Nepal’s judiciary is often accused of engaging in judicial activism.

The latest episode came on May 3. A division bench of justices Sapana Pradhan Malla and Saranga Subedi, while passing a verdict in a writ petition challenging government formation in Gandaki Province, said the Speaker should not be counted as a member of the provincial assembly in government formation.

Khagaraj Adhikari of the CPN-UML became the chief minister presenting a list of 31 members, including the Speaker, in the 60-strong provincial assembly. The decision was challenged, saying it was unconstitutional.

However, the court said the assembly’s strength is 59, excluding the Speaker, and 30 members make a majority. “The ruling alliance has the support of 30 provincial assembly members without counting the Speaker, which is the majority of 59,” said the ruling.

Not everyone agreed. A section of constitutional experts and politicians said it was wrong to exclude the Speaker while determining the total strength of the assembly.

In March 2021, passing a verdict about the Election Commission’s decision to award Nepal Communist Party (NCP) to KP Sharma Oli and Pushpa Kamal Dahal, the Supreme Court reinstated CPN-UML and the CPN (Maoist Centre) to their pre-merger state. The decision was widely criticised, shown as it was an example of judicial activism. The verdict went beyond what the petitioner had demanded.

In a democracy, different state organs have their own jurisdictions and limits under the principle of separation of power. The different state organs have the power for checks and balances as defined by the constitution. However, when one state organ fails to perform its expected role, it gives room for another state organ to overstep its jurisdiction, observers say.

They say the practice of taking every contentious political issue to the court has naturally increased the judiciary’s ambition. “We have seen judicial activism for a long time,” Vijay Kant Karna, a professor of political science at the Tribhuvan University, told the Post, blaming the political parties for it. “Setting the tenure of the Constituent Assembly was one of its extreme examples. Sadly, such incidents have become more frequent over time.”

He said political leadership has the prime responsibility to strengthen democratic practice where all state mechanisms perform their defined roles.

Unfortunately, the political parties and their leadership are the most “anarchist” and can play any card to remain in power, he said. Seeking the judiciary’s intervention on every contentious issue that can have political solutions is a sign of a deteriorating political culture, Karna added. “I see a gradual shift towards judicial supremacy over constitutional supremacy,” he said.

Currently, the fate of three provincial governments is in the hands of the Supreme Court. The top court has directed the Gandaki government not to discharge activities with long term consequences. Similarly, writ petitions challenging the formation of the governments in Koshi and Sudurpaschim are under consideration in the apex court.

Whether these governments will remain intact will depend on the court’s ruling. If there was a sound political culture among the parties, the issue of Koshi and Gandaki would have never reached the court, observers the Post talked to said.

They said the judiciary must be the last resort to decide the political course, but the current practice is the other way round.

The political leadership has surrendered not just inter-party feuds but also intra-party ones to the court. Petitions regarding the leadership dispute within the Nagarik Unmukti Party are sub judice in the top court. Similarly, on Monday, Upendra Yadav, the chairman of the Janata Samajbadi Party Nepal, knocked the top court’s door against the Election Commission’s move to register a new party under the leadership of Ashok Rai.

On May 6, the commission registered a splinter faction of Yadav's party as a new party—Janata Samajbadi Party. Yadav has termed the move unconstitutional.

Observers say inter- and intra-party differences could have been sorted out through political negotiations. But several cases have landed in the court without any prior attempts to resolve them through dialogue. “In principle, the court has a role in settling cases with complex legal and constitutional questions,” Raju Prasad Chapagain, a constitutional lawyer, told the Post. “Cases of the political nature unnecessarily drag the judiciary into controversy as the defending side always criticises it.”

When the Supreme Court overturned the twin decisions of then KP Sharma Oli government to dissolve the House, the CPN-UML had publicly criticised the decision. Similarly, the court’s order to dissolve the Nepal Communist Party was termed as politically motivated and intended to favour Oli.

In the views of the experts, such political cases are also wasting crucial time of the court. As such cases are given priority, decisions on other cases are delayed.

“It is not the judiciary that should be determining the political order. The political leadership should be doing so,” Balaram KC, a former justice, told the Post. “The court should refrain from intervening in every political development. It must demarcate its jurisdiction.”

KC says using the court to determine the political order is like taking paracetamol for a chronic disease; it may lower the fever and relieve the pain, but doesn’t cure the disease. “Political problems should be resolved politically for a long-term solution,” he said.

Observers say the way political parties are delegating responsibilities to the judiciary could spell disaster for democracy.

“Pakistan is a good example of what happens when the court’s ambitions grow,” Karna, the political science professor, said. “Why not correct it before it is too late?”

Legal experts, however, do not see any threat of judicial supremacy. “The court passes a verdict based on the law and constitution. I, therefore, don’t see threat from the judiciary,” said Chapagain, the constitutional lawyer. “However, I see a need for a decision from the Supreme Court on setting demarcations on which types of cases it should consider.”