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Unit 5 Civic consciousness Lesson: Judiciary

1.What is judiciary? Why is it important to have judiciary?

Judiciary means the body of those public officials who interpret and enforce the law of the
state.
The work of the Judiciary consists in the resolution of compliant, whether between subject
and subject, or between the subject and the state. In every state, the citizens expect
justice at the hands of their administrators who are entrusted with the task of maintaining
a good government in the country. Locke well says, “where law ends, tyranny begins”. The
role of the judiciary figures in so as to enforce the system of law. Adjudication of disputes
is unquestionably of most important concern to the individual citizen. Considering that
one of the primary objects for which the state was established was the creation and
protection of individual rights, the necessity of judicial organ is recognized. It follows that
the existence of an independent judiciary is a proof of the existence of a good state. The
importance of judiciary in the political institution is rather profound than prominent. It is
needed to protect the right and liberties of people. We no longer believe in police state
and we believe in welfare state.

2.Explain the powers and functions of the judiciary.

Judiciary means the body of those public officials who interpret and enforce the law of the
state. It is regarded as the guardian of the rights and freedoms of the people and also of
the constitution. The judiciary is essential not only for maintaining peace and imparting
justice, but also for the enjoyment of fundamental rights.
a.Adjudication: The first and foremost function of the judges is to administer justice. They
hear and decide cases- Civil, criminal, constitutional- in the light of the argument given by
the concerned parties. The courts are regarded as the defenders of the rights and liberties
of the people. In countries having written constitutions, the courts are also entrusted with
the power of interpreting the fundamental law of the land. If a law is passed by the
legislature violates the constitution, the law shall be declared void because the
constitution is the highest law of the land and it is the duty of the court to protect it. Thus
judiciary is charged with the duty of upholding the constitution as the supreme law of the
land and thus acting as the “Guardian of the constitution”.
b.Legislation: Though legislation is the work of the legislature, the courts also make laws in a
different way. A different kind of law comes out of the decisions of the courts which is
known as “Case law” or “precedent.” Where a law is silent or ambiguous, or appears to be
inconsistent with some other law of the land, the court decides what the law is and how it
should prevail. In this respect they are guided by the norms of equity and judicial common
sense. This is known as Precedent (Nazir ). Such decisions become reference for defining
new cases of similar nature in future and in long run, a precedent becomes law. It is called
“stare decisis” it means stick with the decision once made. The greater body of law is
unwritten, determined by precedent, and founded on eternal principles of right and
mortality.
c. Advisory: The courts have advisory jurisdiction as well. Apart from hearing and settling
cases and then giving judgments, the courts are also entrusted with the job of rendering
advice on important matters of constitutional law. The president or the head of the
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government may refer a matter of law or a fact of great public importance to the Supreme
Court and ask it to give its advisory opinion on it. The view of the court in such a matter is
not binding but it has a great persuasive value.
d.Judicial review: Chief Justice of USA Marshall in 1803 decided that the courts had the
inherit right to declare the act of the parliament invalid. Thus, from then on the Supreme
Court looks in to the constitutional validity of a legislative measure or executive action and
then declare it null and void to the extent of its being repugnant to the fundamental law of
the land. Any law passed by the legislative if violates the constitution, the law shall be
declared void because the constitution is the highest law of the land and it is the duty of
the courts to protect it.
e.Miscellaneous: The courts perform some other functions like exercising control over their
employees, or doing investigations at the behalf of chief justice, or issuing certificate of
marriage and citizenship, etc. The court may punish a person for doing it’s contempt.

It is true that judiciary performs a number of functions. Of all the functions of the
government, the adjudication is unquestionably the most immediate concern to the
individual citizen.

3. Why do you think the Judiciary should remain Independent, Impartial and free from
political pressure?

The citizens expect impartial and speedy justice from the occupants of the judicial
benches. Justice delayed is justice denied. Of all the functions of the government, the
adjudication of disputes is unquestionably the most immediate concern for any citizen.
The protection of the rights of the individual citizen requires a government based on laws
applied by the judges who are independent, impartial in every way. It is necessary because
:
 The Nature of the function to be performed by the state has multiplied and
the state has become the biggest litigant before the courts. We no longer
believe in police state but we believe in welfare state.
 To give decisions against the government and protect the fundamental
rights and the constitution.
 To cross check the balance between an individual and the state, majority
and minority, powerful and weak etc. and hold an even hand for all
 To realize the high purpose for which the Judiciary is established.
By virtue of this, the judges mustn’t lack wisdom, probity and freedom of decision.

3.Enlist some of the factors that make the judiciary Independent, fair and impartial.
There is no worse torture than the torture of laws. The primary object for which the state
was established was the creation and protection of individual rights. So, it is essential that
the judiciary remains independent ,fair and impartial by the following ways:
 By recruiting the judges on the basis of selection by some autonomous
authority like a public service commission so that only persons of high caliber and
integrity may be inducted into important judicial positions.

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 By stopping the nomination of the judges by the chief executive followed by

the ratification of names by the legislature.
 The tenure of the judges should be fairly long. It should neither be for the
whole life nor should be too short. The tenure should be secured.
 The judges should be paid better salaries and allowances. In case, their
emoluments are meager or the perquisites available to them are not
attractive, the brilliant person wouldn’t be attracted and second there
will be reduction in the corruption.
 The judges should not be entrusted with executive or administrative
duties. The liberty of the people is in danger when the work of the
administration and adjudication is in the same hands. It should be
separated from the control of executive.
 Judges should avoid public contacts so that they may keep themselves
immune from public pressures.
 It is required that judges should not be given any appointment after they
retire from service.
Thus, judges shall be selected without regard to their political affiliations, they
should be subject to dismissal by the executive and their compensation shall not be
withheld during their term of office. This will help to create the Independent,
impartial and free judiciary.

4.Explain the three tiers (levels ) of court in Nepal.

There are three levels of court in Nepal.
a.Supreme court
b.High court
c. District court
 There is one supreme court which is also known as the apex court also known as the court
of record. It is the highest court of the country consisting of chief justice and 20 other
judges. The Supreme Court shall have the final authority to interpret this constitution and
laws.
 There is one high court in each state of Nepal. So there are 7 high courts in Nepal. The high
court shall have the power to issue necessary and appropriate orders, for the
enforcements of fundamental rights conferred by the constitution or for the enforcement
of any other legal right for which no other remedy has been provided.
 There are 77 district courts in each districts of Nepal. A district court shall have the power
to originally try and settle all cases under its jurisdiction, to try petition under law, institute
contempt proceedings and punish for contempt.

5.What are the qualifications required to be the chief justice of Nepal and the judge of
Supreme Court?
The president shall appoint the chief justice on the recommendation of the constitutional
council who has the following qualification for 6 years.
 The person who has served as the judge of Supreme Court for at least three years.

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The president shall appoint the judges of the Supreme Court on the recommendation of the
judicial council having the following qualification:
 Any citizen of Nepal who has obtained a bachelor’s degree in law and served
as the chief judge or a judge of high court for at least 5 years.
 Who has practiced law as a senior advocate for at least 15 years.
 Who is a distinguished jurist constantly working for 15 years in the legal
field.
 Who has served in the post of first class post of judicial service for at least 12
years.

6.What are the functions of the supreme court of the Jurisdiction of the Supreme Court?
The functions of the Supreme Court are given below:
 To issue necessary and appropriate orders, provide remedies, enforce right or settle
disputes
 To inspect, supervise and gives necessary directives to lower courts.
 To originally try and settle cases, hear appeals, revise cases, hear petitions, review its
judgments or final orders
 Settle appeals from cases originally tried and settled by the high court
 To declare the law made by legislature void if it is inconsistent with the constitution this
has the final authority to interpret the constitution

7.Write down the composition of Judicial Council.

 The composition of Judicial Council is:
 Chief Justice- Chairperson
 Federal minister for law and justice- Member
 Senior most judge of supreme court- Member
 One jurist nominated by the president on the recommendation of prime minister-
Member
 A senior advocate with 20 years of experience appointed by president on recommendation
of the Nepal Bar association- Member.

8.Write down the composition of Constitutional Council.

The composition of constitutional council is:
 The prime Minister- Chairperson
 The chief justice- Member
 The Speaker of the House of Representative- Member
 The Chairperson of the National Assembly- Member
 Leader of the opposition party in the House of Representative- Member
 Deputy Speaker of the House of Representative- Member
While making a recommendation for appointment to the office of the Chief Justice, Minister
for law and justice is included.
9.Why Supreme Court is called the Guardian of the Constitution?
The courts are regarded as the defenders of the rights and liberties of the people. In
countries having written constitutions, the courts are also entrusted with the power of

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interpreting the fundamental law of the land. If a law is passed by the legislature violates
the constitution, the law shall be declared void because the constitution is the highest law
of the land and it is the duty of the court to protect it. Thus judiciary is charged with the
duty of upholding the constitution as the supreme law of the land and thus acting as the
“Guardian of the constitution”. It declares the law made by legislature void if it is
inconsistent with the constitution this has the final authority to interpret the constitution.

10. Why Supreme Court is also known as the Court of record or court of appeal?
The proceedings of the Supreme Court are recorded for perpetual memory and testimony. It
keeps details of every case. A court of record is a trial court or appellate court in which
a record of the proceedings is captured and preserved, for the possibility of appeal. They
are admitted to be of evidentiary value and they are not to be questioned when they are
produced before any court.

11. Differentiate between the Civil and criminal Case.



Civil Case Criminal Case

Cases that apply when one person sues
another person or an agency.
E.g. housing case, family case such as
divorce or custody, consumer
problems such as debt or bankruptcy
etc.
Civil Court judges can order you to pay
money or a fine, or make decisions
about your family or your home. No
need to go to prison.
one person sues (files a case) against
another person because of a dispute
or problem between them
Both parties can appeal to a higher court
Criminal laws are the rules that apply
when someone commits a crime
E.g. Assault, robbery, murder, rape,
other kinds of crimes etc.
Criminal Court judges can punish you for
breaking the law by sending you to jail
Government files a case against
someone for committing a crime. The
person accused of committing the
crime is called the defendant
Only the defendant can appeal to a higher
court.

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