Judicial Council's indifference to responsibilities exacerbates case backlog in courts

KATHMANDU, Sept 25: The Judicial Council's negligence in fulfilling its constitutional responsibilities is contributing to delays in justice for the general public. Tasked with appointing justices to the Supreme Court (SC) and other courts, the council has consistently failed to act on time, exacerbating the backlog of cases and denying timely justice.

As per Article 153 of the constitution, the Judicial Council is responsible for appointments, transfers, and disciplinary actions for judges. Article 129(2) further specifies that Supreme Court justices should be appointed by the President based on the council's recommendations.

However, despite these clear constitutional mandates, the Judicial Council has failed to adhere to the Judicial Council Act, which stipulates that appointments must be recommended at least one month before a vacancy arises. Currently, four positions in the Supreme Court remain vacant, and this number will rise to six next month when Chief Justice Bishwoambhar Prasad Shrestha retires on October 6, followed by Justice Prakash Kumar Dhungana on October 20.

With over 15,000 new cases registered annually and only a limited number of judges available, the backlog in the Supreme Court is growing. The failure to appoint justices in a timely manner, coupled with pending retirements, has further strained the judicial system, increasing the risk of the public being denied justice.

The Supreme Court's annual report for 2023/24 identifies the delay in appointing judges as a primary reason for the rising backlog. Even though it has been over a year since these vacancies arose, the council has yet to act.

A common practice among retiring judges is to enter a "cooling period" one month before their official retirement, during which they do not handle cases. This further reduces the number of available judges. With two justices currently in the cooling period, only 15 justices are currently active, which is insufficient given the workload. Two years ago, when there were 40,000 pending cases, the appointment of 21 judges, including a new chief justice, significantly reduced the backlog. However, the number of pending cases has now risen again to over 25,000, with around 3,000 cases unresolved for more than five years.

On October 31, 2023, Justice Anil Kumar Sinha retired due to age limit. Subsequently, Ishwar Prasad Khatri retired in February followed by Sushma Lata Mathema in April and Dr Anand Mohan Bhattarai in May. The four vacant positions have not been filled yet.

The five-member Judicial Council, chaired by the chief justice, includes the Minister for  Law, the senior-most SC justice, a lawyer appointed by the President, and a representative from the Nepal Bar Association (NBA). However, internal disputes have reportedly obstructed appointments. A Judicial Council member indicated that conflicting interests among power centers within the council, coupled with pressure from government officials and the NBA, are delaying the process.

In a recent press release, the NBA threatened to withhold judge recommendations unless amendments to Judicial Council regulations were revoked. These amendments, however, only apply to High Court judges, and some have called the NBA’s demands unconstitutional.

Despite these obstacles, the Supreme Court Bar has repeatedly urged for the swift appointment of justices, citing concerns over the impact on public access to justice. The bar's executive committee held meetings in July and September to press for immediate action, warning that further delays will exacerbate the crisis in the judiciary.