Adopting a lottery system for preparing the cause list—a list of cases to be heard by justices—besides Chief Justice Cholendra Shumsher Rana’s resignation was one of the demands of the Supreme Court justices when they started their agitation on October 25 last year.

On November 18, 2021, Rana, as demanded by the justices, called a full court meeting which endorsed a draft to amend the regulations and the directives to implement lottery system.

After the government’s approval to revise the regulations, another full court meeting on November 25 decided to implement lottery system within a week. Accordingly, the agitating justices returned to work on December 1.

The chief justice stopped becoming the master of the roster—justices would get cases to hear by drawing lots.

The reason justices and lawyers, who too joined the protest and have been continuing, wanted not to let Rana pick benches stemmed from allegations that the chief justice was fuelling irregularities.

There has been calm in the court since the adoption of the lottery system, as Rana has been discharging only administrative duties.

But as the Post had reported back on November 19 that the lottery system has its drawbacks, such signs have started to emerge.

Ever since the new system has come into force, the number of cases that “cannot be heard” by justices has soared.

As many as 299 cases were listed for hearing on Friday. But hearings couldn’t be held for 49 of them largely because of conflicts of interest.

A slew of conditions has been put in place which do not allow justices and benches to conduct hearings.

The justices, who issue an interim order in a particular petition, cannot conduct the final hearing in the cases. Similarly, the justices who have called for the conflicting parties to be produced in a particular case don’t conduct their further hearing in the case.

Likewise, whenever petitioners or parties in any cases have relations with justices, they cannot hear such cases.

If there are any cases which they had defended as lawyers too cannot be heard by them. Around half of the 19 justices in the Supreme Court were legal practitioners before their appointment.

Justices who once decided cases while working at lower courts cannot hear those if they are challenged in the Supreme Court.

A number of cases decided by lower courts are usually challenged in the top court, hence this also increases the number of cases that “cannot be heard.”

“The share of such [cannot be heard] cases was around 10 percent before the lottery system was adopted. Now it has gone up to 20 percent,” Babu Ram Dahal, spokesperson for the Supreme Court, told the Post. “When the chief justice assigns cases, s/he uses conscience and checks the history and background of cases while assigning them to benches. That’s not possible now.”

As many as 2,290 cases were listed for hearing this week starting Sunday. Among them 471—20 percent—couldn’t be heard.

Former justices say it was known that the lottery system was not a long-term solution to resolve the problems facing the judiciary.

“It was a myopic decision and this has been proved now. A lottery system is not a solution at all,” Prakash Osti, a former justice at the Supreme Court, told the Post. “The problem is going to stay. I don’t see an immediate solution.”

This problem of a possible rise in the number of “cannot be heard” cases comes amid the calm in the Supreme Court which is already facing a host of issues.

Ever since the justices started agitation against Rana, the meeting of the Constitutional Bench hasn’t been held. As the justices are not willing to share benches with him, it is not possible for the Constitutional Bench to resume its work until Rana resigns or takes leave. However, he is not willing to do any of the two.

Similarly, the results of the tests conducted for the district court judges haven't been made public for lack of a meeting of the Judicial Service Commission. Likewise, the five-member Judicial Council led by Rana also has not been held.

The Judicial Council has the authority to appoint justices and judges and promote and transfer them.

Currently there are just two judges at the Special Court where there are six judges positions.

As many 13 positions are vacant in high courts while 23 judges’ appointments at district courts have also been halted.

Officials at the court say they have realised that the rising number of “cannot be heard” cases is a serious problem and that they have already started discussions on ways to deal with it.

Dahal, the spokesperson, said different options are being explored. According to him, most probably the court will segregate the cases that couldn't be heard three times and then prioritise them.

One of the justices told the Post that there is a solution to the existing problem and just because of it the lottery system cannot be withdrawn.

“The present system has kept the chief justice away from the duty of assigning cases. And this should continue,” said the justice who requested anonymity. “It may look like the lottery system is not working perfectly just because there are many cases that cannot be heard.”

But there is a simple solution, according to him.

“Such cases can be sorted out first and then they can be accorded high priority until they get picked for hearings,” he said.

“There is no backtracking on the current system. We must continue it and make improvements just as we deal with the issues that come before us.”