At around 1:30 pm on June 20, 1985, a bomb went off at the entrance gate of the National Panchayat building’s gallery meeting room inside Singha Durbar. The prime accused behind the blast was Ram Raja Prasad Singh, a prominent politician campaigning against the party-less Panchayat system.

Nearly two months later, on August 18, the Panchayat government published the Destructive Crimes (Special Control and Punishment) Act, 1985, in the Nepal Gazette. This statute was formulated not merely to deter future offences; its section 11, sub-section 2 specifically mandated that the law would apply retrospectively to incidents that had happened before its enactment.

"In relation to any destructive crime committed prior to the commencement of this act, where legal proceedings have not yet been filed in a court under the prevailing law, the legal action and punishment shall be conducted in accordance with this act, as if the offence occurred under it," the act stated.

Historical records indicate that the act’s primary objective was not limited to prosecuting the suspects of the bombings. According to a 1998 research paper by the academic Mary Des Chene, the Destructive Crimes (Special Control and Punishment) Act, 1985, was widely deployed across the country alongside the Public Security Act to detain thousands of citizens, extending far beyond those directly implicated in the blast.

Relying on this retrospective legislation, the government established a Special Court via a gazette notification on September 12, 1985. The Special Court conducted trials based on this retrospective law, sentencing Ram Raja Prasad Singh and some others to death, while handing life terms to the remaining accused.

Seeking harsher penalties, the government appealed to the Supreme Court, demanding capital punishment for those who received life terms. On June 6, 1988, a three-member bench comprising Justices Surendra Prasad Singh, Prithvi Bahadur Singh, and Maheshram Bhakta Mathema upheld the Special Court's verdict. Crucially, the top court validated the enactment of retrospective legislation, ruling that, to achieve constitutional objectives, crimes committed in the past could be penalised by laws enacted later. The bench cited the Constitution of Nepal (1962) to justify this interpretation.

The retrospective framework brought into force after the 1985 explosions remained in force until the restoration of multi-party democracy in 1990. It was formally repealed only after the 1990’s People’s Movement-I reinstated a multi-party democratic system with a constitutional monarchy. Through the Repeal of Several Nepal Laws Act, 1990, published in the gazette on July 12, 1990, the government annulled 21 laws and regulations, including the controversial Destructive Crimes (Special Control and Punishment) Act.

Approximately a year later, Ram Raja Prasad Singh and others convicted in the case received a general amnesty. Today, over four decades after that Panchayat-era legal manoeuvre, the contentious debate surrounding retrospective legislation has resurfaced in the country.

The National Human Rights Commission (NHRC) has recently recommended that the government draft retrospective legislation to penalise then-prime minister KP Sharma Oli, his home minister Ramesh Lekhak, and minister for communications and information technology Prithvi Subba Gurung for their alleged roles in suppressing the youth-led Gen Z movement in September last year.

The human rights watchdog’s move has triggered profound constitutional queries: exactly which laws did Oli, Lekhak, and Gurung violate? What specific crimes were committed, and why are the country's existing legal frameworks inadequate? The commission's official report provides no clear answers to these fundamental legal points.

"As there appears to be no provision in the prevailing laws to penalise these individuals for human rights violations, a new law must be enacted. The Supreme Court has already established a legal principle in the case of Advocate Madhav Basnet vs Government of Nepal (Nepal Kanun Patrika 2072 BS, Issue 9, Decision No. 9051) that retrospective laws can be formulated to punish crimes against humanity and human rights violations. Hence, the drafting of new legislation is deemed necessary,” reads the NHRC's recommendation.

The commission has suggested that the government set up a special court dedicated to overseeing these trials. It proposes a legal framework with a maximum of six months’ imprisonment, a fine of up to Rs300,000, or both. Furthermore, the commission recommends a minimum six-year ban on contesting democratic elections, alongside a minimum three-year bar on holding administrative responsibilities and travelling abroad.

Following the problematic experience of the 1985 retrospective law, successive democratic constitutions in Nepal have explicitly banned such practices. Article 14 of the Constitution of the Kingdom of Nepal (1990) clearly stated that no person shall be punished for an act which was not punishable by law when the act was committed, nor shall any person be subjected to a punishment greater than that prescribed by the law in force at the time of the offence committed.

This exact fundamental protection mirrored in Article 24(4) of the Interim Constitution 2007 and remains protected under Article 20(4) of the present constitution. The International Covenant on Civil and Political Rights (ICCPR), to which Nepal became a state party in 1991, firmly establishes this concept via the global legal maxims nullum crimen sine lege (no crime without law) and nulla poena sine lege (no punishment without law).

The 2014 Supreme Court verdict: what was the context?

The 2013 apex court judgment that the commission uses as its primary justification was delivered strictly within the framework of transitional justice, dealing specifically with the forced disappearances during the decade-long Maoist insurgency (1996-2006). On January 2, 2014, a full bench comprising Justices Kalyan Shrestha, Girish Chandra Lal, and Sushila Karki noted in paragraph 36 of their verdict: "Since serious violations of human rights and crimes against humanity constitute grave offences, if existing laws in force are insufficient to bring individuals involved in such crimes to justice, new laws must be enacted to end impunity."

Legal practitioners specialising in criminal law say that the 2014 ruling explained state obligations regarding international humanitarian law and grave atrocities, rather than ordinary criminal acts. Consequently, whether a principle created specifically for conflict-era transitional justice can apply directly to the recent policing of Gen Z protests has become the central point of debate.

Advocate Madhav Basnet, who was the original writ petitioner in the cited case, argues that the NHRC has completely misinterpreted the Supreme Court precedent.

"I was the petitioner in that specific litigation. At that time, we moved the apex court to overturn certain provisions of an ordinance brought by the government regarding transitional justice mechanisms," Basnet told Kantipur. "The retrospective legislation mentioned in that verdict applies solely to serious international crimes. The context of that ruling does not match the commission’s current recommendation report at all."

Senior advocate Raju Chapagain, who also pleaded in the landmark 2014 verdict, agrees that the court's decision merely opened the door for the state to establish legal mechanisms for specific crimes that trigger universal jurisdiction.

"Enforced disappearance is a crime under international humanitarian law and falls squarely under universal jurisdiction. The Supreme Court interpreted the law strictly within that domain," said Chapagain. "However, it is entirely unclear which universal jurisdiction offence the commission believes these political figures have committed."

Chapagain further pointed out a glaring contradiction in the watchdog's rationale regarding the proposed severity of the punishment. While the NHRC argues that the individuals committed severe human rights violations, it has proposed mild penalties of six months’ jail or a Rs300,000 fine.

"If the NHRC truly believes these figures committed grave violations of human rights, I fail to understand why they are recommending a special retrospective law that carries such weak punishments," said Chapagain.

Why is the prevailing law insufficient?

Criminal law experts point out another structural flaw in the watchdog's approach. The NHRC has failed to explain why the current domestic legal framework is incapable of handling the matter. Acting on prior recommendations made by a high-level inquiry commission led by former judge Gauri Bahadur Karki, the Nepal Police is actively investigating Oli and Lekhak for offences related to homicide and executive overreach under the existing National Penal Code.

Given that these domestic investigations are ongoing, legal experts argue that the path to prosecution is not blocked. "The commission's report fails to explain why a new retrospective law is necessary when legal processes under the prevailing criminal codes are already active," said Chapagain.

Advocate Subhash Acharya, an expert on criminal law, describes the commission’s logic as deeply flawed. "No individual can be brought under a criminal framework, penalised, or declared a criminal by creating a retrospective law. This is banned by the Constitution of Nepal and the ICCPR," Acharya asserted.

Senior advocate Krishna Prasad Sapkota urged the state to exercise utmost caution. "International principles regarding retrospective laws might apply in extraordinary circumstances like genocide or systemic crimes against humanity. But using this tool for regular political protests is dangerous. Declaring an act criminal retrospectively sets an unhealthy precedent for democracy," warned Sapkota.

Political and constitutional dilemmas

Legal scholars maintain that the primary tenet of criminal justice is that citizens must know whether an act is a crime before they perform it. Local stakeholders and legal practitioners express concern that a constitutional body like the NHRC is pushing for retrospective legislation in cases of an ordinary nature.

"Prosecution should happen under existing laws. The NHRC should have urged the government to ensure a fair trial through current laws," said Chapagain. "If we support retrospective legislation for one case today, the state might create similar laws for other issues tomorrow, plunging our entire criminal justice system into crisis."

Former Deputy Attorney General Surya Raj Dahal said that the constitution protects citizens against retrospective criminal application like a fundamental right. "The commission’s recommendation fails to specify what is missing in our current statutes. The National Penal Code already contains clear provisions to prosecute state overreach, unlawful state violence, and command responsibility," said Dahal.

A high-level committee led by NHRC member Lily Thapa had previously investigated the human rights violations during the Gen Z protests. When asked why the commission recommended retrospective laws against Oli, Lekhak, and Gurung, Thapa defended the decision, stating it was aimed at ‘human rights violations’ rather than standard criminal offences.

"We found that the existing penal codes do not have specific provisions to hold high-ranking executive authorities directly accountable for these particular human rights abuses," said Thapa. "Therefore, relying on the Supreme Court’s precedent regarding retrospective frameworks, we recommended a separate law to penalise them for human rights violations, not for standard criminal offences."

Another sitting member of the commission admitted that the recommendation represents an unprecedented legal experiment for the watchdog. "There are global examples where retrospective laws were introduced to penalise the accused for heavy-handedness and human rights abuses," NHRC member Manoj Duwadi told Kantipur. "We have recommended this retrospective law to the government as a new approach for accountability. It is now for the executive to choose how to implement it."