Constitutional Bench caught in seniority, ‘pick and choose’ dispute

What happened when Justice Hari Prasad Phuyal objected to the way the Constitutional Bench had been formed?

Justice Hari Prasad Phuyal objected to both his exclusion and the process used to form the Constitutional Bench. He said seniority had previously guided selection and warned that personal “pick and choose” could suggest improper “setting.” His objection exposed a wider dispute over how constitutional authority should be exercised.

After a brief argument, Chief Justice Manoj Kumar Sharma called a bench officer and instructed him to notify those concerned that the Constitutional Bench could not sit. Justices Sapana Pradhan Malla, Nahakul Subedi and Abdul Aziz Musalman had gathered in Sharma’s chamber, but Phuyal said he could not join them.

The disagreement stopped the bench from hearing any cases that day. Phuyal also asked for the issue to be discussed by the full court and for a clear selection basis. Sharma replied that Article 137 gave him authority to designate the four judges without full-court discussion.

What is the Supreme Court’s Constitutional Bench, and what makes it different from the court’s regular benches?

The Constitutional Bench is a special five-member body within Nepal’s Supreme Court. Article 137 provides that it must include the chief justice and four other justices. Its formation matters because it handles cases listed before that bench and sits under a special constitutional arrangement.

Its main difference from regular benches is how judges are chosen. The Supreme Court now assigns regular benches through a lottery. For the Constitutional Bench, however, the constitution gives the chief justice power to designate the other four judges on the recommendation of the Judicial Council. The article does not provide detailed selection rules.

That gap has produced competing practices. Judges have been selected through seniority, an eligible roster or the chief justice’s discretion. The present dispute shows why the distinction matters: regular benches use a more structured assignment method, while Constitutional Bench membership remains vulnerable to disagreement over fairness and institutional acceptance.

How large was the immediate impact of the dispute: how many judges were assigned to the Constitutional Bench, and how many listed cases went unheard?

The immediate impact was complete cancellation of the Constitutional Bench’s work for the day. Chief Justice Manoj Kumar Sharma designated himself and four other justices: Sapana Pradhan Malla, Hari Prasad Phuyal, Nahakul Subedi and Abdul Aziz Musalman. That made a five-member bench, as required by Article 137.

Phuyal objected to the selection process and said he could not sit on the bench. After a brief argument with Sharma, a bench officer was asked to inform those concerned that the bench could not sit. The judges assigned to the court’s other 11 benches went to sit on their respective benches.

The listed cases were not partly delayed or redistributed that day. All 38 cases scheduled before the Constitutional Bench went unheard. The figure shows the dispute’s immediate operational scale, while the continuing argument over selection rules points to a broader institutional problem inside the Supreme Court.

Who has the constitutional authority to choose the four judges who sit with the chief justice, and what does Article 137 leave unspecified?

Article 137 gives the chief justice the authority to form the Constitutional Bench with four other justices. The four are designated by the chief justice on the recommendation of the Judicial Council. This authority is the legal basis Chief Justice Manoj Kumar Sharma cited when rejecting Hari Prasad Phuyal’s request for full-court discussion.

The constitution does not explain how that power should be exercised in detail. It does not set selection criteria, define the role of seniority or state when a judge can be replaced. Because these points are open, different methods have developed inside the court.

Those methods include choosing judges by seniority, using a roster of eligible judges or relying on the chief justice’s discretion. Former justice Ananda Mohan Bhattarai said the authority cannot simply be denied, but repeated controversy suggests the provision and its use need attention. The dispute therefore concerns not only power, but also predictable and accepted procedures.

How has the method of selecting Constitutional Bench judges changed since earlier disputes, including the 2022 House dissolution cases?

The Supreme Court has never had one fully detailed method for forming the Constitutional Bench. Practices have included selection by seniority, use of a roster of eligible judges and the chief justice’s own discretion. Regular benches are now assigned by lottery, but that system does not automatically govern the Constitutional Bench.

The 2022 House dissolution cases showed the risks of the earlier approach. Chief Justice Cholendra Shumsher Rana initially formed a bench with himself and Justices Hari Krishna Karki, Bishwambhar Prasad Shrestha, Anil Kumar Sinha and Tej Bahadur KC. Karki later recused himself after questions about his participation, and Sapana Pradhan Malla joined. Further questions arose over KC and Bam Kumar Shrestha.

Disagreements eventually became so severe that judges stopped hearing cases. The court then introduced a lottery system for assigning cases. Debate over Constitutional Bench formation continued under Chief Justice Prakash Man Singh Raut, including after a 2025 ruling with two dissenting opinions.

What selection methods could be used instead of the chief justice’s personal discretion, such as seniority, a roster, or a lottery?

The dispute has highlighted three possible alternatives to relying mainly on the chief justice’s personal choice. Judges could be selected according to seniority, drawn from a clearly defined roster of eligible justices, or assigned through a lottery. These methods would replace an unclear individual decision with a more visible process.

Seniority was an established practice referred to by Hari Prasad Phuyal. A roster would identify in advance which judges qualify for Constitutional Bench service. A lottery is already used for the Supreme Court’s regular benches, showing that random assignment is an existing court mechanism, although the article does not say it currently applies to the Constitutional Bench.

The article does not announce a final alternative or say that one method has been adopted for this bench. Instead, legal circles are calling for the full court to find a way forward. The key task is to create a clear, institutionally accepted method while respecting the chief justice’s constitutional authority.

Why do transparent and impartial rules for forming a court bench matter for judicial independence and public confidence in rulings?

Bench-formation rules matter because they shape how people view the court before a case is decided. If judges are selected through unclear or changing criteria, litigants and the public may question whether the bench is balanced and impartial. That can weaken confidence in rulings and create tension among judges.

The present dispute offers a concrete example. Hari Prasad Phuyal said seniority had been the practice and that “pick and choose” could look like “setting.” He asked the full court to discuss the process and establish a clear basis. Chief Justice Manoj Kumar Sharma replied that Article 137 gave him the authority to designate the judges.

The constitutional power itself is therefore not the only issue. Former justice Ananda Mohan Bhattarai said authority cannot mean exercising it incorrectly every time, and called the provision flawed. Clear rules could reduce suspicion, protect judicial independence from perceived personal influence and help the court maintain institutional confidence.

Key Facts:

📌 Phuyal said he had not been included since Sharma became chief justice.

📌 He questioned seniority, discretion and the “pick and choose” approach.

📌 The Constitutional Bench could not sit after Phuyal refused to join.

📌 Article 137 provides for a Constitutional Bench of five justices.

📌 The chief justice leads the bench and designates four other justices.

📌 Regular Supreme Court benches are assigned through a lottery.

📌 Five judges were designated for the Constitutional Bench.