Institutions

Judiciary

The court system and constitutional interpretation framework.

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Article 129. Appointment and Qualification of Chief Justice of Nepal and Justices of Supreme

Court: (1) The Supreme Court shall consist of a maximum of twenty Justices, in addition to the Chief Justice of Nepal.

(2)The President shall appoint the Chief Justice on recommendation of the

Constitutional Council and other Justices of the Supreme Court on recommendation of the Judicial Council.

(3)Any person who has served as a Justice of the Supreme Court for at least three years shall be eligible for appointment as the Chief Justice.
(4)The term of office of the Chief Justice shall be six years.
(5)Any citizen of Nepal who has obtained a bachelor's degree in law and served as the Chief Judge or a Judge of a High Court for at least five years or who has obtained a bachelor's degree in law and constantly practised law as a senior advocate or advocate for at least fifteen years or who is a distinguished jurist having constantly worked for at least fifteen years in the judicial or legal field or who has served in the post of Gazetted first class or a higher post of the Judicial Service for at least twelve years shall be deemed to be eligible for appointment as a Justice of the Supreme

Court. Explanation: The period during which one has served as the Chief Judge or Judge of an Appellate Court prior to the commencement of this Constitution shall, for the purposes of this clause, be deemed to be the period of service in the capacity of the Chief Judge or Judge of the High Court.

(6)In case the office of the Chief Justice falls 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 Justice of Supreme Court shall act as the Acting Chief Justice.

Article 130. Conditions of Service and Facilities of Chief Justice and Justices

(1)In case the Chief Justice or a Justice of the Supreme Court who has served for at least five years resigns or undergoes compulsory retirement or dies, he or she shall be entitled to such pension as may be provided for in the federal law. www.lawcommission.gov.np
(2)Except otherwise provided for in this Constitution, the remuneration and other conditions of service of the Chief Justice and Justices of the Supreme Court shall be as provided for in the federal law.
(3)Notwithstanding anything contained in clauses (1) and (2), the Chief

Justice or a Justice of the Supreme Court who has been removed from the office by way of impeachment or who has been punished by a court for a criminal offence involving moral turpitude shall not be entitled to gratuity or pension.

(4)The remuneration and other conditions of service of the Chief Justice or a

Justice of the Supreme Court shall not be altered to his or her disadvantage. Provided that this provision shall not apply in cases where a state of emergency is declared because of extreme economic disarrays.

Article 131. Vacation of office of Chief Justice or Justice of Supreme Court

The office of the Chief Justice or a Justice of the Supreme Court shall fall vacant in any of the following circumstances:-

(a)In case he or she tenders resignation in writing to the President;
(b)In case he or she attains the age of sixty-five years;
(c)In case a motion of impeachment is adopted against him or her pursuant to Article 101;
(d)In case the Chief Justice or a Justice of Supreme Court is relieved of his or her office by the President, in the case of Chief Justice on recommendation of the Constitutional Council, and in the case of Justice of Supreme Court, on recommendation of the Judicial Council, on the ground that he or she is unable to discharge his or her duties because of physical or mental illness;
(e)In case he or she is punished by a court for a criminal offence involving moral turpitude;
(f)In case he or she dies.

Article 132. Chief Justice and Justice of Supreme Court not to be engaged in Any Other Office

(1) No Chief Justice or Justice of the Supreme Court shall be engaged in or deputed to any office other than that of a Judge. www.lawcommission.gov.np Provided that the Government of Nepal may, in consultation with the Judicial Council, depute a Justice of the Supreme Court to work concerning judicial inquiry, or to legal or judicial investigation or research for a specified period.

(2)No person who has once held the office of Chief Justice or a Justice of the

Supreme Court shall be eligible for appointment to any government office, except as otherwise provided for in this Constitution.

Article 133. Jurisdiction of 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 unreasonable restriction on the enjoyment of any fundamental right conferred by this Constitution or on any other ground; or to have any law or any part thereof made by a Provincial Assembly declared void because it is inconsistent with any law made by the Federal Parliament; or to have any law or any part thereof made by a Municipal Assembly or Rural Municipal Assembly declared void because it is inconsistent with a law made by the Federal Parliament or the Provincial Assembly; the Supreme Court shall have an extra-ordinary power to declare such law to be void either ab initio or from the date of its decision in case the law in question appears to be so inconsistent.
(2)The Supreme Court shall, for the enforcement of the fundamental rights conferred by this Constitution or of any other legal right for which no other remedy has been provided for 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, provide appropriate remedies, enforce such right or settle such dispute.
(3)Under the extra-ordinary jurisdiction referred to in clause (2), the Supreme

Court may 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 internal proceedings of the Federal Parliament or Provincial Assembly, and with any proceedings instituted by the Federal Parliament or Provincial Assembly concerning violation of its privileges and penalties imposed therefor. www.lawcommission.gov.np

(4)Subject to this Constitution, the Supreme Court shall, as provided for in the federal law, have the power to originally try and settle cases, hear appeals, test judgments referred for confirmation, revise cases, hear petitions or review its judgments or final orders. While so reviewing the judgements, Justices other than those having handed down the previous judgment shall make such review.
(5)The Supreme Court shall have the power to settle appeals from cases originally heard and settled by a High Court and matters of public importance involving questions of interpretation of the Constitution and law or cases recommended by a High Court, accompanied by its opinion that it is reasonable that decision be made by the Supreme Court.
(6)Other powers and procedures of the Supreme Court shall be as provided for in the federal law.

Article 134. Power to Transfer Cases

(1)In case the cases which involve substantially the same questions are sub judice before the Supreme Court and a High Court, and the Supreme Court is satisfied on its own or on application by the Attorney General or parties to such cases that such questions are of public importance, the Supreme Court shall have the power to procure and adjudge the cases together.
(2)In case there exists a special circumstance where judicial impartiality may be questioned if a case filed in a High Court is heard by that Court, the Supreme Court may, stating the reasons and grounds thereof, order such case to be transferred from such High Court to another High Court and be heard by the latter High Court, in accordance with law.

Article 135. Not to be engaged in Practice of Law

No Chief Justice or Justice of the Supreme Court shall, after retirement from office, be engaged in the practice of law, mediation or arbitration proceedings before any office or court.

Article 136. Responsibility of Chief Justice

The Chief Justice shall have the ultimate responsibility to make effective the administration of justice by the Supreme Court, subordinate courts, specialized courts or other judicial institution.

Article 137. Constitution of Constitutional Bench

(1)There shall be a Constitutional Bench in the Supreme Court. The Constitutional Bench shall consist of the Chief Justice and other four Justices designated by the Chief Justice on recommendation of the Judicial Council. www.lawcommission.gov.np
(2)The Bench referred to in clause (1) shall originally hear and settle the following cases, in addition to the petitions filed pursuant to clause (1) of Article 133:-
(a)Disputes relating to jurisdiction between the Federation and a Province, between Provinces, between a Province and a Local Level and between Local Levels;
(b)Disputes relating to election to members of the Federal Parliament or Provincial Assembly and matters relating to disqualification of a member of the Federal Parliament or of the Provincial Assembly.
(3)Notwithstanding anything contained in Article 133, in case it appears that any case sub judice in the Supreme Court involves a question of serious constitutional interpretation, the Chief Justice may appoint such case to be heard by the Bench referred to in clause (1).
(4)Other provisions relating to the functioning of the Constitutional Bench shall be as determined by the Supreme Court.

Article 138. Annual Report

(1)The Supreme Court, Judicial Council and Judicial Service Commission shall submit every year annual reports to the President, and the President shall submit such reports to the Federal Parliament through the Prime Minister.
(2)In case the Federal Parliament, upon deliberating on the annual reports submitted pursuant to clause (1), deems it necessary to give any suggestion, it may give such suggestion to the concerned institution through the Government of Nepal,

Ministry of Law and Justice.

(3)Other provisions relating to annual reports referred to in clause (1) shall be as provided for in the federal law.

Article 139. High Courts

(1)There shall be a High Court in each Province.
(2)In case anyone makes obstruction in the dispensation of justice by, or disregard any order or judgment handed down by, it or any of its subordinate courts or judicial institutions, the High Court may initiate proceedings on and impose punishment for contempt, as provided for in the federal law.
(3)Each High Court shall consist of such number of Judges, in addition to the

Chief Judge, as provided for in the federal law. www.lawcommission.gov.np

Article 140. Appointment and Qualification of Chief Judge and Judges of High Court

(1)The Chief Justice shall, on recommendation of the Judicial Council, appoint the Chief Judge and Judges of the High Court.
(2)Any citizen of Nepal who has obtained a bachelor's degree in law and served as a Judge of a District Court for at least five years or who has obtained a bachelor's degree in law and constantly practised law as a senior advocate or advocate for at least ten years or who has constantly been engaged in the teaching or research of law or in any other field relation to law or justice for at least ten years or who has served in the post of at least Gazetted first class of the Judicial Service for at least five years shall be deemed to be eligible for appointment as the Chief Judge or a Judge of the High Court.
(3)Appointments to the Chief Judge and Judges of a High Court shall be made from amongst the persons who have possessed the qualifications referred to in clause
(2)on the basis of the proportion of cases settled by him or her annually and of evaluation of cases upheld, quashed or reversed by superior courts in the course of final decision thereof, in the case of a District Judge, and of his or her seniority, qualification and evaluation of standard of performance of business, in the case of a person who has served in the post of at least Gazetted first class of the Judicial

Service, and of evaluation of seniority, professional continuity, honesty, professional conduct and contribution made to the field of law and justice, in the case of others.

(4)In case the office of the Chief Judge falls vacant or the Chief Judge is otherwise unable to carry out the duties of his or her office or cannot be present in the

High Court by reason of a leave of absence or his or her being outside of the Province, the senior-most Judge of the High Court shall act as the Acting Chief Judge.

Article 141. Conditions of Service and Facilities of Chief Judge and Judges

(1)Except as otherwise provided for in this Constitution, the remuneration and other conditions of service of the Chief Judge and Judges of the High Court shall be as provided for in the federal law.
(2)Notwithstanding anything contained in clause (1), the Chief Judge or a

Judge of a High Court who has been removed from office upon action taken by the Judicial Council or upon punishment by a court for a criminal offence involving moral turpitude shall not be entitled to gratuity or pension. www.lawcommission.gov.np Provided that this provision shall not apply in cases where the Judicial Council has removed him or her from office on the ground of inability to perform the duties of his or her office because of physical or mental illness.

(3)The remuneration and other conditions of service of the Chief Judge or a

Judge of the High Court shall not be altered to his or her disadvantage. Provided that this provision shall not apply in cases where a state of emergency is declared because of extreme economic disarrays.

Article 142. Vacation of office of Chief Judge or Judge

(1)The office of Chief Judge or Judge of a High Court shall fall vacant in any of the following circumstances: -
(a)In case he or she tenders resignation in writing to the Chief Justice;
(b)In case he or she attains the age of sixty-three years;
(c)In case he or she is relieved of office by the Chief Justice on recommendation of the Judicial Council, on the ground of his or her incompetence, misconduct, failure to perform his or her duties honestly, performance of business with mala fide intention or serious violation by him or her of the code of conduct required to be observed by him or her;
(d)In case he or she is removed from office by the Chief Justice on recommendation of the Judicial Council on the ground that he or she is unable to discharge his or her duties because of physical or mental illness;
(e)In case he or she is convicted and punished by a court for a criminal offence involving moral turpitude;
(f)In case he or she dies.
(2)A Judge who is facing a charge shall be provided with a reasonable opportunity to defend himself or herself prior to removing him or her from the office pursuant to sub-clause (c) of clause (1). The Judge against whom the proceedings have been so instituted shall not be allowed to perform the duties of his or her office until the proceedings are completed. www.lawcommission.gov.np
(3)Nothing shall bar the institution of action in accordance with the federal law against the Chief Judge or Judge who has been removed from office for an offence which he or she has committed while in office.

Article 143. Chief Judge and Judges not to be engaged in any Other Office and Provisions relating

to Transfer: (1) No Chief Judge or Judge of a High Court shall be 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 a Judge of the High Court to work concerning judicial inquiry, or to legal or judicial investigation or research or to any work of national interest for any specific period.

(2)The Chief Justice may, on recommendation of the Judicial Council, transfer a Judge of a High Court to another High Court.

Article 144. Jurisdiction of High Court

(1)The High Court shall have the power to issue necessary and appropriate orders, 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 legal question involved in any dispute of public interest or concern.
(2)For the purposes of clause (1), the High Court may 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 High Court shall not under this clause interfere with any internal proceedings of the Federal Parliament or Provincial Assembly, and with any proceedings instituted by the Federal Parliament or Provincial Assembly concerning violation of its privileges and penalties imposed therefor.

(3)The High Court shall, in accordance with the federal law, have the power to originally hear and settle cases, hear appeals and test judgments referred for confirmation.
(4)Other powers and procedures of the High Court shall be as provided for in the federal law. www.lawcommission.gov.np

Article 145. Power to Transfer Cases

(1)In case a High Court is of the opinion that a case which is sub judice in a subordinate court within its jurisdiction involves a question relating to a provincial law and it is essential to settle that question in order to decide the case, the High Court may procure the case and dispose the case wholly or decide only such question and remand the case to the court of first instance.
(2)In case it is satisfied with the reason that there exists a situation where judicial impartiality may be questioned if a case filed in a District Court is heard by that Court, the High Court may, stating the reasons and grounds thereof, order such case to be transferred from such District Court to another District Court under its jurisdiction and heard by the latter District Court, as provided for in the federal law.

Article 146. Allowed to be engaged in Practice of Law

A person who has retired from the office of a Judge of a High Court may be engaged in the practice of law before the Supreme Court and a High Court, other than the High Court and subordinate courts where he or she has served as a Judge.

Article 147. Responsibility of Chief Judge

The Chief Judge shall have the ultimate responsibility to make effective the administration of justice by the High Court and the Courts or other judicial institutions which are subordinate to it. For that purpose, the Chief Judge may, subject to this Constitution and the federal law, give necessary direction to the subordinate Courts and judicial institutions

Article 148. District Court

(1)There shall be a District Court in each District.
(2)The Local Level judicial institutions established in accordance with the provincial law shall be subordinate to the District Court. The District Court may inspect as well as supervise and give necessary direction to its subordinate judicial institutions.

Article 149. Appointment, Qualification, Remuneration and Other Conditions of Service of Judges

of District Courts: (1) The Chief Justice shall, on recommendation of the Judicial Council, appoint Judges of the District Courts.

(2)The vacant posts of Judges of the District Court shall be fulfilled as follows:-
(a)Twenty percent of the total vacant posts, on the basis of evaluation of seniority, qualification and competency, from amongst the officers www.lawcommission.gov.np who have obtained bachelor's degree in law and served for at least three years in the post of Gazetted Second Class of the Judicial

Service;

(b)Forty percent of the total vacant posts, on the basis of open competitive examination, from amongst the officers who have obtained bachelor's degree in law and served for at least three years in the post of Gazetted Second Class of the Judicial Service;
(c)The remaining forty percent of the total vacant posts, on the basis of open competitive examination, from amongst the citizens of Nepal who, having obtained bachelor's degree in law, have constantly practised law for at least eight years as an advocate or who, having obtained bachelor's degree in law, have served in a Gazetted post of the Judicial Service for at least eight years or have constantly been engaged in the teaching or research of law or served in any other field of law or justice for at least eight years.
(3)The Judicial Service Commission shall, in accordance with the federal law, hold written and oral competitive examinations for the persons who have possessed the qualifications referred to in sub-clauses (b) and (c) of clause (2), and make recommendation, in order of merit, to the Judicial Council for appointment as District

Judges.

(4)The remuneration and other conditions of service of the Judges of the

District Court shall be as provided for in the federal law.

(5)The remuneration and other conditions of service of a Judge of the District

Court shall not be altered to his or her disadvantage. Provided that this provision shall not apply in cases where a state of emergency is declared because of extreme economic disarrays.

(6)The office of a Judge of the District Court shall fall vacant in any of the following circumstances:-
(a)In case he or she tenders resignation in writing to the Chief Justice;
(b)In case he or she attains the age of sixty-three years; www.lawcommission.gov.np
(c)In case he or she is removed from office by the Chief Justice on recommendation of the Judicial Council, on the ground of his or her incompetence, misconduct, failure to perform his or her duties honestly, performance of business with malafide intention or serious violation by him or her of the code of conduct required to be observed by him or her;
(d)In case he or she is removed from office by the Chief Justice on recommendation of the Judicial Council on the ground that he or she is unable to continue service and discharge his or her duties because of physical or mental illness;
(e)In case he or she is convicted and punished by a court for a criminal offence involving moral turpitude;
(f)In case he or she dies.
(7)A District Judge who is accused shall be given a reasonable opportunity to defend himself or herself before removing him or her from office pursuant to sub- clause (c) of clause (6). The District Judge against whom the proceedings are so initiated shall not perform the duties of his or her office until the proceedings are completed.
(8)Nothing shall prevent the instituting of an action, in accordance with the federal law, against a District Judge who is removed from office for the offence which he or she has committed while in office.

Article 150. District Judges not to be engaged in any Other Office and Provisions relating to

Transfer: (1) No District Judge shall be 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 a District Judge to work concerning judicial inquiry, or to legal or judicial investigation or research and to any election related work for a specified period.

(2)The Chief Justice may, on recommendation of the Judicial Council, transfer a District Judge from one District Court to another District Court. www.lawcommission.gov.np

Article 151. Jurisdiction of District Court

(1)Except as otherwise provided for in the federal law, a District Court shall have the power to initially hear and settle all cases under its jurisdiction, to hear petitions under law, including petitions of habeas corpus and injunction, hear appeals under law from decisions made by quasi-judicial institutions, hear appeals from decisions made by Local Level judicial institutions formed under the provincial law, institute contempt proceedings and punish for contempt under the federal law in case anyone makes obstruction in the dispensation of justice by, or disregards any order or judgment by, it or any of its subordinate courts.
(2)Other provisions relating to the jurisdiction and procedures of the District

Courts shall be as provided for in the federal law.

Article 152. Specialized Courts

(1)Other specialized courts, judicial institutions or tribunals may be constituted to initiate and settle specific types and nature of cases other than those referred to in Article 127, as provided for in the federal law. Provided that no specialized court, judicial institutions or tribunal shall be constituted for any specific case.
(2)No criminal offence involving imprisonment for a term of more than one year shall fall under the jurisdiction of an institution other than a court, specialized court, military court or judicial institution.

Article 153. 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:
(a)The Chief Justice - Chairperson
(b)The Federal Minister for Law and Justice - Member
(c)The senior-most Justice of Supreme Court - Member
(d)One jurist appointed by the President on recommendation of the Prime Minister - Member www.lawcommission.gov.np
(e)A senior advocate or advocate who has gained at least twenty years of experience, appointed by the President - Member on recommendation of the Nepal Bar Association
(2)The term of office of the members 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 Justice of the Supreme Court.
(3)The members referred to in sub-clauses (d) and (e) of clause (1) shall be removed from office in the same manner and on the same grounds as a Justice of the

Supreme Court.

(4)The chairperson and a member of the Judicial Council may study the case associated with a complaint filed in respect of any Judge, and make a report thereof to the Judicial Council.
(5)In case a preliminary inquiry of a complaint filed in respect of any Judge reveals a need to have a detailed inquiry by an expert, the Judicial Council may form an inquiry committee.
(6)In case a Judge, other than a Judge who may be removed from the office by way of impeachment in accordance with this Constitution, commits an abuse of authority by way of corruption, the Judicial Council may investigate into the matter and institute a case in accordance with law.
(7)The Judicial Council shall be required to prepare updated records of the persons who are qualified for appointment to offices of the Chief Justice, Justices of the Supreme Court, Chief Judges and Judges of the High Courts.
(8)Other functions, duties and powers of the Judicial Council shall be as provided for in the federal law.

Article 154. Judicial Service Commission

(1)The Government of Nepal shall, in appointing, transferring or promoting gazetted officers of the Federal Judicial Service or taking departmental action concerning such officers in accordance with law, act on recommendation of the Judicial Service Commission. Provided that the Government of Nepal shall consult the Public Service Commission for new permanent appointments to gazetted posts of the Federal Judicial www.lawcommission.gov.np Service from persons who are not already in the Federal Government Service or for promotions from non-gazetted posts of the Federal Judicial Service to gazetted ones of that Service. Explanation: For the purposes of this Article, the Public Service Commission shall hold open and internal competitive examinations to be held for appointments to Gazetted posts of the Federal Judicial Service.

(2)The Judicial Service Commission shall consist of the following as its chairperson and members:-
(a)The Chief Justice - Chairperson
(b)The Federal Minister for Law and Justice - Member
(c)The senior most Justice of Supreme Court - Member
(d)The Chairperson of the Public Service - Member Commission
(e)The Attorney General - Member
(3)Other functions, duties, powers and procedures of the Judicial Service

Commission shall be as provided for in the federal law.

Article 155. Provisions relating to Conditions of Service and Facilities

Provisions relating to the remuneration, facilities and conditions of service of the employees of the Federal Judicial Service shall be as provided for in a Federal Act.

Article 156. Provisions relating to Provincial Judicial Service Commission

Provisions relating to the formation of a Provincial Judicial Service Commission and the remuneration, facilities and conditions of service of the employees of a Provincial Judicial Service shall be as provided for in the federal law. www.lawcommission.gov.np

Article 157. Attorney General

(1)There shall be an Attorney General of Nepal.
(2)The President shall, on recommendation of the Prime Minister, appoint the

Attorney General. The Attorney General shall hold his or her office during the pleasure of the Prime Minister.

(3)A person who is eligible to be appointed as a Justice of the Supreme

Court shall be eligible to be appointed as the Attorney General.

(4)The office of the Attorney General shall fall vacant in any of the following circumstances:
(a)In case he or she tenders resignation in writing to the President through the Prime Minister;
(b)In case he or she is relieved of the office by the President on recommendation of the Prime Minister;
(c)In case he or she dies.
(5)The remuneration and other facilities of the Attorney General shall be similar to those of a Justice of Supreme Court. Other conditions of service of the

Attorney General shall be in accordance with law.

Article 158. Functions, Duties and Powers of Attorney General

(1)The Attorney General shall be the chief legal advisor to the Government of Nepal. It shall be the duty of the Attorney General to give opinions and advices on constitutional and legal matters to the Government of Nepal and such other authorities as the Government of Nepal may specify.
(2)The Attorney General or government attorneys subordinate to him or her shall represent the Government of Nepal in lawsuits wherein the rights, interests or concerns of the Government of Nepal are involved. Except as provided otherwise in this Constitution, the Attorney General shall have the right to make a final decision as to whether or not to institute any case on behalf of the Government of Nepal in any court, judicial institution or authority. www.lawcommission.gov.np
(3)Opinion of the Attorney General shall be required for withdrawing a case filed on behalf of the Government of Nepal.