The Nepali Congress on Thursday claimed that the provincial heads were treading on unconstitutional grounds in favour of the current ruling alliance.

A meeting of the party's top leaders also asked its provincial committees to oppose the unconstitutional moves. The main opposition is particularly unhappy with the roles of the heads of the provinces in Sudurpaschim and Gandaki. It has even lodged a writ petition against the move of Dilliraj Bhatta, head of Gandaki Province, to appoint Khagraj Adhikari the chief minister based on the support of a majority of provincial assembly members including the Speaker.

“The provincial heads are violating the constitution and working against the spirit of the constitution. Our party objects to the moves,” said Congress spokesperson Prakash Sharan Mahat adding that the heads of the provinces were favouring the five-party alliance of the CPN-UML and CPN (Maoist Centre) among others.

This is not the first time the roles of the provincial heads have been questioned. And in some cases, even the top court has ruled against their unconstitutional moves.

The Congress, which has been pointing fingers at the roles of the provincial heads, had last year used Province Head Parshuram Khapung to form an unconstitutional government in Koshi. Uddhav Thapa, the party’s parliamentary party leader in the province, was appointed chief minister on July 6 last year based on the claim of the majority with the Speaker’s support. The top court found it unconstitutional, subsequently sacking Thapa from the government.

Though the provincial head is a neutral position, supposed to act as prescribed by the statute, Nepal has long episodes of them acting in the partisan interest.

In May 2021, the Lumbini Provincial Assembly meeting was called to discuss the no-confidence motion against then Chief Minister Shankar Pokharel of the UML. As there was no possibility of him winning the trust vote, he resigned.

The Congress and the Maoist Centre, backed by the fringe parties, posted a claim for the government with the support of 42 lawmakers. They had presented Kul Bahadur KC as their chief ministerial candidate. Pokharel also presented a claim for the government claiming the backing of 41 lawmakers.

Dharma Nath Yadav, then provincial chief, acted in Pokharel's support. He appointed him as the chief minister the same day he resigned without even checking who among the two had the support of the major provincial assembly member.

His decision was met with widespread criticism saying how Pokharel, who couldn't face the assembly in the lack of majority, be reappointed the chief minister.

Legal experts see flaws in the appointment of the provincial heads to be the reason for repeated acts of breach of the constitution by the heads of provinces. Though they are the representatives of the federal government, they are supposed to demonstrate impartial roles.

"The provincial heads are the beneficiaries of the changes in the federal government. This is why they act as asked by the parties who appointed them," said advocate Om Prakash Aryal, chairperson of the Constitutional Lawyers' Forum. "This is not what they should be doing."

Over the years, every time the federal government changes, the provincial heads the preceding government appointed are changed too. Those close to the parties in the government get the opportunities.

For instance on March 11, a week after the change in the ruling alliance, the government decided to change Hari Shankar Mishra in Madhesh Province, Prithviman Gurung in Gandaki and Dev Raj Joshi in Sudurpaschim. They were replaced by Sumitra Bhandari, Dilliraj Bhatta and Najir Miya, respectively. Mishra, Gurung and Joshi were close to the Congress.

Article 163 of the constitution envisions the head of the province as a representative of the federal government. The term of the head is five years except when the President removes him or her from the office earlier.

However, no province head has served their full term so far.

"The head of the province is a reputed constitutional position. Those holding the position should act as prescribed by the law, not by the parties they are appointed by," said senior advocate Dinesh Tripathi.