Nepal 2006 Constitution (reviewed 2012)

Part 10. JUDICIARY

100. Courts to exercise powers relating to Justice

1. Powers relating to justice in Nepal shall be exercised by courts and other judicial bodies in accordance with the provisions of this Constitution, other laws and the recognized principles of justice.
2. The Judiciary of Nepal shall remain committed to this Constitution by pursuing the concepts, norms and values of the independent judiciary and realizing the spirit of democracy and the people’s movement

101. Courts

1. There shall be the following Courts in Nepal:
   1. Supreme Court;
   2. Appellate Court; and
   3. District Court.
2. In addition to the Courts referred to in Clause (1), any other courts, judicial bodies or tribunals may be established and constituted by law for the purpose of trying and disposing cases of special types and nature.Provided that no court, judicial body or tribunal shall be constituted for the purpose of trying and disposing any particular case.

102. Supreme Court

1. The Supreme Court shall be the highest court in the judicial hierarchy.
2. All courts and judicial bodies of Nepal, other than the Constituent Assembly Court, shall be under the Supreme Court. The Supreme Court may inspect, supervise and give necessary directives to its subordinate courts and judicial bodies.
3. The Supreme Court shall be a court of record. it may initiate proceedings and impose punishment in accordance with law for contempt of itself and of its subordinate courts or judicial bodies.
4. The Supreme Court shall have the final authority to interpret this Constitution and the laws in force, other than on any matter falling under the jurisdiction of the Constituent Assembly Court.
5. The Supreme Court shall consist of the Chief Justice and of not more than fourteen other Judges. If, at any time, the number of existing Judges becomes insufficient by the reason of an increase in the number of cases in the Supreme Court, ad hoc Judges may be appointed for a fixed term.

103. Appointment and qualification of Judges of the Supreme Court

1. The President shall, on the recommendation of the Constitutional Council, appoint the Chief Justice of the Supreme Court, and the Chief Justice shall, on the recommendation of the Judicial Council, appoint other Judges of the Supreme Court. The tenure of office of the Chief Justice shall, subject to Sub-clause (b) of Clause (1) of Article 105, be six years from the date of appointment.
2. Any person who has worked as a Judge of the Supreme Court for at least three years shall be eligible for appointment as the Chief Justice of the Supreme Court.
3. A person who has worked as a Judge of an Appellate Court or in any equivalent office of the Judicial Service for seven years or has worked in the post of Gazetted First Class or a higher post of the Judicial Service for at least twelve years or has practiced law for at least fifteen years as a law graduate advocate or senior advocate or who is a distinguished jurist having worked for at least fifteen years in the judicial or legal field shall only be eligible for appointment as a Judge of the Supreme Court.
4. If the office of the Chief Justice becomes vacant or the Chief Justice is unable to carry out the duties of his or her office by reason of illness or otherwise or he or she cannot be present in the Supreme Court by reason of a leave of absence or his or her being outside of Nepal, the senior most Judge of the Supreme Court shall act as the Acting Chief Justice.
5. The Chief Justice or any other Judge of the Supreme Court shall hold office until attain he/she the age of sixty-five years.

104. Conditions of service and facilities of Chief Justice and Judge

1. The Chief Justice, and permanent Judges of the Supreme Court, who have served for at least five years, shall, on retirement, be entitled to such pension as may be provided for in the law.
2. Save as otherwise provided in this Constitution, the remuneration, leave, allowances, pension and other conditions of service of the Chief Justice and Judges of the Supreme Court shall be provided by law.
3. Notwithstanding anything contained in Clauses (1) and (2), the Chief Justice or any Judge of the Supreme Court who has been removed from office by way of impeachment shall not be entitled to gratuity or pension.
4. The remuneration, facilities or other conditions of service of the Chief Justice or a Judge of the Supreme Court shall not be altered to their disadvantage.

105. Chief Justice and Judge of Supreme Court to be relieved of office

1. The Chief Justice or any other Judge of the Supreme Court shall be relieved of his or her office in any of the following circumstances:
   1. if the Chief Justice tenders resignation in writing before the President and the Judge tenders resignation in writing before the Chief Justice;
   2. if he or she attains the age of sixty-five years;
   3. if a motion of impeachment is passed by the Legislature-Parliament; or
   4. If he or she dies.
2. A motion of impeachment against the Chief Justice or any other Judge may be moved in the Legislature Parliament on the grounds of his or her incompetence, misbehavior or failure to discharge the duties of his or her office in good faith or his or her inability to discharge his or her duties because of physical or mental reason; and if the motion is passed by a two-thirds majority of the total number of the then members, he or she shall ipso facto be relieved of his or her office.Provided that, the Chief Justice or the Judge being so charged shall not be deprived of an opportunity to defend him/herself.
3. The Chief Justice or the Judge against whom impeachment proceedings are being initiated pursuant to Clause (2) shall not perform the duties of his or her duties until the proceedings are completed.

106. Chief Justice and Judge not to be engaged in any other assignment

1. No Chief Justice or Judge of the Supreme Court shall be engaged in or deputed to any assignment other than that of Judge.Provided that the Government of Nepal may, in consultation with the Judicial Council, depute the Chief Justice or any Judge of the Supreme Court to work concerning judicial inquiry, or to legal or judicial investigation or research, or to any other work of national concern, for a specified period.
2. No person who has once held the office of Chief Justice or a Judge of the Supreme Court shall be eligible for appointment to any government office other than the office as referred to in Sub-clause (a) of Clause (1) of Article 131 nor shall such person be entitled to practice law before any office or court.

107. Jurisdiction of the Supreme Court

1. Any citizen of Nepal may file a petition in the Supreme Court to have any law or any part thereof declared void on the ground of inconsistency with this Constitution because it imposes an unreasonable restriction on the enjoyment of the fundamental rights conferred by this Constitution or on any other ground; and the Supreme Court shall have extra-ordinary power to declare that law to be void either ab initio or from the date of its decision if it appears that the law in question is inconsistent with this Constitution.
2. The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution or for the enforcement of any other legal right for which no other remedy has been provided or for which the remedy even though provided appears to be inadequate or ineffective or for the settlement of any constitutional or legal question involved in any dispute of public interest or concern, have the extraordinary power to issue necessary and appropriate orders to enforce such right or settle such dispute. For these purposes, the Supreme Court may, with a view to imparting full justice and providing the appropriate remedy, issue appropriate orders and writs including the writs of habeas corpus, mandamus, certiorari, prohibition and quo warranto.Provided that, except on the ground of absence of jurisdiction, the Supreme Court shall not under this Clause interfere with any proceedings and decisions of the Legislature-Parliament concerning violation of its privileges and penalties imposed therefor.
3. The Supreme Court shall have jurisdiction as prescribed by law to try original cases, to hear appeal references, to revise cases or hear petitions.
4. The Supreme Court may review its own judgments or final orders subject to such conditions and in such circumstances as may be, prescribed by law. Judges other than those having handed down the previous judgment shall make such review.
5. Other powers and procedures of the Supreme Court shall be as prescribed by law.

108. Establishment, management and jurisdiction of Appellate Courts and District Courts

The establishment and management of the Appellate Courts, District Courts and other courts and judicial bodies subordinate to the Supreme Court shall be determined by law subject to this Constitution.

109. Appointment, qualification, conditions of service and facilities of Judges of Appellate Courts and District Courts

1. The Chief Justice shall, on the recommendation of the Judicial Council, appoint any Chief Judge and Judges of the Appellate Courts and any Judges of the District Courts.
2. Any citizen of Nepal who has a Bachelor’s Degree in law and has worked as a Judge of a District Court or in the post of Gazetted First Class of the Judicial Service for at least seven years or has practiced law for at least ten years as a law graduate advocate or senior advocate or who has taught law or done research thereon or worked in any other field of law or justice for at least ten years shall be considered eligible for appointment as the Chief Judge or a Judge of an Appellate Court.
3. Any citizen of Nepal who has a Bachelor’s Degree in law and has worked in the post of Gazetted Second Class of the Judicial Service for at least three years or has practiced law for at least eight years as a law graduate advocate shall be considered eligible for appointment as a District Judge.
4. In appointing a law graduate advocate as a District Judge pursuant to Clause (3), a person who has passed the written and oral examination conducted by the Judicial Council shall be so appointed. The method of such examination and other procedures shall be as determined by law.
5. The Judicial Council shall, taking into account, inter alia, his or her qualification, competency, experience, dedication and contribution to justice, reputation gained in public life and high moral character, recommend any person who is qualified under this Article for appointment to the office of Judge of the Appellate Court and the District Court.
6. Unless the subject or the context otherwise requires, the expression “Judge” as mentioned in this Article and ensuing Articles shall include an Additional Judge.
7. The remuneration, allowances, pension, leave, gratuities and other facilities and other conditions of service of the Chief Judges and other Judges of the Appellate Courts or the Judges of District Courts shall be as determined by law.
8. The remuneration, facilities and conditions of service of the Chief Judges and Judges of the Appellate Courts and the Judges of District Courts shall not be altered to their disadvantage.
9. Notwithstanding anything contained in Clause (7), any Judge of an Appellate Court or of a District Court who has been removed from office pursuant to Sub-clause (c) of Clause (10) shall not be entitled to gratuity and pension.
10. A Judge of an Appellate Court or of a District Court shall be relieved of his or her office in any of the following circumstances:
    1. if he or she tenders resignation in writing before the Chief Justice;
    2. if he or she attains the age of sixty-three years;
    3. if, by virtue of a decision of the Judicial Council to remove him or her from office on the grounds of incompetence, misbehavior or failure to discharge the duties of his or her office in good faith or his or her inability to discharge his or her duties because of physical or mental reason or his or her deviation from justice, he or she is removed by the Chief Justice from his or her office;A Judge of an Appellate Court or of a District Court who is facing a change pursuant to this Sub-clause shall be given a reasonable opportunity to defend himself or herself, and for this purpose, the Judicial Council may form a committee of inquiry for the purposes of recording the statements of the Judge, collecting evidence and submitting a report accompanied by its findings. The Rules of procedure of the committee shall be as determined by law.
    4. if he or she dies.
11. The Judge of an Appellate Court or of a District Court against whom the proceedings are being initiated pursuant to Sub-clause (c) of clause (10) shall not perform the duties of his or her office until the proceedings are completed.

110. Judge of Appellate Court and District Court not to be transferred to or engaged in any other assignments

1. No Judge shall be transferred to or engaged in or deputed to any office other than that of Judge.Provided that, the Government of Nepal may, in consultation with the Judicial Council, depute any Judge of the Appellate Court and of the District Court to work concerning judicial inquiry, or to legal or judicial investigation or research, or to any other work of national concern, for a specified period. In the case of the Judges of the Appellate Courts or the District Courts, the Chief Justice may, in consultation with the Judicial Council, depute them to the aforesaid work, including work relating to elections.
2. The Chief Justice may, on the recommendation of the Judicial Council transfer a Judge of an Appellate or of a District Court from one court to another.
3. Taking into consideration, inter alia, the case-load and matters of dispute to be settled judicially, the Chief Justice may depute a Judge of a Court to act as a Judge of another Court of the same level for a certain period of time.
4. The Supreme Court may, as provided for in law, authorise a Judge in any area to issue, through electronic or other media, a preliminary or interim order in the course of proceedings of a case pending in another Court of the same level situated in a geographically nearby area.

111. Transfer of cases

If the Supreme Court is satisfied with the reason that there exists a situation where justice can be adversely affected if a case filed in a Court is tried by that Court, the Supreme Court may order such case to be tried by another Court of the same level.

112. Responsibility of Chief Justice

The Chief Justice shall have the final responsibility to make effective the administration of justice of the country; and to that end, he or she may, subject to this Constitution and other laws, give necessary directives to the Supreme Court and subordinate Courts.

113. Judicial Council

1. There shall be a Judicial Council to make recommendation or give advice, in accordance with this Constitution, on the appointment of, transfer of, disciplinary action against, and dismissal of, Judges, and other matters relating to the administration of justice, which shall consist of the following as its chairperson and members:
   1. The Chief Justice -Chairperson
   2. The Minister for Justice -Member
   3. Senior most Judge of the Supreme Court -Member
   4. One jurist nominated by the President on the recommendation of the Prime Minister -Member
   5. A senior advocate or an advocate who has gained at least twenty years of experience, to be appointed by the Chief Justice on the recommendation of the Nepal Bar Association -Member

   Explanation: For the purpose of this Part, the expression “Minister” shall include a Minister of State with independent portfolio.

2. The term of office of the members as referred to in Sub- clauses (d) and (e) of Clause (1) shall be four years, and their remuneration and facilities shall be equivalent to those of a Judge of the Supreme Court.
3. The members as referred to in Sub-clauses (d) and (e) of clause (1) may be removed from office in like manner and on the like grounds as a Judge of the Supreme Court.
4. The chairperson and a member of the Judicial Council may obtain and study the documents and files associated with any complaint filed against any Judge, and give information thereof to the Judicial Council.
5. If a preliminary inquiry of a complaint filed against any Judge reveals a need to have a detailed inquiry by an expert, the Judicial Council may form an inquiry committee.
6. Other functions, duties and powers of the Judicial Council shall be as determined by law.

114. Judicial Service Commission

1. In appointing, transferring or promoting gazetted officers of the Judicial Service or taking departmental action concerning such officers in accordance with law, the Government of Nepal shall act on the recommendation of the Judicial Service Commission.Provided that, the Government of Nepal shall act shall act on the recommendation of the public service commission for the purpose of permanent recruitment to the gazetted posts of the Judicial Service from a persons who are not already in the Government Service or from person being promoted from non-gazatted to gazetted post within the judicial service.
2. The Judicial Service Commission shall consist of the following as its chairperson and members:
   1. The Chief Justice -Chairperson
   2. The Minister for Justice -Member
   3. The senior most Judge of -Member the Supreme Court
   4. The Chairperson of the Public Service Commission -Member
   5. The Attorney General -Member
3. Other functions, duties, powers and procedures of the Judicial Service Commission shall be as determined by law.

115. Duty to extend cooperation to the Courts

It shall be the duty of the Government of Nepal and all offices or officials subordinate to it to act in aid of the Supreme Court and other Courts in carrying out the functions of dispensing justice.

116. Orders and decisions of Courts to be binding

1. All shall abide by the orders and decisions made in the course of hearing a lawsuit a by the Courts.
2. Any interpretation given to a law or any legal principle laid down by the Supreme Court in the course of hearing a lawsuit shall be binding on the Government of Nepal and all offices and courts.

117. Annual report

1. The Supreme Court shall, every year, submit an annual report to the President; 66and the President67 shall arrange to submit such report to the Legislature-Parliament through the Prime Minister.
2. The annual report to be submitted pursuant to clause (1) shall set out, inter alia, the following details:
   1. The number of cases filed in the Supreme Court and subordinate Courts;
   2. Number of cases already disposed of and pending cases out of the cases filed pursuant to Sub-section (a); and the reasons for such pending;
   3. Details of new precedents laid down by the Supreme Court;
   4. Number of cases reviewed by the Supreme Court;
   5. Details of judicial stricture, if any, made by the Supreme Court on the matter of competence regarding the dispensation of justice by a Judge of the subordinate Court;
   6. Details of recovery of penalties or fines;
   7. Details regarding the execution of judgments;
   8. Statements of budget appropriated to the Supreme Court and subordinate Courts, and of expenditures.
3. while submitting the annual report pursuant to Clause (1) the supreme court shall also include the details of work performed by Judicial Council and by the Judicial Service Commission.

118. Constituent Assembly Court

1. A constituent Assembly court shall be constituted to resolve the complaints regarding election of the constituent Assembly .
2. The composition, jurisdiction and other matters of the Constituent Assembly Court as referred to in Clause (1) shall be as determined by law.
3. Notwithstanding anything contained elsewhere in this Constitution, no question may be raised in any court in respect of any election to the members of the Constituent Assembly unless a petition is filed in the Court as referred to in Clause (1) as prescribed by law.
4. Notwithstanding anything contained elsewhere in this Constitution, no question may, after the process of election to the Constituent Assembly has commenced, be raised in any Court in such a manner as to interrupt such election.