Nepal | July 14, 2020

‘JC’s actions can undermine independence of judiciary’

‘If JC were to punish judges then no one would get bail’

Himalayan News Service
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Kathmandu, August 17

The Judicial Council’s recent action against some judges of Biratnagar High Court has touched off a debate in the legal sector with some legal experts saying the  JC needs to strike a balance while taking punitive action against erring judges.

The JC had taken punitive action against some BHC judges for passing erroneous order in the 33.5 kg gold smuggling and Sanam Shakya murder case. It sacked BHC Judge Umesh Kumar Singh and served warning letters to two other judges Thir Bahadur Karki, and Sadhuram Sapkota.

The Supreme Court, had, however, endorsed the BHC judges verdicts in almost all cases except one.

Former justice of Supreme Court Bala Ram KC said High Court judges should be impeached if they had made mistakes along the lines of the removal process of Supreme Court justices or else, they would not be able to function independently. “Summoning High Court judges to the JC is wrong because judges are not civil servants,” KC said and added that in India, High Court Judges were removed through impeachment much the same way as Indian Supreme Court Justices were removed.

If any high court judge erred in any case, he/she could be deprived of the bench while the investigation was on, but he/she should not be transferred to the JC on deputation, KC argued. “I think the chief justice should make efforts to bring the required reform in laws to make high court judges independent,” KC added. He also said that in order to ensure independence of judiciary, provisions should be made to provide pay and perks to judges from the consolidated fund.

Senior Advocate Mithilesh Kumar Singh also said that the JC had summoned some Biratnagar High Court judges accused of wrongdoing in the 33.5 kg gold smuggling case and put them on deputation for months. The SC had recently ordered the JC to take action against two Pokhara High Court judges for acting beyond their jurisdiction in a case. “If a judge errs, then there is higher court to correct it. We have three tiers of courts that ensure checks and balances so when a lower court judge errs in an order, then there is a higher court judge to check this, but that should not mean that the JC should take punitive action against a lower court judge for passing erroneous order,” Singh said and added that if lower court judges were punished by the JC for passing orders, then no judge would not grant bail to the accused. “No jail, only bail is a concept emerging in democracies,” he said.

Senior Advocate YadunathKhanal said there was widespread feeling in the legal fraternity that the JC did not use its
judicial mind while recommending actions against BHC judges and if such feelings grew, people would seek changes in the constitution to ensure that High Court judges were removed only through impeachment. “Under the existing system, the JC can take action against erring judges of all tiers, but it should do that only after thoroughly investigating allegations against judges,” he said and added that the JC should refrain from taking populist steps.

Advocate Sunil Ranjan Singh also said the JC’s action against High Court judges had scared other judges and most judges were choosing to send the accused to judicial custody evening cases where there were sufficient reasons for granting bail to the accused. “If judges are scared of the JC’s action, they won’t use their judicial mind in cases. Independence of the judiciary also means that judges should be able to use their judicial mind,” he said.

Summoning judges to the JC undermines the morale of judges as it brings them in the spotlight for negative reasons, he argued.


A version of this article appears in print on August 18, 2019 of The Himalayan Times.


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