Upadhyaya, who assumed the role of chief justice in the crucial post-1990 democratic transition, made headlines in 1995 after the bench he led ruled that the dissolution of Parliament by the then Prime Minister Man Mohan Adhikari was unconstitutional. Upadhyaya in the verdict had compared the recommendations of the CPN-UML head of government to those of the Nazis in Germany. In his verdict, Upadhyaya argued that Germany’s Weimar constitution was abused by using a provision allowing the dissolution of parliament, thereby paving the road for fascism.

The decision of the court to quash the Adhikari government’s recommendation polarised the political landscape. Upadhyaya had upheld a similar recommendation in September 1994 made by the Nepali Congress Prime Minister Girija Prasad Koirala. He came under sharp criticism from UML leaders who charged Upadhyaya of maintaining double standards.  Upadhyaya, in turn, insisted that the Koirala government enjoyed a clear mandate as it commanded a majority within Parliament, while Adhikari’s was a minority government. Upadhyaya argued the same in the 14th edition of Kanoon in response to a scathing article by Senior Advocate Ganesh Raj Sharma, who criticised the court’s verdict at length.

“He was a good jurist and a man of integrity who played an important role in bringing out a democratic constitution and ensuring that the sovereignty was vested in the people,” said political commentator Lok Raj Baral. However, some former colleagues believe that Upadhyaya had taken partisan views on political issues. “I believe he was more inclined towards Nepali Congress,” said former CJ Om Bhakta Shrestha, who was one of the justices who had disagreed with Upadhyaya on upholding the dissolution of parliament by the then Prime Minister Koirala in 1994.

Importantly, Upadhyaya played a fundamental role in getting the Indo-Nepal Mahakali treaty ratified by Parliament. Koirala had maintained that no treaty had been signed between India and Nepal over the construction of a dam at Tanakpur in Mahakali River during his visit to New Delhi in 1991.

But the bench, headed by Upadhyaya, concluded that any decision taken “between the two prime ministers cannot be termed as a mere understanding,” ruling that as a bilateral treaty it required ratification.

Born on October 13, 1930 in Jaleshwor, Mohattari, Upadhyaya started his career in government service as a legal officer in Nepal Rastra Bank in 1955, later moving to the Law Improvement Commission (LIC). Characteristic of Upadhyaya’s career, his tussle with senior ranks saw him leave the job, later accepting a post as an additional justice of the Supreme Court in 1970. A souring relationship with the then Chief Justice Nayan Bahadur Khatri saw him move back to the LIC where he stayed until 1985.

It is in the LIC that Upadhyaya began drafting laws which would shape Nepal’s legislative course. Among other significant pieces of legislation, he drafted the Contract Act, Commerce Act, Legal Professional Act and Penal Code. “His contribution to the legal field is immense as he has helped bring many reforms,” said Ram Krishna Timilsina, former registrar of the Supreme Court who worked as a bench assistant for Upadhyaya.

One of the major responsibilities that Upadhyaya discharged was that of heading the Constitution Advisory Committee of 1990. During that period, Upadhyaya came into conflict with the Palace after objecting to changes engineered by pro-Palace forces. While royalists insisted upon a sovereign monarch, Upadhyaya, who headed the drafting committee, forcefully argued that sovereignty rested in the popular will. Upadhyaya is said to have privately warned king Birendra to consider how history would judge the king.

Upadhyaya’s tenure as chief justice (December 8, 1991 to September 22, 1995) has polarised commentators. While he is credited for the evolution of the judiciary as an independent arm of the state, the provision to re-appoint Panchayat-era justices found Upadhyaya many critics. The re-appointment provision saw Apex Court justices including Chief Justice Dhanendra Bahadur Singh made redundant. Former Apex Court Justice Bharat Raj Upreti in a 1997 article titled Na Suru Na Antya chastised the re-appointment provision, maintaining that it was aimed at targeting Singh and forwarding Upadhyaya’s career in the judiciary.

Upadhyaya  ensured that the judiciary evolves as a separate service, doing away with the tradition of appointing judges from civil services.

Courts to close tomorrow

KATHMANDU: The apex court has decided that all the tiers of courts will remain closed on Sunday to mourn the death of Upadhyaya.

A full meeting of the SC chaired by acting Chief Justice Damodar Prasad Sharma on Friday decided to shut all the courts, the Special Court and tribunals across the country. The meeting also expressed grief at the “irreparable loss incurred to the nation from the demise of a true nationalist and democrat” and accorded high respect to Upadhyaya for his contribution to consolidating independent judiciary and the rule of law. (PR)