At a time when there has been a wide berth discussion on the world’s youngest Constitution which was enforced on Nepali soil on September 20 last year, the commentators and constitutional scholars in India believe that the fundamental document has embarked a new beginning. The scholars believe that the arrangements of fundamental rights (FR) in pursuance with humanitarian laws and arrangements of Directive Principles of State Policy (DPSP) are example-suffice to prove that the document is progressive in nature.
In an endeavor to bring a discourse on Nepal Constitution, Nepal Foreign Affairs (NFA)’s contributing writer Jivesh Jha approached Mr Pramod Tiwari, Mr Abiranjan Dixit, and Mrs. Pallavi Gusain who are currently associated with Uttranchal University, Dehradun, to have their views on the new statute.
Mr. Pramod Tiwari, a former Civil Judge in Assam Judicial Service, is a faculty of International Law at Uttranchal University, Dehradun. Mr. Tiwari holds B.Sc. (Physics), LL.B., LL.M. from Banaras Hindu University (BHU). And, Mr. Dixit holds M.Com, LL.M. Both of them are UGC-NET qualified professors. Currently, they are teaching Constitutional Law, International Law, and Interpretation of Statutes at Uttranchal University.
In an endeavor to analyze the newest Constitution of the world from feminist perspective, Mrs. Pallavi Gusain, who holds BBA.LLB (Hons), LL.M, was also invited to share her intuitive views. Mrs. Gusain teaches Human Rights, International Law, Women’s rights and Media Law.
Q. Mr. Dixit and Mr. Tiwari as both of you are well-versed with the salient features of Nepali Constitution, how do you find the Statute when it comes to learn that the country has succeeded to establish a federal democratic republic set up?
A. Obviously, the Constitution has embarked a new chapter as it has succeeded enough to institutionalize republicanism in the country by thwarting King’s rule. We find the document progressive on number of occasions. First, the DPSP provisions share a broader spectrum. Second, the cornerstones are set by the fundamental rights available for mainstreaming the weaker section of society.
Q. You said you are happy with the arrangements of fundamental rights (FR). Which provisions are progressive in nature, Mr. Tiwari?
A. Article 17 offers a wide range of freedoms, including right to speech & expressions and right to form political parties. The most appealing provisions are enshrined under Articles 18 (Right to equality), A-19 (Right to communication), A-20 (Right to free legal aid), A-25 (Rights to property), A-28 (Right to privacy), A-36 (Rights to food), and A-38 (Rights of women as FR),
Q. Could you please explain the jurisprudence behind these FR Articles, Mr. Tiwari?
A. While ensuring right to equality, A-18 provides a wide range of clusters on which basis discrimination shall not be made. The provision is not exhaustive in nature rather it’s enumerative. The clause (3) further broadens the horizon as it envisages no discrimination on the basis of ‘such other matters’. The basic jurisprudence behind it is that the clause (3) has succeeded enough to acknowledge the spirits enshrined under the legal maxim of ‘ejusdeum generis’ which means ‘of like nature, i.e. the constitution ensures that no one shall be discriminated on the basis of other like nature clusters. Similarly, A-19 provides freedom for media outlets, which is also welcoming. The rights of life, liberty and property are the basic natural rights given by the god to the mankind and the basic principle of John Lock’s Social Contract Theory rests upon it. John Locke was of the view that state has no right to take away these natural rights. More, the legal maxim of ‘Salus populi est suprema lex’, meaning public interest is the highest law. It appears that the state has succeeded an inch to bestow the concepts of John Luck and above mentioned legal maxim as Constitution is pledged to ensure these natural rights for every Nepali citizen by guaranteeing right to property under A-25 and right to have a dignified life under A-16.
Q. Mr. Dixit, do you find any case where Nepal’s constitution is more progressive than India’s current Constitution?
A. The right of privacy under A-28 has been adopted as a matter of FR in Nepal whereas the same has been guaranteed through ample amount of judicial pronouncements and recommendations in India but no specific constitutional provisions are enacted so far—though it’s accepted that it falls within the ambit of Article 21, right to life & liberty. Secondly, the rights of women have been taken as a matter of FR and it seems that the Nepali state was quick to bestow the rights of half sky of the Nepali universe by showing a welcoming gesture towards the women. Similarly, rights to communication has been enshrined under a separate Article in an enumerative form whereas the same rights has been ensured under Article 19(1)(a) of Indian Constitution. Similarly, the scope of freedom of speech and expression has been further broadened through judicial decisions while enlarging the ambit of right to life and liberty envisaged under Article 21 of Constitution of India. However, it would be a miscarriage of justice to say that Indian Constitution is yet to acknowledge these rights. We recognized the due importance of these FR through judicial activism where judiciary stepped into the shoes of an ordinary mass to guarantee all the human rights as FR. In nutshell, we can say that Nepal adopted these human rights as FR through initial stage whereas Indian system bestowed the same rights in later stage. And, the legislature should be thanked for showing such a responsive manner. Moreover, when we read Article 30-33, there appears a broader objective which the legislation has intended to achieve. Nonetheless, it would have an icing on the cake had the legislature offered little rooms for loopholes.
Q. Do you find some drawbacks in the new statute, Mr. Tiwari?
A. Some of the Directive Principle of State Policy (DPSP) provisions have been elevated to FR which would pose a serious challenge for the state as well as judiciary to enforce it in material sense. In particular, rights of children is subject matter of DPSP, not FR. The reason being: on the event of violation of his FR, a child cannot bring an action before the court of law as he is not competent. It would have better had the state taken a pledge to maintain rights of children as a positive obligation of state under their DPSP. Secondly, rights of social justice envisioned under Article 42 should be the goal of state as a matter of DPSP, not a FR. However, the rights of consumer and rights of social security envisaged A-43 & 44 should come under DPSP as they are part of civil rights. The incorporation of civil rights into FR leads to reach a stage of confusion: whether civil rights and fundamental rights stand on a similar footing. In long run, it would pose an overburden over the Apex Court which would cost dearly–as it would ultimately lead to denial of justice and fresh invitation for agitation. For maintaining FR, writs can be issued with a view to give prompt justice. But to adopt the same gesture for civil rights as well as other fringe rights look unrealistic. Meanwhile, Article 45 says that no person shall be exiled and the provision is kept within the ambit of FR. This provision is fully irrelevant. There should not be question of exile. If one goes against the sovereignty of state, the state could come down heavily against him by awarding sentence of rigorous imprisonment. Likewise, perhaps Article 47 is a serious lacuna which has escaped the attention of framers as there leaves clouds of suspicion regarding the implementation of FR. There should be a specific article regarding the remedy of FR. Even in India, Article 32 is there for implementation of FR where it’s envisaged that any person can knock the door of Supreme Court on witnessing the infringement of his FR. And, the said provision is within the periphery of FR Chapter. It appears that the implementation of FR has been left at the will of Nepali legislature when it comes to learn that there is no any specific procedural provision enshrined under the Chapter of FR. Its accepted on all hands that right without remedy is meaningless. The procedure of remedy should also be within the boundary of FR Chapter but sadly enough the legislation has left the matter of implementation on the mercy of legislature. In one way or the other, we can say that the fundamental rights available to the citizen of Nepal against the state looks like a ‘toothless tiger’ where there are rights but without remedy.
Q. So, do you think Nepali state has succeeded enough to institutionalize the federal set up, Mr. Dixit?
A. More or less, the attempts have been made to keep the anti-federalism elements at arm’s length. However, there are some of the provisions which still reflect the unitary character of Nepali state. To be specific, Article 56 (4) & (5) reflects the unitary nature as the provincial legislature is disallowed to enact laws relating to local bodies election. Secondly, by defining a particular caste under A-84 the legislation has intended to bifurcate the country on communal lines. Its against to the basic philosophy of reservation. In one hand, we are asserting that we are pledged to make an egalitarian society and on the other side we are playing caste, and ethnicity cards. Secondly, I also find citizenship provisions conflicting.
Q. What made you to observe the citizenship provisions conflicting?
A. The animosity has been set by Article 11(3) where the Constitutional provision envisages that a child shall get citizenship by descent if his father and mother both are citizens of Nepal. The clause 3 of A-11 appears to be more conflicting and adversely affecting the interest of a child in which he had no role to play. It offers grounds for discrimination. Secondly, after the enforcement of this constitution, the statute itself cuts the hands of large chunk of people who have developed marital courtships with foreign nationals. The citizenship provision also opines that the provisions relating to citizenship would be governed by federal law. The federal law at this juncture would further elaborate the intention of competent legislature of Nepal. It would give a broader picture when the federal law relating to citizenship is read with Article 11 of Constitution. Moreover, the legislation under Article 11(6) provides that a foreign woman married to a Nepali citizen ‘may’ get citizen of Nepal. It would have offered a welcoming gesture had the legislation ensured that the foreign national ‘shall’ get citizenship of Nepal on establishing matrimonial bonding with a Nepali citizen. Nonetheless, Article 289 appears to be discriminatory as it bars a naturalized citizen to hold any vital posts. Citizen means citizen, each and every constitutional posts should be available to them. There is no such type of unreasonable restrictions in Indian laws.
Q. However, our preamble clearly says the legislation has a goal to create a proportional inclusive egalitarian society. Though the statute confirms that the state shall not leave even a single stone unturned to make sure no rooms for discrimination, Mr. Tiwari you still find lacunas?
A. It would have offered a cutting edge had the Constitution also acknowledged Madhesh movement, like other movements. It would have better had the preamble acknowledged the agitations carried in Southern plains and obviously it would be a roller-coaster for ensuring a wider ownership of the news statute. It’s beyond any iota of doubt that the Madhesh agitations spearheaded the notion of federalism and set a milestone for the same to find space in Nepali democratic structure. So, it’s unappealing to find that the spirits of Madhesh movement were disallowed to find a proper space in preamble when it comes to learn that the agenda of federalism, which is a significant issue of the Statute, was floored by Madhesh uprisings.
Q. Mr. Dixit and Mr. Tiwari, which Constitutional provisions you gentlemen find charming for which the Nepali legislature should be thanked?
A. Article 6 expressly mentions that all the languages given by mother shall be national language and it’s the cream of the crop of the new statute. Secondly, rights of women (A-38), right to equality (A-18), DPSP provisions, tax and revenue sharing laws, and liberal approach to strengthen the sovereignty of the nation are really charming provisions. Although there are some of the loopholes, there is no reason to be disappointed as we are hopeful that this Constitution shall also evolve with the passage of time. Any statute cannot be a perfect document that could succeed to acknowledge the concerns of all walks of life from the very initial stage. In a bid to make the Indian Constitution a broad-based living document, the parliament has made more than100 amendments so far. We have learned that there have been a couple of amendments made by the parliament to fulfill the concerns of the Madheshi parties. So, we hope, the concerns of dissident groups would be addressed with the passage of time, while maintaining sovereignty and integrity of the nation.
Q. Mr. Dixit, how do you see Article 82(2) which provisions that no question shall be raised in any court on the working procedure of government of Nepal?
A. There is nothing wrong in it. It clearly says that the state has adopted principles of separation of power like USA.
Q. Mrs. Gusain, how do you find the arrangements of provisions related to women in Nepali Constitution?
A. At first I would like to thank the competent legislature of Nepal for making such a broad-based document by taking all the humanitarian laws into account. When I found that all the rights of women have been declared as a matter of FR, it simply piqued my mind. What I believe that A-38 is the most charming provision of the statute and for me it’s like a cellar door.
Moreover, Nepal sets aside 33% of parliamentary seats for women through legislation as envisaged under Article 84(8). Sadly enough, Women’s Reservation Bill has become a story so far in India as it’s pending in House of people since 1996. The 19 year-journey of the said Bill received a knee-jerk reaction by the male parliamentarians and was marked by high drama parliamentary discussions last year as well. So, India has a long way to go for 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 into sour. Nevertheless, it would be a miscarriage of justice to claim that the Indians laws are yet to knock the boundaries resting upon gender bigotry. The Indian Constitution under Article 15(3) empowers the parliament to make any laws for the betterment of women and children. The Indian parliament has enacted more than a dozen of Acts by invoking A-15(3) for mainstreaming the rights of women. We have enacted so many laws in pursuance with judicial activism as well. The Indian Constitution has envisaged one-third seats for women at Panchayat and other local level.
Q. So, Mrs. Gusain do you find Article 38 covering more humanitarian approach?
A. Yes, indeed. The legislature has enacted women friendly laws by taking all international conventions into account. Its unanimously accepted that women, indigenous groups, children, underprivileged category people and Dalits fall within the ambit of weaker sections of society. The Nepali Constitution is highly influenced by Human Rights and International Humanitarian Laws. In across South Asian societies women are easily exploited for a no good reason. In yesteryears women were taken merely as beggars and you very well know that beggars can’t be choosers. However, by legislating Article 38, where Nepal seems to be pledged in ensuring equal rights for women in family affairs, rights of lineage for women, reproductive rights and among other rights of women as a matter of FR, the state has embarked a new chapter. If these rights would be properly executed, Nepal would be a paradise for woman.
Q. The women activists have raised their eyebrows regarding Article 289 which bars a naturalized citizen to hold a vital government office. The foreign woman when gets married to a Nepali man is entitled to get citizenship by naturalization. Mrs. Gusain, how pragmatic is A-289?
A. It’s a reasonable restriction. See, one man’s trash could be another man’s treasure. However, one thing should be noted that a Nepali woman is not barred to hold vital government offices rather a foreign national has been barred to occupy any vital constitutional, legislative and judicial posts. Any sovereign country would think of their best and so Nepal did. Those offices should be available for the sons and daughters of Nepal, not for the daughter of any foreign country. I would like to quote one proverb in this regard: ‘You can’t make an omelet without breaking few eggs.’
Q. But woman activists say that those provisions are contrary to international conventions?
A. See, a woman has not been discriminated there, rather a naturalized citizen, who is a formerly a foreign national, has been discriminated. Even in India, Mrs. Sonia Gandhi was widely opposed to hold Prime Minsiter’s office though her party had got a clear majority. She was not obstructed because of being a woman, rather because of the reason: she is not a daughter of India though a citizen of India. Civil rights can be made available to them (foreign women) but not the political and fundamental rights.
Q. The parliament has envisaged Judicial Appointment Commission, where Law Minister is a component part, for making appointments and removal of judges of higher judiciary. To what extent this provision is reasonable?
A. 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 under A-153 of Nepal Constitution 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 Indian SC last year. Such provision would certainly hamper the independency of judiciary.
Q. Mrs. Gusain, how pragmatic is it to make judiciary inclusive? Is it a healthier approach to let the reservation politics captivate the judiciary as well?
A. It’s pragmatic to make judiciary inclusive. Even in India, we have reservation in judicial appointments though the PCS-J Exams of various states. As judiciary is the strongest pillar of democracy, it should reflect an inclusive character and vulnerable groups should also find space in it. In across the globe, you could find positive discrimination has been made for mainstreaming the weaker section of society. So, inclusion principle applicable in judiciary is neither unrealistic, nor unconstitutional.
Q. On the other hand, the federalists argue that making defense and police a subject of Federal List (Central List) in Constitution is unrealistic in a federal country. How relevant is their claim, Mrs. Gusain?
A. For upholding national interest, such types of provisions should have been enshrined. Even in a family, mother-in-law holds all the control of family affairs. Even she does not allow other family members to hold keys of coffers. Might be the reason being: the other family members are little confidant to her. In the similar vein, Nepali Central government wants to take the vitals keys in her pocket, while allowing the distrust level to flourish.
Thanks you much Mrs. Gusain, Mr. Tiwari and Mr. Dixit for speaking with NFA.