Liladhar Upadhyaya

Situations sometimes become so critical that judiciary, one of the three organs of state, should undergo rigorous test. Activity of public scrutiny happens in the democratic countries across the globe because such debates rarely happen in authoritarian states. It means a country should have democratic practice to criticise judiciary and other state organs like the executive and legislature.
Criticism is an important tool to make an institution more reliable so that they can deliver service in an effective manner. However, the criticism should be constructive and creative. Moreover, every problem and criticism should come up with solutions. Criticism for the sake of criticism or a harsh criticism harms the dignity of an institution. Resorting to criticism against judiciary is not an easy task as it is highly sensitive institution. In a sense, it is more vulnerable and should not lose public trust. If people lose faith in judiciary or judiciary itself loses face owing to its own activities, nation has no other alternatives to freedom and liberty of the people. These are the practical touchstones to make judiciary independent as there are several other principles relating to independence of judiciary.

Avoid politics
Judiciary faces criticism when a case relating to politics reaches the court. In fact, seeking judicial solution from the court definitely cannot keep it free from criticism because it is directly related to power politics. Recently, Nepal's judiciary has been obliged to deliver justice in two cases of constitutional adjudication. The latest case of House dissolution is sub judice and the Supreme Court (SC) had issued a mandamus order in the previous case related to dissolution of the House of Representatives (HoR) on December 20, 2020. The SC's Constitutional Bench reinstated the HoR on February 23 this year.
The mathematical structure of the HoR and Prime Minister KP Sharma Oli's move pushed the House for another round of dissolution on May 22 in a short interval of almost three months of its reinstatement. The issue became more difficult when the government attorneys and petitioners' lawyers got divided over formation of constitutional bench. It happened so this time as similar issue was entertained during the hearing of the dissolution case of 20 December, 2020. One justice of the Constitutional Bench simply denied sitting on the bench when petitioners' lawyers wanted so because once he was Attorney General of the government led by Prime Minister Oli.
The decision of the justice was logical and helped him to keep his integrity intact. It is a widely accepted fact that politics is everywhere and nobody is away from politics. However, the activities relating to politics and its byproducts should be logical, fair and objective. Criticism should be expanded in such a level where trust in an institution and a person should not be lost like in the case that a rubber should be stretched up to that level where it has the capacity to be expanded.
The politics behind the formation of constitutional bench did not stop and got continuity during the second time of hearing of HoR dissolution. This time petitions and counter petitions were filed and lawyers representing petitioners and Attorney General himself questioned the formation of the bench. They not only questioned the bench but also questioned the neutrality of justices. Another point to be noted here is that two sitting justices of the same bench questioned the neutrality of other two fellow justices of the same five-member bench formed by the Chief Justice. It was a counter opinion of two fellow justices' interest to hear the case despite the objection of the petitioners. Integrity is not a matter of popularity, rather it is a genuine issue of winning faith from others through one’s own activities and behaviours.
This trend, in fact, is not good from the perspective of sanctity and impartiality of bench as well as on the ground of independence of judiciary. It may be a politics or whatsoever cause behind the activities or it may benefit one party of the case. But it is an utterly wrong practice in the judiciary on the face of record. The activities have not only victimised the institution, but also have made the persons themselves victims, who are involved in these activities knowingly and unknowingly.
Anarchy should not be invited from within the institution. Neither should it be provoked from outside of the institution. Both activities are wrong if we observe as an outsider. Activism and counter-activism crossing basic norms and standards leads nowhere but leads to anarchy where the situation may go out of control. Logic should prevail over activism inside judiciary and fairness is a basic principle behind sound logic. Extremism should be stopped from the persons holding responsible position, outside and inside the institution. The AG, private lawyers and justices should uphold the principle of restraint.

Criticize decently
In the past, the SC had already passed its verdicts on the cases of HoR dissolution but the fact is that it cannot remain neutral while passing a verdict. One party wins and another loses in a verdict of a court of justice. Losing party should respect and both sides should abide by the verdict. Our society and its stakeholders and even legal fraternity give immediate reaction to any incident and do not follow for long. It means they forget the old issues within a short span of time.
This time, stakeholders, politicians, legal fraternity and even justices within the court are divided on the formation of bench to deal with constitutional adjudication, mainly associated with political issue of constitutional test. Stakeholders' duty is to protect the dignity of institution and it does not matter if they are insiders or outsiders. Activities should also be decent because judiciary is always sensitive in comparison to other branches of state organs.
Protecting dignity and independent character of judiciary is the need of the hour. Protection of freedom and liberty is impossible without protecting the judiciary. Rules are there to play the game as settling disputes from the court is also rule bound game. Conclusion can be derived logically if rules are followed and the concerned parties accept the results of the game. Protecting judiciary is the protection of democracy for public good so reasons should guide the judiciary and judicial activities. They must not be influenced by emotions and sentiments.

(Upadhyaya is Associate Editor of TRN. lilajee30@gmail.com)