Chief Justice Dilip Kumar Paudel has warned the government against both individual and institutional ‘interference’ in the functioning of the judiciary as the ‘judges are not subject to any kind of control in their work performance’. In a keynote discourse delivered at a programme on Wednesday, Paudel was referring to the new provisions incorporated in the draft interim constitution prepared by a 16-member committee. Paudel argues that the judges should be governed by the laws and service conditions under which they were appointed, and not ‘arbitrarily’.

But some other judges of the Supreme Court like Anup Raj Sharma hold the opposite view.

They favour the re-appointment of the judges in the changed political context.

There is no question that the independence of the judiciary is an indispensable indicator of the health of democracy. Nobody can disagree with Paudel’s line of argument. But it would be stretching one’s imagination a bit too liberally if the state’s authority to alter budgetary allocations or the tenure of judges were to be equated with an assault on judicial independence. If the recommended provisions were accepted and retained in the interim constitution, the independence of the judiciary in discharging its designated duty would still remain intact or may even increase. If the changes Paudel is speaking against were not to affect the existing judges, then there would hardly be any point in introducing those changes, as it would be almost impossible to enforce them as judges are appointed at different times. Regarding Paudel’s objection to the idea of the re-appointment of the judges, nobody can ignore the April Revolution, and everything, including the judiciary, has to be adapted to its mandate and spirit.

Howsoever free the judiciary may be, it cannot go beyond the letter and spirit of the constitution. But in Nepal’s current context, it is not enough to go by the 1990 Constitution. The people’s movement and all the political forces of any significance have decided to carve out the country’s destiny through a new constitution written by a constituent assembly elected by the sovereign people. Therefore, with the promulgation of the interim statute with its radical changes, the 1990 Constitution will cease to exist, and all organs of the state will at once assume a provisional status, subject to alteration according to the ultimate outcome of the CA polls. Therefore, re-appointment and the administering of a new oath of office are only natural. When unprecedented changes are taking place in the background of the April revolution and the 10-year-old Maoist insurgency, it does not behove anybody, including judges, to be overly anxious about their perks and tenures alone. The executive and legislative bodies rooted in the people’s movement will be free to take appropriate action against those, including judges and security personnel, found to have acted, one way or another, against the seekers of democratic change.