In 2013, along with other lawyers, Om Prakash Aryal filed a writ petition seeking Supreme Court intervention against the formation of a Chief Justice (CJ)-led interim election government under Khil Raj Regmi's leadership. Later in 2017, the then CJ, Sushila Karki, delivered an iconic verdict on this petition that a sitting or retired CJ (or Supreme Court judge) cannot assume the position of Prime Minister (PM) or a political office.

Later in 2020, after the then PM KP Sharma Oli dissolved the House of Representatives (HoR) twice, the five-member constitutional bench delivered a unanimous verdict declaring that the dissolution was unconstitutional and reinstated the HoR. The constitutional bench elaborated that the HoR could be dissolved only when there is no possibility of forming a government from within the HoR. One of the members of that constitutional bench was Anil Kumar Sinha.

Fast forward to 2025. The three legal professionals mentioned above are the key members of the government formed after the Gen-Z revolution – Sushila Karki leading the pack as the interim PM. Om Prakash Aryal is serving as the home minister, and Anil Kumar Sinha holds three various ministerial portfolios. It is a pity to witness that these three seasoned officers of the court have gone against their own legal conscience by joining the current government on extra-constitutional provisions.

The argument that a section of the legal community has expressed in favour of the government is that the government is formed as per the doctrine of necessity. However, even the doctrine of necessity cannot break the documented constitutional provisions. It is a globally established norm that a revolution might change the rules (constitution) but cannot break the rules. Unfortunately, the present government that is formed on the backing of the Gen-Z movement is following an extra-constitutional track.

A successful revolution generally does not accept the existing constitution. Hence, after a successful revolution, a new (or interim) constitution is drafted that explicitly addresses the concerns of the revolution. In Nepal, the existing constitutions were always substituted by a new or an interim constitution after every major civil revolution. On the contrary, the recent Gen-Z movement failed to assert its authority, largely due to the absence of experienced and unified leadership. It appears that the movement's advisors have betrayed their cause. Immediately after the success of the revolution, the existing constitution should have been (temporarily) suspended and a brief interim governance directive issued. The government should have been formed under the provisions of an interim directive. Instead, the President appointed the PM under Article 61 of the Constitution. However, the authority to appoint a PM rests solely with the HoR, not with the President.

In fact, article 76 of the constitution meticulously outlines the process and hierarchy through which a government is constituted, the PM is appointed, and the council of ministers formed. The only argument in favour of post-Gen-Z movement activities is that every action coincides with the doctrine of necessity. This is definitely a lame excuse as you can't break the constitutional provisions at will by bluntly mentioning doctrine of necessity. The doctrine of necessity might have been justified if an interim constitution or governance directive was issued after the Gen-Z movement. Everything else beyond this action is extra-constitutional. Ironically, the reputed former CJ is leading the infamous mission of constitutional breaching.

The constitutional bench, including the former Supreme Court Judge and incumbent minister Anil Kumar Sinha, has categorically conveyed that the dissolution of the HoR is possible only if there is no possibility of forming the government from within the HoR. This clearly reflects that interim PM Sushila Karki does not reserve the right to dissolve the HoR.

PM Karki has conveyed that her principal responsibility is to conduct the elections on March 5. With depleted morale of Nepal Police personnel after a brutal assault by Gen-Z protestors and weather adversities in the hilly districts, conducting elections on the stipulated time is going to be a herculean task for the government. Besides, a critical legal issue that has gone largely unaddressed is that failing to hold elections on March 5 would also constitute a breach of the Constitution.

Article 93(1) clearly stipulates that no more than six months may elapse between two consecutive sessions of the HoR. There is no explanation as to whether 'two consecutive sessions' refer to two consecutive sessions within a particular parliamentary term or two consecutive sessions at any point of time. However, the global parliamentary practice explicitly reflects that there should not be a period longer than six months without a session of the HoR at any point of time. This implies that the new session of the HoR should be mandatorily summoned within the six months of the termination of the previous session, that is, by March 11. Else, it will again be an extra-constitutional affair.

To sum up, the government is breaching the constitutional provisions at every step by mentioning the doctrine of necessity. The PM who herself is a reputed former officer of the court should work on reinstating the dignity of the Constitution, the main provisions of which were explicitly and elaborately explained by her in the past. It has to be noted that even if your illicit actions are tolerated today, future generations will judge them harshly.

Dr Joshi is a senior scientist and independent opinion maker based in Germany

pushpa.joshi@gmail.com