By Swapnil Tripathi
Nepal is once again in a constitutional flux. Prime Minister K P Sharma Oli has resigned after protests triggered by a now-withdrawn social media ban and public anger over corruption. The protests are unusual in their form: Youth-led, leaderless, and decentralised. Their two demands are simple – restore free expression and curb corruption – but their implications reach further. What is at stake is nothing less than the foundations of constitutional order.
Scholars call such moments constitutional revolutions. As Bruce Ackerman explains, they are “constitutional moments” when “normal lawmaking politics” gives way to “higher lawmaking politics”, allowing societies to alter their fundamental commitments outside ordinary amendment channels. For him, the American Founding, Reconstruction, and the New Deal each represented such revolutions – episodes where mobilisation and reinterpretation remade the constitutional order.
Nepal’s recent history is replete with similar moments. In 1990, protests ended the panchayat system. In 2006, the monarchy was abolished and the republic declared. In 2015, a new constitution promised federalism, secularism, and inclusion. Each time, a beginning was made; each time, the settlement proved incomplete. The present unrest shows, once more, how the people of Nepal are seeking to reassert their constituent power.
But who are “the people” in this story? Akhil Amar of Yale University insists that sovereignty does not end with the adoption of a constitution, and that the people retain an ultimate right to alter or abolish their constitution, even outside constitutional provisions. Popular sovereignty, in this account, is inalienable and can re-emerge through referenda, conventions, or mass mobilisation. When Charles de Gaulle restructured France’s presidency through a referendum in 1962, outside the authorised procedure, Amar would view it as the people reclaiming their constituent power.
This is precisely what Nepal’s youth seem to be asserting. By resisting censorship and corruption, they are reminding political elites that a constitution belongs not to rulers but to citizens. Their marches express Amar’s principle: The living people, not procedural rules, are the ultimate custodians of constitutional authority.
Yet, revolutions are double-edged. They blur the line between constituent power, that is, the authority to create or recreate a constitution, and constituted power, that is, the institutions established by it. Scholar Yaniv Roznai notes that the former can sometimes be exercised within the law, as in South Africa’s carefully negotiated transition, but it can also erupt outside legality, driven by mass mobilisation. A striking regional example is Pakistan’s 2007–09 Lawyers’ Movement, when students, lawyers, and civil society took to the streets after the suspension of the chief justice. Their protests eventually forced the restoration of the judiciary and reshaped Pakistan’s constitutional order. This was constituent power pushing back against authoritarianism. But, as Roznai cautions, not all revolutions end this way and “dictators often seize governmental powers through revolutionary acts or coups, claiming to be the bearers of the constituent power.” Unless channelled through inclusive processes, constitutional revolutions can as easily be captured from above as they can be driven from below – ending not in renewal but in instability or authoritarian backsliding.
Nepal illustrates both this promise and peril. The protests are spontaneous, decentralised, and democratic in energy. Yet, they have also been marred by troubling scenes of violence – lives lost, government buildings attacked, properties set ablaze, and even former leaders targeted. Alongside the tragic loss of lives, such actions corrode the very democratic spirit the movement claims to represent. At the same time, the absence of leadership makes it unclear how this energy will translate into constitutional reform. Without institutional channels, the movement risks either being absorbed by elites or dissipating without effect.
India’s own history shows how precarious such moments can be. In the mid-1970s, Jayaprakash Narayan called for sampoorna kranti – a “complete revolution”. The Emergency that followed came close to a constitutional rupture, a moment when constituent power might have reasserted itself. But India emerged from that crisis with its Constitution intact, its democratic framework restored, and its courts – chastened by ADM Jabalpur – ultimately reaffirming their role as guardians of fundamental rights.
Why has India, unlike Nepal, avoided repeated constitutional revolutions? Is it the durability of the Constitution itself, drafted in a representative and inclusive manner? Is it the democratic spirit of its people, willing to challenge but also preserve institutions? Or, is it simply the resilience of a political culture that has managed to absorb dissent without collapsing into rupture? These are difficult questions, worth asking, researching, and appreciating.
Nepal’s turmoil reminds us that law and institutions are not static artefacts but living projects. They succeed when the extraordinary energy of mobilisation is channelled into inclusive and enduring frameworks. The challenge for Nepal is whether its present unrest can be translated into such a settlement – or whether it will remain an unfinished revolution.
The writer leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy
