The name Sapana means dream in Nepali. Her parents gave it to her not as a wish but as a lament. They had wanted a son. Decades later, she would become the senior-most justice on Nepal’s Supreme Court. She trained at Harvard and Delhi, spent three decades fighting for women’s rights in law, and served nine and a half years on the bench. She was Acting Chief Justice when her government looked at her record and chose someone else.

On May 7th, the Constitutional Council chaired by Prime Minister Balendra Shah, the former Kathmandu mayor who rode a Gen Z wave to a landslide election victory in March, recommended Justice Manoj Kumar Sharma as Nepal’s 33rd Chief Justice. Sharma was fourth in the seniority order. Two other justices ranked above Sharma were also passed over. The decision was not unanimous though as the National Assembly chair and the leader of the opposition registered formal written dissent, saying they could not accept a recommendation that “violated established procedures and tradition.”

The Prime Minister’s response was blunt. Tradition alone, he said, cannot justify appointments. Merit, expertise, and judicial capability must also matter. He is not wrong about that and that is where the conversation must begin, and where Nepal’s commentariat has mostly refused to go.

Nepal’s constitution does not require the most senior justice to become Chief Justice. Article 129 sets a floor at least three years of Supreme Court service but leaves the selection to the Constitutional Council. The convention of appointing by seniority dates, as defenders of the practice note, to the post-Rana era, making it roughly seven decades old.

What made this particular departure explosive was not merely the breach of protocol. It was the identity of the person bypassed. Nepal had its first female Chief Justice only in 2016, when Sushila Karki, a septuagenarian former advocate known for her zero-tolerance approach to corruption became the 26th to hold the post. Her tenure lasted less than a year before an impeachment motion, widely regarded as politically motivated, suspended her. The UN High Commissioner for Human Rights at the time said the attempt to remove her gave rise to “serious concerns about the Government’s commitment to the rule of law.” She went on to write a memoir, Nyaya (Justice), and a novel, Kara (Prison), and then, in a twist that only Nepal could produce, became interim Prime Minister following the Gen Z protests of September 2025 that toppled KP Sharma Oli.

Karki handed over power to Shah’s government only six weeks before his Constitutional Council sidelined Nepal’s second woman in line for the same court’s top post. She is among those who have publicly raised concerns about the recommendation process.

Two days after being bypassed, acting Chief Justice Malla addressed the 74th Law Day ceremony in Kathmandu. “Justice cannot prevail under fear or influence,” she told the assembled legal fraternity. “Whether it is the fear of a powerful government or the threat of impeachment, judges must rise above such narrow constraints.” She called on the Nepal Bar Association, civil society, and the media to protect judicial independence from what she described as “structural conspiracies.” She also said, for those paying attention, “I myself fought discrimination and injustice throughout my life. Our fight is still not over.”

These are stirring words. They are also, it must be said, the words of a litigant in her own cause, delivered from a judicial platform, directed explicitly at the government that had just declined to elevate her.

The response to this speech in Kathmandu was largely celebratory. Legal activists filed a writ to annul the Constitutional Council’s recommendation. Former prime minister Baburam Bhattarai added his voice to the chorus of criticism. The framing was consistent and simple. A qualified woman had been denied what was rightfully hers, and the motive must be understood as political suppression of women.

Shah’s government chose Justice Sharma because, by their account, he is the better-qualified candidate for the specific institutional challenges facing Nepal’s Supreme Court. More than 22,000 cases sit pending. Public trust in the judiciary has been eroded by years of allegations about corruption and political interference. Whether Sharma is genuinely better equipped to address these than Malla is a question that deserves examination but in the resulting storm, almost no one examined it. The story was, from the moment the decision was announced, entirely about gender.

Malla’s own career offers a clue to the complication. She left a lucrative corporate law practice in the 1990s because, as she has said, she was troubled by how the law discriminated against women. She founded the Forum for Women, Law and Development. She contributed to the drafting of the Human Trafficking Bill, the National Women Commission Bill, gender equality legislation, and succession rights reform. They are also the achievements of an advocate, a campaigner, a person who came to the bench with a defined mission.

But Nepal’s judiciary does not need more advocacy. It needs the kind of judge who looks at a case and follows the law wherever it leads including, sometimes, to conclusions that cause discomfort to the causes one holds dear.

There is a serious and largely taboo argument worth making here. Because activist lawyers produce a particular kind of judge. One who is sensitive to outcomes, oriented toward correcting past wrongs, and inclined to weigh human stakes alongside legal merits. These are not neutral qualities. In a house or office, they may even be virtues. At the highest bench in a country, they become a problem. Claire Lehmann, the founder and editor of Quillette, has written and published extensively on the distinction between what she calls the “care” orientation more commonly found in the moral psychology of women and the “justice” orientation that formal legal reasoning demands. Her argument is not that women make bad judges. It is that when institutions responsible for dispassionate adjudication are staffed or led by people whose identity and professional history are inseparable from advocacy for a particular group, the result is not neutrality but a different kind of bias, one that wears the costume of principle.

This is an argument that polite opinion in Nepal and in most of the Western-influenced discourse that shapes elite conversation there refuses to have. It is easier to say that any bypassing of a senior female judge is automatically discriminatory than to ask whether the career that brought her to seniority is the right preparation for the role.

There is a version of this story in which Shah, having promised to run Nepal differently from the corrupt machine politicians who preceded him, decided that the Chief Justice of the Supreme Court should be the most capable jurist available rather than simply the next in line and that this decision happened, in this instance, to disadvantage a woman. That version deserves at least as much attention as the version in which a misogynistic government kicked women out of their rightful place.

It is worth noting that Shah’s government includes women in senior positions. His Constitutional Council meeting was attended by the Deputy Speaker, a woman. His Law Minister is a woman. The framing of this decision as an act of gendered malice requires one to ignore quite a lot of contradicting evidence.

It is also worth asking what the seniority convention was actually doing. Seniority systems exist, in part, to depoliticise appointments to remove discretion from powerful actors and replace it with a neutral rule. But Nepal’s recent history suggests the convention was already failing at that purpose. Shah’s decision to select on grounds other than seniority is, in this light, less a revolutionary break than an honest acknowledgment that the convention had become a fiction.

And yet the breach matters. Not because Malla was entitled to the post as a woman, but because predictable rules protect the independence of any judiciary. If a chief justice can be chosen on the basis of executive preference even well-intentioned, merit-based preference then future executives will do the same, and not all of them will have Shah’s stated reasons.

Nepal has made genuine, hard-won progress on women in public life. Sushila Karki became chief justice, then prime minister. The constitution mandates representation. Women now make up 13.8% of judges, still low, but higher than a generation ago. Sapana Pradhan Malla’s career, whatever one thinks of the outcome here, represents a real advance in the range of people who can reach the top of the country’s legal establishment.

But progress is not served by the refusal to ask hard questions. It is not served by the assumption that any outcome disadvantageous to a woman is ipso facto unjust. And it is certainly not served by a sitting acting chief justice who uses a ceremonial platform to deliver what amounts to a political speech directed at the government and receives nothing but applause for it.

Malla said, “Our fight is still not over.” But if the Chief Justice of Nepal’s Supreme Court understands her role as a fight, one must ask what it is being fought for, and against whom, and what happens to the litigants who find themselves on the wrong side of it?

That is the conversation Nepal is not having. It is the one it needs.