The mandate and the bench: A respectful appeal to Nepal's institutions
Published: 03:22 pm Sep 23, 2026
Every generation is given a few moments when history pauses and waits to see what a nation will do. Nepal is living through one of those moments now. History offers a warning about what follows when courts and political power begin to answer one another in kind. After the United States Supreme Court repeatedly blocked President Franklin Roosevelt's New Deal, he proposed to appoint an additional justice for every sitting justice over the age of seventy - an attempt, in substance, to place his own men on the bench. The plan failed. Pressure, however, produced what became known as 'the switch in time that saved nine': one justice altered his position. Roosevelt then took political revenge on members of his own party who had opposed him, and law-making for the remainder of his second term almost came to a halt. The sentence written at that time by the Senate Judiciary Committee remains a classic of constitutional law: better an independent and fearless court, prepared to state its honest opinion in defence of liberty, than a court which, from fear or obligation to those who appoint it, approves every measure placed before it. A similar cycle unfolded in India. In 1973 the Supreme Court, in Kesavananda Bharati, preserved the basic structure of the Constitution. The government treated the judgment as an assault on its programme and superseded three senior judges in order to install A. N. Ray as Chief Justice. In 1976, after Justice H. R. Khanna stood alone in dissent in ADM Jabalpur, he too was passed over. Dozens of High Court judges were transferred without their consent. The result was not victory for either side. The Court later constructed the collegium system and pushed the executive still further away. Each took 'revenge' upon the other. The standing of both was diminished. It is against that background that Nepal must now be read. After years of fragile coalitions and shifting alliances, the people gave a single government a two-thirds majority in the House of Representatives. Such a verdict is rare in any democracy, and rarer still in ours. It carried a quiet but unmistakable message: the people wanted change, and they wanted it to be allowed to happen. It is therefore with deep respect for all institutions of the State, and with some sorrow, that many citizens now watch that message meet unexpected resistance. Reforms the public clearly supported - freeing the civil service from partisan trade unions, returning campuses to students rather than party wings, and examining the assets of those who once held public office - now wait at the doors of our courts under interim orders. No one questions the right of the judiciary to examine these matters. Many are simply asking, gently but sincerely, how long the waiting will last. I resigned from Parliament on 8 September 2025, after children were killed on our streets. My home was burned the following day. I mention this only so that readers may understand why I cannot remain silent. The young people of September 2025 asked for a State that listens. I believe every institution, including those most deserving of our respect, is now being asked the same question. A system shaped by its past Nepal's Constitution divides power among the legislature, the executive and the judiciary so that each may balance the others. That design is wise. Yet any honest reflection must acknowledge that our practice has not always matched our principles. For many years the major parties shared out appointments according to political strength, a practice Nepalis came to know as bhagbanda. Commissions, universities, diplomatic posts and other offices were widely discussed as part of political negotiation, and public debate did not always stop at the doors of the judiciary. This was not the fault of any single judge. It was the habit of a political era. But habits leave traces, and institutions formed in one era can carry its instincts into the next. It would be unfair to suggest that any honourable member of the Bench serves anyone other than the Constitution. Most, I have no doubt, work with integrity under great pressure. Still, when citizens see that reforms touching long-established interests appear to face the longest delays, it is natural for them to wonder. A wise institution does not dismiss such wondering. It answers it through the clarity and timeliness of its work. What our history remembers Older Nepalis may recall a time when our institutions were often spoken of through the individuals who led them. Names such as Achyut Krishna Kharel in policing during the 1990 movement and, later, Bishwanath Upadhyaya as Chief Justice each remind us, in very different ways, how much influence can gather around a single office. I mention them not to pass judgement. Each served in his own circumstances, and each has his own record. I mention them because our national memory holds a lesson: an institution is strongest when it is known for the Constitution it serves, and most vulnerable when it becomes known for the people or relationships around it. Our courts have a proud record of defending rights in difficult times. Many Nepalis hope that record will guide them now, and that no citizen will ever have reason to feel that an old pattern has returned in a new setting. Review, not delay Judicial review is one of the great achievements of constitutional democracy. No majority, however large, stands above the law, and I would defend the court's authority to strike down any action that violates the Constitution or fundamental rights. Interim orders, too, have an honourable purpose: to prevent irreversible harm while a matter is heard. The concern many citizens hold is not with their existence, but with their duration. A stay that lasts weeks protects justice. A stay that lasts indefinitely may, without anyone intending it, begin to decide the matter by the mere passage of time. As the old saying reminds us, justice delayed can become justice denied, and that is true for governments as well as for citizens. The most respectful thing one can say to a court is that its decisions matter enormously, and for that reason the nation waits eagerly for them. Timely hearings on the merits of major cases would do more to strengthen public confidence in the judiciary than any statement from any politician, including this one. How the verdicts are being read In tea shops, on campuses and across social media, a quieter conversation has begun. Many citizens observe that the interim orders and rulings of recent months seem, one after another, to fall upon the ruling party's signature reforms. Some go further and wonder whether the cumulative effect, intended or not, is to weaken the government step by step, and eventually to reach Rabi Lamichhane himself. I do not claim to know the intentions of any judge, and it would be wrong to assume them. Courts must remain free to hear any case, involving any person, however powerful. No leader, including one who carries a historic mandate, is above the law. But perception matters in a democracy, and it matters most for the judiciary, whose authority rests on public trust rather than on votes or force. When a pattern is seen, even where none is intended, the wise response is not silence. It is transparency: clear reasoning, consistent standards, and timely decisions that allow every citizen to see that the same measure is applied to the powerful and the ordinary, to the old parties and the new, alike. If that assurance is given, the conversation in the tea shops will fade of its own accord. If it is not, the damage will fall not on one leader or one party, but on the institution that all Nepalis need to trust. Accountability, with dignity Our Constitution provides, under Article 101, for the impeachment of judges on specific grounds and through a demanding procedure. This provision exists because every office in a republic must ultimately answer to the Constitution. Judicial independence is a principle I hold without reservation; yet independence and accountability were always meant to walk together. Here I must speak frankly to my friends on the Treasury benches. Public warnings of impeachment, however frustrated the speaker may feel, do not serve the mandate. Nepal has seen this before. In 2017 an impeachment motion was registered against then Chief Justice Sushila Karki soon after a ruling on the appointment of the police chief, and much of the country saw it as pressure on the court. A later motion against another Chief Justice was left without resolution. Those episodes did not strengthen Parliament. They weakened public faith in both Parliament and the courts. A reformist government must be better than the habits it was elected to replace. Grave constitutional powers should be spoken of rarely, used only on constitutional grounds and evidence, and exercised with the dignity the Constitution demands. A lesson from abroad Those who study the United States will find a further parallel. After President Donald J. Trump returned to office in January 2025, individual federal judges issued orders that paused national policies across the entire country. The debate that followed was intense. Some members of Congress introduced articles of impeachment against judges, while Chief Justice John Roberts stated publicly that impeachment is not an appropriate response to disagreement with a ruling. The matter was ultimately addressed not through pressure on judges, but through law. In June 2025, in Trump v. CASA, the United States Supreme Court limited the power of lower courts to issue nationwide injunctions. The administration continued to win some cases and lose others on their merits, as it should in any healthy system. It is also worth remembering how much authority the American Congress holds in its relationship with the courts. The United States Constitution allows Congress to create or abolish lower federal courts and to define much of their jurisdiction. It sets the number of Supreme Court justices by ordinary statute. The Senate confirms every federal judge, often after searching public hearings. Congress controls the judiciary's budget. And the House may impeach a judge, with the Senate sitting as the court of trial; fifteen federal judges have been impeached in American history, and eight removed. In April 2025 the House even passed a bill seeking to limit nationwide injunctions by lower courts. Yet the American Congress uses these powers sparingly, and this restraint is precisely what gives them weight. Its strength lies not in threats but in the quiet knowledge, shared by every branch, that the people's representatives retain real and lawful authority over how the justice system is structured. Nepal's Parliament holds comparable responsibilities under our own Constitution. It would honour the mandate by exercising them through thoughtful legislation rather than public warnings. A word to the leadership Rabi Lamichhane brought remarkable energy and sincerity into Nepali politics, and the people responded to it. Yet it would perhaps be too generous to describe him as an innocent in these matters. He has competed against the old parties long enough to know how skilfully they have worked with legal and constitutional institutions over the years. He understands, better than most, that emotion fades while institutional relationships endure. That understanding places a responsibility upon him. A handshake offered in good faith may be read differently by seasoned rivals. Advice, whether from within the country or from interests beyond it, deserves careful scrutiny before it shapes national decisions. And confrontation, however understandable, can allow opponents to choose the ground on which every battle is fought. A two-thirds majority is not a weapon. It is a trust. It is best protected by patient drafting, careful legislation and respectful dialogue with every organ of the State. When Parliament feels unheard Many newly elected Members of Parliament carry the hopes of a generation, yet some now quietly wonder whether their votes and decisions carry real weight. If an overwhelming popular mandate can be held in suspension for long periods, citizens may begin to ask whether elections can truly change anything. No institution, least of all the judiciary, which depends so heavily on public trust, would wish for that question to take root. The final authority to interpret law rests properly with the courts. The Constitution itself, however, belongs to all the people, and Parliament, as their elected voice, has every right to discuss and lawfully clarify the procedures through which the State works. A respectful way forward First, Parliament may consider, in consultation with the judiciary and the legal community, constitutional legislation setting reasonable time frames and standards for interim orders, so that urgent public matters reach a decision on the merits without prolonged delay. Second, appointments to the judiciary and constitutional bodies should be made through open, merit-based processes, so that every appointee enjoys the full confidence of the public and the era of party quotas is left behind. Third, grave constitutional powers such as impeachment should be neither threatened nor forgotten, but reserved for genuine constitutional grounds and exercised through due process. Fourth, the judiciary may consider listing major public-interest cases for early hearings on the merits. Nothing would reassure the nation more. Fifth, the ruling leadership should replace confrontation with strategy, and noise with law-making. Conclusion The young people who marched in September 2025 did not ask for any institution to be weakened. They asked for every institution to be worthy of them. The judiciary holds a special place in that hope. Its independence is precious, and so is the trust it enjoys. Both are best preserved when citizens can see, clearly and in good time, that the Bench stands with the Constitution and with no one else. The people have spoken with a clarity our republic has rarely heard. It is now for every institution, with dignity and mutual respect, to show that it has listened. Rajendra Bajgain is a Nepali entrepreneur and former Member of Parliament.