Is Nepal’s Judiciary Truly Free? Lessons From Asia And Others
June 19, 2025
min read
ABSTRACT
The judiciary plays a vital role in ensuring justice, democracy, and the rule of law in Nepal. In every democratic state, the Judiciary is the last resort for safeguarding people’s rights. It facilitates political stability and fairness for the development of a healthy and sound economy. According to the Constitution of Nepal, it is responsible for keeping all organs of the state within legal limits and protecting the rights of the people. However, Nepal’s judiciary still faces challenges such as political influence, lack of transparency in appointments, and weak accountability. For a judiciary to be truly independent, it must be free from pressure by the executive and legislative branches. Countries like Afghanistan, Australia, Canada, Germany, and the UK have strong judicial systems where judges are appointed based on merit, and courts are protected from political interference. Nepal can learn from these practices to improve its own system. By making the judiciary more transparent, accountable, and well-resourced, Nepal can ensure justice is delivered fairly and protect democratic values. Judicial independence must not just exist in theory, but be visible in everyday practice.
1. Background
Judicial independence is a fundamental principle of the rule of law. The existence of a competent and independent judiciary is widely considered essential for any nation that seeks to safeguard democracy, uphold the rule of law, and protect the fundamental rights of its citizens. The United Nations Basic Principles on the Independence of the Judiciary provide that it is the duty of all governmental and other institutions to respect and observe
the independence of the judiciary. An independent judiciary is a sine qua non for any democratic nation that aspires to ensure the rights and freedoms of its people.
The Constitution of Nepal has envisioned three separate organs of government: the legislative, the executive, and the judiciary. These organs are meant to function independently, free from interference from each other.
Although the legislative and executive branches are naturally political in nature, the judiciary is meant to remain impartial and free from political influence in order to maintain its credibility and ensure fair practices. However, in practice,
As per article 284, the Constitutional Council (Prime Minister, Chief Justice, Speaker, Deputy Speaker and Speaker of the Upper House) recommends the appointment of the Chief Justice, heads of constitutional bodies and officers according to the constitution, the appointment of the leader of the opposition party and the Chief Justice. There will be a Constitutional Council of 6 members up to the Minister of Law.1 When the council recommended, there was trust and confidence in the public mind that there would be the appointment of a famous person from the respective field who had made an incomparable contribution to the national life, but there was a game of badness in it.
Sometimes a meeting is held without giving 48 hours’ notice to the leader of the opposition party, the court has to interfere with it. Sometimes the parliament is tricked many times into appoint its own people and an ordinance has to be brought with malice to reach the quorum if 3 people are present and the justification of the writ against it ends, even the constitutional bench has declared the case. Failure to do so is a great mockery of democracy and an independent judiciary. Therefore, no matter how many responsible officials of the state were in the constitutional council, the constitutional ethics continued to be mocked. It seems inevitable to amend or amend the constitution by removing the Speaker, Deputy Speaker and Speaker of the National Assembly from the Constitutional Council, as they are responsible for the rule of law and the rule of law in any work.
As per Article 153, Judicial Council: There is a constitutional provision for the Judicial Council to recommend or consult on the appointment, transfer, disciplinary action, dismissal and other matters related to the administration of justice. In the formation of the Judicial Council, there is a system of 5 members consisting of the Chief Justice, the most senior judge of the Supreme Court, a jurist on the recommendation of the Prime Minister, and a senior advocate on the recommendation of the Nepal Bar Association2. In order to create an independent judiciary, the Judicial Council must also remain independent. The current Judicial Council itself, which appoints judges, appears to have an executive majority. If there is no majority of the judiciary in the formation of an independent judiciary, there is a danger of political interference. The influence of the executive in the appointment of judges in the past. The Justice Council could not remain untouched by this.
This politicization of judicial appointments has raised significant concerns about the competency, impartiality, and integrity of the judiciary. Many court verdicts in Nepal seem to be influenced by political pressures, undermining the judiciary's credibility and diminishing public faith.
In media interviews, Shree Krishna Bhatarai, former district Judge stated, “The independence of the judiciary has been declining due to increasing political interference, preventing eligible judges from becoming Chief Justice."3
Political parties appoint their desired candidates as judges to serve their interests, and they resort to impeachment if any hurdles arise. This trend has recently been on the rise, undermining the principles of constitutionalism and judicial independence.”
2. When did the judiciary start experiencing political intrusion?
Advocate Dr. Chandra Kant Gyawali filed a writ against Khil Raj Regmi, referring to the event on 1st Chaitra, 2069, when Chief Justice Khil Raj Regmi was appointed Chairman of the Council of Ministers without resigning from his position as Chief Justice.4 This move laid the foundation for the political exploitation of the judiciary.
According to some legal scholars, political interference in Nepal’s judiciary began as early as 2047 BS. However, such interference increased significantly, culminating in Regmi’s appointment as both the head of the executive and the judiciary. Some analysts believe that this appointment fostered a tendency among judges to seek political advantage.
Chief Justices after Regmi have faced various controversies. Damodar Prasad Sharma, who served as acting Chief Justice after Regmi, presided over a period seen as favorable to middlemen and corrupt practices. He was criticized for appointing his nephew as a judge in the then-Appeals Court, promoting factionalism in the Supreme Court, and failing to confirm capable judges, leading to their retirement. His successor, Ram Kumar Prasad Shah, tried to introduce reforms but was also surrounded by controversy. Kalyan Shrestha, who followed Shah, faced similar challenges.
The first female Chief Justice, Sushila Karki, faced impeachment over a dispute regarding the appointment of the police chief.5 Although the impeachment was later withdrawn, this incident set a precedent for using impeachment as a tool against non-compliant judges.
And another controversial case of former chief justice Cholendra Shamsher JB Rana in judicial history.
Nepal Bar Association former President Gopal Krishna Ghimire said that "even though Rana’s tenure is over, a clear message should be sent in public so that these incidents will not happen again." 6
Cholendra Shamsher Rana’s first year in office was not controversial. Even though some decisions were made, they never surfaced, which gave him the confidence to do as he pleased. Sources at the apex court say that Rana always kept a keen eye on issues related to tax disputes, corruption charges and major financial disputes. In the impeachment motion pending in the House of Representatives, he is even accused of intervening in a case involving his brother Prabhu Shamsher Rana and other relatives.
Even in cases ranging from electricity regulation licenses to fake VAT bills, Rana formed benches on his own in a bid to make favorable judgments.7 He even intervened in a case pending in the special court. Supreme Court had ordered Ncell to pay Rs 38 billion in capital gains tax to the government. But, Rana and his bench of justices offered Ncell a heavy discount as it only had to pay Rs 21 billion.
During his tenure, Cholendra Shamsher Rana was also accused of pressuring a district judge to release a rape accused. Interestingly, the judge who gave such an order was later promoted to the High Court.
One of the most serious accusations against Cholendra Shamsher Rana is that he took advantage of his position and bargained with the government and wanted his share in the appointment of high-ranking government officials. When KP Oli was in power, Rana took a lot of benefits from him, as he even got a share in the constitutional body.
A former attorney general says that Rana asked for a share in the appointment of ambassadors. But Oli refused. It was after that incident that Rana started to issue interim orders on cases that would be bad for Oli and his aides.
“The orders given out by Rana during that time were very unnatural,” said the former attorney general.
During his defense against the impeachment motion, Cholendra Shamsher JB Rana revealed he tried to help the Prime Minister KP Oli in dissolving the House of Representatives both times. But other justices did not help him. He stated that he asked Oli to impeach the other four judges as well. 8
After the House of Representatives was restored, Nepali Congress president Sher Bahadur Deuba became the prime minister. Rana played an important role in reinstating the House. And in return for that, his relative Gajendra Hamal became a minister. But Hamal had to resign after the news got out of Rana’s involvement.9
The structure of the Judicial Council, changed through the interim constitution after the second people’s movement of 2063 BS, heightened political interference. The new system included only the Chief Justice and the senior-most justice from the Supreme Court, with three additional members: the Minister of Law, a lawyer sent by the Prime Minister, and another lawyer recommended by the Nepal Bar Association. This made it easier for politically affiliated lawyers to join the council.
This structure led to a high level of political quota distribution in judge appointments in 2070 and 2071 BS. In 2070 BS, 15 newly appointed Appellate Court judges visited the UML party office to express their gratitude on the same day they took their oaths of impartiality and independence and then the UML, which facilitated political intrusion into the judiciary, is trying to distance itself from the issue.10
In the midst of widespread controversy and disorder, some interpret the political manipulation of the judiciary as a crisis of the system itself. As major political leaders began using the judiciary to shield themselves and their associates from legal issues and irregularities, public trust in the institution has steadily eroded. Frequent political meddling with the judiciary during the implementation phase of the constitution could undermine confidence in the constitution itself. Therefore, political parties must be cautious, as such interference affects not just individuals but the entire judicial system.
3. Justice is being buried in Nepal. Let’s save it
The judiciary, “which was not constitutionally independent but was independent in practice during the Panchayat system, and which is constitutionally independent today but not independent in practice,” has rapidly turned into an instrument of privilege rather than a guardian of the people's trust. “Justice is dying in Nepal. This is substantiated by various reports prepared by the very justices of the Supreme Court and verdicts on several cases. Today, we have justices who prevent the filing of a case against former PM Madhav Kumar Nepal, who is implicated by the police in the infamous Lalita Niwas land grab case. We have judges who quashed the writ petition against Lila Ballabh Adhikari, the former Koshi Province Minister accused of attempting to traffic Nepalis to Japan. We have judges who validated the then-Oli government’s controversial decision to make 52 appointments to various constitutional bodies by postponing hearings on the writ petitions filed against those appointments. We have judges who quash the petition against the donation of land worth millions of rupees by controversial businessmen to the parties in power. And we have judges who keep postponing the hearing on cases against powerful politicians." 11
4. The challenges of the judiciary in Nepal:
Nepal's judiciary faces significant challenges that hinder its effectiveness and public trust. The system is burdened with a substantial case backlog, with over 150,000 pending cases nationwide, leading to delayed justice and diminished public confidence. Political interference in judicial appointments and promotions compromises the independence and impartiality of the judiciary, as positions are often filled based on political affiliations rather than merit. Corruption within the judiciary, including bribery and favouritism, further erodes public trust and undermines the rule of law. Inadequate infrastructure and resources, such as outdated facilities and insufficient budgets, impede the efficient functioning of courts. Additionally, limited access to justice in rural areas due to geographical and financial barriers exacerbates the disparity in legal services. Addressing these issues requires comprehensive reforms, including merit-based judicial appointments, anti-corruption measures, infrastructure development, and improved access to justice for all citizens.
4.1. Impacts of media trials on judiciary
Media also pose threats to the judiciary. While exercising freedom of expression and speech, media may be dragged into defaming the judiciary. Framing of headlines in newspapers about the judiciary and its decisions can shape wrong opinions about the judiciary among the common people. That said, it is not to claim that media should not write about the judiciary. But there have been many incidents over the past couple of years where media have contributed to the erosion of faith in the judiciary.
Big media houses and the Apex Court have often entered a situation of clear tussle between the two. The constant power struggle between the then Chief Justice and one of the reputed media houses was clearly observed when the Apex Court ordered the owner of that media house to be present in the court a few years back. There was a case where the Apex Court was attacked by the media. The struggle between media and the courts seems to be going on. 12
In the recent case of House dissolution, questions have been raised about the ethics of judges. All eyes are on the Supreme Court regarding whether the Court will validate or invalidate the decision of the PM to dissolve the House. Questions have been raised about the formation of the Constitutional bench as well. Yes, it is the right of the Chief Justice to choose the members in the Constitutional bench but why did the Chief Justice choose his ‘yes men’ in the Constitutional bench and why were all juniors selected?
Along with the formation of the bench, one of the issues raised by the media was related to the alleged meeting of Apex court judges with the Prime Minister. A few news sources quoted that judges including the current members of the Constitutional bench met the Prime Minister in person and discussed the constitutionality of House dissolution.
In response to the news, the Apex Court’s administration responded with a written press release claiming that this kind of unproven news impacts the image of the judiciary as well as the media’s professionalism. Freedom of speech is widely exercised in a democracy but all, including the media, should use that right wisely. It should be realized that once shattered, it will be hard to restore the image of the judiciary. Let us all think about judicial independence.13
5. Charting the Path Ahead:
Reclaiming judicial independence through meaningful reform requires action across multiple fronts to strengthen both structural and functional aspects of practices. Foremost is reforming the constitutional council, Judicial Council and appointment process to enhance transparency, accountability and ensure appointments are based solely on merit, integrity and competence, not through connections or political favors.
Clear performance benchmarks and accountability mechanisms should guide the elevation of judges to higher courts, as well as the dismissal of those found incompetent or guilty of misconduct. Tenure can be further safeguarded by forming an independent constitutional commission to decide transfers, performance appraisals and benefits rather than leaving them to the whims of the executive.
Parliament needs to allocate adequate budgetary resources for improving court infrastructure, digitization, judge training programs and hiring sufficient qualified court staff at all levels. Members of the judiciary have to be held to the highest ethical standards through internal performance audits, mandatory asset disclosures and enforceable codes of conduct. The Nepal Bar Association plays a vital role as a public watchdog, raising awareness about threats to judicial independence by providing constructive reform proposals.
The declining public trust in judicial independence poses deeply concerning consequences for Nepal’s democracy, constitutional framework, and the rule of law. Despite constitutional safeguards14, in practice, the judiciary continues to be in a position of subordination and vulnerability to indirect control by the executive. With sincere political will and coordinated action on multiple fronts, the ideal of an impartial and fully autonomous judiciary can yet become a reality in Nepal.
But this requires moving from lofty theory to actual practice, beyond elegant words in the constitution towards substantive and systemic reform. All organs of the state, especially the executive, legislatures and judiciary, must see judicial independence not as an abstract principle but as a practical lived reality that is fundamental to delivering justice, upholding democracy and protecting human rights.
Only an empowered judiciary that citizens can trust to act independently of partisan interests can fulfill this solemn constitutional duty. The time for incremental tweaks is over; Nepal needs a comprehensive overhaul before it is too late.
6. Policy for judicial appointments in Nepal:
According to Article 129 (2) of Nepal’s Constitution, the Chief Justice is appointed by the President on the recommendation of the Constitutional Council, and other judges are appointed by the President on the recommendation of the Judicial Council15. Articles 140(1) and 292(1) outline the appointment process for High Court judges and the parliamentary hearing requirement for the Chief Justice and Supreme Court judges16. Article 129(4) specifies a six-year term for the Chief Justice17, while Articles 131(b) and 142(1)(b) set age limits for Supreme Court and High Court judges.18
However, in practice, there has been noticeable political interference in the appointments of the Chief Justice and justices in the Supreme Court, as well as High Court judges.
Former Supreme Court justice, Balaram KC said: “Individuals who have been MPs and ministers from political parties, presidents and officials of the Nepal Bar Association, Attorneys General, professors, individuals who have engaged in other businesses, amassed wealth abroad, or worked in influential law firms, and those who have failed to establish themselves in the legal profession are selectively appointed as judges based on connections, sometimes involving deals worth millions.”
This manipulation undermines the judiciary's role in validating decisions and protecting political power, leading to significant degradation of public trust. The Nepal Bar, acting as a subsidiary of political parties, has further complicated the issue. Political statements, boycotts, and other disruptive actions are pushing Nepal’s judicial system into a critical state. The Judicial Council and other authorities must address these issues to safeguard the integrity of the justice system.
7. International practices of judge appointment:
For democracy to thrive, the judiciary must be independent and free from political influence. International practice shows that 17 countries have established judicial councils to appoint judges. For example, South Africa has formed a Judicial Service Commission with 25 representatives from various regions. This commission advertises vacant positions, conducts shortlisting, holds public interviews, and makes appointments transparently.
To ensure independence and fairness, it is important to include jurists with outstanding contributions in the field of law and justice. This helps prevent political dominance in the council and ensures a majority of legal professionals.
17th-century French philosopher Montesquieu argued that when legislative and executive powers are concentrated in one body, independence cannot be maintained, and when the executive, legislative, and judicial branches are exercised by a single entity, democracy is hindered. This concept has been adopted by many democratic countries.19
Since the constitution itself cannot exercise wisdom and judgment, there needs to be a development of constitutional culture and adherence to constitutional norms. Because the legislature makes laws, the executive may sometimes violate the constitution and laws or infringe upon individual rights. The executive, possessing both weapons and authority, can misuse power, making an independent judiciary necessary to prevent such actions.
Appointing judges by the legislature directly interferes with the principle of separation of powers and checks and balances, placing the judiciary under legislative control. When political representatives select judges, merit becomes irrelevant, which undermines judicial independence. Similarly, judges elected by popular vote must remain loyal to their voters, making impartiality difficult. Even appointments by executive order have not ensured judicial independence.
Therefore, the selection process for judicial officials must emphasize impartiality, independence, fearlessness, and individual qualifications, competence, experience, and conduct. The process and the laws governing appointments are crucial for judicial performance efficiency.
India:
In neighboring countries, although the constitution emphasizes the importance of executive power in the process of judge appointments, the judiciary has prioritized the role of the Chief Justice in these appointments through its interpretations and actions. A collegium of four senior-most justices, led by the Chief Justice, recommends appointments to the President, maintaining independence from the executive. A similar collegium system is followed while appointing judges for the High Court.
Article 124. Establishment and Constitution of Supreme Court
124(2): Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in article 124A and shall hold office until he attains the age of sixty-five years.
Article-217. Appointment and conditions of the office of a Judge of a High Court:
217(1)(a)
a Judge may, by writing under his hand addressed to the President, resign his office.
(b)
A judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court;
(c)
The office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.20
Poland:
Judicial Independence requires protection from changes to the Constitution.
The Constitution of Poland was approved in 1997 and includes a number of Articles safeguarding judicial independence. However, since Poland's Law and Justice Party rose to power in late 2015, the independence of the judiciary has frequently been targeted through amendments by the Party to the Polish laws. The declining state of judicial independence and impartiality in Poland has attracted legal action and funding sanctions by the European Union.
Legal provisions ensured by Poland:
Chapter VIII: Courts and Tribunals
Article 173: The courts and tribunals shall constitute a separate power and shall be independent of other branches of power 21
Article 195 (1): judges of the constitutional tribunal, in their exercise of office, shall be independent and subject only to the constitution. 22
The decline of judicial independence in Poland is a result of several reforms instituted by the Law and Justice Party with the effect of evading checks on the party's power. Some of these reforms include changes to Poland's Constitutional Tribunal, which is the court vested with the power of judicial review. Poland exemplifies that when a Constitution can so easily be overridden, the independence of the Judiciary and the rule of law can come under attack.
Reforms that the party has instituted include:
•Lowering the retirement age of judges from 75 to 60. This enabled the government to replace 40% of the judges on Poland's Supreme Court with their own.
•Enabling judicial appointments to be determined by the National Council of the Judiciary whose members are appointed by the Sejm (the lower house of parliament). This effectively allows the government to control judicial appointments in Poland. 23
•Enacting what is popularly referred to as the 'muzzle law,' which effectively silences judicial officers by threatening disciplinary sanctions. Sanctions include salary cuts or even outright dismissal. By silencing judges, the government ensures they cannot be held accountable for their judicial reforms.
•Refusing to publish judicial outcomes to the public.
•Failing to follow procedural safeguards and due process. This means that public confidence in the Judiciary to produce just and fair outcomes has inevitably decreased.
Afghanistan:
Judicial Independence requires public confidence the collapse of the Taliban regime in 2001, the creation of Afghanistan's 2004 Constitution attempted to establish a system to reverse the deterioration of the country's legal system. Aspirations of the Constitution were great. It aimed to establish a system of separation of powers between the Executive, Legislature, and Judicial branches. In particular, as seen in the box to the right, the Constitution aimed to protect the independence of the Judiciary, such as by safeguarding the appointment of judges.
Key elements of Afghanistan’s constitution of 2004:
Chapter VII: The Judiciary
Article 116: The judiciary shall be an independent organ of the state of the Islamic Republic of Afghanistan. 24
Article 118: Supreme Court members shall have the following qualifications:
118(6): Shall not be a member of any political party during his term of duty. 25
Article 132: Appointment, transfer, promotion, punishment and proposals for retirement of judges, carried out according to provisions of the laws, shall be within the authority of the Supreme Court. 26
Yet, there has been a widening gap between the articles outlined in the Constitution, and the rules in practice for judicial independence in Afghanistan. In essence, Afghanistan's Constitution has largely been ignored and the government has exercised control over the judiciary. Afghanistan exemplifies that while instituting a Constitution is important in ensuring those in power are accountable to the people, a Constitution is powerless if the people do not follow it.
The following points reveal the crumbling state of judicial independence and the rule of law in Afghanistan:
•Parliament modified the constitution to diminish the Supreme Court's jurisdiction to conduct judicial review and to act as a check and balance against other branches.
•The Executive is able to meddle with judicial proceedings and sentences given, even pardoning convicted sexual assault offenders.
•No public respect for, or public confidence in, judicial process.
•Judges are appointed upon political and ideological grounds, principally whether they align with the government's ideals. Therefore, top courts routinely make decisions in favor of the Government.
•Only Taliban-approved lawyers can work in Islamic courts.
•Failure to protect the physical safety of judges. As such, many female judges have been forced into hiding after death threats, following decisions made in cases such as sexual assault, forced them to leave the bench and, in some cases, even Afghanistan entirely.
•Quick criminal trials without due process or procedural safeguards that ensure a fair and just outcome.
Without an independent Judiciary, there is no legal process for individuals in Afghanistan to challenge the actions and decisions of those in Government.
Australia:
Judicial Independence with public confidence is in accord with the Constitution. In Australia's Constitution, which came into effect on 1 January 1901, the Judiciary is independent from the Legislature and Executive. The High Court, the highest court in Australia, has original jurisdiction in constitutional matters, meaning their decisions are final. This is an important check and balance by the Judiciary on the Executive. For Australian States, judges are appointed by the Governor, having been selected by the Cabinet on the advice of the Attorney-General. For High Court judicial appointments, the Commonwealth Attorney-General is required to consult with the Attorney-Generals of the States. 27
There are a number of checks and mechanisms in place to ensure judicial independence in Australia. Some include:
•A Constitution that is followed by the public and those in power. Australia's Constitution is also difficult to change, requiring the people to vote through a referendum by answering 'yes' or 'no' to the proposed change. To succeed, a majority of voters must approve the changes. 28
•The inability of the Executive or Legislature to interfere with the tenure or remuneration of the Judiciary. This ensures that the other branches of government cannot merely dismiss a judge, or reduce a judge's pay, if they do not like a decision they have made.
•Judicial power to review government and administrative action.
•A High Court with the power to review the decisions of the lower courts.
•Competent judges who make decisions according to law and on the evidence, rather than on political, social, or financial factors and pressures.
•Accessibility of the courts to enable citizens to seek fair and just outcomes.
•Open proceedings to safeguard from the abuse of power and to inspire public confidence in the justice system.
•Public confidence and support that ensures court decisions are enforced.
With an independent Judiciary based upon the separation of powers within the Constitution and a supportive and informed community, Australian courts provide a check on the power of the Government and provide an avenue for citizens to be treated equally and fairly under the law.
8. Concepts and Provisions in the Constitution of Nepal:
•Core Principles of Natural Justice
a. Nemo judex in causa sua – No one should be a judge in their own cause:
This ensures impartiality and prohibits bias. A decision-maker must not have a personal interest in the case.
b. Audi alteram partem – Hear the other party:
Everyone has the right to a fair hearing. A person must be given an opportunity to present their case and respond to evidence or accusations against them.
Our constitution has envisaged “an independent, impartial and competent judiciary.”
As per Article 20(6): "No person shall be tried and punished for the same offence in a court more than once." 29
Article 20(9) states that, “Every person shall be entitled to a fair hearing from an impartial, independent and competent court or judicial authority."30 Its implies that no organs of government should influence in its decision making.
The current constitution has clear provisions regarding powers of judiciary. As per article 127 - there are three tiers of court: supreme, high and district courts31. Supreme Court has the final right to interpret the constitution. All the powers to appoint judges in the Supreme Court, high courts and district courts are vested in the JC, while the judicial staffs’ appointment, transfer, and disciplinary actions are under the purview of the judicial service commission. Similarly, the constitution has provided the clear provisions regarding conditions of service and facilities of chief justice and other judges.
9. Conclusion:
The independence of the judiciary in Nepal remains a cornerstone of its democratic structure, enshrined in the Constitution and vital for upholding the rule of law and protecting fundamental rights. While institutional frameworks are in place, practical challenges such as political interference, delayed justice, and questions over transparency continue to test the judiciary's autonomy.
Comparatively, countries like India and the United States have developed stronger traditions of judicial independence through a balance of constitutional safeguards, precedent-setting judgments, and a robust culture of accountability. However, even these systems are not immune to political pressures. In contrast, Nepal’s judiciary, though relatively young in its democratic journey, shows promise through reforms, increased public scrutiny, and civil society advocacy.
To fully realize an independent judiciary, Nepal must continue strengthening legal institutions, ensure merit-based judicial appointments, and promote a culture of integrity and public trust. Lessons from global counterparts show that judicial independence is not a static achievement but a continuous process, requiring vigilance, reform, and an unwavering commitment to democratic principles.
The judiciary plays a vital role in ensuring justice, democracy, and the rule of law in Nepal. In every democratic state, the Judiciary is the last resort for safeguarding people’s rights. It facilitates political stability and fairness for the development of a healthy and sound economy. According to the Constitution of Nepal, it is responsible for keeping all organs of the state within legal limits and protecting the rights of the people. However, Nepal’s judiciary still faces challenges such as political influence, lack of transparency in appointments, and weak accountability. For a judiciary to be truly independent, it must be free from pressure by the executive and legislative branches. Countries like Afghanistan, Australia, Canada, Germany, and the UK have strong judicial systems where judges are appointed based on merit, and courts are protected from political interference. Nepal can learn from these practices to improve its own system. By making the judiciary more transparent, accountable, and well-resourced, Nepal can ensure justice is delivered fairly and protect democratic values. Judicial independence must not just exist in theory, but be visible in everyday practice.
1. Background
Judicial independence is a fundamental principle of the rule of law. The existence of a competent and independent judiciary is widely considered essential for any nation that seeks to safeguard democracy, uphold the rule of law, and protect the fundamental rights of its citizens. The United Nations Basic Principles on the Independence of the Judiciary provide that it is the duty of all governmental and other institutions to respect and observe
the independence of the judiciary. An independent judiciary is a sine qua non for any democratic nation that aspires to ensure the rights and freedoms of its people.
The Constitution of Nepal has envisioned three separate organs of government: the legislative, the executive, and the judiciary. These organs are meant to function independently, free from interference from each other.
Although the legislative and executive branches are naturally political in nature, the judiciary is meant to remain impartial and free from political influence in order to maintain its credibility and ensure fair practices. However, in practice,
As per article 284, the Constitutional Council (Prime Minister, Chief Justice, Speaker, Deputy Speaker and Speaker of the Upper House) recommends the appointment of the Chief Justice, heads of constitutional bodies and officers according to the constitution, the appointment of the leader of the opposition party and the Chief Justice. There will be a Constitutional Council of 6 members up to the Minister of Law.1 When the council recommended, there was trust and confidence in the public mind that there would be the appointment of a famous person from the respective field who had made an incomparable contribution to the national life, but there was a game of badness in it.
Sometimes a meeting is held without giving 48 hours’ notice to the leader of the opposition party, the court has to interfere with it. Sometimes the parliament is tricked many times into appoint its own people and an ordinance has to be brought with malice to reach the quorum if 3 people are present and the justification of the writ against it ends, even the constitutional bench has declared the case. Failure to do so is a great mockery of democracy and an independent judiciary. Therefore, no matter how many responsible officials of the state were in the constitutional council, the constitutional ethics continued to be mocked. It seems inevitable to amend or amend the constitution by removing the Speaker, Deputy Speaker and Speaker of the National Assembly from the Constitutional Council, as they are responsible for the rule of law and the rule of law in any work.
As per Article 153, Judicial Council: There is a constitutional provision for the Judicial Council to recommend or consult on the appointment, transfer, disciplinary action, dismissal and other matters related to the administration of justice. In the formation of the Judicial Council, there is a system of 5 members consisting of the Chief Justice, the most senior judge of the Supreme Court, a jurist on the recommendation of the Prime Minister, and a senior advocate on the recommendation of the Nepal Bar Association2. In order to create an independent judiciary, the Judicial Council must also remain independent. The current Judicial Council itself, which appoints judges, appears to have an executive majority. If there is no majority of the judiciary in the formation of an independent judiciary, there is a danger of political interference. The influence of the executive in the appointment of judges in the past. The Justice Council could not remain untouched by this.
This politicization of judicial appointments has raised significant concerns about the competency, impartiality, and integrity of the judiciary. Many court verdicts in Nepal seem to be influenced by political pressures, undermining the judiciary's credibility and diminishing public faith.
In media interviews, Shree Krishna Bhatarai, former district Judge stated, “The independence of the judiciary has been declining due to increasing political interference, preventing eligible judges from becoming Chief Justice."3
Political parties appoint their desired candidates as judges to serve their interests, and they resort to impeachment if any hurdles arise. This trend has recently been on the rise, undermining the principles of constitutionalism and judicial independence.”
2. When did the judiciary start experiencing political intrusion?
Advocate Dr. Chandra Kant Gyawali filed a writ against Khil Raj Regmi, referring to the event on 1st Chaitra, 2069, when Chief Justice Khil Raj Regmi was appointed Chairman of the Council of Ministers without resigning from his position as Chief Justice.4 This move laid the foundation for the political exploitation of the judiciary.
According to some legal scholars, political interference in Nepal’s judiciary began as early as 2047 BS. However, such interference increased significantly, culminating in Regmi’s appointment as both the head of the executive and the judiciary. Some analysts believe that this appointment fostered a tendency among judges to seek political advantage.
Chief Justices after Regmi have faced various controversies. Damodar Prasad Sharma, who served as acting Chief Justice after Regmi, presided over a period seen as favorable to middlemen and corrupt practices. He was criticized for appointing his nephew as a judge in the then-Appeals Court, promoting factionalism in the Supreme Court, and failing to confirm capable judges, leading to their retirement. His successor, Ram Kumar Prasad Shah, tried to introduce reforms but was also surrounded by controversy. Kalyan Shrestha, who followed Shah, faced similar challenges.
The first female Chief Justice, Sushila Karki, faced impeachment over a dispute regarding the appointment of the police chief.5 Although the impeachment was later withdrawn, this incident set a precedent for using impeachment as a tool against non-compliant judges.
And another controversial case of former chief justice Cholendra Shamsher JB Rana in judicial history.
Nepal Bar Association former President Gopal Krishna Ghimire said that "even though Rana’s tenure is over, a clear message should be sent in public so that these incidents will not happen again." 6
Cholendra Shamsher Rana’s first year in office was not controversial. Even though some decisions were made, they never surfaced, which gave him the confidence to do as he pleased. Sources at the apex court say that Rana always kept a keen eye on issues related to tax disputes, corruption charges and major financial disputes. In the impeachment motion pending in the House of Representatives, he is even accused of intervening in a case involving his brother Prabhu Shamsher Rana and other relatives.
Even in cases ranging from electricity regulation licenses to fake VAT bills, Rana formed benches on his own in a bid to make favorable judgments.7 He even intervened in a case pending in the special court. Supreme Court had ordered Ncell to pay Rs 38 billion in capital gains tax to the government. But, Rana and his bench of justices offered Ncell a heavy discount as it only had to pay Rs 21 billion.
During his tenure, Cholendra Shamsher Rana was also accused of pressuring a district judge to release a rape accused. Interestingly, the judge who gave such an order was later promoted to the High Court.
One of the most serious accusations against Cholendra Shamsher Rana is that he took advantage of his position and bargained with the government and wanted his share in the appointment of high-ranking government officials. When KP Oli was in power, Rana took a lot of benefits from him, as he even got a share in the constitutional body.
A former attorney general says that Rana asked for a share in the appointment of ambassadors. But Oli refused. It was after that incident that Rana started to issue interim orders on cases that would be bad for Oli and his aides.
“The orders given out by Rana during that time were very unnatural,” said the former attorney general.
During his defense against the impeachment motion, Cholendra Shamsher JB Rana revealed he tried to help the Prime Minister KP Oli in dissolving the House of Representatives both times. But other justices did not help him. He stated that he asked Oli to impeach the other four judges as well. 8
After the House of Representatives was restored, Nepali Congress president Sher Bahadur Deuba became the prime minister. Rana played an important role in reinstating the House. And in return for that, his relative Gajendra Hamal became a minister. But Hamal had to resign after the news got out of Rana’s involvement.9
The structure of the Judicial Council, changed through the interim constitution after the second people’s movement of 2063 BS, heightened political interference. The new system included only the Chief Justice and the senior-most justice from the Supreme Court, with three additional members: the Minister of Law, a lawyer sent by the Prime Minister, and another lawyer recommended by the Nepal Bar Association. This made it easier for politically affiliated lawyers to join the council.
This structure led to a high level of political quota distribution in judge appointments in 2070 and 2071 BS. In 2070 BS, 15 newly appointed Appellate Court judges visited the UML party office to express their gratitude on the same day they took their oaths of impartiality and independence and then the UML, which facilitated political intrusion into the judiciary, is trying to distance itself from the issue.10
In the midst of widespread controversy and disorder, some interpret the political manipulation of the judiciary as a crisis of the system itself. As major political leaders began using the judiciary to shield themselves and their associates from legal issues and irregularities, public trust in the institution has steadily eroded. Frequent political meddling with the judiciary during the implementation phase of the constitution could undermine confidence in the constitution itself. Therefore, political parties must be cautious, as such interference affects not just individuals but the entire judicial system.
3. Justice is being buried in Nepal. Let’s save it
The judiciary, “which was not constitutionally independent but was independent in practice during the Panchayat system, and which is constitutionally independent today but not independent in practice,” has rapidly turned into an instrument of privilege rather than a guardian of the people's trust. “Justice is dying in Nepal. This is substantiated by various reports prepared by the very justices of the Supreme Court and verdicts on several cases. Today, we have justices who prevent the filing of a case against former PM Madhav Kumar Nepal, who is implicated by the police in the infamous Lalita Niwas land grab case. We have judges who quashed the writ petition against Lila Ballabh Adhikari, the former Koshi Province Minister accused of attempting to traffic Nepalis to Japan. We have judges who validated the then-Oli government’s controversial decision to make 52 appointments to various constitutional bodies by postponing hearings on the writ petitions filed against those appointments. We have judges who quash the petition against the donation of land worth millions of rupees by controversial businessmen to the parties in power. And we have judges who keep postponing the hearing on cases against powerful politicians." 11
4. The challenges of the judiciary in Nepal:
Nepal's judiciary faces significant challenges that hinder its effectiveness and public trust. The system is burdened with a substantial case backlog, with over 150,000 pending cases nationwide, leading to delayed justice and diminished public confidence. Political interference in judicial appointments and promotions compromises the independence and impartiality of the judiciary, as positions are often filled based on political affiliations rather than merit. Corruption within the judiciary, including bribery and favouritism, further erodes public trust and undermines the rule of law. Inadequate infrastructure and resources, such as outdated facilities and insufficient budgets, impede the efficient functioning of courts. Additionally, limited access to justice in rural areas due to geographical and financial barriers exacerbates the disparity in legal services. Addressing these issues requires comprehensive reforms, including merit-based judicial appointments, anti-corruption measures, infrastructure development, and improved access to justice for all citizens.
4.1. Impacts of media trials on judiciary
Media also pose threats to the judiciary. While exercising freedom of expression and speech, media may be dragged into defaming the judiciary. Framing of headlines in newspapers about the judiciary and its decisions can shape wrong opinions about the judiciary among the common people. That said, it is not to claim that media should not write about the judiciary. But there have been many incidents over the past couple of years where media have contributed to the erosion of faith in the judiciary.
Big media houses and the Apex Court have often entered a situation of clear tussle between the two. The constant power struggle between the then Chief Justice and one of the reputed media houses was clearly observed when the Apex Court ordered the owner of that media house to be present in the court a few years back. There was a case where the Apex Court was attacked by the media. The struggle between media and the courts seems to be going on. 12
In the recent case of House dissolution, questions have been raised about the ethics of judges. All eyes are on the Supreme Court regarding whether the Court will validate or invalidate the decision of the PM to dissolve the House. Questions have been raised about the formation of the Constitutional bench as well. Yes, it is the right of the Chief Justice to choose the members in the Constitutional bench but why did the Chief Justice choose his ‘yes men’ in the Constitutional bench and why were all juniors selected?
Along with the formation of the bench, one of the issues raised by the media was related to the alleged meeting of Apex court judges with the Prime Minister. A few news sources quoted that judges including the current members of the Constitutional bench met the Prime Minister in person and discussed the constitutionality of House dissolution.
In response to the news, the Apex Court’s administration responded with a written press release claiming that this kind of unproven news impacts the image of the judiciary as well as the media’s professionalism. Freedom of speech is widely exercised in a democracy but all, including the media, should use that right wisely. It should be realized that once shattered, it will be hard to restore the image of the judiciary. Let us all think about judicial independence.13
5. Charting the Path Ahead:
Reclaiming judicial independence through meaningful reform requires action across multiple fronts to strengthen both structural and functional aspects of practices. Foremost is reforming the constitutional council, Judicial Council and appointment process to enhance transparency, accountability and ensure appointments are based solely on merit, integrity and competence, not through connections or political favors.
Clear performance benchmarks and accountability mechanisms should guide the elevation of judges to higher courts, as well as the dismissal of those found incompetent or guilty of misconduct. Tenure can be further safeguarded by forming an independent constitutional commission to decide transfers, performance appraisals and benefits rather than leaving them to the whims of the executive.
Parliament needs to allocate adequate budgetary resources for improving court infrastructure, digitization, judge training programs and hiring sufficient qualified court staff at all levels. Members of the judiciary have to be held to the highest ethical standards through internal performance audits, mandatory asset disclosures and enforceable codes of conduct. The Nepal Bar Association plays a vital role as a public watchdog, raising awareness about threats to judicial independence by providing constructive reform proposals.
The declining public trust in judicial independence poses deeply concerning consequences for Nepal’s democracy, constitutional framework, and the rule of law. Despite constitutional safeguards14, in practice, the judiciary continues to be in a position of subordination and vulnerability to indirect control by the executive. With sincere political will and coordinated action on multiple fronts, the ideal of an impartial and fully autonomous judiciary can yet become a reality in Nepal.
But this requires moving from lofty theory to actual practice, beyond elegant words in the constitution towards substantive and systemic reform. All organs of the state, especially the executive, legislatures and judiciary, must see judicial independence not as an abstract principle but as a practical lived reality that is fundamental to delivering justice, upholding democracy and protecting human rights.
Only an empowered judiciary that citizens can trust to act independently of partisan interests can fulfill this solemn constitutional duty. The time for incremental tweaks is over; Nepal needs a comprehensive overhaul before it is too late.
6. Policy for judicial appointments in Nepal:
According to Article 129 (2) of Nepal’s Constitution, the Chief Justice is appointed by the President on the recommendation of the Constitutional Council, and other judges are appointed by the President on the recommendation of the Judicial Council15. Articles 140(1) and 292(1) outline the appointment process for High Court judges and the parliamentary hearing requirement for the Chief Justice and Supreme Court judges16. Article 129(4) specifies a six-year term for the Chief Justice17, while Articles 131(b) and 142(1)(b) set age limits for Supreme Court and High Court judges.18
However, in practice, there has been noticeable political interference in the appointments of the Chief Justice and justices in the Supreme Court, as well as High Court judges.
Former Supreme Court justice, Balaram KC said: “Individuals who have been MPs and ministers from political parties, presidents and officials of the Nepal Bar Association, Attorneys General, professors, individuals who have engaged in other businesses, amassed wealth abroad, or worked in influential law firms, and those who have failed to establish themselves in the legal profession are selectively appointed as judges based on connections, sometimes involving deals worth millions.”
This manipulation undermines the judiciary's role in validating decisions and protecting political power, leading to significant degradation of public trust. The Nepal Bar, acting as a subsidiary of political parties, has further complicated the issue. Political statements, boycotts, and other disruptive actions are pushing Nepal’s judicial system into a critical state. The Judicial Council and other authorities must address these issues to safeguard the integrity of the justice system.
7. International practices of judge appointment:
For democracy to thrive, the judiciary must be independent and free from political influence. International practice shows that 17 countries have established judicial councils to appoint judges. For example, South Africa has formed a Judicial Service Commission with 25 representatives from various regions. This commission advertises vacant positions, conducts shortlisting, holds public interviews, and makes appointments transparently.
To ensure independence and fairness, it is important to include jurists with outstanding contributions in the field of law and justice. This helps prevent political dominance in the council and ensures a majority of legal professionals.
17th-century French philosopher Montesquieu argued that when legislative and executive powers are concentrated in one body, independence cannot be maintained, and when the executive, legislative, and judicial branches are exercised by a single entity, democracy is hindered. This concept has been adopted by many democratic countries.19
Since the constitution itself cannot exercise wisdom and judgment, there needs to be a development of constitutional culture and adherence to constitutional norms. Because the legislature makes laws, the executive may sometimes violate the constitution and laws or infringe upon individual rights. The executive, possessing both weapons and authority, can misuse power, making an independent judiciary necessary to prevent such actions.
Appointing judges by the legislature directly interferes with the principle of separation of powers and checks and balances, placing the judiciary under legislative control. When political representatives select judges, merit becomes irrelevant, which undermines judicial independence. Similarly, judges elected by popular vote must remain loyal to their voters, making impartiality difficult. Even appointments by executive order have not ensured judicial independence.
Therefore, the selection process for judicial officials must emphasize impartiality, independence, fearlessness, and individual qualifications, competence, experience, and conduct. The process and the laws governing appointments are crucial for judicial performance efficiency.
India:
In neighboring countries, although the constitution emphasizes the importance of executive power in the process of judge appointments, the judiciary has prioritized the role of the Chief Justice in these appointments through its interpretations and actions. A collegium of four senior-most justices, led by the Chief Justice, recommends appointments to the President, maintaining independence from the executive. A similar collegium system is followed while appointing judges for the High Court.
Article 124. Establishment and Constitution of Supreme Court
124(2): Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred to in article 124A and shall hold office until he attains the age of sixty-five years.
Article-217. Appointment and conditions of the office of a Judge of a High Court:
217(1)(a)
a Judge may, by writing under his hand addressed to the President, resign his office.
(b)
A judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court;
(c)
The office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.20
Poland:
Judicial Independence requires protection from changes to the Constitution.
The Constitution of Poland was approved in 1997 and includes a number of Articles safeguarding judicial independence. However, since Poland's Law and Justice Party rose to power in late 2015, the independence of the judiciary has frequently been targeted through amendments by the Party to the Polish laws. The declining state of judicial independence and impartiality in Poland has attracted legal action and funding sanctions by the European Union.
Legal provisions ensured by Poland:
Chapter VIII: Courts and Tribunals
Article 173: The courts and tribunals shall constitute a separate power and shall be independent of other branches of power 21
Article 195 (1): judges of the constitutional tribunal, in their exercise of office, shall be independent and subject only to the constitution. 22
The decline of judicial independence in Poland is a result of several reforms instituted by the Law and Justice Party with the effect of evading checks on the party's power. Some of these reforms include changes to Poland's Constitutional Tribunal, which is the court vested with the power of judicial review. Poland exemplifies that when a Constitution can so easily be overridden, the independence of the Judiciary and the rule of law can come under attack.
Reforms that the party has instituted include:
•Lowering the retirement age of judges from 75 to 60. This enabled the government to replace 40% of the judges on Poland's Supreme Court with their own.
•Enabling judicial appointments to be determined by the National Council of the Judiciary whose members are appointed by the Sejm (the lower house of parliament). This effectively allows the government to control judicial appointments in Poland. 23
•Enacting what is popularly referred to as the 'muzzle law,' which effectively silences judicial officers by threatening disciplinary sanctions. Sanctions include salary cuts or even outright dismissal. By silencing judges, the government ensures they cannot be held accountable for their judicial reforms.
•Refusing to publish judicial outcomes to the public.
•Failing to follow procedural safeguards and due process. This means that public confidence in the Judiciary to produce just and fair outcomes has inevitably decreased.
Afghanistan:
Judicial Independence requires public confidence the collapse of the Taliban regime in 2001, the creation of Afghanistan's 2004 Constitution attempted to establish a system to reverse the deterioration of the country's legal system. Aspirations of the Constitution were great. It aimed to establish a system of separation of powers between the Executive, Legislature, and Judicial branches. In particular, as seen in the box to the right, the Constitution aimed to protect the independence of the Judiciary, such as by safeguarding the appointment of judges.
Key elements of Afghanistan’s constitution of 2004:
Chapter VII: The Judiciary
Article 116: The judiciary shall be an independent organ of the state of the Islamic Republic of Afghanistan. 24
Article 118: Supreme Court members shall have the following qualifications:
118(6): Shall not be a member of any political party during his term of duty. 25
Article 132: Appointment, transfer, promotion, punishment and proposals for retirement of judges, carried out according to provisions of the laws, shall be within the authority of the Supreme Court. 26
Yet, there has been a widening gap between the articles outlined in the Constitution, and the rules in practice for judicial independence in Afghanistan. In essence, Afghanistan's Constitution has largely been ignored and the government has exercised control over the judiciary. Afghanistan exemplifies that while instituting a Constitution is important in ensuring those in power are accountable to the people, a Constitution is powerless if the people do not follow it.
The following points reveal the crumbling state of judicial independence and the rule of law in Afghanistan:
•Parliament modified the constitution to diminish the Supreme Court's jurisdiction to conduct judicial review and to act as a check and balance against other branches.
•The Executive is able to meddle with judicial proceedings and sentences given, even pardoning convicted sexual assault offenders.
•No public respect for, or public confidence in, judicial process.
•Judges are appointed upon political and ideological grounds, principally whether they align with the government's ideals. Therefore, top courts routinely make decisions in favor of the Government.
•Only Taliban-approved lawyers can work in Islamic courts.
•Failure to protect the physical safety of judges. As such, many female judges have been forced into hiding after death threats, following decisions made in cases such as sexual assault, forced them to leave the bench and, in some cases, even Afghanistan entirely.
•Quick criminal trials without due process or procedural safeguards that ensure a fair and just outcome.
Without an independent Judiciary, there is no legal process for individuals in Afghanistan to challenge the actions and decisions of those in Government.
Australia:
Judicial Independence with public confidence is in accord with the Constitution. In Australia's Constitution, which came into effect on 1 January 1901, the Judiciary is independent from the Legislature and Executive. The High Court, the highest court in Australia, has original jurisdiction in constitutional matters, meaning their decisions are final. This is an important check and balance by the Judiciary on the Executive. For Australian States, judges are appointed by the Governor, having been selected by the Cabinet on the advice of the Attorney-General. For High Court judicial appointments, the Commonwealth Attorney-General is required to consult with the Attorney-Generals of the States. 27
There are a number of checks and mechanisms in place to ensure judicial independence in Australia. Some include:
•A Constitution that is followed by the public and those in power. Australia's Constitution is also difficult to change, requiring the people to vote through a referendum by answering 'yes' or 'no' to the proposed change. To succeed, a majority of voters must approve the changes. 28
•The inability of the Executive or Legislature to interfere with the tenure or remuneration of the Judiciary. This ensures that the other branches of government cannot merely dismiss a judge, or reduce a judge's pay, if they do not like a decision they have made.
•Judicial power to review government and administrative action.
•A High Court with the power to review the decisions of the lower courts.
•Competent judges who make decisions according to law and on the evidence, rather than on political, social, or financial factors and pressures.
•Accessibility of the courts to enable citizens to seek fair and just outcomes.
•Open proceedings to safeguard from the abuse of power and to inspire public confidence in the justice system.
•Public confidence and support that ensures court decisions are enforced.
With an independent Judiciary based upon the separation of powers within the Constitution and a supportive and informed community, Australian courts provide a check on the power of the Government and provide an avenue for citizens to be treated equally and fairly under the law.
8. Concepts and Provisions in the Constitution of Nepal:
•Core Principles of Natural Justice
a. Nemo judex in causa sua – No one should be a judge in their own cause:
This ensures impartiality and prohibits bias. A decision-maker must not have a personal interest in the case.
b. Audi alteram partem – Hear the other party:
Everyone has the right to a fair hearing. A person must be given an opportunity to present their case and respond to evidence or accusations against them.
Our constitution has envisaged “an independent, impartial and competent judiciary.”
As per Article 20(6): "No person shall be tried and punished for the same offence in a court more than once." 29
Article 20(9) states that, “Every person shall be entitled to a fair hearing from an impartial, independent and competent court or judicial authority."30 Its implies that no organs of government should influence in its decision making.
The current constitution has clear provisions regarding powers of judiciary. As per article 127 - there are three tiers of court: supreme, high and district courts31. Supreme Court has the final right to interpret the constitution. All the powers to appoint judges in the Supreme Court, high courts and district courts are vested in the JC, while the judicial staffs’ appointment, transfer, and disciplinary actions are under the purview of the judicial service commission. Similarly, the constitution has provided the clear provisions regarding conditions of service and facilities of chief justice and other judges.
9. Conclusion:
The independence of the judiciary in Nepal remains a cornerstone of its democratic structure, enshrined in the Constitution and vital for upholding the rule of law and protecting fundamental rights. While institutional frameworks are in place, practical challenges such as political interference, delayed justice, and questions over transparency continue to test the judiciary's autonomy.
Comparatively, countries like India and the United States have developed stronger traditions of judicial independence through a balance of constitutional safeguards, precedent-setting judgments, and a robust culture of accountability. However, even these systems are not immune to political pressures. In contrast, Nepal’s judiciary, though relatively young in its democratic journey, shows promise through reforms, increased public scrutiny, and civil society advocacy.
To fully realize an independent judiciary, Nepal must continue strengthening legal institutions, ensure merit-based judicial appointments, and promote a culture of integrity and public trust. Lessons from global counterparts show that judicial independence is not a static achievement but a continuous process, requiring vigilance, reform, and an unwavering commitment to democratic principles.
References
[7]
https://kathmandupost.com/national/2022/04/25/new-case-on-fake-vat-receipts-filed-at-patan-high-court
[8]
https://kathmandupost.com/national/2022/02/13/impeachment-motion-filed-against-chief-justice-rana
[11]
https://www.myrepublica.nagariknetwork.com/news/justice-is-dying-in-nepal-lets-save-it-678cc7177dd34.html
[23]
https://constitutionnet.org/news/voices/restoring-integrity-poland-judicial-appointments-venice-commission
About the Authors
Chand Kumar Chaurasiya
I am BALLB student at National Law College, with a keen interest in constitutional law and social justice. My academic interests lie in legal research, rights-based advocacy, and transformative legal reform aimed at empowering marginalized communities.
View all posts by Chand Kumar Chaurasiya