By Chandra Nath Singh
As India marked 66 years of the adoption of its Constitutional Act on January 26, 2016, there is ample to celebrate. In the similar vein, with the enactment of the new Constitution, the Himalayan state has also got lot to celebrate as the state has taken a new political course to institutionalize the federal democratic republic by uprooting deep-seated monarchy. Yes, indeed, Nepali people have got plenty to celebrate.
Its been accepted on all hands that the Constitution is the fundamental document of any country and all other Acts, regulations, by-laws, notifications, rules and other directives reflecting the legislative intent should be in compatible with the Constitution, the highest law of the land. For me, the Nepali parliament has succeeded to bow the seeds of democracy and moved a step ahead to onboard the country on Constitutional roadmap.
To promulgate a new statute is not an easy task and neither can it be enacted over a cup of tea. It’s a rigorous work that needs huge potential and dedication. By legislating new charter, the Nepali parliamentarians have proved that they are potent as well as dedicated to onboard the state on a constitutional roadmap.
As a student of law, what I believe that the Nepali people have lot to make merry after the promulgation of the new statute. After making a painstaking reading of the Constitution of Nepal-2015, what I came to learn the charter has embarked a new beginning when it comes to learn that the fundamental rights (FR) provisions are in consonance with the international standards. Not only the FR provisions, the Nepali charter is progressive on language too as the statute clearly says that all the languages given by mother ‘shall’ be the language of national import (i.e. national language).
Of the FR provisions, the right of women as envisaged under Article 38 appears to be more charming. The reason being of it is very simple: All the rights of women ‘shall’ be the FR. So, it’s beyond any iota of doubt that the Nepali charter has progressive provisions for women, the half sky of the national population.
The seriousness of the Nepali legislature further elaborates when it comes to witness that the charter has ensured one-third seats for women in all state apparatus.
It is often argued that father is faith and mother is fact when it comes to introduce a child. With a view to not to turn the dreams of women sour, the Nepali parliament has enacted women friendly provisions.
Nepal is all-set to leave the South Asian countries far behind by ensuring one-third seats for women in all state machineries.
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 to women in 59-member national assembly, where eights members are to be elected from each province. The constitution envisages that Nepal would be restructured with seven provinces to acquire a federal set up. Moreover, the A-86(2) (b) says that three members, including at least one woman, would be nominated by President for national assembly on the recommendation of government of Nepal. The constitution also envisages formation of a national women commission with teeth under A-252 read with A-253.
On the other hand, the Indian constitution is yet to ensure one-third seats for women in parliament. However, the Indian constitution under A-243 provides that one-third seats for women shall be reserved in Gram Panchayat, cooperative societies and municipalities.
Moreover, the Nepali statute’s Article 38 slams 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, and rights relating to safe motherhood.
If the state succeeds to realize the dreams of Article 38, Nepal would become one of the safest places for women. The need of hour is to materialize the developmental agendas.
However, when I went on to sense the citizenship provisions, it simply annoyed me. What I believe that the Nepali charter has not yet succeeded in knocking down all the boundaries between the male and female as the constitutional provisions restrict a Nepali woman from transferring her identity to her young ones. With the promulgation of this provision, Nepal joins 27 countries with dependent nationality laws as they also provision that no woman will be allowed to confer citizenship onto their children.
Similarly, Article 11 (3) provisions that in an endeavor to obtain citizenship by descent, it must be proved that both ‘father and mother’ are Nepali citizens. However, on non-fulfillment of this clause, meaning where a child whose ‘father or mother’ is a Nepali, a person is entitled to get citizenship by naturalization. And, Article 289 makes the naturalized citizen inferior to descent citizen as the provision bars naturalized ones to hold vital government offices. Moreover, the provision is adversely affecting the interest of the child in which he had no role to play and it has potential to deface a large chunk of people who have established matrimonial courtship with foreign nationals.
It appears that the fundamental rights (FR) provisions are progressive and of natural import. The right to equality, right to life & liberty, right of free legal aid, right to information, rights of privacy and right to constitutional remedy have been enlisted under the verse of FR from the initial stage, which are of, indeed, natural importance.
Accepting a complete responsibility, the statute provides rights of women (Article 38), rights of Dalit (A-40), rights of senior citizens (A-41), rights to equality and equal protection before law (A-18) in an enumerative form. And, yes these rights are of divine importance.
Nonetheless, for mainstreaming the under privileged sections of people, charter ensures that the oppressed groups will have right to participate in state affairs on the basis of principle of proportional inclusion.
While talking about election-related laws embodied in the Nepali statute, it’s been provisioned that ‘geography and population’ both would be taken into account while delineating the electoral Constituencies. The international practice is to take exclusively population into account while demarcating electoral constituencies. These types of provisions might have been inserted to ensure that the sparsely populated Hilly districts are not left out of the democratic process.
In a bid to set aside the animosities set by the erstwhile unitary system, the Nepali people dreamed of making the country a federal republic. But, the constitutional provision envisioned under Article 56(4) & (5) has potential to annoy many, where its’ been envisaged that the centre will have an extraordinary influence in determining the laws for local bodies’ election. The statute ensures no room for the provinces to set the norms for local bodies’ election.
Likewise, in case of judicial appointments also, the center has been given extraordinary power. The provincial governments have not been given power to appoint, and transfer the judges of lower judiciary, including the High Courts of respective states. However, the Indian Constitution bars political intervention on entire judicial appointment process.
Moreover, the preamble has acknowledged the Maoists’ movement and People’s movement, but it has failed to recognize the essence of Madhesh movement. Similarly, the state government has not been empowered to set up provincial police. If we observe these arrangements, it appears that the basic principles of federalism still remain unaddressed. Though the statute declares that state would be of federal democratic in nature, its’ yet to adopt the federal shape in spirit. If we take example of India, the state government is empowered to formulate laws for state police and each state has its own police, for example UP Police, MP Police, Delhi Police and the likes.
Nonetheless, the Constitution remains a template under which various institutions function while upholding its values. And, it is so common that the desperate interest groups would keep questioning over its’ legitimacy.
As the Constitution of Nepal expressly mentions that the justice would be ensured to all in the line with social, economical and political, the dissident groups and the major parties should come forward to resolve all the outstanding issues through political negotiation. And, it would certainly work as a steppingstone for garnering a wider ownership of the statute.
I am hopeful that this statute would also evolve in the times to come. However, the need of hour is to realize the dreams of preamble.
(The Author is a senior Research Fellow (UGC JRF/SRF) at faculty of Law, Banaras Hindu University (BHU).