The Judicial Appointments in Nepal: A Study with Special Reference to Constitutional Provisions and Practices Prevalent in India

Journal Article 

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Career Int. J. So. Sci. & Law Vol. : 2, Issue : 4, September 2019, pp : 23-26 RNI : 1315709

CAREER INTERNATIONAL JOURNAL OF SOCIAL SCIENCES AND LAW

(A Career Research Initiative)

The Judicial Appointments in Nepal: A Study with Special Reference to Constitutional Provisions and Practices Prevalent in India

Jivesh Jha*, Dr. Alok Kumar Yadav**

* Judicial Officer, Dhanusha District Court, Janakpur, Nepal

** Assistant Professor, HNB Garhwal Central University, Srinagar, Uttarakhand, India

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ABSTRACT –

The judicial appointments made in line with the recommendations of the party at the helm or opposition would not only politically influence the business of judiciary but it will also invite a say of the executive and thereby question the effective implementation of the separation of power. By devising the Collegiums system for appointing the judges in higher judiciary, the Supreme Court of India has succeeded to curb the political interference in entire judicial appointment process. However, the position is different in case of Nepal. Nepal’s Law Minister and Prime Minister share a berth at the Judicial Council and Constitution Council, respectively, which are empowered to recommend the name of the persons to be appointed as judges and Chief Justice of Nepal. This paper delves to comparatively analyze the constitutional provisions and practices regarding the judicial appointments in India and Nepal.

Keywords – Judges, Appointment, Judiciary, Constitution, India, Nepal

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1. INTRODUCTION

The Constitution of Nepal, which is the seventh constitutional charter, features 35 Parts, nine Schedules and 308 Articles. Entering in to force on September 20, 2015, the Constitution restructures the state into seven provinces and 753 local bodies. It provides the Lists under which the local units, center, states or both centre and states can enact laws. The Constitution introduces Nepal as an independent, indivisible, sovereign, secular, inclusive democratic, socialism oriented federal democratic republican state.[1] With the adoption of new Constitution, Nepal has been transformed into to a republican state from a constitutional monarchy, a federal democracy from a unitary system, and a secular structure from a Hindu character. Like Indian Constitution, the Constitution of Nepal introduces well-ordered and well-regulated judicial machinery with the Supreme Court at the apex. The Judicial Council, which is empowered to make recommendations concerning the appointment and transfer of judges, hosts Federal Minister for Law and Justice as a constituent member. The Judicial Service Commission of Nepal,[2] which is shouldered with the responsibility to carry out appointments, transfers and promotions to gazette posts of federal judicial service or to take departmental action against any staff holding such post, also provides a berth to Federal Law Minister. Similarly, the incumbent Prime Minister of Nepal chairs the Constitutional Council, which is empowered to make recommendation for the appointment of the Chief Justice of Nepal. These constitutional arrangements show that there is room for political intervention in entire judicial appointments‟ process in Nepal. Still, the preamble of the Constitution aims to secure an independent, impartial and competent judiciary.

2. TOWARD NEPAL’S CONSTITUTIONAL FRAMEWORK

As a matter of fact, the Constitution of Nepal stands in favor of judicial appointments made on the recommendation of Judicial Council (JC), where the Law Minister shares a berth. Article 153 provides for „Judicial Council‟, comprising of the The Judicial Appointments in Nepal: A Study with Special Reference to Constitutional Provisions and Chief Justice as Chairperson and the members include: Federal Minister for Law and Justice; Senior-most Judge of the Supreme Court; a legal expert appointed by the President on the recommendation of the Prime Minister; and a senior advocate appointed by the President on the recommendation of the Nepal Bar Association. As per Article 129, the Chief Justice of Nepal will be appointed by the President on the recommendation of Constitutional Council, while the Justices of the Supreme Court (SC) will be chosen on the recommendation of JC. Article 284 lays down provision for the composition of Constitutional Council which states that the Prime Minister would act as Chairperson, whereas Chief Justice; Speaker of the House of Representatives; Chairperson of National Assembly; Leader from the Opposition Party in House of Representatives; and Deputy Speaker of House of Representatives would act as Members.

These constitutional arrangements clarify that there is political influence in judicial appointments. The judicial service is yet to be governed independently in the line with the constitution which envisages for a separate and additional remuneration for employees working under judicial service. A person recommended for Judge of SC has to be approved by a parliamentary hearing but the Parliamentary Hearing Committee lacks competency to make a robust inquiry on each recommendation.

In fact, “A centralized Judicial Council was created by the Constitution, which is a continuation of the unitary system and is not harmonious with the federal structure. For a properly federal judiciary, the appointment of the Chief Justice of provinces should be done in consultation with the governors and chief ministers of the respective provinces. The provincial government does not, as it stands, appoint any employees. This means that the central government has the supreme control over the high courts of the provinces. As is the case in India, governors of provinces should have the right to administer the oath of office to the chief justice and judges.”[3]

The reality, however, is that in India, governors, who act on the recommendation of the Council of Ministers of state and appointed on the recommendation of the Central government, in judicial appointment they do not play any instrumental role. District court judges are picked through public service commission for judiciary, while the High Court (HC) and SC judges are appointed on the recommendation of collegiums of judges.[4] “In short, the provisions regarding the judiciary provided in constitution are unitary in nature. This goes against the spirit of past movements and the federal principles espoused elsewhere in the Constitution.”[5]

In this way, Nepali judiciary, including district courts, High Courts, Tribunals and Supreme Court, remains a subject matter of Centre. The provincial governments cannot appoint the judges and among other staffs in the High Courts and District Courts. This is something which makes the Nepali judiciary unitary in nature. A provincial government cannot appoint even a peon at district courts or High Courts. The prosecutorial power lies with Centre. The provincial governments can neither frame charges nor be made as a prosecuting party in the criminal cases. The Supreme Court of Nepal introduced the fourth five-year strategic plan of judiciary which came into force in July, 2019. The motto of the plan is „Independence of Judiciary; Judicial Good Governance, our commitment‟.[6] The strategic plan seeks to secure the independence of judiciary by frustrating the outward intervention in the business of judiciary, including that of appointment of judges. The composition of the Judicial Council; Constitutional Council; or Judicial Service Commission appears political in nature as the said bodies provide seats to the incumbent Law Minister and Prime Minister. The Constitutional Law experts are of the opinion that the composition is Judicial Council is politically dominated. “We cannot expect independent candidates presiding over court proceedings when the Judicial Council is so politically dominated”[7] argues Dr. Chandrakant Gyanwali, a senior advocate. “It is high time the Judicial Council‟s current framework has been modified”, says Dr. Bhimarjun Acharya, an expert on Constitutional Law.[8]

3. JUDICIAL APPOINTMENT AND ROLE OF COLLEGIUMS SYSTEM IN INDIA

Article124(1) of the Constitution of India provides that the Supreme Court of India is to be composed of the Chief Justice of India (CJI) and 30 other judges, unless the numbers are increased by law made by parliamentary. The subsequent clause states that every judge of the Supreme Court shall be appointed by the President under his warrant and seal after consultation with such other judges of the Supreme Court and High Court which he deems necessary for the purpose and such judges shall attend the office until the age of 65.

Nevertheless, the enactment has a „provisio‟ which mandates that in case of appointment of judges of the SC, other than CJI, the CJI shall always be consulted. The positive factor is that in case of appointment of judges, the President is bound to The Judicial Appointments in Nepal: A Study with Special Reference to Constitutional Provisions and consult the CJI while the negative factor is that the President is not bound to consult with anybody in appointing the CJI.

However, the Supreme Court of India has made a complete departure from the constitutional mandate by introducing the Collegiums system. Before 1993, the power of the President to appoint judges was strictly ceremonial, because, in this matter, as in other matters, he must act on the advice of the ministers concerned, namely, the Minister of Law.[9] Since 1978, there has been a well-established tradition (after the retirement of Chief Justice Beg): the Senior Judge of the SC is appointed as CJI.[10]

The famous case of Supreme Court on Advocate Record Association v. Union of India[11] laid down guidelines governing the appointments and transfer of Judges. The SC, for the first time, held that the President would be bound by the advice of CJI. Also, it has been held that there would be a three-member “Collegium”, including CJI plus two senior-most judges, which would play an instrumental role in recommending the names of judges to be appointed by the President. The Supreme Court has also stated that the senior-most judge of the Supreme Court shall always be appointed as CJI.

Similarly, in RE Presidential Reference Case,[12] the nine judges‟ bench of SC held that the recommendation made by the CJI in appointment of Judges without following consultation process would not be binding on the President. The majority view was that the CJI should consult collegiums of four senior-most judges of the Supreme Court and it has been made clear that if two judges give adverse opinion, then CJI would not be competent to send the same recommendation to the President. This arrangement suggests that the CJI does not act in person but with the consultation of four senior-most judges. This way, the collegiums system for appointing the judges succeeds to negate the political intervention in entire appointment and transfer of judges. After all, independence of judiciary is the basic structure of Indian constitution, as held in Keshvanand Bharati v State of Kerala.[13] Then, the disgruntled parliament rushed to enforce the National Judicial Appointment Commission Act (NJAC), 2014 in an endeavor to ensure a say of the government in entire appointment and transfer of the judges of higher judiciary. This attempt was in contrast to the long stayed Collegiums system which is in place since 1993. But, the apex court declared this Act  unconstitutional in 2015.

4. CONCLUSION

In Nepal, the Judicial Council and Constitutional Council provide a seat to the Law Minister and Prime Minister and these bodies have the power to recommend the names of persons to be appointed as judges. There is no any provision which secures the role of provincial governments in transfer and appointment of judges of High courts or subordinate Courts. The Constitution has failed to negate the influence of executive or ruling party in the appointment of judges. Unlike Nepal, the Supreme Court of India has devised collegiums system to appoint the judges of the higher judiciary. This development has succeeded to prevent the political interventions in judicial appointments. This is something Nepal could acknowledge for securing the independence of judiciary and for ruling out the political intervention in judicial appointments.

REFERENCE

1. Article 4, Constitution of Nepal

2. Article 154 (2) of the Constitution of Nepal: The Judicial Service Commission shall consist of Chief Justice of Nepal;

Federal Law and Justice Minister; senior-most judge of Supreme Court of Nepal; Chairperson of the Public Service

Commission; and the Attorney General.

3. Dipendra Jha, FEDERAL NEPAL: Trials and Tribulations 115 (Aakar Books, New Delhi, 1st edn., 2018).

4. Jivesh Jha, “Tell the truth” Republica, Jan. 20, 2019, available at: https://myrepublica.nagariknetwork.com/news/tellthe-

truth/ (last visited on June 26, 2021).

5. Dipendra Jha, FEDERAL NEPAL: Trials and Tribulations 115 (Aakar Books, New Delhi, 1st edn., 2018).

6. “New Strategic plan to bolster people‟s trust in judiciary”, The Himalayan Times, Jul. 17, 2019, available at:

https://thehimalayantimes.com/kathmandu/new=strategic-plan-to-bolster-peoples-trust-in-judiciary (Last visited on

Sept 26, 2020).

7. “Legal and constitutional experts find fault with the Judicial Council‟s structure”, The Kathmandu Post, Apr. 10, 2020,

available at: https://kathmandupost.com/national/2019/04/10/legal-and-constitutional-experts-find-fault-with-judicialThe

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Career International Journal Social Science & Law, Vol. : 2, Issue : 4, September 2019, Bhopal, pp : 23-26

councils-structure (last visited on Sept. 26, 2020).

8. Ibid.

9. M.P. Jain, Indian Constitutional Law 192 (LexisNexis, Gurgaon, 7th edn., 2016).

10. Ibid

11. (1993) 4 SCC 441

12. AIR 1999 SC 1

13. (1974) 1 SCC(JI) 3