Judiciary in Nepal

The government of any nation regulate through three branches of the government: legislature, executive, and the judiciary. These branches mutually check and balance each other. Nepal has adopted the practice of separation of power which determines the authority that each organ holds and defines the threshold of the power that they may hold. It implies one organ should not control or intervene in the functions of others. [1]The judiciary, being an independent organ of the state, interprets and enforces the law and ensures that the other two organs comply with the constitution. It acts as a “watchdog” in the law-making process and has the power to determine what the law is.[2] Judiciary is established with a sole purpose to provide justice to people and protect fundamental rights and freedom of people and recommend punishment for lawbreakers.

Nepal being a democratic country consists of the provision of independent, impartial, and inalienable judiciary to execute the concept of rule of law in the country. Part 11 of the Constitution of Nepal 2015 entitled that “judiciary” regulates the judicial branch. The judicial power of Nepal is exercised by the courts and judicial institutions. [3]The judiciary consists of three tiers of courts in our country i.e., District Court, High Court and Supreme Court. It resolves disputes and applies the Constitution as per requirement.

Our country determines the judiciary as the ‘guardian of the constitution’ or ‘the protector of people’s rights. The role of the judiciary, particularly of the Supreme Court, is paramount in a constitutional democracy as it is the final arbiter of any constitutional and legal dispute. Arising from multiple sources and layers of regulation, legal rules progressively increase in number and tend to become more specific. The result is a fragmented legal landscape, in which contradictions are almost inevitable.

The situation of Nepalese Judiciary.

The Judiciary is the substratum, the area of the system which shouldn’t be corrupted and polluted by the politicians. Judiciary punishes the guilty and rewards the innocent, implementation of any law is reviewed and observed by Judiciary.

The independence of the judiciary shall be guaranteed by the State and enshrined in the constitution of the country. The implementation procedures or punishment granting mechanism shall be obligatory to all citizens and government institutions. Nepali judiciary has improved its status quo and put in efforts to resolve the disputes impartially. It was widely believed that the Constitution of the Kingdom of Nepal 1990 promoted the independence of the judiciary, which separated the judiciary from other organs of the state. Article 88(2) introduced the provision related to writs, including the Public Interest Litigation petitions, in a matter of public interest as extraordinary jurisdiction of the Supreme Court. However, the judiciary was found to be submissive and answerable to legislature and executive. The Constitution of Nepal 2015 has demarcated the clear line of jurisdiction for different tiers of courts.

Nepal follows the common law system. Judicial precedent plays a vital role, where judges are obliged to make their decisions and rulings similar to the previous judicial decision on the same content matter. The main role of the judiciary is to exercise judicial review. It refers to the power of the judiciary to review the duties of government institutions, legislature, and executive and determine the constitutional validity of the law and order.

Status quo of the judiciary.

As of now, the whole world is facing the crisis caused by COVID-19, amidst this outbreak the Supreme court of Nepal has pursued with an approach to maintain the administration of pandemic justice by asking judicial institutions and government agencies to expedite welfare functions and respect fundamental rights of each individual without any distinction. Citizens have also filed many petitions and PIL demanding the basic needs like food and transportation from the government. The state is obliged to fulfill its duties and responsibilities towards citizens hitherto. Physical distancing throughout the nation to control the haphazard spread of COVID-19 had directly challenged in delivering justice effectively.

Although, by taking the alternative choices, to ensure undisrupted and continued dispensation of justice amid the crisis, on 10th April 2020 the Supreme Court of Nepal introduced the provision for pleading through video conferencing. Janakpur High Court had discussions with prisoners and investigating officers in the virtual meetings via zoom. A quick justice delivery system is the sine qua non of any government. Judiciary had made various decisions that have been well-recognized by society. Judiciary in the meantime, considers law in book and law in action are two different things.

Landmark orders

Judiciary has also been able to play a proactive role while issuing decisions and orders. When the Apex court observed that children at juvenile centers were placed at a high risk of COVID-19, the court issued an order to hand them to their parents on the condition that they would be returned back whenever the court asked them to. Similarly, in the case of Advocate Shailendra Prasad Harijan v. Office of the Prime Minister and Council of Ministers, [D1] the SC issued an interim order to the government to provide relief materials to economically marginalized people without having them to provide their citizenship or any official document. This order of the court held that the right to life encompasses the right to food without any distinction.

The court issued a directive to the government to arrange enough PCR test kits and also urged the government to conduct tests on all stranded people. There were many hopeless workers who couldn’t manage a two-time meal staying at the center of the country, where all the facilities should be available, yet they failed to feed their stomach, so they started migrating to their hometown where they could at least cultivate the land. The government was also expected to provide free transportation facilities to migrant workers, who have covered their distance barefoot after losing their faith in the government. This shows the overall picture of the orders issued to the government by the judiciary. During this crisis, the judiciary hasn’t failed to perform its tasks and fulfill duties accordingly.

Apart from this, there are different landmark decisions issued by the judiciary. In the case of Sapana Pradhan Malla and Others[4], it challenged the provision no. 9 and 9(a) of the Chapter on Marriage, Muluki Ain (2020), which allowed the husband to have a second marriage, if the wife suffered from any incurable contagious sexual diseases, or was incurably mad. The court realized that such conditions need to be confronted and handled by the husband instead of running off. The court didn’t claim the provision ultra vires but took a pragmatic approach and issued an order to amend the law. Likewise, the case of Surya Prasad Sharma Dhungel v. Godawari Marble Industries Pvt. Ltd.[5] is considered to be the first case with PIL in Nepal which addressed the fundamental right to life and right to a clean and healthy environment. The court gave the verdict in the favor of environmental rights. In the case of Sunil Babu Pant and Others v. Government of Nepal and others [6]the court ordered the government to make a law that identified the status of the third gender and apply necessary provisions in the law.

The decision made by the judiciary is more reliable as it is based upon the laws and regulations which are directed by the sovereign State. Public eyes are pointed towards every action of the judiciary so it has to be really careful and sensible while delivering any sort of decision in the platform. Hence, the judiciary has been evolving with time and necessity.

Necessary Reforms

In Nepal, the judiciary in principle and the judiciary in practice are entirely in different dimensions. The judiciary after delivering such remarkable verdicts still remains ignored. Judiciary performed in a splendid way even during this pandemic. The judicial area during COVID-19 succeeded to work on the utilitarian approach by continuing the judicial review and interpreting the law. The crucial part, however, is the enforcement that our country lacks in every aspect of the government’s regulation that directly hampers the justice rendering process. It is really important to gear up the procedure of implementation of rulings.

To improve the judiciary to be competent, independent, and impartial, some essential changes need to be implemented and protected by the State. ‘Justice delayed is justice denied’, so to prevent this problem, the jurisdiction of the Supreme court, High court, and District courts need to be amended and extended as in the current practice, different types of cases are resolved at last by the supreme court only which creates more burden and delay in providing the verdict.

Another serious problem is the corruption in the judiciary. It is very important for a nation to understand the political economy of corruption in the judiciary. Judicial actors in the judicial system should be bound by the profession’s responsibility. It can improve the established provision for open courtrooms. The open courtrooms system is the indicator of a fair and transparent judicial process. The judge, using his brahma shall determine the hearing to be open or closed depending upon the severity of the case which shall be according to the implementation.[7]

Automated case management systems can help to avoid the chances for corruption involved in it and technology could cover up the duration to conduct the procedure to resolve any case. An independent responsive commission needs to be established to address all the complaints against the judiciary and judicial actors. The decisions and information need to be disseminated in an original form to the public and different reforms could be collected prior to publishing the final verdict. This creates a sense of recognition for civil society and the media. The foremost step that should be taken is to avoid political influence. Generally, the judiciary is crowded by political opinions that affects the justice delivery mechanism.

Hence, these reforms can come into use only if they are followed and implemented. The better the performance of the judiciary, better the development of a nation. Three organs of the government need to proceed ahead in a parallel manner. The dispute between the federal and provincial level is handled by the judiciary. Strengthening the judiciary means a better political system. The judiciary i.e., temple of the Constitution is the special institution to enforce fundamental rights, to protect the rights and to grant justice. The judiciary is a measure to overview the overall system of the country. Therefore, the better the judiciary, the more efficient the democracy is.

[1] Wade and Philip, 1960.

[2] Marbury v. Madison, (1803).

[3] Constitution of Nepal, 2015.

[4] Decision No.- 8039, (2065).

[5] WP 35/2049, SC (2052 B.S.).

[6] 50 NKP4, SC (2064 B.S.)

[7] Section 129, Chapter 13 of Criminal Procedure Code (2074).