Judiciary

Subject: Social Studies

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Judiciary is an independent, highly honorable and impartial organ of government which applies and explains the laws formulated by legislature and enforced by the executive. This note has information on judiciary and its types.

Judiciary

Judiciary is an independent, highly honorable and impartial organ of government which applies and explains the laws formulated by legislature and enforced by the executive. There are 3 types of court in Nepal namely District Court, Appellate Court and Supreme Court. Judiciary is the guardian of the constitution because it protects and promotes the constitution through different remedies as well as punishments.

 

Types of Judiciary

 

a. District Court

There are 75 district courts in Nepal (one in each district) and it consists of a chief judge and a judge. It is the smallest court where the personal case of the people is registered. The chief judge and judge are appointed by the chief justice on the recommendation of the Judicial Council. The following are the qualifications required to be a judge of a district court:

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i. A Nepali citizen having passed Bachelor's Degree from a recognized university in law.

ii. He/ She must have worked as a second class officer in the judicial field.

iii. He/ She must have practiced law for 8 years as an advocate.

 

b. Appellate Court

There are 16 Appellate courts in Nepal in different places like Illam, Biratnagar, Dhankuta, Patan, Hetauda, etc. and consists of 1 chief judge and 6 or more judges as per requirement. The people who are dissatisfied by the decision of District Court can file the same case. The chief judge and judge are appointed by the chief justice of the Supreme Court under the recommendation of Judicial Council. The following criteria should be fulfilled to be appointed as a chief judge or other judges:

i. A Nepali citizen with sound mentality.

ii. Graduate degree in law from a recognized university and experience of working as a judge of District Court for 7 years or first class officer in the judicial field for 7 years.

iii. A law graduate with 10 years of experience as a senior advocate.

iv. Teaching or research experience at least for 10 years in the legal and judicial service.

 

c. Supreme Court

It is the highest and independent court of Nepal. People file their case here if they are not satisfied by the decision of both District and Appellate Court. The cases of national issues are directly filed here and the decision of this court is final and should be followed by all. The only Supreme Court of Nepal is located in Kathmandu and consists of a Chief Justice and 14 permanent judges.

According to the Interim Constitution 2063, the chief judge is appointed by the President under the recommendation of Constitutional Council. The tenure of the Chief Justice is 6 years and the retirement age is 65 years. The other judges of the Supreme Court are appointed by chief justice under the recommendation of Judicial Council. It is called the court of records as it keeps records of all the courts.

 

The qualifications for the chief justice and the judges are:

 

Chief Justice:

A Nepali citizen who has worked as a judge of the Supreme Court for at least 3 years.

 

Judges:

i. A Nepali citizen who has worked as a judge of the Appellate Court for 7 years.

ii. He/ She has worked as a first class officer in the judicial field for 15 years.

iii. Bachelor Degree from a recognized university in law, etc.

 

 

Functions of Judiciary

a. Advisory functions:

Judiciary gives advice to the other organs and constitutional organs when required. Suggestion on national issues is the work of judiciary. It also finds remedies for complicated legal matters.

b. Judicial functions:

The main function of judiciary is to punish the culprit and give proper verdict in support of innocent on the basis of the existing law. It decides punishment for criminals and gives decision regarding national issues.

c. Interpretation of law and the constitution:

Another main function of the Judiciary is to explain the laws made by legislature and implemented by the executive. It supervises the laws and clarifies the meaning of the laws and their provisions.

d. Protector of people's rights and freedom:

The rights granted by the state are protected by the constitution as Judiciary gives clear decisions about the rights and duties of an individual. It gives justice or verdict if any rights are violated.

Things to remember
  • Judiciary is an independent, highly honorable and impartial organ of government which applies and explains the laws formulated by legislature and enforced by the executive.
  • Types of Judiciary are District Court, Appellate Court , Supreme court.
  • Functions of Judiciary is divided into Advisory functions, Judicial functions, Interpretation of law and the constitution and Protector of peoples right and freedom.
  • It includes every relationship which established among the people.
  • There can be more than one community in a society. Community smaller than society.
  • It is a network of social relationships which cannot see or touched.
  • common interests and common objectives are not necessary for society.
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Questions and Answers

Judiciary is called the Guardian of the Constitution because it protects preserves and promotes the constitution through interpretations, remedies and punishment.

There was a case between two people in my locally regarding the water. Khadga Bahadur had to give water for two hours a week to Jaya Bahadur but he didn't. This compelled Jay Bahadur to appear at the district court. The court settled the case after one year. According to the decision, Jay Bahadur could use six hours a week. It made Jay Bahadur very happy. The decision did not annoy Khadga Bahadur either. The reason behind this was that he had to give the amount of water to Jay Bahadur Sooner or later.
Yes, I do agree because it cares only for proofs which may be reproduced by police or lawyer rather than eyewitness or self-observed. It isn't always sure that police or lawyer or eye witnesses, whoever they are, speak the truth. In such a circumstance, an innocent person gets punishments, but a culprit escapes.
It is also true that the culprits try their best to escape punishment but they fail and fall in the claws of the law.
Judiciary maintains law and order in the country. It interprets the law enforced by executive and made by legislature. It investigates, indentifies and punishes wrong doers. It establishes precedence which later on becomes law. It solves the various legal obstacles. Judiciary provides legal advices to the government and its employees. Moreover, it safeguards the fundamental rights as provides by the constitution. Indeed, judiciary plays an important role to maintain the rule of law in the state.
People are considered as the supreme power in the democratic country. Sovereignty is manifested in the people. Therefore, people are state power. In this context, judiciary should have the following rights.

  1. Rights to interpret the existing laws.
  2. Right to frame laws and by-laws.
  3. Right to punish any type of criminal.
  4. Right to preserve the human right at any cost.
Judiciary does the following works:

  1. Judicial work: the main function of judiciary is to provide equal justice to the citizen. It saves the innocent and punishes the law breakers. It gives verdict on both civil and criminal cases.
  2. Interpretation of law and law making: Another important function of the judiciary is to interpret the laws practiced in the country. When court gives decision on any case, it explains the meaning of spirit of law.
  3. Protection of people rights and freedom: The constitution provides rights to the citizens their right. Judiciary is the only organ to protect people's fundamental rights and freedom.
  4. Advisory works: It provides suggestions and advises the legislature and the executive in critical legal matters. Generally, head of the state and the government takes advice from the judiciary regarding constitutional and legal problem. This system is practices by the countries like India, Australia, and Sweden and so on.

Judiciary is that organ of the government which applies the law made by the legislature and enforced by the executive. The welfare and security of the people depend impartial and quick administration of justice. It is the main duty of judiciary to see that no branch of the government takes any action to law. Hence, judiciary preserves and protects the constitution and other sub-ordinative acts and laws and makes provision to abide by them. It investigates, identifies and punish the wrong doers. Similarly, it interprets the law whenever necessary. Moreover, it safeguards the fundamental rights as provided by the constitution. Indeed, judiciary plays an important role to establish rule of law in the state. So, it is very important organ of government.

Nepal has three tiers of courts. It has pyramid structure. Besides, there is a provision of special courts as well. They are as follows: -
  • Supreme Court
  • DistrictCourt
  • AppellateCourt
  1. Judicial work: Judiciary has to provide equal justice to the citizens, run the existing laws of the country.The main function of judiciary is to punish the culprit and give proper verdict in support of innocent on the basis of the existing law. It decides punishment for criminals and gives decision regarding national issues.
  2. Advisory work:Judiciary gives advice to the other organs and constitutional organs when required. Suggestion on national issues is the work of judiciary. It also finds remedies for complicated legal matters. Generally, head of the state and the government takes advice from the judiciary regarding constitutional and legal problems. This system is practised in the countries like Canada, India, Australia, Sweden, etc.

Judiciary is the third most important organ of the government whose function is to supervise whether the constitution is properly followed or not. It includes three tiers of courts such as Supreme court, Appellate courts and District courts. Judiciary or these courts should remain independent and neutral or impartial. it should not be influenced or controlled by any power and authority. Otherwise, it cannot give fair decision. There will be no guarantee to people's right, freedom and equality, which are the core components of democracy. The democratic assumptions, norms values cannot be guaranteed if such an organ is dependent upon other. Democracy remains to democracy in such a situation. Hence, judiciary should always remain independent for real democracy.

The three functions of Judiciary to make democracy successful,strengthened and prosperous are described below: -
  1. Protection of people's rights and freedom: - Judiciary is the strong organ of government which functions to protect people's rights, freedoms and privileges. The constitution has provision of rights and freedoms to its citizens. If these rights are violated then the court restores their rights. The court punish those who violate laws. That is to say, the vice is punished and soul is awarded. In this way, judiciary works to make democracy successful, strengthened and prosperous.
  2. Interpretation of law and constitution: - Another important function of judiciary is to interpret the laws and constitution existing in a country. All articles of a constitution cannot be always clear. They might carry dual, multiple or vague meanings. In such a situation, it explains the meaning or spirit of the law. It clarifies the intended meaning by interpreting its actual essence. When a court gives verdict on any case, it interprets the meaning of law which can be follows as precedent (Nazir) in the similar case in the future. Such precedents or verdicts given i any case may become law in future. Thus, judiciary works as a force to make democracy effective and pro-public.
  3. Advisory function: - Judiciary also works as advisory function to the government, prime minister or nation head. It also provides advises and suggestions to the legislative and the executive in legal matter. This provides guidelines regarding legal or constitutional crisis. due to this function of judiciary, democracy steps and procedure will be followed by the nation and government head. It encourages to practice democratic principles in a nation which strengthens democracy in one way or other.
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