Jivesh Jha

As the constitution of a country is regarded as a living organic document, its continued harmonious interpretation remains in progress to address the necessities of the time. The robust interpretation may give life to a law, for the courts are constitutionally empowered to construe the facts and circumstances to reemphasise people’s commitment to the constitution and upright the rights of the individuals.
Solemn commitment
The Constitution of Nepal, which features as many as 308 Articles and 9 Schedules, entered into force on September 20, 2015. On every Asoj 3, “we, the people of Nepal” celebrate the Constitution Day to vow to take the country forward while expressing a solemn commitment to the rights and duties in accordance with the constitutional spirit. Generally, the constitution of any country is a document of utmost pride, for the document provides a system of governance and bunch of rights and duties of the government agencies. In a country that follows rule of law, domestic activities or instruments of the state rest on the firm foundation of legal frameworks envisioned under the constitution.
The constitution, which was endorsed by 507 votes in the 598-member Constituent Assembly (CA), was criticised by the Madheshi parties. Altogether 57 CA members from Madheshi parties had boycotted the constitution endorsement process. As a result, the agitating Madheshi parties refused to give stamp of approval to the new charter, arguing that the “statute is not a broad-based document” and it would “politically marginalise the Madheshi people.” They argued that constitution failed to address the concerns of Madheshi parties in terms of federalism, electoral representation and citizenship, leading to street protest and disruption along Nepal-India border. And, more than 40 people lost their life while protesting against the new statute.
Though there may be some sort of disagreements with the provisions, the constitution hosts welcome provisions to drive the country and the national population onto the path of prosperity and unity. 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 per cent representation of women in Nepal’s legislature is a major breakthrough.
Similarly, Article 86 (2) (a) ensures that three berths shall be given in 59-member National Assembly, where eights members to be elected from each state. However, India has been considering adopting the similar constitutional framework since 1996. In enacting fundamental rights in Part-III of constitution (Articles 16 to 47), the constitution-makers showed that they had the will and were ready to adopt the means, to confer legally enforceable fundamental rights.
While making a departure from other constitutions, our charter lays down plethora of unique fundamental rights for the citizens. They include: rights of women (Article 38), rights of Dalit (A-40), rights of senior citizens (Art. 41), right to social justice (Article 42), right to social security (Article 43), rights of consumers (Article 44), rights of children (Article 39), rights to food (Article 36), right to health care (Article 35), rights regarding labour (Article 34), right to employment (Article 33), right to language and culture (Article 32), right regarding clean environment (Article 30), right against exploitation (Article 29), right to privacy (Article 28), right to information (Article 27), right to property (Article 25), right to justice (Article 20), and right to communication (Article 19).
To be specific, the charter ensures that the oppressed groups will have right to participate in state affairs on the basis of principle of proportional inclusion. In a major breakthrough, the constitution puts an end to gender bigotry. Article 38 guarantees that every woman shall have equal right to lineage without any gender discrimination. Similarly, Article further explains that rights relating to safe motherhood and reproductive rights would fall within the ambit of fundamental rights. It also ensures that both spouses shall have equal rights in property and family affairs.
Under the scheme of the new constitution, victims of environmental pollution have the fundamental right to receive compensation from the polluter. Also, it has been provisioned that citizen with disability and economically poor conditions shall have the right to free higher education. Nepal became the first country in Asia to explicitly recognise the rights of Lesbian, Gay, Bisexual and Transgender (LGBT). The provision of right to equality clearly states that no discrimination shall be made along the lines of sex, or sexual orientation as well. Article 12 is a welcome provision which confers an individual to seek citizenship certificate along with gender identity.
What’s required?
There is no need to be disappointed with the handful number of conflicting provisions. They can be amended. Also, there is no need to follow the campaigners who first launched protests against the constitution, imposed trade embargo with the help of India, and in return secured vital government offices. The basic structures the constitution has envisaged allow the democratic credentials to thrive on the sovereign soil of Nepal. One of such basic structures has been the principle of federalism, which would play a stellar role in the consolidation of Nepali-version of democracy.
The Madheshi people and the leaders shedding blood and sweat are not unknown to the fact. The martyrdom of over 100 Madheshi sons is not for the benefit of handful opportunists. They sacrificed their life for the cause of freedom and equality, which cannot be compromised on any pretext. The government foregrounds the Indian involvement to hide the Madhesh’s genuine demand while the Madheshi parties often highlight that the Hill elites have offered nothing for Madheshi people in new constitution. Both sides need to be objective and talk in tangible terms. Above all this, the constitution is not to be blamed for the failure of political brigades. Our constitution is one of the most progressive documents in world. This is something that needs to be communicated loudly and proudly.

(The author is Judicial Officer with Birgunj High Court)