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On May 18, after more than a year-and-a-half of the pandemic, the Supreme Court of Nepal finally started online hearing of cases. Although this step is to be appreciated, one wonders why it has taken so long for the highest court in the land to recognize the significance of fair and equitable access to justice. Two lockdowns and over half a dozen prohibitory orders that limited people's mobility have provided new prospects for litigants and lawyers around the nation to approach, through technology, the Supreme Court with relative ease. It is open to speculation whether the court will continue this innovative practice after the pandemic subsides. However, it would be in the interest of justice to let this virtual access continue even after things return to normal.
Access to justice is a basic principle of the rule of law and a fundamental right of everyone, guaranteed by the constitution. Nepali law emphasizes the right to equal access to justice for every citizen. However, access to justice is a broad term and encompasses elements such as legal awareness, protection, and adjudication. The state must facilitate this process by "making judicial administration swift, competent, easily available, economical, impartial, effective and accountable to people", according to Article 50 (k) (1) of the constitution. In Part 3 of the constitution, Articles 18 and 20 further ensure the “right to equality” and “rights relating to justice”, respectively.
However, for a nation as geographically diverse as Nepal, it is a tragedy that the framers of the constitution did not debate upon the seat of the highest court with sincerity, which resulted in the continuation of the spirit of the preceding Interim Constitution. For a nation where more than 20 percent of the people are below the poverty line and over 20 districts fall in the geographically ‘remote’ category, how accessible will justice be if the final judicial authority in the nation is housed only in the capital?
The framers of the constitution ought to have given due thought to this issue, considering the volume of cases from different parts of the country. The Supreme Court should be required to increase its reach and hold court in places other than the capital. The constitutions of India and Pakistan have both empowered the Chief Justice to hold sittings of the Supreme Court in areas other than the capital. Even Bangladesh has a provision in the constitution that allows the Chief Justice to hold sittings of the high court division of the Supreme Court in places other than Dhaka. Although this has been translated into practice in Bangladesh, successive Chief Justices of India have refused to invoke this constitutional power for reasons unknown.
The Nepali constitution has envisioned a parochial single-pivot structure of the judicial system in Nepal. But given the federal nature of the nation, top-tier justice still remains unitary. Due to such a confined structure, many cases might find it difficult to make their way to the Supreme Court. However, it is in contravention of the fundamental rights promising fair access to justice and the constitutional directives which promise to “make judicial administration swift, competent, easily available, economical, impartial, effective and accountable to people” by having an exclusively Kathmandu-centric Supreme Court. According to a report from India’s Centre for Policy Research, geographical proximity to the Supreme Court is inversely proportional to the number of appeals. In other words, states closer to Delhi have a larger share of appeals/cases in the Supreme Court compared to states that are more remote.
It has also been observed that the representation of lawyers in the Supreme Court has become an exclusive domain of a select few ‘elites’ living in and around the Kathmandu Valley. Such intended exclusivity consequently transposes into steep and often restrictive pecuniary costs for litigants. Without the prospect of a local advocate of their preference, litigants are forced to accept what the Bar in Kathmandu offers in terms of both quality and charges.
Ironically, it has taken the pandemic for the courts to overcome these geographical and physical barriers. Still, as luck would have it, it has initiated an endeavour to increase access to free and fair justice. Not only is the court’s virtual hearings a step towards the adage ‘justice for all’, it can also be an opportunity to diversify the once-exclusive domain of ‘elite’ lawyers to include advocates from the rest of Nepal. Moreover, litigants now have the alternative to contract a local attorney of their preference and suitability, including the exact attorney who pleaded their case before the lower court.
Undoubtedly, while it needs to be conceded that virtual hearings may not be the ideal choice, in the current scenario, it is the best option available to maintain the law and provide justice, and any shortcomings must be evaluated over curtailing the right to access justice itself. Only when all Nepalis are provided with seamless entry to its halls can the Supreme Court be said to accomplish its constitutional obligation. As the framers of the constitution have not provided provisions for equitable distribution of supreme justice, it is for the judiciary to make access to justice free and unhindered by allowing virtual hearings until the legislature devises policies to distribute fair and equitable justice.
Sambridh Ghimire Sambridh Ghimire is a graduate of the National Law School of India University, Bangalore and a Kathmandu-based lawyer. .
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