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Judiciary stands unwavering

Shruti Kharel

Shruti Kharel

 |  Kathmandu

‘Even if the world should collapse, Judiciary should not’. This is not an exaggerated notion but is the common voice. And the reason is the ‘Sanctity of Justice’, where Judiciary stands, as the last resort to protect its Sanctity. From overcoming the historical and socio-cultural bias to reforming criminal and civil justice system, from reinforcing the principles of natural justice to underlining the necessity of distributive justice, from directing ‘Go Green’ signal to the globe to uplifting the disenfranchised community, Judiciary has left no stones unturned to expand the scope of rule of law.

The ever changing socio-economic dynamic with global justice at its core, the onus of retaining ‘the notion of Justice’ is a new challenge Judiciary faces. However, Judiciary stands unwavering.

The transition from Pradhan Nyayalaya to Supreme Court in 2013 BS not only marked the modernity of Judiciary but propagated necessity for the incumbent government to endorse democratic legal practices. The vox populi of Nepali citizens, to exercise freedom of political expression, without the fear of being prosecuted was facilitated by the Supreme Court in the landmark case of Yagya Murti Banjade v Durga Das Shrestha and others. Propounding the necessity for an impartial judge for a fair proceeding and securing audi alteram partem, Judiciary’s role has been pivotal in guaranteeing the constitutionally guaranteed rights.

In majority, aggrieved parties knock the door of Judiciary only after exhausting other available remedies. To the least, the aggrieved party expects to be well respected in the court, be allowed reasonable time to put forward their grievances and to be heard by a Neutral Judge, who wearing the veil of justice shows no affinity to pre-defined values, gender biasness, class or any ideology but only is guided by consciousness and rationality.

In this regard, Judiciary of Nepal has sensitively handled the gender justice issues adhering to the ‘Principle of Justice’. If we look into our judicial practices, courts of Nepal are seen to have endorsed a ‘Maximin Strategy’, which opts to guarantee minimum rights and livelihood of women and vulnerable sections to partake in productive society. The decisions to bridge pay parity, protect women’s right to property, granting citizenship from mother’s name, maintaining confidentiality of victims in criminal lawsuits, establishing reproductive rights as fundamental rights, legislating marital rape to reminding the marital duty of husbands to their sick and differently abled wives, Judiciary has aptly implemented the ‘Difference Principle’ to revolutionize women’s position in Nepali society. Thus, Judiciary’s role to subvert the existing socio, cultural and legal biasness has directly contributed to promoting socio-legal justice.

Judiciary as the indefatigable defender of environment justice, have time and again invoked ‘parens patriae’ jurisdiction to challenge the ‘Anthropogenic Attitude’ of people. Referencing the Godavari Marble Case, the Nijgadh Airport case, Phewa Tal encroachment case and the recent interim order granted in Mount Everest permit case, Judiciary has conferred Mother Nature with ‘living being status’ insisting the government to exercise its public trust duties. Judiciary through its pronouncement has been   directing the government to prioritize sustainability, inter and intra-generational justice and biodiversity protection as its guiding principles while commencing any development projects in Nepal. From envisaging the impact of climate change on our pristine mountains to protecting the living and dead animals, Judiciary has always stood firmly in protecting the constitutionally guaranteed environmental rights.

Justice also embodies mutual recognition of each other's basic dignity. Recognizing the long struggles of LGBTQ community in Nepal to exercise their constitutionally guaranteed right to equality, the Supreme Court of Nepal has opened its door to recognize the ‘Same Sex Marriage’ and subsequent legal rights that arises out of marriage. Judiciary has once again acknowledged that if we are to live together in an interdependent community we must treat each other as equals.

Similarly, Judiciary has on timely basis through its verdicts directed people to perform their corresponding duties. In this regard, Supreme Court, directing Internet Service Provider Worldlink to pay taxes on maintenance fees, has been pivotal in progressing the tax discipline in Nepal. 

Judiciary, to promote access to justice and institutional fairness, has appointed pro bono lawyers ‘Baitanik Wakil’ in three tiers of court. They assist the indigents (either accused or the victim) to be well represented since the inception of the case. Institutional fairness does not limit to giving decisions but also to appeal and implementation of the cases. Lower courts have the practice of suo moto referencing the sanction to the higher courts known as “Sadhak Jaach” to review decisions with sentences of 20 years and above or life imprisonment. Suo moto sending the decisions to be reviewed fosters institutional fairness.

Therefore, although Justice is an ambitious, complex and ever-changing process, the role of Judiciary to establish a fair practice that grants everybody an opportunity to be heard on their grievances promotes social stability and justice.

(Shruti Kharel is an incumbent Section Officer at Lexis Nexis Department of Supreme Court.)



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