Seven questions explain the Supreme Court’s constitutional bench dispute

Why was the Supreme Court’s constitutional bench unable to sit on Wednesday?

The constitutional bench could not sit because Justice Hari Prasad Phuyal objected to his inclusion. The dispute was not about whether Chief Justice Manoj Kumar Sharma could form the bench. It concerned the criteria and procedure used to choose its members.

Sharma had formed a five-member bench consisting of himself and Justices Sapana Pradhan Malla, Phuyal, Nahakul Subedi and Abdulajeej Musalman. The justices went to the chief justice’s chamber, where Phuyal questioned why he had been selected after not being included earlier.

Phuyal argued that the court had followed seniority in the past. Selecting justices on some occasions while excluding them on others could create a “pick and choose” appearance, he said. He called for a full-court procedure. The objection prevented the bench from sitting that Wednesday and revived a broader dispute over judicial discretion.

How many justices serve on Nepal’s constitutional bench, and who must lead it?

Nepal’s constitutional bench consists of five justices. The chief justice must lead it and is included as one of the five members. This structure distinguishes the constitutional bench from regular Supreme Court benches, which are assigned through a lottery system.

For the bench formed on Wednesday, Chief Justice Manoj Kumar Sharma sat with Justices Sapana Pradhan Malla, Hari Prasad Phuyal, Nahakul Subedi and Abdulajeej Musalman. Sharma selected the four justices serving alongside him. They went to his chamber after Phuyal raised an objection about the selection.

Article 137 of the Constitution establishes the bench. It requires the chief justice to choose four other justices from a roster recommended by the Judicial Council. However, it does not explain in detail how those four should be chosen. That missing framework has led to continuing questions about seniority, continuity and changes in membership.

What is a constitutional bench, and what kinds of cases does it hear?

A constitutional bench is a specialised bench within Nepal’s Supreme Court. Article 137 created it in the 2015 Constitution. Its work matters because it interprets the Constitution and decides disputes that can affect how the state functions, rather than only resolving ordinary litigation.

The bench hears challenges claiming that laws conflict with the Constitution. It also settles disputes over the authority of federal, provincial and local governments. In addition, it handles disputes about the election and eligibility of members of the Federal Parliament or provincial assemblies.

The chief justice may refer a pending Supreme Court case to the bench when it raises a serious constitutional interpretation question. Before 2015, such disputes went to a special Supreme Court bench. The first constitutional bench was formed on December 8, 2015, creating a distinct arrangement for these cases.

Who has the authority to select the four justices who serve alongside the chief justice?

The Constitution gives the chief justice authority to select four justices for the constitutional bench. The chief justice therefore sits on the bench and chooses the other members. This arrangement is different from regular benches, where a lottery assigns cases and reduces discretion in case allocation.

Article 137 provides the key mechanism. The four justices must be selected from a roster recommended by the Judicial Council. On Wednesday, Chief Justice Manoj Kumar Sharma formed a bench with himself and Justices Sapana Pradhan Malla, Hari Prasad Phuyal, Nahakul Subedi and Abdulajeez Musalman.

The Constitution grants this authority but does not set out detailed selection criteria. It does not specify how much weight seniority should receive, whether the same justices should remain on the bench, or how often its membership should change. That gap is at the centre of the current dispute.

Why does Justice Phuyal believe that seniority and a clear selection procedure should guide membership on the bench?

Justice Hari Prasad Phuyal believes seniority should matter because the Supreme Court has developed a practice of considering it when forming the constitutional bench. A clear procedure would turn that practice into a predictable standard. This matters because constitutional cases require a bench whose composition appears principled, not arbitrary.

Phuyal pointed to his own selection as an example. Chief Justice Manoj Kumar Sharma included him in Wednesday’s five-member bench even though he had not been included previously. Phuyal questioned why the approach changed. Selecting justices on some occasions while leaving them out on others, he argued, could create the appearance of “pick and choose.”

He therefore called for the full court to establish a clear procedure. Sharma maintained that the Constitution already gives the chief justice authority to appoint four justices, so no separate full-court decision is required. The dispute now centres on how that authority should be guided.

What could happen to public confidence in the court if justices appear to be selected on a discretionary ‘pick and choose’ basis?

If justices appear to be selected through personal discretion rather than clear criteria, people may question whether the bench is impartial. That could weaken public confidence in the court’s fairness and make important constitutional decisions harder to accept. The article presents this as an appearance problem, not a finding that selections were improper.

Justice Hari Prasad Phuyal raised that concern after Chief Justice Manoj Kumar Sharma included him on Wednesday’s bench, despite excluding him previously. Phuyal said changing selections could look like “pick and choose.” He argued that seniority and a procedure established by the full court would provide a more consistent basis.

The Constitution gives Sharma authority to appoint four justices, but it does not define detailed criteria. The current dispute therefore points toward a need for clearer guidance on seniority, continuity and how often membership changes. Such guidance could make the process more transparent and predictable.

Why are constitutional cases especially important in a federal democracy, where authority is divided among national, provincial and local governments?

Constitutional cases matter especially in a federal democracy because authority is divided among federal, provincial and local governments. When those governments disagree about who controls a matter, the dispute can affect public administration and the functioning of the state. A constitutional bench provides a specialised forum for deciding such questions.

The bench hears disputes over the jurisdiction of all three government levels. It also reviews laws alleged to conflict with the Constitution and handles disputes involving elections and eligibility for members of federal or provincial assemblies. The chief justice can refer cases raising serious constitutional interpretation questions.

These responsibilities give the bench a role beyond ordinary litigation. Its decisions can clarify the boundaries of government power and explain how constitutional rules apply. The article does not describe a specific pending federal-jurisdiction case, but it identifies such disputes as a central part of the bench’s work.

Key Facts:

📌 Justice Hari Prasad Phuyal objected to his inclusion in the five-member bench.

📌 The bench went to the chief justice’s chamber instead of hearing cases.

📌 Phuyal questioned why he was selected after being excluded previously.

📌 The constitutional bench consists of five justices.

📌 The chief justice must be one of the five members.

📌 Article 137 establishes Nepal’s constitutional bench.

📌 The constitutional bench is a specialised Supreme Court bench.