The Supreme Court, which was to decide today whether or not the two constitutional bench justices – Tej Bahadur KC and Bam Kumar Shrestha – should recuse themselves from the House of Representatives dissolution case, could not do so due to differences among justices on the roster for the constitutional bench.

According to a Supreme Court source, justices KC and Shrestha today said they had no compunction hearing the HoR dissolution case. The source added that the other two justices on the constitutional bench - Deepak Kumar Karki and Ananda Mohan Bhattarai - did not endorse justices KC and Shrestha's views and are likely to opt out of the constitutional bench tomorrow if justices Shrestha and KC don't recuse themselves from the case.

The controversy over the recusal led to the postponement of the hearing on the case today, according to the source. Thirteen justices who are on the roster for the constitutional bench dwelt on the recusal issue today.

Lawyers representing the petitioners who have challenged the dissolution of the House of Representatives had pleaded before the constitutional bench yesterday that justices whose verdict nullified the unification of the CPN-UML and the CPN-Maoist Centre and those who had heard the review petition against the division bench's verdict should recuse themselves from the HoR dissolution case to avoid conflict of interest. They had said that NCP nullification and HoR dissolution were related.

When the HoR was dissolved for the first time by KP Sharma Oli on December 20, Justice Hari Krishna Karki had recused himself from the HoR dissolution case after petitioners argued that there could be a conflict of interest as Justice Karki was appointed the attorney general by the Oli government before being nominated as SC justice.

Attorney General Ramesh Badal had pleaded before the court yesterday that if justices Shrestha and KC were asked to recuse themselves from the case just because they had heard the NCP nullification case, then questions could be raised against all SC justices who almost every day pass orders against Oli, who is a defendant in the HoR dissolution case.

The SC has listed the HoR dissolution case for continuous hearing.

As many as 146 members the dissolved HoR, including Nepali Congress President Sher Bahadur Deuba, who had staked claim to form the new government under Article 76 (5) of the constitution, have also filed a petition in the SC seeking reinstatement of the HoR.

On March 7, a division bench of justices Shrestha and Kumar Regmi had nullified the NCP unification.

NCP leaders had filed a review petition against the verdict but a full bench comprising Chief Justice Cholendra Shumsher JB Rana and justices Prakash Dhungana and Tej Bahadur KC decided that the case did not merit a review.

The five-member constitutional bench is led by CJ Rana and has justices Deepak Kumar Karki, Anand Mohan Bhattarai, Tej Bahadur KC, and Bam Kumar Shrestha as members.

A version of this article appears in the print on June 01, 2021, of The Himalayan Times.