Our judiciary is not just a collection of articles and clauses of the Constitution and laws, but a saga of an ongoing conflict between the sacrifices of the people, the conscience of the king, and the pens of the husbands.

From the dusty pages of the ‘Nyayavikasini’ of 1380 BS to the upcoming elections, Nepali courts have not only delivered many historic judgments, but have also been continuously fighting against internal contradictions and political attacks. The judiciary must not and must not lose this battle. If the judiciary loses, democracy and the rule of law will lose. We will be subordinate.

Nepal’s legal history is very ancient and original. During the Malla period, the ‘Nyayavikasini’ (1380 BS) issued by King Malla is considered the first written legal code of Nepal, which was based on Hindu philosophy and Manusmriti. At that time, the king was the final source of justice. With the beginning of the Shah period, Ram Shah’s justice was not limited to the proverb ‘If you do not get justice, go to Gorkha’, but rather it tried to establish a status. After Prithvi Narayan Shah's unification campaign, courts were established in each district, where judges, magistrates, and scholars administered justice at the local level.

The formal foundation of the modern judiciary is believed to have been laid during the Rana period with the establishment of the 'Pradhan Nyayalaya' in 1997 BS. However, during the Rana dictatorship, the judiciary was subordinate to the executive power. The 'Interim Government of Nepal Statute, 2007' issued after the 2007 revolution for the first time recognized the judiciary as a separate organ and clarified its jurisdiction through the 'Pradhan Nyayalaya Act, 2008'.

The Supreme Court was established in 2013 BS. After King Mahendra's 'coup' in 2017 BS, the independence of the judiciary was again eclipsed. The 2019 Constitution recognized the king as the source of justice and made the king's discretion supreme in the appointment and dismissal of judges. The judiciary struggled for civil rights during the three-decade-long Panchayat system, but remained only a part of this system.

The Constitutional Leap of 2046: The Rise of an Independent Judiciary

The ‘Constitution of the Kingdom of Nepal, 2047’ brought by the people’s movement of 2046 was a golden point for the Nepali judiciary. This constitution clearly adopted the principle of separation of powers and balance of power for the first time and aimed to make the judiciary completely independent and competent from the executive and legislature.

Article 88 of this constitution gave the Supreme Court the extraordinary right of judicial review, through which the court could nullify laws made by the parliament and decisions made by the government if they conflicted with the constitution. During this period, the Judicial Council was conceived, which was headed by the Chief Justice and consisted of the Minister of Law, two senior judges of the Supreme Court, and expert members so that there was no political interference in the appointment of judges.

Today, there are so many questions and criticisms about the judiciary. No statistics are needed to say that half of it is due to the appointment of judges and the politicization of the judiciary, and its poison tree is the structure of the Judicial Council and its decisions.

Despite many criticisms and protests, the Supreme Court has made many important decisions in the three and a half decades since 2047 and has raised Nepal's judiciary to a world-class average status. In particular, the decision to annul the dissolution of the House of Representatives by the then Prime Minister Manmohan Adhikari in 2052 BS made the role of the court decisive in Nepal's parliamentary politics. Although this decision could not be free from criticism and protests. Earlier, the same court and the same leadership that had upheld the dissolution by Girija Prasad Koirala had given a different decision within a gap of two years.

At the same time, in the 'Godavari Marble' case, the court opened a new path for judicial activism by interpreting the right to a clean environment as linked to the right to life. The historic decision to annul the Tanakpur Treaty strengthened the country's sovereignty. In addition, the fundamental rights granted by the Constitution have been strengthened by explaining the right to equality in detail in the famous cases of Rina Vajracharya, Meera Dhungana, and Man Bahadur Sunar. Similarly, decisions such as the abolition of the Royal Commission succeeded in bringing our judiciary to the same level as the world's judiciary.

After the People's Revolution of 2062/63 and the end of the Maoist armed rebellion, Nepal entered a new phase. The 'Interim Constitution of Nepal, 2063' attempted to make the judiciary more rights-oriented and inclusive. However, at this time, conflict also began between the judiciary and the executive. The decision to make Chief Justice Khilraj Regmi the Prime Minister of the elected government raised serious questions on the principle of separation of powers.

The Nepal Bar Association had named the decision to make the then Chief Justice the Chairman of the Council of Ministers and the day of his appointment as Black Day. Coincidentally, the writer who was in the working committee at that time had drafted that decision. That decision by Khilraj Regmi, who seemed to be excellent in honesty, efficiency and competence, not only made him the head of the executive, but also struck an unforgivable blow to the judiciary that even the Rana rulers could not do and drew criticism from all over the world.

The 2072 Constitution: The Era of Federalism and Constitutional Benches

After the Constitution of Nepal transformed the country into a federal democratic republic, there was a fundamental change in the structure of the judiciary. It established a three-tier judicial structure. The Supreme Court in the union, a high court in each province and a district court in each district. But the constitution itself has not named our judiciary as federal.

The most important and controversial feature of this constitution is the provision of the 'Constitutional Bench'. This bench, which consists of the Chief Justice and four other senior judges, is responsible for resolving disputes between the center and the provinces, election-related disputes, disputes related to the testing of the legality of laws, and serious constitutional questions. However, despite the establishment of 20 judges in the Supreme Court, the Supreme Court has been overwhelmed by complaints from service recipients that the pressure of cases and the limited work of the Constitutional Bench are causing delays in the delivery of justice. The current practice of the Constitutional Bench not hearing cases regularly, hearing cases only after the merits of the case are exhausted, and not making quality decisions is raising questions about its legitimacy.

During the implementation of the 2072 Constitution, the Supreme Court once again played a role in balancing political instability. The court declared the dissolution of the House of Representatives, which took place twice in 2077 and 2078 BS, unconstitutional and restored the parliament. The mandate given to Sher Bahadur Deuba to appoint the Prime Minister by interpreting Article 76 (5) forced the executive to keep its discretionary power within the limits of the Constitution.

But the mandate issued to appoint the Prime Minister based on the name, date, and time of the Prime Minister did not exempt the judiciary from criticism that the judiciary was overly active. During this period, another controversial decision to divide the then ruling party NCP into two parts, UML and Maoist, sowed the seeds of political instability and made decisions that went beyond the demands, making our judiciary a victim of criticism.

Weapon of impeachment and an insult to the dignity of the judiciary

Impeachment cases against the Chief Justice are the most bitter and controversial chapters in Nepal's judicial history. Although the constitution provides for impeachment to hold judges accountable, its use seems to be mostly for political vendetta and in the interests of the executive.

On April 17, 2074, an impeachment motion was filed against the incumbent Chief Justice Sushila Karki for the first time in Nepal's history. The main reason for the motion, signed by 249 lawmakers from the ruling Nepali Congress and the CPN-Maoist Center, was the court's decision on the appointment of the Inspector General of Police. After the government decided to appoint Jaya Bahadur Chand as the Inspector General, the court reversed it and ordered the appointment of Nawaraj Silwal, who was ahead in the performance evaluation.

Angered by this decision, political parties accused Karki of interfering with the executive's authority and making biased decisions. However, civil society and the international community saw it as an attack on the independence of the judiciary. The then Deputy Prime Minister Bimalendra Nidhi resigned, expressing dissatisfaction with the impeachment. Finally, a single bench of Supreme Court Justice Cholendra Shumsher Rana issued an interim order not to proceed with the impeachment motion, saying it was against the spirit of the constitution, and Karki returned to court.

In a strange coincidence of history, the same Cholendra Shumsher Rana, who had ordered the impeachment of Sushila Karki to be stopped, became the victim of impeachment himself five years later. On Falgun 1, 2078, 98 MPs filed an impeachment motion against him. In Karki's case, political 'ego' was the main issue, while in Rana's case, there were allegations of deep inconsistencies and corruption within the judiciary.

Rana was accused of 21 serious charges, such as institutionalizing corruption in the judiciary, 'setting' cases, and seeking a share in constitutional appointments. The Nepal Bar Association staged a street protest against him for more than 109 days and his fellow judges boycotted the bench. Rana was forced to retire while suspended. These two cases have exposed how Nepal's judiciary is mired in politics and corruption.

According to an international report, Nepal's courts are at high risk of corruption. Political involvement in the appointment of judges has tarnished the reputation of the judiciary. The then judge Harikrishna Karki's report had exposed the influence of 'middlemen' in the judiciary and the fact that manipulations begin from the time the case is scheduled. The implementation of that report has not been fully implemented. Even though another judge, Prakash Man Singh Raut, who wrote the same report, is now the Chief Justice and is about to retire, the compulsion to continue singing the song of implementation of the Karki report has not left us.

The way forward

Minor reforms are no longer enough to revive the reputation, dignity and independence of Nepal's judiciary from its 'dead' state. The immediate reforms that need to be made in the judiciary can be formulated as follows:

1. Change the structure of the Judicial Council: The current Judicial Council is dominated by the Law Minister and political figures. It should be restructured so that the Chief Justice has a majority so that the influence of political participation in the appointment is zero.

2. The Chief Justice should be removed from the Constitutional Council, which has a completely political character and mandate. 3. Permanent Constitutional Court:

Serious constitutional questions have been stalled for years due to the pressure of thousands of ordinary cases in the Supreme Court. Therefore, a separate and powerful Constitutional Court or permanent bench should be established. 4. Code of Conduct and Asset Disclosure of Judges:

To make judges fully accountable, a mechanism should be created to make their asset disclosures public and the Judicial Council should take immediate action if any discrepancy is found. 5 The High Court should be given the power to review the constitutionality of laws made by the provincial and local levels.

6 . The retirement age of judges at all levels should be fixed at 65 years.

7. The provision that judges cannot serve in the Supreme Court for more than 6 years as Chief Justice and a maximum of 7 years as a judge will end the existing unhealthy situation of appointing mature and experienced judges and searching for the Chief Justice after making appointments.

8. Empowerment of Local Judicial Committees:

Local judicial committees should be empowered by providing them with necessary legal advisors and resources so that citizens do not have to go to court for minor disputes. 9 . डिजिटल न्याय प्रणाली

: मुद्दा दर्तादेखि फैसलाको पूर्ण पाठसम्म सबै कुरा अनलाइनमा उपलब्ध गराइनुपर्छ ताकि पारदर्शिता बढोस् र बिचौलियाहरूको चलखेल कम होस् । १० . स्वचालित पेसी प्रणालीको स्थापना

: कुन न्यायाधीशले कुन मुद्दा हेर्ने भन्ने कुरा गोला प्रथा वा  प्रधानन्यायाधीशको तजबिजमा नभई सफ्टवेयरमार्फत तोकिनुपर्छ । यसले ‘सेटिङ’ को सम्भावनालाई अन्त्य गर्छ ।  प्रतिनिधिसभा विघटनका मुद्दाहरूमा देखाएको साहस र सामाजिक न्यायका क्षेत्रमा गरेका प्रगतिशील फैसलाहरूले नेपाली न्यायालयको साख केही हदसम्म जोगाएका छन् । तर, महाभियोगका खेलहरू, भ्रष्टाचारको जालो र राजनीतिक भागबन्डाले यसको जगलाई मक्किएको पनि बनाएका छन् । 

न्यायको तराजु सधैं सोझो रहनुपर्छ । यदि श्रीमान्को हातमा रहेको तराजु राजनीतिक बतासले वा भीडतन्त्रले हल्लिन थाल्यो भने त्यो देशको लोकतन्त्र र विधिको शासनको अन्त्य हुनेछ । त्यसैले, न्यायपालिकाको सुधार कुनै एक संस्थाको मात्र विषय होइन, यो त नेपालको भविष्य र नेपाली नागरिकको प्रतिष्ठासँग जोडिएको विषय हो । न्यायपालिकाको यो लामो यात्रामा अबको गन्तव्य ‘पूर्णतः स्वतन्त्र, सक्षम र जनउत्तरदायी न्यायालय’ नै हुनुपर्छ ।

अब खुलेर विमर्श गरौं, संविधान संशोधनका लागि तयार रहौं । न्यायपालिकालाई अझ सक्षम र सुदृढ गर्ने, गराउने विषय यही निर्वाचनमा दलहरूको एजेन्डा बन्नुपर्छ । सक्षम, भयमुक्त र स्वतन्त्र न्यायपालिकाले मात्र लोकतन्त्रलाई बलियो बनाउँछ ।