Man Bhadur Biswakarma Vs HMG

Man Bhadur Biswakarma vs HMG
Division bench
Prepared by- Niroj Aryal and Abhishek Rai
Writ no- 2505
Subject- Let an appropriate order under as per article 88(1) be issued
1. Issues Raise by the plaintiff

 Article 11(4) has declared that no person shall on basis of caste be
discriminated against as untouchable, denied access to any public place,
or be deprived of the use of public utilities. Any contravention on this
provision is punishable by law. Hence, Temples would also fall into the
category of public place. Therefore, not giving entry to Dalit's inside
Temple is also discriminatory behaviour but muluki code section 10 (a)
clarification unit stated that any behaviour which is culturally practiced
as from time immemorial cannot be administrate as discriminatory
behaviour which seems to be contrary to constitutional provision. And
as per article 1 any provision which contrary to law is either nullified or
void
 If an additional provision is needed, it should align with exceptional
clauses within the same article like those in Article 11(1), (2), (3), not
within Muluki code section 10(a) clarification. Since Article 11(4) lacks
exceptional provisions, it implies no support for any form of
discrimination, including cultural practices.
 The main purpose of code 10 is to establish penalties for offender and
seek remedies for victims, not to limit or expand constitutional provisions.
Therefore 10(a) clarification needed to be declared void.
2. Defendant Statement
 Behavioural practices with a long history cannot always be associated
with caste-based discrimination. Article 19(2) of the Nepalese constitution
allows religious communities to maintain their independence, operate,
and protect their religious sites and groups within the boundaries of the
law. Not all public places or temples need to be open to all citizens of
Nepal, as doing so could potentially lead to conflicts and problems.
 The Muluki code Section 10(a) clarification unit does not restrict or
contradict Article 11(4) of the Constitution of the Kingdom of Nepal.
Instead, it appears to explain the provisions of Article 19(2) of the
Constitution of Nepal. Therefore, this writ lacks a valid basis for its
validity.
3. Court Decision
The Muluki code's 10(a) clarification unit restricts constitutional provisions and
is found to be contrary to the law. Therefore, it is declared void from the date
of this judgment, in accordance with Article 88(1) of the Constitution of the
Kingdom of Nepal.
Analysing this case on the basis of different sociological

Prospective
A. On the basis of Structural Functional Prospective
The structural functional perspective is a sociological theory that views society as

a complex system of interrelated parts, each with specific functions contributing to
social stability and order. It analyses how institutions and norms maintain social
cohesion and the impact of one institution generally affect whole societal system.
a. On the basis of Emile Durkheim
In the case of Man Bahadur Biswakarma in Nepal, the provision 10(a)

allowing discrimination in the name of so-called cultural practices from time
immemorial suggests that society was still in the stage of Mechanical
Solidarity. Man Bahadur's writ petition highlights deviant behaviour that leads
to normlessness or anomie. The court's ruling, consequently, shifted society
towards Organic Solidarity, where everyone became equally important based
on their roles and skills in society. Hence, this case demonstrates a
complete transition, illustrating how society has shifted from Mechanical
Solidarity to Organic Solidarity
b. On the basis of Roscoe Pound
Roscoe Pound believed that law is a tool of social engineering, guiding

and shaping society. In the case of the 10(a) clarification unit, court removed
this legal code because it no longer aligned with evolving social dynamics
and societal behaviour, much like how engineers replace outdated
instruments with better alternatives. This reflects the need for laws to adapt
to changing societal needs and values.
c. On the basis of Max Weber
Traditional authority is represented by 10(a) clarification, which promote

caste discrimination based on cultural norms and historical practices. Legal-
rational authority is a supreme court who find 10(a) clarification unit contrary
to article 11(4) of the constitution and declared 10(a) clarification as void.
Charismatic authority is exercised by Man Bahadur, who filed the case to
challenge the existing legal interpretation and advocate for change.
The Supreme Court's decision to void the 10(a) clarification unit highlights
the dominance of legal-rational authority over traditional practices, as
enshrined in the constitution. This ruling, influenced by the charismatic
authority of Man Bahadur, emphasizes the importance of upholding
constitutional principles of equality and non-discrimination.
B. On the basis of Marxist Prospective
This case reflects class struggle, with the bourgeoisie aiming to preserve discriminatory
traditions and the proletariat, represented by Man Bahadur and supporters, advocating
for equality. The Supreme Court's decision voiding the 10(a) clarification unit is a
victory for the proletariat, signalling a shift towards social justice and away from
discriminatory practices favoured by the bourgeoisie.

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Man Bhadur Biswakarma vs HMG

Prepared by- Niroj Aryal and Abhishek Rai

Writ no- 2505

Subject- Let an appropriate order under as per article 88(1) be issued

1. Issues Raise by the plaintiff

Analysing this case on the basis of different sociological

A. On the basis of Structural Functional Prospective

The structural functional perspective is a sociological theory that views society as

a. On the basis of Emile Durkheim

In the case of Man Bahadur Biswakarma in Nepal, the provision 10(a)

b. On the basis of Roscoe Pound

Roscoe Pound believed that law is a tool of social engineering, guiding

c. On the basis of Max Weber

Traditional authority is represented by 10(a) clarification, which promote

B. On the basis of Marxist Prospective

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