Right to equality is not an unqualified right in South Asia


indexBy Jivesh Jha–

The fundamental axes of social inequality in South Asia are ethnicity, religion, caste and gender. Caste distinctions were central to orthodox Hinduism and Islam in the region. Undoubtedly, under the shadow of selective quotations from Quran, or the Vedas, one can claim they respected or even revered women, but taken as a whole, there is an undeniable fact that Hinduism and Islam are both religions where men are held to be superior and thus they were authorized to dictate family, society and community life. A look at what has constrained and qualified right to equality, by way of Constitutional provisions, religion and politics in South Asia.

Although the Constitutions of member states of South Asian Association for Regional Cooperation (SAARC) assert that right to equality is inviolable, they are quick to declare that this right is attached with certain limitations.

The Constitution of India, the eldest charter in the region, envisages that the state hall not deny to any person equality before law or the equal protection of laws. In its Article 14, the charter provides that right to equality within the territory of India would be available to ‘any person’, meaning the benefits of this right can be availed by citizen and non-citizen both.

Unlike India, the newest Constitution of the world, which was unveiled on Nepali soil on September 20 last year, ensures the same right exclusively to its citizen. The Article 18 provides that all citizen shall be equal before law and no person shall be denied of equal protection of law. The Bare Acts’ provision also ensures that the state would make special provisions for the protection and empowerment of weaker sections society, including Khash Arya.

The charter also ensures that there would be no gender discrimination regarding the right to parental property with regard to all family affairs, Article 18(5). However, the provision can neither be taken as a shield, nor as a sword by women when it comes to learn that the Charter does not allow women to confer citizenship onto their children. Similarly, the claim is further punctuated by Article 289 which makes descent citizen superior over naturalized ones, meaning naturalized citizens are barred to hold any vital government office.

Similarly, the Bangladeshi Constitution also provides that all citizen would be equal in the eyes of law. “The State shall adopt effective measures to remove social and economic inequality between man and man and to ensure the equitable distribution of wealth among citizens, and of opportunities in order to attain a uniform level of economic development throughout the Republic,” reads Article 19(2). In order to end social disparity, the Constitution in its Article 27 provides, “All citizens are equal before law and are entitled to equal protection of law.” Like India, the provision begins with a marginal note of ‘equality before law’. The fundamental document further provides that “To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.” And, the said arrangement has been enshrined under Article 31 beginning with a marginal note of “Right to protection of law.”

Standing on the same page, the Bhutanese Constitution ensures that “All persons are equal before the law and are entitled to equal and effective protection of the law and shall not be discriminated against on the grounds of race, sex, language, religion, politics or other statuses,” reads Article 7(15).

The document also envisages that a Bhutanese citizen shall have the right to equal pay for work of equal value, Article 7(11). Ensuring that the eligible citizens would not be discriminated on any grounds in selection of government service, the charter explains that “A Bhutanese citizen shall have the right to equal access and Opportunity to join the Public Service,” Article 7(8).

Meanwhile, Pakistani charter in its Article 25 ensures that discrimination would not be made on the basis of sex, while maintaining that all citizen are equal before law and are entitled to equal protection before law.

However, the Sri Lankan Constitution also shares a similar story like Pakistan in ensuring right to equality. Article 12 of the Constitution is of natural import as it slams any moves airing inequality.

Likewise, “the citizen of Afghanistan, man and woman, have equal rights and duties before law,” reads Article 22 of Afghani Constitution.

Sharing a similar pitch, the charter of Maldives provides that every individual is equal before and under the law and has the right to equal protection and benefit of law.

However, the legislative intent of the South Asian states is very clear: ‘All citizen are equal and are entitled to equal protection before law.’ The legislatures of these developing nations have clarified that they are pledged to water the right to equality but this right is attached with certain limitations and cannot be availed in an absolute sense.

What are those qualifiers?

The Constitutions of SAARC states assert that there should not be a narrow interpretation of right to equality, but that does not mean that there cannot be any constriction.

  • Religion

The Islamic states—Afghanistan, Maldives, and Pakistan—have asserted that right to equality is subject to any reasonable restrictions imposed by law in the interest of glory of Islam.

Even as Pakistani Constitution envisages that there would not be any form of inequality, they are yet to ensure no room for disparity at legislative spectrum. The Article 41 (2) provisions that a person shall not be qualified for election as President unless he is a Muslim.

Analogous to Pakistan, the Afghani charter envisions that one must be a Muslim, born of Afghan parents and shall not be a citizen of another country, for becoming President, Article 62.

Moving a step ahead than Afghanistan and Pakistan, the Maldivian Constitution provisions that one must be a Sunni Muslim born to parents who are Maldivian citizen and who is not also citizen of foreign country, to run for Presidential election, Article 109. The similar qualification has been envisaged for Vice President, Article 122 (c). Moreover, the essential qualification for judges (A-149), Member of Parliament (A-73 read with A-130), and among other vital posts stand on similar on similar footing with Presidential qualification.

When asked whether these types of arrangements are as per substantial justice, Assistant Professor of Sikkim Central University Dr Nidhi Saxena said, “Equality before law does not have much meaning unless it is accompanied by equality in social practice. By legislating such types of essential qualifications, the Islamic states of Afghanistan, Pakistan and Maldives have tried their best to vitiate the principle of right to equality. Their derogatory provisions have potential to give a big blow to morality and international law.”

  • Language

The Sri Lankan Constitution provisions that one must have command over Sinhala and Tamil languages for holding any government offices. The official language of Sri Lanka is Sinhala and Tamil, provisions Article 18. More, Sinhala and Tamil would be the language of administration throughout Sri Lanka, commands Article 22. However, English has been recognized as link language, Article 18(3).

  • Marriage

In contrast, marrying with a foreign national could cost you dearly if you have an ambition to represent the people of Bhutan. The charter bars a person who have developed courtship with a foreign national to contest any elections, Article 23(4) (a). The arrangement is supported by Section 179 (f) of Election Act of the Kingdom of Bhutan, 2008 as well.

Similarly, the Nepali charter also bars a non-Nepali national, married with a Nepali person, to hold any vital government offices, Article 289. This provision has potential to put the rights of women, who are non-Nepali, beneath the civil and political status.

The persons who have solemnized marital bonding with a non-Nepali national remained deeply offended after sensing that their husband or wife or their issues will be beneath their civil and political status.

The Article 11 (3) provides that in order to acquire citizenship by descent, it must be proved that both ‘father and mother’ are Nepali citizens. However, on non-fulfilment of this clause, meaning where a child whose ‘father or mother’ is a Nepali, a person is entitled to get citizenship by naturalization.

Moreover, if his/her father is found to be a foreigner, the citizenship to such a person shall be converted to naturalization citizenship, Article 11(5). Similarly, if a foreign woman married to a Nepali citizen so wishes, she may acquire naturalized citizenship of Nepal, says Article 11(6).

While talking about the most disputed provision, the bushel has been set by Article 289 which bars a naturalized citizen to hold any of the legislative, judicial and constitutional posts. Sadly enough, this type of derogatory provision has been incorporated on Nepali soil for the first time as the said provision was not embodied in Interim Constitution-2007 and erstwhile Constitution of Nepal Kingdom-1990.

This provision makes clear that the naturalized citizens are inferior to descent citizen.

“Article 289, which provides for special criteria of citizenship to qualify for top constitutional positions, grossly violates the letter and spirit of Article 18, which guarantees equality before law to all citizens,” said Anurag Acharya, an eminent political analyst in Nepal. He further said that Article 18 has some elements of positive discrimination but Article 289 requires a different category of citizenship which violates principle of equality.”

On a separate context, if a woman approaches the District Administration Office (DAO) for acquiring Nepali citizenship, she is asked to produce a letter issued by the concerned Village Development Committee (VDC) or Municipal Development Committee certifying her actual marital status. Even as the Constitutional provisions nowhere demand such requirement, the executive Magistrate of Dhanusha district has started asking for a letter certifying woman’s marital status. However, the same is not the case with men. The move of the DAO adversely affects the rights of women, which is a clear violation of right to equality and citizenship clauses.

Meanwhile, a non-Muslim may not become citizen of Maldives, as envisaged under Article 9(d) of Maldivian Constitution.

  • Only for citizens

The Constitutions of SAARC states provide this right coupled with positive discrimination exclusively to their citizen. The fundamental documents have unanimously laid down a broader canvas for right to equality but with ‘reasonable restrictions’.

The Charter of India ensures right to equality and equal protection of law to non-citizen as well, while the remaining member states of SAARC have ensured this right exclusively to their citizens.

Although the walls of right to equality before law are yet to be well-cemented in SAARC countries, the qualifiers attached with it has potential to punctuate the broader canvas which the legislations have ultimately intended to achieve.

 

Published on June 28, 2016.

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