The Nepal Supreme Court is in crisis. Since the last week of October, most of its judges have been boycotting hearings.
The judges are demanding the resignation of Nepal’s Chief Justice Cholendra Shumsher Rana, who is alleged to have connections with the executive, posing a conflict of interest. As a consequence, Rana is accused of allocating cases only to particular benches and not listing important political matters.
Under pressure, the chief justice has agreed to change the way judges are assigned cases – from a system completely under the chief justice’s control to a lottery system, by which cases would be assigned to judges randomly.
India is not a stranger to accusations of this sort. Similar allegations have often been levelled against India’s chief justices – who, like their counterparts in Nepal, have the power to decide the allocation of cases. Unlike in Nepal, though, no solutions have been proposed.
Conflict of interest
Across the border, various Supreme Court judges and lawyers, including the Nepal Bar Association and the Supreme Court Bar Association, have alleged mismanagement of the court under Rana’s tenure, which started in January 2019. He has been accused of corruption, receiving kickbacks for appointments, not filling vacant judge posts and delaying hearings in matters relating to the government.
Rana is also accused of misusing his powers as master of the roster, under which a chief justice decides the cases a judge would preside over. Allegations exist of him allocating particular cases to benches headed by him.
In October, there were reports that Rana passed a favourable order for the government to get his brother-in-law, Gajendra Hamal, appointed to the cabinet. Hamal resigned two days after his appointment amidst severe criticisms. While Rana had been criticised earlier, the pressure on him increased after Hamal’s appointment.
In the last week of October, 18 out of 19 judges at the Nepal Supreme court went on a strike, asking Rana to step down. They stopped hearing cases, with the exception of habeas corpus petitions and cases where the parties themselves had reached a compromise. Lawyers of the Nepal Bar Association have also organised sit-ins since November 20.
Rana has refused to resign, arguing that since he was appointed using a constitutional process, he could be removed by one as well – that is, through an impeachment.
Master of roster to lottery
In July, a committee led by Nepal Supreme Court Judge Hari Krishna Karki had pointed to allegations of “bench shopping” at the court, referring to plaintiffs getting favourable benches.
As a solution, there were calls to remove the master of roster powers of the chief justice and instead have a system of drawing lots. This would ensure that there is no interference with which judge is hearing a particular case. In August, Rana had promised to implement this, but eventually did not. On November 16, Rana reiterated that he is ready to implement these changes.
On November 18, all 18 Supreme Court judges who had boycotted hearings, passed a resolution for the use of a lottery system for the assignment of cases.
On Monday, an amendment to the Supreme Court rules was published in the government’s official gazette, which prescribes a lot-drawing process to take away the chief justice’s powers to decide the cases. Now the judges will determine the date of implementation.
Making peace
Once implemented, constitutional cases will be heard by a five-judge bench comprising the chief justice and four senior-most judges, while for all other cases there will be a lottery system.
“This is done to win the public trust and to ensure to be seen benches and cases are allocated with fairness until fully automated system is not introduced,” Hari Phuyal, a Nepal Supreme Court judge told Scroll.in. He explained that they eventually plan to have this lottery system through a fully computerised process with almost no human interference. “We are departing from a traditional common law chief justice privilege. This will be very interesting to India and other South Asian countries.”
While this does not tackle all the allegations against Rana, it is a step towards solving the current impasse. Four judges have already returned to work – though they have refused to sit on a bench with the chief justice. Meanwhile, the Nepal Bar Association has submitted a memorandum to political parties and the Speaker of Nepal’s House of Representatives, asking them to get involved and impeach the chief justice.
Parallels with India
Concerns, similar to those against Rana, have been raised in India about the unchecked powers of the chief justice of India in assigning cases. Allegations of misuse of the powers of master of roster even involve accusations that judges have assigned cases to themselves which involve their own interests: a clear violation of the norms of justice.
In January 2018, in an unprecedented move, the four senior-most judges at the Indian Supreme Court held a press conference citing their concerns, amongst other things, the way the chief justice was exercising his powers as master of the roster. In a letter to the chief justice, they alleged: “There have been instances where case having far-reaching consequences for the Nation and the institution have been assigned by the Chief Justices of this Court selectively to the benches ‘of their preference’ without any rational basis for such assignment.”
Just a few months before this in November 2017, Dipak Misra, then the chief justice, had decided in a five-judge bench that the chief justice “alone has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted”. He added, “No judge can take up the matter on this own, unless allocated by the Chief Justice of India.”
In effect, Misra had underlined that the chief justice’s power as master of roster was absolute – even if there was a conflict of interest.
‘A pattern of favouritism’
This pronouncement came against the backdrop of Jasti Chelameswar, the senior-most judge at the court then, assigning a matter to a bench led by Misra and four senior-most judges. The matters were about allegations of bribery for favourable outcomes for two petitions before the Supreme Court – petitions decided earlier by benches which Misra headed.
Misra, before the next date of hearing which Chelameswar had set, transferred the case to a completely different five-judge bench headed by him. He then heard the case and disposed of it in one day.
In April 2018, Shanti Bhushan, a former law minister had filed a petition against the chief justice enjoying “unbridled and unguided discretion” in assigning cases. He also added that the way the chief justice and the registry assigned cases points to “a pattern of favouritism, nepotism and forum shopping”. Like in Rana’s case, there were calls to impeach Misra as well. However, the motion to impeach him was rejected by the Rajya Sabha speaker.
Judging one’s own case
The next Chief Justice of India Ranjan Gogoi was also involved in controversies over his powers as master of the roster. In 2019, he presided over a sexual harassment case where he was the accused – with the final order eventually exonerating him. Former Supreme Court Judge N Santosh Hedge told Outlook: “As Chief Justice of India can he sit in the bench and hear his own case? It’s wholly wrong both legally and morally.”
The powers of the chief justice have been criticised in other instances as well since there is no accountability on how the cases are listed and who hears them. During the judges’ press conference, for example, Gogoi alleged that there was such a misuse in constituting the bench looking into Judge BH Loya’s death in December 2014. Loya was a CBI court judge who died while he was hearing the matter related to an encounter case involving Amit Shah, the present home minister.
Lawyers have also questioned the “odd pattern of listing cases” given that politically sensitive matters such as the legality of demonetisation, electoral bonds, amongst many others, have not been taken up in years.
