Constitution of Nepal is progressive, challenge lies in implementation

Dr Rajesh Bahuguna is currently Dean of Faculty of Law at Uttaranchal University, Dehradun, India. Considered an authority on Constitutional Law and Alternate Dispute Resolution (ADR) in India, he is subject expert at Uttrakhand Public Service Commission, Uttrakhand and different universities across India. His research articles have been published in leading international journals. Jivesh Jha for Lokaantar caught up with Dr Bahuguna this week to discuss about the statute. Excerpts:

The preamble of the Constitution acknowledges People’s War and a decade-long Maoist insurgency. How do you find this arrangement? Do you think it’s better to give priority to political movements than recognising established socio-legal principles?

The People’s war or Maoist insurgency has been acknowledged by the framers of the Nepali Constitution as they strongly believe that the ideals championed by these political movements gave birth to the new Constitution. It has a stamp of deep deliberation and reflects the declaration of people’s faith and belief in certain fundamentals of national life, a standard from which the state cannot depart anymore. It would serve as a guide to constitutional interpretation for the coming generations. Also, it would serve as a lamppost for enforcement authorities, judiciary or political class to adopt a logical discourse whenever they feel stuck at a point. In yet another sense, preamble serves the cause of the Himalayan state as it succeeds to accelerate the Victorian identity of Nepalis who are globally identified for their “martial race” having inherent quality of toughness, bravery, durableness and discipline. So, I find nothing wrong in it.

Nepal Constitution takes population and geography both into account while demarcating electoral constituencies. Do you think it’s a rational arrangement?

Nepal Constitution has unfolded a new beginning by taking population and geography both into consideration as the basis for representation while delineating constituencies. It will ensure that the ratio of geography, population and number of representatives to be elected is in one way or the other equal across all constituencies without any distinctions. In a country like Nepal which has highly diverse geography and unequal development patterns, it's unreasonable to take population the sole criteria for parliamentary seat allocation. The voice and concerns of smaller districts should be equally heeded in polity. Only people with myopic vision would criticise this welcome provision. I would suggest India to adopt the similar arrangement. This is the unique feature of Nepali Constitution.

Nepali charter has been criticised for its citizenship provision. A person is eligible to acquire citizenship by descent when it's proved that ‘his/her father and mother both are citizens of Nepal.’ However, on non-fulfilment of this clause, meaning where a person whose ‘father or mother’ is a Nepali, s/he is entitled to get citizenship by naturalisation and naturalised citizens are barred from holding vital government offices. Isn’t it a discriminatory provision?

Look, the citizenship provision, unlike constituency delineation, appears discriminatory. The population of a country can be divided into citizens and aliens and there is nothing in between. Once a person becomes a Nepali citizen, then s/he should not be discriminated against. The state should not discriminate between citizens. Once somebody becomes a Nepali citizen the state should not suspect their loyalty. It will never serve the cause of Nepal. Rather it could fuel tensions in society. It could render people stateless and could also become a cause of conflict. Along with this, the provision violates Committee on the Elimination of Discrimination against Women (CEDAW) convention as well. The Constitution seems to show that naturalised citizens are inferior to that of descent citizens and this is unreasonable. There ought not to be any kind of discrimination between citizens just because of their birth in particular families.

Nepali charter reserves 33 percent of positions for women in Nepal’s legislative spectrum. Do you think it will play a significant role in empowering women?

Reservation itself is a form of discrimination but when it comes to women’s reservation I feel it is positive discrimination which ought to be promoted. This Constitutional provision would certainly increase the participation of women in politics and public life. It may just be a single step but is nevertheless a step ahead in the right direction. Now what remains is for these laws to be implemented in letter and spirit. It’s a welcome provision. However, there should be a limit on reservation.

Would you clarify these limitations?

See, this mechanism has two dimensions. First, it plays a crucial role in mainstreaming the weaker section of society. Secondly, although reservation is important the society should avoid getting habituated to it. If reservation is continued for generations exclusively on the basis of caste, it will defeat the very object of the policy. Ultimately the professional standard would lose real quality which would help sluggishness prevail. Protective discrimination (i.e., reservation) should work as a support, not a lifelong crutch.

Caste-based reservations have proved fatal in India. At times, it is seen that richer [i.e. creamy layer] sections (who actually don’t need reservation) gain success through reservation quota. It has done great damage to the rest and ensured that actual people who deserve reservation remain as miserable and poor as they were before. Earlier, reservations were proposed to stay in place for a conditional period of 15 years only, but continuing it forever has certainly helped vested interests to grow and it has already divided the Indian population artificially along the lines of caste and creed to a great extent.

I would like to borrow the words of Justice Markandeya Katju who has recently made a significant remark: Prime Minister of India Narendra Modi has appealed to the well off to give up subsidised cooking gas but the irony is that he is yet to appeal the richer sections of society to give up the benefits of reservation so that the poor and the needy could benefit the most. Why has PM Modi not dared to call for giving up of caste-based reservation?

It’s unfortunate that caste-based reservation and politics has become a tool to cash vote bank in India. The caste-based reservation leads to creation of a mindset in a section of society that anyone is entitled to certain benefits just because one is born in a particular caste. People have started claiming reservation as an inherent right. I would suggest Nepal to refrain from enacting any law that would ensure caste-based reservation.

Do you think provisions relating to judicial appointments are healthy?

The charter offers government of the day a say in entire appointment process which is unfortunate. The judiciary under political clout would obviously fail to administer fair and reasonable justice.

The Federal Democratic Republic of Nepal must not waste time exploring alternatives when the answer exists in Constitutional framework itself and need of the hour is to consolidate efforts and focus energies on implementing laws in both letter and spirit.

This is the seventh Constitutional document in Nepal. Given some conflicting provisions, do you think that this Constitution will sustain?

There is a qualitative difference between the repealed Constitutions and the 2015 Constitution. Previous Constitutions were crafted by monarchs but this has been enacted by elected representatives in Constituent Assembly. This is a positive difference and a reason to celebrate. So, I believe that the Nepalis, especially people in Southern plains, should not be disappointed with a handful number of conflicting provisions. Legislature and judiciary both should play an active role in bringing reformation which would ultimately turn fruitful for the nation. Then, the Nepali Constitution would also become a broad-based document, leaving the conflicting provisions far behind.

The Constituent Assembly (CA) gave birth to the new Constitution on September 20, 2015 with an aim to upright the newborn republic on a strong pitch of pluralism and representative socio-economic-political democracy and to establish Nepal as an ideal state in Asia.

Nepal has adopted a Constitution (which is enacted by the Constituent Assembly for the first time) and like all other Constitutions in the world this too will mature and evolve. So, there is no reason to be disappointed with certain provisions. They can be amended. Judiciary should play an active role in spearheading the cause of people. In India, judiciary has helped democracy flourish despite repeated failures of other organs. Nepal's higher judicature could play an instrumental role in cementing walls of fundamental rights and knocking down all the boundaries resting upon discrimination, bias, prejudice or undemocratic principles.

What should state do to ensure a wider ownership of Constitution?

It is truism that law alone can never rid society of conflicts linked to systematic discrimination, oppression or poverty. The Federal Democratic Republic of Nepal must not waste time exploring alternatives when the answer exists in Constitutional framework itself and need of the hour is to consolidate efforts and focus energies on implementing laws in both letter and spirit. Mere enactment is not going to serve the cause of nation. The future of Constitution depends on how agitating groups are included in the mainstream by offering required amendments. Every Constitution has scope of amendment to ensure its wider ownership. Interestingly, Constitution of Nepal is flexible in terms of amendment as it provides that two-third majority can amend any provision except sovereignty and integrity. The success of the Constitution will also depend on how the state handles legitimate concerns of the national population as well as international players.

Published on April 27, 2018