Lenin Bishta verdict: Paradigm shift in constitutional jurisprudence   

Jivesh Jha

In court cases, circumstances may be different but facts may stand the same in two different countries. Whatever is true for a country’s judicature may be same for the other when it comes to securing justice.

In this article, I will explain the notable developments which have taken place in the constitutional jurisprudence since the topmost courts in United States (US), India and Nepal have declared that the fundamental rights can even be implicit over and above those which are explicit in the constitution. Overtime, the horizon of fundamental rights has expanded with creative interpretative process of the constitution in tune with the needs and requirements of the society.

The apex courts of US (Munn v Illinois, 1877), India (Maneka Gandhi v Union of India, 1978), and Nepal (Lenin Bishta v Govt of Nepal and Ors, 2020) have arrived at a unanimous decision—the right to travel is a sacrosanct fundamental right implied under right to life and liberty clause. The judiciaries across the world have stood as a bulwark against the governmental move to restrict a person to fly abroad.

The apex Court’s decision holding that the right to travel makes personal liberty meaningful and it falls within the ambit of right to life and liberty clause enshrined under Article 16 of the constitution was hailed across sections of the society.

In this context, the apex Court’s decision holding that the right to travel makes personal liberty meaningful and it falls within the ambit of right to life and liberty clause enshrined under Article 16 of the constitution was hailed across sections of the society here. The ruling clearly portrays the apex court of Nepal as an active judiciary.

Determining the scope of right to life and liberty that includes freedom of liberty, the Division Bench of Justice Dr Anand Mohan Bhattarai and Justice Kumar Regmi in the case of Lenin Bistha v. Government of Nepal and Others cites Article 12 of International Covenant on Civil and Political Rights which guarantees the right to travel abroad. It says every person shall be free to leave any country, including his own.

In what could be seen as a welcome aspect of the observation of the Supreme Court (SC) is its interpretation of the right to life and liberty clause in the light of international human rights law and natural justice. In police state, one could expect unreasonable caveats or arbitrary exercise of power at the sweet will of the executive but the same cannot be expected in a democratic set-up, held the SC. “The right to travel abroad is revered human rights as it nourishes self-determining creative character of an individual. The freedom of travel helps a person to enhance the scope of his experience.”

Acknowledging international human rights law at domestic levels through robust judicial activism is, of course, a welcome move. This approach of the court would certainly silence the views within the legal fraternity in Nepal which discounts international human rights and believe them as extraneous worldviews.

The learned Justice Dr Anand Mohan Bhattarai then went on to held that democracy is for fostering the marketplace of ideas; all ideas may not be liked by the government in power; nor do all ideas are creative and constructive in nature. In fact, to fear an idea means to discard self-governance. Justice Bhattarai further held that there can be no attributes more valuable than the life and personal liberty of persons.

“The fundamental freedoms are necessary to enrich personal liberty; and right to travel from one place to other makes the life worthwhile.” This way, the ruling of the court aims to foster substantive as well as procedural due process in order to expand the content and connotations of right to life and liberty.

Lenin Bishta, a former Maoist child soldier, was barred from flying to Thailand to participate in a programme in 2018. He moved the SC, saying the Department of Immigration and Ministry of Home Affairs had curtailed his fundamental rights to travel freely. Recently, the apex court unveiled the judgement. Interestingly, almost similar thing had happened in India in late 1970s.

In India, Bharatiya Janata Party (BJP) leader Maneka Gandhi’s passport was impounded by the central government under Passport Act in the interest of general public. Maneka filed a writ petition challenging the order on the ground of violation of her fundamental rights in Article 21 (Right to life and liberty). Justice Krishna Iyer in the case of Maneka Gandhi v Union of India (1978) held that the spirit of man is at the root of Article 21: personal liberty makes for the worth of human person and right to travel makes liberty worthwhile.

No person can be deprived of his right to go abroad except according to procedure established by law.

Thus, no person can be deprived of his right to go abroad except according to procedure established by law. However, Justice PN Bhagwati (in Maneka Gandhi case itself) observed that the principle of reasonableness which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades right to equality like a brooding omnipresence. Thus, the procedure adopted by the government must be just, fair and reasonable and not arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all and the requirement of due process would not be satisfied.

In Unites States, the US Supreme Court in the landmark case of Munn v Illinois (1877) explains the concept of ‘life and liberty’ and the 5^th and 14^th amendment to the US Constitution in these words: “By the term ‘life’ as here used, something more is meant than mere animal existence. The inhibition against its deprivation extends to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg.....” Again in 1958, Justice William O Douglas in the case of Kent v Dulles (US SC) held that freedom to go abroad has much value and represents the basic rights of great significance.

Now, from the rulings of the superior courts of Nepal, India or US, it becomes clear that the concept of human rights protects individuals from the excess of the state. In fact, the concept of human rights can be traced to the natural law philosophers, such as Locke and Rousseau. The natural law philosophers philosophized over such inherent human rights and sought to preserve these rights by propounding the theory of social contract.

According to Locke, man is born “with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of law of nature and he has by nature a power to preserve his property—that is, his life, liberty and estate, against the injuries and attempts of other men.”

MP Jain, an acclaimed commentator of Constitutional Law, in his book Indian Constitutional Law argues that the Declaration of the French Revolution, 1789, which may be regarded as a concrete political statement on Human Rights and which was inspired by LOCKEIAN philosophy declared: The aim of all political association is the conservation of the natural and inalienable rights of man.

From the pronouncement made in Lenin Bishta’s case, it becomes crystal clear that in a democratic country, a citizen is allowed to remain free until and unless arrested under the law and is subject at all times to the right to move or travel. The significance of the pronouncement is two-fold. One, the bench presided by Mr Justice Dr Anand Mohan Bhattarai clarified that right to travel abroad cannot take a back seat in Nepal.

[caption id="attachment_14604" align="aligncenter" width="764"] Lenin Bista[/caption]

The ruling is a complete endorsement of right to liberty of the citizen in a republic and against arbitrary action of the government. Two, the ruling clarifies that the fundamental freedoms embodied under Article 17, right to life and liberty in Article 16 and right to equality enshrined under Article 18 are not mutually exclusive but they sustain, strengthen and nourish each other.

In fact, a prudent man thinks that the right to life includes right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing, and shelter over the head and facilities for reading, writing and expressing oneself in diverse forms, freely moving and mixing and commingling with fellow human beings, held Justice PN Bhagwati in the groundbreaking verdict of Francis Coralie v NCT of Delhi (AIR 1981).

The re-embodiment of right to life and liberty, which Lenin Bistha’s case brought about would exert a deep impact on contemporary constitutional jurisprudence and the subordinate courts or the highest court itself could dispense creative judgements in the days to come on the heels of this case which has succeeded an inch to expand the substantive as well as procedural aspect of right to life and liberty.

Above all this, the implementation of the ruling of the apex court made in Lenin Bistha will certainly be a step ahead in right direction in practical realization of the right to life and liberty clause embodied under Article 16 of the 2015 Constitution of Nepal.

(The writer is a Judicial Officer with Birgunj High Court and author of “Socio-legal Impacts of COVID-19: Comparative Critique of Laws in India and Nepal” (2020).

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Published 17 July 2020