By Jivesh Jha–
“If you want something said, ask a man; if you want something done, ask a woman.” —Margaret Thatcher
Continuing the series of examination of different provisions in Nepal’s new constitution, let’s look into the arrangements of gender equality this time. Having gone through the constitution, one can firmly and proudly say, Nepal’s new constitution is progressive, and institutes several positive elements for the upliftment of women in the country.
The cornerstones are set by two arrangements in particular. First, ensuring rights of women as a fundamental right (FR) through legislation from the very initial stage under Article 38 is far better than several other constitutions, including India’s.
Second, the constitutional provision setting aside 33% representation of women in Nepal’s all state machineries is a major breakthrough. India is also discussing about adopting similar arrangement.
Nepal sets aside 33% of parliamentary seats for women through legislation as envisaged under Article 84(8). Similarly, A-86 (2) (a) ensures that three berths shall be given in 59-member national assembly, where eights members to be elected from each province. The constitution envisages that Nepal would be restructured with seven provinces to acquire a federal set up.
Moreover, Article A-86(2) (b) says that three members, including at least one woman, is to be nominated by the President in the Upper House as per the recommendation of the Government of Nepal. The constitution also envisages formation of a National Women Commission with substantial powers under A-252 read with (R/W) A-253.
On the other hand, the Indian constitution is yet to ensure such provision. However, the Indian constitution under A-243 provides that one-third seats for women shall be reserved in Gram Panchayat, cooperative societies and municipalities. Sadly enough, Women’s Reservation Bill has become a story of sour grapes in India as it is pending in LokSabha ( Lower House) since 1996.
The 18 year-journey of the said Bill received a knee-jerk reaction by the male parliamentarians and was marked by high drama during parliamentary discussions this year. So, India has a long way to go ensuring the reservation of one-third seats for women in legislative bodies due to lackadaisical attitude of the office bearers of parties. However, the Nepali constitution from its’ earlier stage envisaged one-third seats for women in all state machineries so as not to let the dreams of women turn sour.
As a reply to many jurists, who frown upon Nepal’s Constitution without examination, reading article 38, which envisages right of women as a Fundamental Right is crucial. The clause 1 of the Article says that every woman shall have equal rights to lineage without any gender discriminations. However, for ensuring the same rights, India has to travel 55 years from the 1950, the enforcement year of Indian constitution. “In India, the same right was guaranteed by the amendment Act of 2005. In Nepal, it is firmly mentioned in the constitution while so was not the case with Indian constitution,” says Mrs. Devika Singh Rana, Associate Professor of Criminal Law in Uttarakhand Technical University (UTU), Dehradun.
Further she maintains, “The clause 3 of A-38 also ensures that the state would punish every kind of psychological violence against women, which in itself serves a broader spectrum. It also talks about right to compensation, positive discrimination, principles of proportional representation to mainstream the women, and rights relating to safe motherhood. So there is no need to be pessimistic, without any iota of doubt Nepal would become a paradise for women and developmental agendas for women will flourish beyond word provided the state realizes the dream of Article 38.”
Expressing satisfaction, Rana further opines that the framers of the constitution had done a tremendous job and practical approach was adopted which will lead the nation towards prosperous growth in the world map—if A-38 is ensured in both letter and spirit.
However, she points out an ambiguity in clause 3 of A-38. “It simply says the victim shall have right to compensation as provided for in law; it’s not clarified that under which law,” she adds. In contrast, right to compensation scheme was realized by Indian lawmakers in very latter stage.
Moreover, clause 6 of the Article says that the both spouses shall have rights in property and family affairs. “However, in India, it’s a well-settled principle that the ‘Karta’ of Hindu Joint Family (HUF) will be considered to be the head of family, leaving a room for discrimination with woman,” adds Rana.
The Indian constitution has enshrined gender equality through FR, directive principle of state policy and adopts measures of positive discrimination in favor of women. The Articles 14, 15, 15(3), 16, 39 (a), 39 (b), 39 (c), 42 & 243 are of specific importance in this regard to ensure no discrimination to women on any ground. Nonetheless, the key among them was ratification of Convention on Elimination of All Forms of Discrimination against Women (CEWAD) in 1993.
However, there is no any specific Article under Part-III of Fundamental Right Chapter mentioning that ‘right to women shall be a FR’ in India. So, in this case, it can be argued that Nepal is a step ahead than its southern neighbor. As many as 28 Acts have been enacted by Indian parliament till 2005 to bestow the rights of women in state machineries.
It is the citizenship provision that the Nepali women have put forward a dissenting opinion against. Saying that the citizenship provisions have made them ‘dependent citizen’, an amendment has been sought. It provisions that no woman will be allowed to confer citizenship onto their children.
The women activists are rightly worried over the fate of many Nepalese born in Nepal from foreign husbands. Still Nepal constitution guarantees that no Nepali shall be deprived of citizenship. Any child found within Nepal, but her father and mother haven’t been identified, will also be give a Nepali citizenship by descent.
However, adopting a liberal approach and to ensure no discrimination between men and women in both letter and spirit, the COI has envisaged that every person born in India or every person born from any of the Indian parents would be conferred citizenship by descent.
However, the Nepali women believe that the governments’ approach not to allow women to confer citizenship onto their children would ultimately victimize the Nepali daughters. “I think the government has not succeeded an inch to check the misuse of citizenship even when citizenship through mother is not granted. They should make the monitoring so strong to restrict the illegal ones. Why are they victimizing their own daughters?, questions Nirjana Sharma, a women journalist, who is associated with ‘Republica’ national daily in Kathmandu.
She further points out that it’s just because the state is not confident to check the misuse of citizenship card, “women have been discriminated even by the fundamental document of our country.” “We hear so many times that one Bangladeshi guy caught with holding Nepali citizenship. Have we ever heard the government suspending that particular officer (Chief District Officer) who issued that card?”
When asked what made the Nepali parliament to take such a stringent move, Sharma says, “They say that they are fearful of son-in-laws and daughter-in-laws throng in Nepal to become Nepali citizen. With the same argument, Nepali women have been treated unequal.”
Moreover, A-289 bars the foreign women married with Nepali men to hold any legislative and judicial post as the constitutional provisions allows only citizenship by descent to be eligible for so, leaving a room for discrimination with naturalized citizenship card holders.
However, professor Rana argues that A-38 and citizenship provisions are the two different things. “Indeed the rights of women cannot be dismissed over a cup of tea; nonetheless, A-38 and citizenship provisions should be studied separately. To the best of my knowledge, A-38 has a broader interpretation as it heralds that the provisions for ‘every women’—not saying whether these rights would be available only to citizenship by descent or citizenship by naturalization. It covers an overall aspect for women,” adds Rana, while slamming the beaks condemning the constitutional provisions discriminatory for women.
It’s accepted on all hands that there is “a bit of her” in everyone—be it father, mother, and brother. “You never just humiliate a woman by not ensuring their rights, you humiliated everyone else too,” the women activists say. So, it’s always an icing on the cake when the society flourishes without gender bigotry.
However, there is no need to be disappointed with citizenship provisions, our constitution will also evolve with passage of time. Moreover, there is ground to be contented when we witness the attempts of competent parliament of Nepal in bringing the women friendly FR provisions, one-third seats reserved for women in all state structures and among others.
Comparison at a glance:
(The Author is a Kathmandu University graduate and currently pursuing Legal Studies in Dehradun, India).
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