KATHMANDU, SEPTEMBER 10
The constitution guarantees proportional inclusion of all groups and the Judicial Council Act also stipulates that judges be appointed on the basis of proportional inclusion, but the Judiciary, particularly the Supreme Court, which is the final arbiter of the constitution and law, has not been upholding the constitutional provision.
Ever since Senior Advocate Anil Kumar Sinha was appointed SC justice in 2016, no person of Madhesi origin was nominated by the JC for SC Justice.
The JC recently nominated three Justices for the SC - Nita Gautam Dixit, DN Parajuli, and Binod Sharma - but there is none from the Madhesi community.
These nominees are waiting for their constitutional hearing.
Post-2016, 13 justices have been appointed in the SC. Out of 16 nominations that the JC made post-2016, not a single person is from the Madhesi community.
Lawyers argue that JC decisions have violated Section 5 of the Judicial Council Act which stipulates: The Judicial Council, in accordance with the principle of proportional inclusion under the constitution, shall make recommendation for appointment in the post of judge.
Advocate Umesh Prasad Shah said the judiciary often circumvents laws to deny proportional inclusion of Madhesis in the judiciary. "They often say there are not enough qualified Madhesi lawyers for SC justices. This is nothing but a lame excuse because there are a number of Madhesi advocates and senior advocates who are as qualified as any other lawyer," he argued, "How can a Madhesi lawyer who is good in his/her profession not be a good candidate for judgeship?"
Former chief attorney of Madhes province Dipendra Jha said that despite the Judicial Council Act guaranteeing proportional inclusion of social clusters in the judges' appointment, the judiciary had not been enforcing it. "If the judiciary, which enforces the law, does not fully implement it then who will?" Jha wondered.
Former justice of Supreme Court Girish Chandra Lal said the judiciary was toeing the same old practice of making it an exclusionary state organ.
"Those in the position to nominate judges say they are not nominating Madhesis because they could not find any eligible and qualified persons. If that argument is true and if the state is selecting qualified people in state organs, then why do we still lag far behind in terms of overall development?" He wondered.
Lal said inclusion and not alienation would cement national unity and pave the way for development and progress. Lal said there had not been any major change in the government's policies because the same ruling social groups continued to dominate the decision-making process in all state organs. Despite epochal political changes after the 2006 movement, all state organs continue to be overwhelmingly represented by the same social groups (Hill Brahmin and Chhetri) and therefore, they dominate the decision-making process of sate organs.
Advocate Raksharam Harijan Dalit said the JC shortlisted 81 candidates for 27 vacancies of high court judges, but there was no Dalit among the short-listed candidates. If we take into account the principle of proportional inclusion, we can expect at least seven Dalits among the shortlisted candidates, but there is none, he argued. Harijan said that if the state finds candidates from marginalised communities not efficient for judgeship, then it has the responsibility of carrying out programmes to empower these communities.
"The Judicial Council has not done anything to empower the marginalised communities so as to prepare them for judgeship," he added.
Another lawyer who did not want to be quoted said there were times in the past when four to five SC justices were of Madhesi origin, but at present there is only one among 21 SC justices. If the current exclusionary practice of the judiciary continues, it will alienate Madhesis and they might not own up the judiciary, he argued.
A version of this article appears in the print on September 11, 2022 of The Himalayan Times.
