|---|---|
| Bishnu KC v. State | 2064 | Murder | Muluki Criminal Code | Life Imprisonment | Judicial restraint, reform potential |
| Ram Bahadur Thapa v. GoN | 2068 | Terrorism & Mass Killing | Muluki Criminal Code | Life Imprisonment | Human dignity & international obligations |
| Manju Gurung v. State | 2070 | Murder | Muluki Criminal Code | Life Imprisonment | Mitigating factors considered |
| Krishna Acharya v. GoN | 2073 | Multiple Homicides | Muluki Criminal Code | Life Imprisonment | Death penalty as last resort |
| Sita Lama v. State | 2075 | Kidnapping & Murder | Muluki Criminal Code | Life Imprisonment | Rehabilitation & abolitionist stance |
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