How can the Constitution be best remembered? The celebration of the constitution would have little meaning if the people of Nepal living under the charter are not made familiar with the core values enshrined in the national document. While celebrating the Constitution Day this year on Sept 19, there is a dire need to critically analyze the effectiveness of the 2015 constitution.

Nepal is governed according to the constitution which came into effect on Sept 20, 2015, replacing the Interim Constitution of 2007. It is the first constitution promulgated by people’s elected representatives as per the mandate of the Comprehensive Peace Accord signed between the Government of Nepal and the Communist Party of Nepal (Maoists) in 2006 to formally end a decade-long (1996-2006) Maoist insurgency. Abolishing the 240-year-long autocratic rule of the Hindu monarchy, the constitution institutionalized republicanism, federalism and secularism for the first time. 

Now, Nepal is officially known as the Federal Democratic Republic of Nepal.  Yet, notably, the constitution was passed amid intense polarization and division among the Nepali society, alienating diverse sections of Madheshi, Tharu, Muslim, Janjatis (indigenous community), women, and Dalit communities over its legitimate process and contents. The controversies, which prompted an amendment to the constitution within four months of its promulgation, still exist.

The Constitution failed to address the concerns of the Madheshi (people of Indian ancestry residing in the Terai of Nepal) population in terms of federalism, electoral representation, and citizenship. More than 40 people lost their lives during the anti-constitution protest. But why did Madheshi leaders instigate Madheshi people against the constitution, if they were ultimately to accept it? The Madheshi parties are holding government offices under the same constitutional framework against which they protested and imposed a trade embargo along the Indo-Nepal frontier with the help of India. 

A progressive charter

A few things about the 2015 constitution are worth remembering. One, it’s the first formal constitution to affirm federal republican democracy. Two, the conscience of the constitution has been captured under Part-III (Fundamental Rights) and Part-IV (Directive Principles). They are evidence of the splendid collection of rights, worthy of a public welfare state and envisages for newly empowered citizenships. 

Thirdly, Nepal sets aside 33 percent of parliamentary seats for women, which is a major breakthrough. With the enactment of the new constitution, Nepal transformed into a republican state from a constitutional monarchy, a federal democracy from a unitary system of governance, and a secular structure from a Hindu country. 

Unlike the constitution of the United States and Australia, which provide only for the federal government, the Constitution of Nepal and India provide for both Federal (Central), State, and local (Village Councils and Municipalities) governments. Special provisions are made for the advancement of weaker sections of society. The preamble appears as a goal setter. All the governmental organs and institutions owe their origin to the constitution and derive their powers from the constitution itself. Like India, the constitution of Nepal mandates that the powers of the state must be exercised within the bounds of the constitution.

Having gone through the constitution, one can firmly and proudly say, Nepal’s new constitution is progressive and institutes several positive elements for the uplift of women in the country. Like other Constitutions of the world, this Constitutional document adopts progressive provisions for realizing the goals of federalism. It was the prerequisite for the Himalayan Republic to bestow a fundamental document showing adherence to republicanism with strong federalism.

The cornerstones are set by two arrangements in particular. First, ensuring the rights of women as a fundamental right through legislation from the very initial stage under Article 38; second, the constitutional provision setting aside 33 percent representation of women in Nepal’s legislature is a major breakthrough. Nepal sets aside 33 percent of parliamentary seats for women through legislation as envisaged under Article 84(8). Similarly, Article 86 (2) (a) ensures that three berths shall be given in 59-member national assembly, where eight members to be elected from each province. Nepal is federated into seven provinces.   

However, India has been considering adopting a similar constitutional framework since 1996. More than two decades of the journey of the Women’s Reservation Bill, which is still pending in Lower House, was marked by high drama during the parliamentary discussion in 2015. India still has miles to go to ensure the reservation of one-third of seats for women in legislative bodies due to the lackadaisical attitude of the major parties represented in parliament.  How can we call it (Nepali Constitution) a regressive charter? 

India, Nepal – the similarities in the constitution 

India and Nepal are on the same boat in terms of fundamental rights. The modern trend of guaranteeing fundamental rights to the people may be traced to the constitution of the USA promulgated in 1787. The US Constitutional document happens to be the first modern constitution to lay down a concrete foundation of the concept called human rights by embodying them under the Constitutional framework and ensuring their enforceability by the Court of justice.

The acclaimed commentator of constitutional law H.M Seervai, in his popular work Constitutional Law of India (1998), believes that “The Indian Constitution followed the United States precedent and enacted fundamental rights in Constitution itself. In enacting fundamental rights in Part-III of our Constitution (Articles 12 to 35) the founding fathers showed that they had the will and were ready to adopt the means, to confer legally enforceable fundamental rights. First, against whom were fundamental rights to be enforced? Broadly speaking, against the state, not as ordinarily understood but as widely defined by Article 12.”

Interestingly, Article 12 of the Indian constitution defines what constitutes state and secures that the rights contained under Part-III (i.e. fundamental rights) would be enforceable against the state. The Supreme Court through robust judicial creativity or activism has expanded the concept of state and laid down clear-cut tests for the instrumentality of the state. Therefore, the fundamental rights become available against the local and other authorities as well. 

On the contrary, the Constitution of Nepal offers a long list of fundamental rights under Part-III (Article 16-48). Like, the Indian Constitution, the Constitution of Nepal too clarifies that the fundamental freedoms, like the right to speech and expression, right to movement, reside across the country, hold a peaceful assembly, form union, and association, or right to carry out trade and commerce are the sacrosanct and inviolable tights within the meaning of fundamental rights. These fundamental freedoms have been detailed under Article 19 (1) of the Indian Constitution while the same has been discussed under Article 17 of the Nepali Constitution. 

Similarly, the right to equality and equal protection of the law, the right to life & liberty, or the right to education have been considered fundamental rights in India and Nepal both. Both of the Constitutions provide a constitutional framework against any form of discrimination along with the race, caste, creed, sex, or place of birth. 

The Constitutions of Nepal and India have successfully abolished untouchability. The rights of the criminal justice system like protection against ex-post-facto law (i.e., a law which imposes penalty retrospectively), double jeopardy (punishment more than once for the same offence; it acknowledges the natural law philosophy which says no man should be put twice in peril for the same offence, i.e., ‘nemo debet vis vexari’) and the prohibition against self-incrimination (protection against such compulsion relating to his giving evidence against himself) have been acknowledged by the constitutions of Nepal and India both. 

The constitutions in the two open-border states slam the employment of children at hazardous places. Moreover, the freedom to practice, propagate or profess a religion has been secured in both of the republics. The religious minorities are allowed to establish and administer educational institutions, and the minority community members having a distinct language, script or culture have been conferred the right to conserve the same.   

Some major differences

Although the constitutional frameworks establish similarities on a number of fronts, there are certain provisions that ascertain divergences. In a welcome move, the Constitution of India recognizes the remedial procedures for enforcing the fundamental rights as a fundamental right under Article 32. Put simply, Article 32 guarantees the right to move the Supreme Court by ‘appropriate proceedings’ for the enforcement of fundamental rights conferred by Part-III of the Constitution. This Article empowers the apex Court of India to issue any writs in the nature of habeas corpus, mandamus, prohibition, certiorari, and quo-warranto for the enforcement of any right embodied under the chapter of fundamental rights. The court is also empowered to introduce a new form of writ whichever is demanded by the facts and circumstances of the case. For instance, India’s highest Court of appeal had introduced a writ of ‘Continuing Mandamus’ in the case of Vineet Narayan v. Union of India (1998). 

In contrast, the constitutional remedial procedure itself is not a fundamental right in Nepal as the provisions empowering the High Courts and Supreme Court to enforce the fundamental rights have not been placed in the chapter of fundamental rights. The Supreme Court under Article 133 is empowered to issue any writ or order or the likes for the implementation of fundamental rights while the High Courts under Article 144 have been empowered to issue any writ, order, or the likes to enforce fundamental rights as well as the legal rights. These two Articles have been placed under Part-XI (Judiciary). But in India, Article 32, which guarantees a person to knock the door of the Supreme Court at the instance of violation of fundamental rights, has been enshrined under the very fundamental rights’ chapter.    

While making a departure from the Indian Constitution, the Nepali charter lays down a plethora of unique fundamental rights for the citizens living under the Constitution. It includes - rights of women (Article 38), rights of Dalit (A-40), rights of senior citizens (A-41), right to social justice (Article 42), right to social security (Article 43), rights of consumers (Article 44), rights of children (Article 39), rights to food (Article 36), right to health care (Article 35), rights regarding labour (Article 34), right to employment (Article 33), right to language and culture (Article 32), right regarding the clean environment (Article 30), right against exploitation (Article 29),  right to privacy (Article 28), right to information (Article 27), right to property (Article 25), right to justice (Article 20),  and right to communication (Article 19).  

To be specific, the charter ensures that the oppressed groups will have the right to participate in state affairs on the basis of the principle of proportional inclusion. In a major breakthrough, the Nepali state incorporates Article 38 with a view to putting an end to gender bigotry. Article 38 guarantees that every woman shall have an equal right to lineage without any gender discrimination. Similarly, the Article further explains that rights relating to safe motherhood and reproductive rights would fall within the ambit of fundamental rights. It also ensures that both spouses shall have equal rights in property and family affairs. 

Similarly, the right of free legal aid has been guaranteed under Article 20 (10) for the indigent justice seekers so as to not let them impatiently keep staring at the walls of courts for legal representation. 

However, the same right is yet to be expressly acknowledged in the Indian Constitution as a matter of fundamental rights. Still, through the robust judicial activism, the apex court of India has declared that the right to free legal aid is a revered component of Article 21, which deals with the right to life and liberty with dignity.  

Unlike the Indian Constitution, the right to equality and equal protection of the law (Article 18) is provided in an enumerative form. This Article expressly mentions that there shall be no discrimination on the ground of origin, religion, race, tribe, sex, physical condition, disability, health condition, matrimonial status, pregnancy, economic condition, language or geographical region, or ideology, or any other such grounds. In this way, this provision has succeeded enough to acknowledge the spirits enshrined under the legal maxim of ‘ejusdeum generis’ which means ‘of like nature’. 

Constitution needs to be cherished

As action speaks louder than words, the need of the hour is to realize the dreams of legislation by working with honesty, diligence, and commitment. The ambitious provisions of fundamental rights mentioned in Nepal’s Constitution would lose its charm if the state turns a deaf ear in giving effect to its provisions in a true and material sense.

Importantly, the constitution has not prevented any political group or activists to do or refrain from doing something, which they are supposed to do for the welfare of their community members or voters. In fact, it's unjust to blame the constitution for their failures. Those who protested against the constitution are holding vital government offices. How could they blame the constitution?  

It is high time for the people and government to come together in devising a robust mechanism for the implementation of the constitutional provisions, for the republic deserves to realize the cherished goals envisioned under the preamble.  

(The writer, a former law lecturer at Kathmandu University School of Law, is a Judicial Officer, Birgunj High Court, Nepal. The views expressed are personal. He can be contacted at jhajivesh@gmail.com)