Progressive arrangements in Nepali Constitution: A comparative study with India

Dr Vijay Srivastava and Jivesh Jha  (KATHMANDU, 13 March 2018) – The Constitution of Nepal and the basic structures it envisaged have allowed the democratic credentials to thrive on the sovereign soil of Nepal. One of such basic structures has been the principle of federalism, which played a stellar role in the consolidation of Nepali democracy.

After more than seven years of deliberation, (including failure of first Constituent Assembly in 2012) on September 20, 2015 the then President of Nepal Dr Ram Baran Yadav unveiled the Constitution which gave a mandate for the country to walk on the roads of Federal Democratic Republic. There was celebration in Kathmandu and the Hill regions by lighting lamps and firing crackers. But, the Madheshis and Tharus of Nepal, the half of the national population, observed a Black Day to mourn the deaths of their community members who had been gunned down by security forces while protesting against certain discriminatory provisions of the Constitution. It’s the seventh constitution to have been enacted by Nepal in the last 67 years and the first by the Constituent Assembly of democratically elected representatives.

Although the Constitution was criticized for not incorporating the concerns of Madheshi population, the charter provides reasons for many citizens to celebrate—particularly women. It stands as the first national Constitutional charter in South Asia to include explicit mandate of one-third representation to women in legislative apparatus. Also, it’s the foremost fundamental document in Asia—and only the third in world along with South Africa and Ecuador—to expressly guarantee the rights of transgender people.

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; second, the constitutional provision setting aside 33% representation of women in Nepal’s legislature is a major breakthrough.

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.

However, India has been considering adopting the similar constitutional framework since 1996. More than two decades of journey of Women’s Reservation Bill, which is still pending in Lower House, was marked by high drama during 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 lackadaisical attitude of the major parties represented in parliament.

In yet another breakthrough, the charter institutes fair corpus of provisions for language as well.

Everybody loves his mother tongue and wants to see the language given by the mother flourish.  Once you know the language, it is easier for you to make good relationship with people, and establish contact through effective communication. In order to flourish the languages given by mother, its been provisioned that all the languages given by mother shall be national language (Article 6).

However, the position is different in India.

The Gujarat High Court, while hearing a PIL, had in 2010 observed that Hindi was not the country’s national language. The Public Interest Litigation had sought direction from the Union government and the Provincial governments to make Hindi language mandatory for all official purposes. But, the High Court was of the view that, “Normally, in India, majority of people have accepted Hindi as a national language and many people speak Hindi and write in Devnagari script but there is nothing on record to suggest that any provision has been made or order issues declaring Hindi as a national language of the country.”

Importantly, clause 1 of Article 343 states that “The official language of the Union shall be Hindi in Devnagari script.” Not only this, “the Articles 350A and 350B were inserted by the Constitution (7th Amendment) Act 1956 to ensure the protection of linguistic minorities,” argues the much-admired commentator of Constitutional Law MP Jain in his book Indian Constitutional Law. To secure these goals, the charter recognizes 22 languages in the Eighth Schedule that includes Nepali, Bengali, Maithili, and Hindi.

In contrast, the Constitution of Nepal (under article 7) envisages that in addition to Nepali language, a province can select one or more national languages to be used in the state if that is spoken by a majority of the people there. More or less, similar arrangement has been envisaged under Article 345 of the Constitution of India.

More so, right to privacy is yet to be expressly mentioned in Indian constitution; however, the same right has been enlisted under fundamental rights in Nepal. Nevertheless, right to privacy is protected as an intrinsic part of ‘right to life and personal liberty’ clause in India.

The provisions relating to fundamental rights have been embodies under Part-III (Article 16-48) of the Constitution. There are ample provisions which are progressive in nature. For instance, right to information, right to communication, right to justice, rights of victim of crime, right against torture, right to free legal aid, right to privacy, right to property, right to clean environment, right to language and culture, rights of women, rights of Dalits, rights of senior citizens, right to social security, and among others are the provisions which appear progressive in one way or the other.

It may be noted that 2015 charter is the seventh Constitution before the Nepal dwellers. The Government of Nepal Act, 1948 was the first Constitutional document in Nepal. Since 1950, the Himalayan state has experimented with various constitutions. It has had two Interim Constitutions (1951 and 2007) and three formal Constitutions (1959, 1962 and 1990).

Many thoughtful Nepalis believed that the new Constitution would succeed to end all discrimination lying in the country. Unfortunately, the charter, at the time of its promulgation, failed to strike a balance between dominant views (i.e., the agendas of major parties) and minority views (i.e., agendas of Madheshi parties). As a result, agitating Madheshi parties refused to give their stamp of approval to the new document, arguing that the “statute is not a broad-based document” and it would “politically marginalize the Madheshi people.”

The constitution failed to address the concerns of the Madheshi population in terms of federalism, electoral representation and citizenship, forcing the community to hold a five-month long blockade along the Indo-Nepal frontier. More than 40 people lost their lives while protesting against new statute.

Still, there would be political debates, there would be heated arguments also, at times there would be protests on the streets, yet amidst the noise and chaos, what the preamble of 2015 Constitution has taught ordinary population and those who claim to be representatives of people is that despite of extraordinary diversity and differences along the lines of ethnicity, caste or religion, Nepal must remain one and march ahead with full faith on democratic credentials.

There is no need to be disappointed with handful number of conflicting provisions; the Constitution of Nepal—like other Constitutions of developed states– will also evolve with the passage of time.

Dr Srivastava is Assistant Professor of Comparative Laws at Uttaranchal University, Dehradun, India.  

Mr. Jha is a Nepali student of LL.M (Constitutional Laws) at Uttaranchal University.  


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