The Chief Justice: Guardian of Justice
Published: 11:07 am Aug 19, 2026
The Constitution, the judiciary and the law together shape the path of justice, its interpretation and its precedents. Debate about Nepal's judiciary is not only legitimate; it is essential to a healthy democracy. Courts must be open to scrutiny, judicial decisions must remain subject to rigorous legal debate, and the administration of justice must continually evolve. The Nepal Bar Association has every right-and indeed a responsibility-to demand greater transparency, accountability and institutional reform. Yet the purpose of such debate should never be to diminish an individual. It should be to strengthen the institution. The Supreme Court is the final interpreter of Nepal's Constitution and one of the principal guardians of the constitutional rights of its citizens. For that reason, any debate about its dignity, independence and authority must be conducted with responsibility, restraint and fidelity to constitutional principles. The Nepal Bar Association is justified in seeking clear standards, transparency and consistency in the formation of Constitutional Benches. The Bar is an indispensable partner of the Bench, but its responsibility does not end with questioning the judiciary; it must also defend judicial independence with equal conviction. Where there is credible evidence of wrongdoing by a judge or a Chief Justice, it should be raised fearlessly and addressed through constitutional and legal mechanisms. But the lawful authority of a judge who has assumed office through a constitutional process should not be weakened merely because of suspicion, disagreement or political preference. There is a profound difference between the abuse of power and the legitimate exercise of power, and a mature democracy must be capable of recognising that distinction. The Constitution does not regard the Chief Justice merely as another judge of the Supreme Court. Article 136 entrusts the Chief Justice with the ultimate responsibility of making the administration of justice effective, while Article 137 provides for the Constitutional Bench, comprising the Chief Justice and four other justices designated by the Chief Justice on the recommendation of the Judicial Council. The issue, therefore, should not be whether the Chief Justice is permitted to exercise constitutional authority, but whether that authority is exercised fairly, transparently, responsibly and in the institutional interest of the judiciary. If there is evidence of abuse, there must be an appropriate constitutional and legal remedy. But the existence of constitutional authority cannot itself be treated as evidence of wrongdoing. A judiciary entrusted with the final interpretation of the Constitution requires effective institutional leadership. If the Constitution assigns the Chief Justice responsibility for the administration of justice, the office must necessarily possess sufficient administrative authority to discharge that responsibility. Giving responsibility without the corresponding capacity to lead would make effective judicial administration impossible. The real objective should therefore be to ensure that such authority is exercised through transparent principles, institutional safeguards and public accountability-not to eliminate legitimate leadership authority altogether. International practice offers useful lessons. In India, the Supreme Court has recognised the Chief Justice's role as the 'Master of the Roster,' reflecting the administrative responsibility to assign matters to benches and organise the judicial workload. This does not place the Chief Justice judicially above other judges; rather, it reflects the principle that the Chief Justice is first among equals. Administrative authority over the roster is fundamentally different from control over judicial decisions. A Chief Justice may determine the institutional composition of a bench within the applicable framework, but the judges who sit on that bench remain independently responsible for their judicial conclusions. Canada offers a similar lesson. The Chief Justice of the Supreme Court of Canada has an institutional role in assigning judges to hear matters, yet Canada remains one of the world's strongest examples of judicial independence. The mere existence of administrative authority in the office of Chief Justice therefore cannot reasonably be equated with interference in judicial independence. The important question is not whether such authority exists, but whether it is exercised according to transparent, principled and institutionally defensible standards. The United States provides another important constitutional example. Supreme Court justices are nominated by the President and confirmed by the Senate, while federal judges receive constitutional protection under Article III and serve during good Behaviour. Governments and political majorities change, but judges are not removed simply because their decisions are politically inconvenient. That institutional security is one of the foundations of judicial independence. The American system also demonstrates that seniority is not necessarily the only route to judicial leadership: the Chief Justice can be appointed directly to that position, subject to constitutional procedures, without having previously served as an Associate Justice. The broader lesson for Nepal is not that any foreign model should be copied mechanically, but that constitutional democracies balance experience, competence, institutional leadership and judicial independence through different lawful arrangements. Seniority is valuable, experience matters, and qualifications are indispensable, but none should be allowed to override constitutional procedure. Nor should the lottery system automatically be regarded as the absolute definition of impartiality. Random selection can determine which judge sits on a bench, but randomness cannot assess judicial expertise, the nature and complexity of a case, workload, potential conflicts of interest or the constitutional significance of a dispute. A Constitutional Bench may be required to decide questions involving federalism, fundamental rights, elections, constitutional appointments, Parliament, the executive and the separation of powers. Such cases demand impartiality, but they also demand institutional judgment. The debate, therefore, should not be reduced to a simplistic choice between the discretion of the Chief Justice and a lottery system. The real question is how constitutional authority can be made transparent, accountable and institutionally responsible while preserving the independence of every judge. The Supreme Court can address this by making the principles governing rosters and bench formation clearer, strengthening conflict-of-interest safeguards, improving transparency in administrative decisions and taking into account the nature of cases, judicial expertise, workload and institutional requirements. Such reforms would not weaken the constitutional authority of the Chief Justice; they would give that authority greater legitimacy by placing its exercise within a clear and publicly defensible institutional framework. But Nepal must ask an even more fundamental question: when does justice actually reach the citizen? For an ordinary Nepali, the most serious problem is not merely which judge sits on which bench. It is the fact that cases can continue for years, hearings can be repeatedly postponed, judgments can take too long and even judgments that have been delivered can face delays in implementation. For a businessperson, judicial uncertainty can become an economic burden. For a family waiting for justice, years of litigation can consume irreplaceable portions of life. Judicial reform must therefore be measured not only by the architecture of benches, but by whether people actually receive justice in a reasonable time. If the Constitution entrusts the Chief Justice with making the administration of justice effective, then the office must possess the institutional capacity required to improve court performance. The focus should be on reducing unnecessary adjournments, strengthening case management, making greater use of technology, improving scheduling, ensuring timely judgments and making their implementation more effective. The Bar has an equally important role in this process. Lawyers should be partners in reducing procedural delay rather than allowing the administration of justice to become an endless contest between institutions. The relationship between the Bar and the Bench should not be defined by confrontation. It should be one of constitutional balance, professional accountability and institutional cooperation. The Bar must be able to challenge the judiciary when necessary, while the Bench must remain open to legitimate criticism. At the same time, both must recognise that weakening one institution ultimately weakens the justice system as a whole. In a politically charged environment, lawyers have an even greater responsibility to distinguish professional advocacy from political mobilisation. Every lawyer is entitled to personal political beliefs, but inside the courtroom, the Constitution must be greater than party allegiance. Disagreement with a Chief Justice does not make that office illegitimate, just as support for a Chief Justice does not make every decision automatically correct. Judicial independence requires both scrutiny and restraint. Where evidence exists, it must be examined. Where there is disagreement, it should be argued through law. Where there is no evidence, accusations should not become substitutes for proof. Institutions cannot be strengthened by creating narratives designed to erode public confidence in them. There is also a question the entire legal community should ask itself: if we weaken the administrative authority of the Chief Justice today, would we be prepared to grant the same authority to the next Chief Justice when that person is someone we do not support? No Chief Justice is permanent. No government is permanent. No opposition is permanent. No Bar leadership is permanent. The Supreme Court, however, is a continuing constitutional institution, and every judge sitting on the Bench today may one day become its Chief Justice. Rules should therefore be designed for the institution rather than for the individual occupying the office at any particular moment. A good institutional rule is one that remains acceptable when we like the person exercising it and remains equally acceptable when we do not. We should never seek a judicial structure designed to protect political allies while weakening political opponents. We should build a system capable of delivering equal justice regardless of who stands before the court, whether government or opposition, powerful or powerless, friend or critic. The true measure of judicial independence is not whether a court delivers the judgment we want. It is whether we continue to respect its institutional authority when it decides against us. A government that loses a case must respect the judgment. An opposition that loses must do the same. A powerful individual must accept an adverse ruling, and the Bar must likewise express disagreement through lawful and institutional channels when a decision goes against it. Wanting an independent judiciary only when it serves our interests is not a commitment to judicial independence; it is simply self-interest disguised as principle. The Supreme Court belongs to no individual, political party or faction. It belongs to the Constitution and, ultimately, to the people of Nepal. The Chief Justice is not above the Constitution; neither is any judge, the government, Parliament or the Bar. Constitutional supremacy stands above them all. Respecting the constitutional authority of the Chief Justice is therefore not personality worship. It is respect for an office created by the Constitution. Equally, demanding transparency and accountability from that office is not hostility towards the judiciary; properly pursued, it is part of strengthening the institution. Nepal does not need a weaker Supreme Court. It needs a stronger one: independent enough to resist political pressure, confident enough to question government, transparent enough to earn public trust and efficient enough to deliver justice without unnecessary delay. Such a judiciary requires independent judges, impartial benches, effective administration and citizens who can continue to regard the court as their final constitutional refuge. Achieving that requires the responsibility of the Chief Justice, every judge, the Nepal Bar Association, senior advocates, young lawyers, government, Parliament and civil society alike. But the starting point must be clear: weakening the Supreme Court does not strengthen judicial independence. Nor does treating every legitimate exercise of the Chief Justice's constitutional authority as politically suspicious advance judicial reform. If reform is necessary, reform the system. If transparency is needed, increase transparency. If accountability is required, establish stronger institutional accountability. If delays are the problem, reform case management. If wrongdoing exists, investigate it and act on evidence. But let reform strengthen constitutional institutions rather than diminish them. My appeal to the Nepal Bar Association and the wider legal profession is therefore simple: question the court, but defend its independence; disagree with the Chief Justice, but respect the constitutional dignity of the office; challenge judicial decisions, but reject the culture of attacking the character of judges without evidence. Political colours should remain outside the courtroom. The Constitution should enter first. Today's Chief Justice is one individual; tomorrow there will be another. Today's judge may become tomorrow's Chief Justice. The office, however, will remain. That is why our arguments should be built around institutions, not personalities. We need a Supreme Court strong enough to question the government, independent enough to withstand political pressure, transparent enough to command public confidence and effective enough to deliver timely justice. Nepal does not need the personal power of a Chief Justice. It needs the constitutional leadership of the Chief Justice. It does not need permanent conflict between the Bar and the Bench. It needs responsible cooperation in defence of the Constitution. Ultimately, the Supreme Court is neither the possession of a person nor the instrument of a government or political party. It is an institution of the people and of the Constitution. The supremacy of the Constitution remains the final safeguard of our democracy. Bajgain is the former Member of Parliament