Unit 6: The Judiciary — Principle of Independence of Judiciary; Structure of Judiciary; Appointment, Service, Privileges, and Removal of Chief Justice and Judges of Supreme Court; Jurisdiction of the Supreme Court; Constitutional Bench and Its Role; Concept of Judicial Review; Contempt of Court; Major Principles of Constitutional Interpretation
1. Principle of Independence of Judiciary
The concept: the courts’ institutional and individual autonomy to decide “according to law, without fear or favour” — the rule of law’s organ (Constitutional Law-I, Semester 3, Unit 3) and the separation of powers’ third leg (its Unit 4). The 2015 Constitution’s guarantees:
- Institutional: the SC as court of record with the final power to interpret Constitution and law (Article 128(2)); all other courts under it (128(2)); its interpretations and legal principles binding on all (128(3) — the precedent rule constitutionalized);
- Appointment security: the dual-track — CJ by the President on the Constitutional Council’s recommendation; SC justices on the Judicial Council’s (129(2)); the HC judges and district judges by the CJ on the Judicial Council’s recommendation (140(1), 149(1)) — the executive kept out of the lower appointments’ chain of command (the Indian “collegium-vs-executive” debate’s Nepali resolution);
- Tenure-and-removal security: CJ’s 6-year term (129(4)); SC judges to 65 (131(2)); removal only by the Parliament’s impeachment (Article 101 — ¼ of the HoR tables, ⅔ of the joint session resolves, on serious violation, incompetence, misbehavior, bad-faith failure or incapacity) or by the CC’s/JC’s incapacity recommendation — never by executive displeasure; the suspension-with-pay structure during proceedings (101(6)); HC/district judges removable by the Judicial Council (142, 149 — incompetence, misbehavior, ill intent, code-of-conduct violation) with reasonable-opportunity safeguards;
- Salary-and-conditions security: remuneration not alterable to their disadvantage (130(4), 141(3), 149(5) — the economic-emergency proviso the sole crack);
- Functional independence: no other assignment while in office (132, 143(1), 150(1) — the judicial-inquiry deputation provisos); the retired CJ/SC justice’s no-pleading rule (135 — the Chinese-walls rule); the Judicial Council’s file-access-and-inquiry powers over complaints (153(4)-(5));
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