On pressing issues, the judiciary can ask the government to make laws to protect fundamental rights or enforce the constitution.

Over the years, the country’s Supreme Court has passed landmark directives to issue legislation on mental health, transitional justice, and women’s rights, which have received applause for addressing legal gaps. However, what should have been exceptional judicial interventions seems to have become a rule for the judiciary of late.

Two weeks after directing the government to prepare a bill for an integrated law to govern Corporate Social Responsibility, it has asked to draft another law for the protection of cows.

The full text of the verdict from November 12 released on Friday has issued a mandamus order to the government to formulate a bill on protecting and promoting the national animal, the cow, and register it in Parliament.

Passing a verdict in a public interest litigation, a division bench of justices Kumar Regmi and Sunil Kumar Pokharel has also asked the government to ensure at least one cow sanctuary is established in each local unit, while also moving forward with the bill.

Under the principle of separation of powers in a democratic setup, the judiciary has a responsibility of interpreting laws. It is Parliament which makes legislation, while the executive mostly prepares the bills.

The Supreme Court also holds authority to check whether the laws align with the constitution. And, it can, in exceptional cases, direct the formulation of laws to enforce fundamental rights and ensure constitutional mandates are met.

“Amid the debate over the separation of powers, there has been a practice for the top court to issue directives to formulate laws. It has been acceptable in Nepal and India,” Rishikesh Wagle, a former dean at the Kathmandu University School of Law and also a retired judge, told the Post. “However, whether the court can direct laws in issues like cow protection needs serious discussions.” to be discussed.”

Constitutional experts say issues like cow protection do not need a separate Act, as the criminal code has already criminalised killing or hurting cows and oxen, with an imprisonment of up to three years. Directing the government to make special arrangements like making cow sanctuaries , strict implementation of the existing laws and allocation of adequate resources would have served the issues, they say. They also argue that adding one more law alone does not ensure cows are protected if it is left unimplemented like many other laws.

Nepal has promulgated over 350 Acts and not all of them have been implemented.

“Unless it is an exceptional and compelling matter, it is unwarranted for the court to direct the promulgation of a law,” senior advocate Dinesh Tripathi, who is also a former chair of the Constitutional Lawyers’ Forum (CLF), told the Post. “It is unexpected for the court to indulge in populist acts.”

He also questions the division bench’s decision to issue the mandamus order arguing it can not pass such a law. “Opting to issue a mandamus order is an overreach of authority,” he said. “Will the court book the government and Parliament in contempt if the law is not promulgated?”

Experts say it is better for the court to issue some guidelines, if it feels the necessity of laws, rather than directing the other state organs to promulgate new laws. For instance, the India’s Supreme Court in 1997 issued Vishakha Guidelines, a set of rules established to address sexual harassment in the workplace, rather than directing the executive and the legislature to make a new law. The guidelines were in response to the lack of legal provisions specifically addressing this issue.

In passing the verdict, the court has cited cows’ status as a national animal and its sacredness in Hinduism as reasons for needing special protection. However, Article 9 (3) has also listed lophophorus as the national bird. Similarly, Nepal is home to several endangered species of flora and fauna. But the court is concerned only with cows.

In the view of some experts, the court’s order would have been justified had it asked for a dedicated law against animal cruelty and protection. “The court seems to be issuing cheap verdicts of late,” senior advocate Raju Prasad Chapagain, a former chair of the CLF, told the Post. “Such decisions demand review and deliberation by the legal fraternity and they should take a position on them.”