By Jivesh Jha–
At a time when some political parties in Nepal’s Madhes, claiming to represent the Madheshis and Tharu ethnic minorities, have termed Nepal’s new constitution not broad-based and have expressed concern that some of the provisions would politically marginalize them, this comparative study of the constitutional provisions of Nepal and India reveals that Nepal’s constitution is more progressive than the latter’s.
Madheshi parties are leading an agitation over the new constitution from since the first draft was endorsed by the Constituent Assembly in July, arguing that “Hill elites” have offered little for them in the new constitution. The claims of agitating groups stand valid in terms of citizenship, delineation of electoral constituencies, and affirmative action provisions, which appear to be discriminatory and ambiguous. But on other key issues, Nepal’s new constitution leaves India’s far behind.
The preamble of any constitution is regarded as the window from where to look into the overall silhouette of the state. “Though the preamble of constitution of Nepali (CON) appears to be lengthy, it gives a broader spectrum. Had it been constrained in short, it would not have given clear objectives of the legislation in a manner as it’s giving,” appreciates Prashant Chauhan, who is the Associate Professor of Constitutional Law in Uttarakhand Technical University (UTU), Dehradun. He further argues that the CON is written in simple and understandable language.
“In India, Constitution of India (COI) is regarded as lawyer’s paradise; the words are so technical that an ordinary person cannot understand completely. However, no such problem with CON,” argues Chauhan. Further, the preamble clearly suggests that Nepalis are sovereign and state powers inherent in them.
While the leaders failing to understand the cultural relations of Madheshis across the border, they put unreasonable restriction on the means of acquiring the citizenship by descent, under Article (U/A) 11(3), which provisions that in order to get a citizenship by descent, the offspring’s both “father and mother should hold citizenship by descent.” The position is different in case of COI. Adopting a soft-gloved appraoch, the COI envisages that the offspring would get citizenship by descent provided any of the “father or mother” is an Indian citizen. Further, there is no provision for naturalized citizenship in India. Under the provisions of COI, it also provides any person to acquire citizenship who was born within the territory of India irrespective of his/her parents’ nationality. Nevertheless, CON does not offer the right to acquire citizenship by birth.
“The Article 11(3) has an overriding effect on A-11(2) & A-11(6). The clause 3 of A-11 appears to be more conflicting and adversely affecting the interest of the child in which he had no role to play. After the enforcement of this constitution, the CON seems to deface a large chunk of people who have established matrimonial relations with foreign nationals,” further observes Chauhan.
“In Nepal, the constitution has been drafted on the wisdom of big four players—Nepali Congress, UML, RPP and UCPN (Maoist). They have already shown their racial tilt by excluding a section of people’s interest & rights. The notion of inclusion & federalism has been put under suspended animation from the very date of enforcement of this constitution as they [big four parties] have beautifully succeeded in achieving their goal of making Madheshis further marginalized,” claims Aatmaram Prasad Shah, former Lawmaker of Constituent Assembly-I.
Noted, unlike India, A-289 bars a naturalized citizen to hold any legislative and judicial post.
However, these types of provisions have not been embodied in COI in both spirit and letter.
Regarding the fundamental rights (FR), right to property is a legal right in India while CON envisages it as a FR. Similarly, the A-18 of CON is similar in nature as that of A-14 of COI where it talks about equality before law and equal protection before law.
In what is being seen as a novel concept before the world, the CON has envisaged right to communication, Under Article (U/A)-19, which empowers people with complete freedom for the information disseminating outlets. “However, the COI provisions for freedom of speech & expression U/A-19 (1)(a) which has a wider spectrum, covers entire rights falling under the ambit of freedom of information & communication. It’s a noble concept,” says Dr JN Singh, faculty of Constitutional Law in UTU, Dehradun.
Citing the imperfection of drafting, Dr Singh argues that the right to freedom could cover multiple aspects. “There was no need to discuss each and every right under separate heads even as it falls under the ambit of a common freedom. For example, there was no need to deal right of women, right of Dalit, right of senior citizen, right of children under different Articles, it would have offered a broader spectrum had the parliament clubbed these provisions into one,” he further adds. However, he was quick to add that A-30 to 44 appears like government policies than the basic essentials of constitution.
Meanwhile, amid moving a step ahead than the COI, the CON has ensured right of compensation for the victims of crime as a FR, U/A-21. “However, in India, this provision was inserted through judicial pronouncements. Nepali parliament was quick to bestow the emphasis on the right to compensation from the very initial stage of enforcement of the constitution which is a welcoming move,” says Mrs. Devika Singh Rana, who is the Associate Professor of Criminal Law at UTU.
Ensuring zero tolerance against the violence against women, the CON has envisaged extensive rights for women U/A-38 as a FR. However, there leaves no any provision for women specifically made as a matter of FR in COI. “The right for women envisaged under CON is really welcoming. The equal right on property & family affairs for women was realized by Indian legal system in latter stage, i.e. from 2005. As a faculty of law, what I believe that Nepal is a step ahead than India regarding ensuring the right of women as a matter of FR. The A-38(5) provides positive discrimination for the upliftment of women which has no colliding effect with right to equality, A-18 and beyond any reasonable doubt its’ really a magnificent provision with natural import,” proudly says Rana.
Expressing deep appreciation to the Nepali parliament, she further opines that the provision of free legal aid has been ensured as a matter of FR by CON from the very date of enforcement, which is another welcoming move. “In India, the legislature and judiciary realized it in latter stage and inserted through amendment. However, CON incorporated it from the very beginning which is rightly a paradigm shift,” observes Rana.
Maintaining a similar tune, much-acclaimed jurist Professor Dr Anirudh Prasad, who is currently associated with Rajiv Gandhi National University of Law, Patiala, Punjab, also argues that Nepal is a more progressive than India when it comes to ensure the rights of women in constitution. “The right of women is reserved in India through A-15(3), A-16(4) and 21. Moreover, their rights were guaranteed through judicial interpretation. However, the rights of women have been ensured through legislation at earlier stage proves that Nepal carrying more progressive approach,” insists Dr Prasad.
Right of free legal aid is a legal right, not a FR, in case of India; while in case of Nepal, it’s a FR.
Meanwhile, the right to information is nowhere mentioned under the ambit of FR in COI. However, CON U/A-27 ensures that it would the obligation of the state to ensure right of information (RTI) for every citizen as a matter of FR. However, a separate Act of RTI Act deals with this right in India. It was realized by the Indian legislature in very latter stage.
The protection of right to life and personal liberty except the procedure established by law is embodied U/A-21 of COI which has the widest interpretation. The provisions dealing with A-(28-44) of CON are covered by a solo A-21 of COI,” adds Professor Chauhan.
So far the implementation of FR is concerned, constitutional remedy is envisaged U/A-46 to be read with A-133 or A-144 of CON. However, these provisions differ from COI. The writ petition is entertained by Supreme Court (SC) only on the violation of FR, embodied U/A-32 of COI. Further, for the purpose of ensuring all other legal rights, including FR, the High Court (HC) is empowered to entertain writ, U/A-226, COI. Nevertheless, in case of Nepal, the HC & SC both are empowered to entertain the writs on the violation of all other constitutional & legal rights, including FR.
Moreover, the transferability of cases is concerned from one HC to another, the provisions of the both countries stands on a similar footing.
Even as the CON adopts that the state would have no religion as it has adopted secularism on all hands, the single provision of A-26 to deal with the notion has narrowed the spectrum. In India, secularism has been overwhelmingly accepted and covered U/A (25-30), COI. The CON nowhere ensures right to allow religious instructions or lessons through educational curricula or through religious minority institutions, while A-28, COI ensures the same right as a matter of FR.
Under the legal academics, the law of equity is often regarding as of the greatest significance. Following this doctrine of equity, CON ensures distribution of revenue between center and state in equitable nature. However, COI empowers extensive power on Union parliament. As COI provides extensive power to Union by ruling out the doctrine of equity in many cases, it’s often called a quasi-federal state.
More, regarding the qualification of President, minimum age of eligibility stands at 45 in case of Nepal while in case of India, its 35. The same person can be elected in any number of times as president in India while CON follows US system of qualification of president where there is restriction for not more than two terms.
However, the matter of taking of oath of office and tendering resignation appears to be similar in both countries.
Regarding electoral constituencies, A-286 (12) of CON provides for delineation of electoral constituencies in every 20 years. However, COI simply says parliament may from time to time make provisions with respect to all matters in connection with election. Further, the CON provides while delineating electoral constituencies, population and geography both will be taken into account whereas COI envisages only population to be basis for delineating constituencies. There are nine states where population density is lower, and for them one seat each is allocated for Upper House at Union whereas there are four such states blessed with one seat each for House of people at Union parliament. “The preamble of our constitution clearly suggests that the sovereignty is vested on people and so the population has been taken a single base for delineation of electoral constituencies,” says Abhiranjan Dixit, Jurist & Associate Professor of Constitutional Law at Apeejay Satya University.
However, widely admired commentator of constitutional law in India, Dr Anirudh Prasad, who has authored scores of books on Law, is of the opinion that the move of Nepal to take the population and geography both into account while delineating electoral constituencies is welcoming and it should be taken positively. “As Nepal has a different socio-cultural and other ground reality than that of India, the move of taking even geography into account is welcoming. In some of the Hill constituencies, there might be very less density of electorates; however, it does not mean that they should not be represented. It’s a good gesture for strengthening a democratic set up,” maintains Dr Prasad, who is also the Dean of Student welfare at RGNLU, Patiala.
While talking about state legislature, in India its bicameral while in Nepal it’s unicameral. Of 29 states, seven states in India having bicameral provincial legislature. Similarly, there are three Lists in both of countries on which center and/or state can enact laws.
Further, under the umbrella of welfare policies of the state, the Directive Principle of State Policy (DPSP) has been envisaged under part-IV of CON and COI as well. The COI used the word—“Social welfare”—as the object of DPSP while for the same notion CON wished to use the word—“Public Welfare”. However, both neighboring countries firmly believe that the DPSP is not enforceable in any court of law. “It’s beyond any iota of doubt that the spectrum of DPSP has been narrowed down by the CON with the insert of the word ‘public welfare’ against ‘social welfare’. The ambit of social welfare is much wider. The doctrine of social welfare ensures a wider guiding principle for mainstreaming the weaker section of society,” further adds Dr Prasad.
While for bringing marginalized groups into mainstream, the CON envisages “principle of inclusion” in all state structure whereas for achieving the same goal Indian constitution adopts “principle of proportional representation.” However, the CON has not clarified the manner in which principle would be followed, leaving a scope of ambiguity.
The judiciary which till now has been accepted on all hands as the strongest pillar of democracy is likely to be snowed under unprecedented problems followed by political intervention. The CON, U/A-153 provides for the formation of Judicial Council where law minister is given a berth with teeth. However, the COI ensures no room for political intervention in appointment & removal of judges of higher judiciary.
In India, a collegiums of Apex Court judges holds authority in appointment and removal of judges of higher judiciary where legislature has no role to play whereas Judicial council holds responsibility for the same task in Nepal, which prepares a safe ground for political intervention as the law minister is given a welcoming berth in the said council.
“Noted, the Union parliament came up with National Judicial Appointment Commission Act in the similar fashion as envisaged U/A-153 of CON which faced a knee-jerk reaction by the judiciary on the ground that the said Act posed a serious concern over the independency of judiciary alone and the Act was declared unconstitutional by SC recently. Such provision would certainly hamper the independency of judiciary,” argues Dr Sharafat Ali, Jurist-cum-Senior Professor of Constitutional Law at UTU.
Further, the SC of Nepal shall only be Court of Record whereas in case of India the HC & SC both. Like India, the constitution is supreme in Nepal—unlike British law where parliament is supreme.
“The Nepali parliament’s approach to not to take HC as Court of Record would certainly make HC weaker as it would not be entitled to punish for the contempt of court and moreover their decisions will not be binding in nature,” heralds Dr Prasad, while citing the drawback of this provision.
- Ambiguous Provisions:
There appears ambiguity when we interpret the provisions of citizenship. Moreover, the constitution has failed to provide a broader picture on the need of delineation of electoral constituencies in the line with geography and people as it appears that parliament has much role to play with geographical land than population. And, the constitution has not clarified the manner in which the principle of inclusion would be adopted for mainstreaming the marginalized sections of society into state affairs.
- Weaker Provisions:
Moreover, the attempt of making only SC to be Court of Record would ultimately make judiciary weak, and formation of Judicial Council for appointment & removal of judges, which prepares a safe invitation of political intervention.
- Progressive Provisions—a step ahead than India:
Similarly, in some of provisions, like free legal aid as FR, right to women as FR, right to information & communication as FR, doctrine of equity to be followed in case of distribution of revenue, the same person can be elected as president for maximum two terms like USA, provincial legislature unicameral, right of compensation for victim of crime, the HC & SC both are entitled to entertain the writs on violation of both FR and other legal rights and among other noteworthy provisions prove that Nepal is a step ahead than the current constitution of India.
However, are we really ahead? The answer would come in affirmative sense only when we come victorious to realize the dreams of preamble in both words and actions.
Comparison at a glance:
- India: No naturalized citizenship, citizenship even on the ground of birth
- Nepal: Citizenship be descent and by naturalized mode, where naturalized citizens are barred to hold legislative & judicial posts
- Nepal: Father & mother both citizen then only citizen by descent
- India: Any of parents citizen, offspring to get citizenship by descent
- Nepal: right to compensation for victim of crime as FR from beginning stage
- India: compensation right realized at latter stage through amendments
- Nepal: free legal aid as a matter of FR
- India: free legal aid not as FR, but legal right
- Nepal: Right of Women is FR, wider sense
- India: no specifically mentioned under FR, narrower sense
- Nepal: Right to information as FR
- India: not enlisted under FR, governed by RTI Act
- ….
- Nepal: SC/HC can entertain writs on violation of legal right as well as FR
- India: SC entertains writs only on violation of FR, HC on both legal plus FR
- …
- Nepal: Public welfare as object of DPSP
- India: Social welfare as object of DPSP
- ..
- Nepal: SC to be only Court of Record
- India: HC & SC both as Court of Record
- ..
- Nepal: Doctrine of Equity applicable on distribution of revenue between state & centre
- India: No equity. Union has extensive power
- ..
Nepal: Constituency delineation in every 20 years, population & geography to be basis
India: delineation may from time to time by Union, population only basis
- ..
- Nepal: Minimum age 45 for becoming President
- India: Minimum age 35
- ..
- Nepal: Provincial legislature unicameral
- India: Bicameral, but only in seven states
- ..
- Nepal: Judicial Council, where law minister a component part, for appointment, removal of judges
- India: Collegiums of SC judges, no role of politics
- ..
- Nepal: Like India, constitution is supreme
- England: Parliament is supreme.
(The Author is a Kathmandu University graduate, currently, pursuing legal studies in Dehradun, India).