‘Laws governing formation of constitutional bench need to be changed’

Kathmandu, August 5

Former Princess Prerana Rajya Laxmi Devi Singh’s land case is sub-judice in the constitutional bench of the Supreme Court. This case, which has been adjudicated by the SC twice, raises the question of whether the current structure of the constitutional bench needs to be amended as two justices of the constitutional bench — Chief Justice Cholendra Shumsher JB Rana and senior-most Justice Deepak Kumar Karki — have already expressed their opinion in the same litigation earlier.

Former princess Singh, had on December 21,  filed a petition at the constitutional bench, demanding that the apex court’s verdict nationalising her 15 ropani and one ana land, also known as Vijayaghar in Chhauni, be declared ultra vires.

Article 137 of the constitution stipulates that there shall be a constitutional bench in the Supreme Court which shall consist of the chief justice and four other justices designated by the chief justice on the recommendation of the Judicial Council.

Lawyers said that relevant laws could be amended to ensure that judges who might have conflict of interest or who had heard particular cases earlier got the chance to recuse themselves from hearing in the constitutional bench.

Senior Advocate Surendra Kumar Mahto said the laws and regulations that governed the process of formation of constitutional bench needed to be amended to change the current structure of the constitutional bench.

The JC can prepare a roster of seven to eight justices of the SC and when cases of conflict of interest arise or when constitutional bench members have  already delivered verdict in a case before, then those members of the bench could  recuse themselves from hearing in the constitutional bench.  “If such arrangement is made, then it can be ensured that there will be five members in the constitutional bench as per the constitutional provision, but there can be different justices if cases of recusal arise,” Mahto said.

Senior Advocate Mithilesh Kumar Singh said the SC regulation could be changed to address the question of conflict of interest and issues related to natural justice.

“Since the constitution stipulates that the CJ should lead the constitutional bench, the CJ can be allowed to head the constitutional bench, but other judges, who could have conflict of interest

and who have already given their opinion in a particular case earlier, can be replaced by those justices who are listed as alternative justices for the constitutional bench,” Singh argued.

He said in the Panchayat era, all justices of the Supreme Court used to sit in full bench when the King would issue order to the SC telling it to review settled cases. “The constitution can be amended only by two-thirds majority which may not be easy so the best option will be to change other laws and regulations.  JC can prepare a roster of some alternative justices. The CJ can take leave on the hearing day when there will be question for his/her recusal,” Singh argued.

Another constitutional expert Bhimarjun Acharya also said the best way at this moment, when the constitution may not be easily amended, is to change the constitutional bench regulation to prepare the names of eight justices who could sit on the constitutional bench. “If there is a roster of eight justices, the CJ can pick four other justices from among them  if any of other four permanent members of the constitutional bench is on leave or if they need to recuse themselves due to conflict of interest or other such reasons,” he said, adding that if such changes were not made in the regulation, the proceedings of the constitutional bench might be affected.