Constitutional Rights and Social Exclusion in Nepal
Malcolm Langford* and Ananda Mohan Bhattarai**
11000 words
Abstract
In Nepal, poverty is highly correlated with an individual’s ethnicity, caste, language, religion
or membership in an indigenous group. In the drafting of the new Constitution, many have
called for inclusion of socio-economic and affirmative action rights in order to address social
inequalities. After this socio-political background is set out in the introduction, Section 2
provides a comparative and international analysis of the debates, trends and jurisprudence
concerning the constitutional inclusion of equality and socio-economic rights. Section 3
examines the constitutional history of Nepal on this topic with a particular focus on the
jurisprudence of the Supreme Court and Section 4 assesses the consequences of this
experience for the constitutional drafting process. Section 5 analyses the current draft bill of
rights and provides some thoughts on the possible future directions for the constitutional
drafting and jurisprudential responses.
Keywords
Nepal – Constitution - Socio-Economic Rights – Equality – Justiciability
1. Introduction
Structural inequality dominates the socio-economic landscape of contemporary Nepal. While
there is a certain fluidity and overlap amongst Nepal’s staggering 103 caste and ethnic
groups,1 poverty and ‘ethnic’ status are closely correlated.2 This stratification can be seen at a
glance by comparing UNDP’s Human Development Index (HDI) for different territories, a
partial proxy for minority status. For 15 ‘eco-development regions’, the HDI stands at 0.60 in
*
Research Fellow, Norwegian Centre for Human Rights, University of Oslo.
Judge, Court of Appeal, Patan, Nepal.
1
M. Haug, A. Aasland and D.R. Dahal note for example that the prosperity of some Dalits has been recently
rising on account of remittances and demand for their economic activity: ‘Patterns of Socio-Political
Participation in Nepal and Implications for Social Inclusion’, 36(1) Forum for Development Studies (2009), pp.
112-3.
2
Y. Ghai, ’Ethnicity, Participation and Social Justice: A Constitution for New Nepal?’, Unpublished manuscript,
University of Hong Kong, 2007.
**
1
Central Hill District (which includes Kathmandu) and falls to 0.44 for Far-Western
Mountain.3 Higher and consistent levels of inequality are found when the territorial HDI is
further disaggregated by caste, ethnicity and religion. In the same Tarai belt for example,
Dalits have a HDI of 0.38 while for Brahman and Chetri it is 0.63.4 Adding ethnicity and
religion, Madhesi Brahman and Chhetri continue at 0.63 while Madhesi Dalits are at 0.38,
Janajatis at 0.49 and Muslims at 0.40.5
Women experience multiple discrimination within this ethnic-caste-religious-linguistic
stratum, partly on account of a long history of official systemic and institutionalised
discrimination.6 If we take education, which is a significant explanatory variable of inequality
generally in Nepal,7 the differences are dramatic. While 92.8 per cent of Brahmin men and
68.6 per cent of Brahmin women are classified literate, only 48.5 per cent of Madhesi Dalit
men and only 17.2 per cent of Madhesi Dalit women can read and write. Across the ‘ethnic’
divide, there is also social stratification, which has been accelerating since 1990. Landless
households and small farmers experience the highest levels of poverty.8
The twelve year long armed conflict was primarily driven by these inequalities.9 One
stated aim of the Maoist armed insurgency was to address the social and economic injustices
of all marginalised populations. Although, this broad emancipatory platform only emerged
during the conflict as the Maoists sought alliances with caste-based, ethnic and women’s
groups. This stance clearly benefited them in the post-conflict elections where they emerged
as the largest party.10
The direct effect of the conflict itself on equality was marginal at an aggregate level
with the rate of ‘human poverty’ falling slightly across the country. 11 Some have pointed to
3
UNDP, Nepal Human Development Report 2009: State Transformation and Human Development (UNDP,
New York, 2009), p.38.
4
Ibid., p. 43.
5
Ibid., p. 44
6
As late as the 1990 constitution, women were denied the right to pass on citizenship and ‘traditional practices’
were protected. Haug, A. Aasland and D.R. Dahal, supra note 1.
7
UNDP, supra note 3, p. 47.
8
UNDP, supra note 3, p.46.
9
J. Bray, L. Leiv and M. Murshed, ‘Nepal: Economic Drivers of the Maoist Insurgency’, in K. Ballentine and j.
Sherman, Politcal Economy of Armed Conflict: Beyond Greed and Grievance (Lynne Rienner, Boulder, CO,
2003).
10
T. Pasipanodya, ’A Deeper Justice: Economic and Social Justice as Transitional Justice in Nepal’, 2 The
International Journal of Transitional Justice (2008), p. 378.
11
UNDP, supra note 2, p. 41-2.
2
the empowering effect of women as they were able to take on non-traditional roles.12 Both the
Government and Maoists committed, however, violations of economic and social rights under
international human rights and humanitarian law during the conflict. These included the
destruction of social and physical infrastructure, restriction of food supplies in the poorest
regions, arbitrary taxes and requisitioning of accommodation and food, targeting of Dalits and
women by Maoists and government reprisals for cooperation, economic exploitation of child
soldiers and kidnapping of teachers and students by the Maoists.13
The Comprehensive Peace Agreement (CPA) that ended the conflict in November
2006 is exceptional for its emphasis on ensuring social and economic justice.14 The text not
only calls for “political, economic and social transformation” but demands the end of
discrimination, introduction of land reform, recognition of economic, social and cultural
(ESC) rights and positive action to support’ economically backward classes’. Some of these
themes were subsequently reflected in the 2007 Interim Constitution. For example, some ESC
rights were added to the bill of rights. However, their justiciability is seemingly limited as
they are subject to provision “in law”. For example, the Article 18(2) states that the ‘Women,
labourers, the aged, disabled as well as incapacitated and helpless citizens shall have the right
to social security as provided for in the law” (emphasis added). Moreover, this focus on
economic and social injustice has not necessarily been sustained by all actors in the broader
transitional justice processes that subsequently emerged.15 This silence is reminiscent of
similar processes in other countries where little attention was given to broader distributive and
equality issues.
In 2009, the newly formed Nepali Constituent Assembly began drafting a permanent
constitution as required by the CPA. The composition of the Constituent Assembly has been
criticised for its lack of representativeness in that the “political parties made the decision
directly themselves, and took refuge in an exclusionary system, using a voting system which
D. Aguirre and I. Pietropaoli, ‘Gender Equality, Development and Transitional Justice: The Case of Nepal, 2
The International Journal of Transitional Justice (2008), pp. 356-377.
13
Pasipanodya, supra note 10, pp.383-5.
14
Available at: http://www.satp.org/satporgtp/countries/nepal/document/papers/peaceagreement.htm
15
For example International Centre for Transitional Justice (ICTJ) and Nepali Advocacy Forum found that
socio-economic issues dominate opinion on what should be prioritised in the transitional justice process but
paradoxically concentrate their recommendations on bodily harm, largely ignoring both rape and social and
economic injustice. See ICTJ and Advocacy Forum, Nepali voices: Victims Perceptions of Truth, Justice,
Reconciliation, Reparations and the Transition in Nepal (March 2008) and critiques by Aguirre and Pietropaoli,
supra note 12, pp.363 and Pasipanodya, supra note 10, pp.387-8.
12
3
would perpetuate the dominance of these parties”.16 The result is that negotiations often occur
between “eight parties on the one hand and the [excluded] ‘agitating’ community on the
other”.
The Assembly was divided into 14 committees to advance the drafting process, with
the Fundamental Rights Committee (FRC) responsible for producing the first version of the
bill of rights. In June 2009, the FRC put out the following questions for public comment,
indicating both the importance attached to ESC and equality rights and the possible
controversies surrounding the legal and institutional response:
1. What is the relation between fundamental rights and directive principles?
2. Should economic, social and cultural rights (ESCR) be incorporated under the directive
principles or in the fundamental rights chapter?
3. Should there be monitoring mechanisms to enforce these rights, in particular the rights
of specific groups?
4. Should the human rights chapter include a specific provision for a right to affirmative
action for the historically marginalized?
In the second half of 2009, a number of confidential drafts began emerging with a final
draft made public in November 2009, which now sits with the plenary of the Constituent
Assembly. Following the pattern identified by Ghai, the drafting process was characterised by
high levels of behind-the-scenes lobbying but also public demands for the inclusion of
particular rights. The date for the adoption of the Constitution was shifted to March 2011 so
the current draft Bill of Rights is likely to be the subject of further debate and discussion.
As a departure point, this paper takes up again these questions from the Fundamental Rights
Committee and examines whether and how the Nepali Constitution should address ESC rights
and affirmative action for minorities. Of course, constitutionalising particular rights should
not obscure the fact that constitutional outcomes in other areas (e.g., political representation,
distribution of political power, federalism and control over natural resources) may be of equal
or greater importance. However, issues are taken up elsewhere in the Special Issue and we
will content ourselves with a focus on the bill of rights. Section 2 conducts a brief historical,
legal and philosophical tour though the main issues from a comparative and international
16
Ghai, supra note 2, p. 12.
4
perspective. Section 3 analyses the current jurisprudence of Nepali courts under the 1990 and
2007 Interim Constitutions and Section 4 assesses the consequences of this judicial
experience for the constitutional drafting process. Section 5 analyses the November 2009
version and provides some thoughts on the possible future directions for the constitutional
drafting and jurisprudential responses.
2. Comparative and International Perspectives on Constitutionalisation
2.1 Economic, social and cultural rights
Traditionally, justiciable ESC rights have been excluded from bills of rights. This historical
phenomenon has varying causes. Roberto Gargarella points out that many of the Framers of
the United States Constitution were anxious to institutionalise multiple forms of control,
including judicial review, to check parliamentary majorities and ‘popular irrational
passions”.17 The intention was not to promote socio-economic rights but quite the opposite.
The budgetary implications of socio-economic initiatives posed a threat to individual property
rights. Throughout the course of 19th Century, similar justifications for judicial review could
be found in some Latin American and Western European states.
The impact of this ‘pluralist’ democratic justification for judicial review was
particularly manifest in the US. The Supreme Court invalidated a swathe of socially/oriented
legislation from the 1870s to the 1930s18 until President Roosevelt threatened to pack the
courts with additional pro-Executive judges.19 This extreme property rights orientation of
judicial review was not characteristic elsewhere although sporadic clashes between the
judiciary and parliament over large-scale social reform can be observed, for example in India
in early post-Independence phase.
However, as the representativity of governments grew during the course of the 20th
Century, there was not a parallel move to recognise justiciable ESC rights. A similar reticence
could be found amongst communist governments even though achievement of socioeconomic equality was their raison d’etre. There are two possible explanations for this
R. Gargarella, ‘Theories of Democracy, the Judiciary and Social Rights’, in R. Gargarella, P. Domingo and T.
Roux, (eds.) Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor?
(Ashgate, Aldershot/Burlington, 2006), pp. 13-34, 14-15.
18
For example, it invalidated minimum wage legislation on the basis that it interfered with liberty of contract:
Adkins v. Children’s Hospital, 9 April 1923, US Supreme Court, 261 U.S. 525, 557 (1923).
19
West Coast Hotel v. Parrish, US Supreme Court, 29 March 1937, 300 U.S. 379 (1937).
17
5
position, which reflects the principal philosophical arguments in the field and shadows the
current Nepali debate.
First, in some countries, a strong distrust has lingered towards any form of judicial
review of human rights. It was viewed as democratically illegitimate –courts should not
interfere with institutions that carry a ‘direct’ mandate from the electorate. This perspective
has been particularly prevalent in Anglo-Saxon countries and also amongst the judiciary in
Ireland and Nordic countries, even when entrusted with powers of judicial review. This
perspective was paradoxically shared by former Soviet-aligned states. In the 1950s and 1960s,
the Eastern bloc was the most solid opponent of the creation of individual complaints
mechanisms for civil and political rights and economic and social rights.20 Communist-era
constitutions contained ESC rights but these were not made subject to any form of
independent judicial review.21
This antipathy towards judicial review, particularly the striking down of legislation,
reverberates in ongoing philosophical debates. Some scholars strongly reject the common
arguments made in favour of judicial review of human rights, that it protects minorities from
the tyranny of the majority or provides a forum for higher quality deliberation on fundamental
issues.22 Jeremy Waldron argues that:
It does not, as is often claimed, provide a way for a society to focus clearly on the real
issues at stake when citizens disagree about rights; on the contrary, it distracts them with
side-issues about precedent, texts, and interpretation. And it is politically illegitimate, so
far as democratic values are concerned: By privileging majority voting among a small
number of unelected and unaccountable judges, it disenfranchises ordinary citizens and
brushes aside cherished principles of representation and political equality in the final
resolution of issues about rights.23
However, Waldron concedes that his model could accept judicial review in cases involving
‘discrete and insular minorities’ and where modern liberal democracy has not yet taken hold.
20
M. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective
on its Development (Oxford University Press, Oxford, 1995), pp. 9-20.
21
W. Sadurski, Rights before Courts: A Study of Constitutional Courts in Postcommunist States of Central and
Eastern Europe (Springer, Dordrecht, 2005).
22
E.g., C. Fabre, Social Rights under the Constitution, (Oxford University Press, Oxford, 2000); C. Scott and P.
Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees: Social Rights in a New South African
Constitution’, 141(1) University of Pennsylvania Law Review, (1992), pp.1-148.
23
J. Waldron, 'The Core of the Case against Judicial Review' 115 The Yale Law Journal (2006) pp. 1346-1406,
1353.
6
Other critics do not concede this much. Hutchinson states that, “In a society that takes
democracy seriously, there is no privileged place for judicial proconsuls or their scholarly
cohorts — citizens can govern best when they govern themselves.” 24
Secondly, there are a number of philosophical, legal and institutional concerns over
ESC rights. Philosophers have assailed the idea on the basis that these rights do not constitute
human rights as they are not capable of being universally enjoyed, are not of paramount
importance or can be ensured in practical terms.25 Lawyers have attacked the notion on the
grounds that their seeming lack of justiciability denies them the status of legal human rights,
even if they might be included in legal standards.26
Other critiques have focused on whether the rights can be judicialised in practice,
regardless of their ontological status. The classification of ESC rights as ‘second generation’
human rights has carried with it an assumption that these rights were not sufficiently legal to
qualify as justiciable. The vague drafting of ESC rights and the implication that large-scale
programmatic positive action was require for realisation meant that the rights were unsuitable
for adjudication premised on delimiting the state’s power over individuals. This binary and
classical view was particularly prevalent in much but not all of post-1945 Continental Europe,
Latin America and the United States. It was also manifest in the overwhelming majority of
African and Asian post-colonial constitutions where ESC rights were principally included as
directive principles. However, beginning with India, South Asians courts have adopted a
dynamic approach to these principles and construed civil rights, such as the right to life and
the right to equal treatment, as including a basic level of ESC rights.27
Moreover, it has been claimed that adjudicators are not institutionally suited to the
task as they lack the requisite expertise and information and cannot resolve the competing
policy considerations and consequences that would flow from their decisions. For example,
Horowitz argued that courts in the US have struggled to obtain unbiased and sufficient
24
A. Hutchinson, A 'Hard Core' Case Against Judicial Review, 121 Harvard Law Review (2008), pp. 57-64.
M. Cranston, What are Human Rights? (Taplinger, New York, 1973).
26
E.W. Vierdag, ‘The legal nature of the rights granted by the International Covenant on Economic, Social and
Cultural Rights’, IX Netherlands Yearbook of International Law (1978), pp. 69-105.
27
Municipal Council Ratlam v. Vardhichand and ors, AIR 1980 SC 1622. See generally, A. Desai and S.
Muralidhar, ‘Public Interest Litigation: Potential and Problems’in Kirpal et al., (eds.) Supreme But Not
Infallible: Essays in Honour of the Supreme Court of India. (Oxford University Press, New Delhi, 2000), pp.
159-192.
25
7
evidence on the social policy issues they face and that the “judicial process was a poor format
for the weighing of alternatives and the calculation of costs”.28
Since the mid-1980s there has been a remarkable shift in both constitutional design
and jurisprudence. More than half of the world’s constitutions now contain justiciable ESC
rights.29 This legalisation trend is globally apparent in the recent adoption of new complaint
procedures under the International Covenant on Economic, Social and Cultural Rights
(ICESCR) and the International Convention on the Rights of Persons with Disabilities (which
includes extensive ESC rights).30 Indeed, in the last decade, the UN Committee on Economic,
Social and Cultural Rights (CESCR) has felt relatively comfortably in asking states why they
haven’t made the Covenant rights justiciable. This is notable since Article 2 of the ICESCR
(unlike the International Covenant on Civil and Political Rights (ICCPR) does not explicitly
require the development of national legal remedies.31
This paradigmatic shift can be explained by the attacks on the classical perspective
combined with the growing popularity of rights-based approaches amongst civil society and
the legal community.32 As to the former, conceptual criticisms of ESC rights have withered to
a certain degree.33 Since the late 1980s, there has been an ever-growing acceptance of the
indivisibility and interdependence of all human rights in political practice, law and
philosophy.34 It is has equally accepted that ESC rights are phrased no differently than civil
and political rights and that the nature and degree of the state obligation and financial burden
will vary according to context and the specific right. The realisation of ESC rights commonly
28
D. Horowitz, The Courts and Social Policy (The Brookings Institution, Washington D.C., 1977).
See generally B. Simmons, ‘Should States Ratify – Process and Consequences of the Optional Protocol to the
ICESCR’, Nordic Journal of Human Rights, Vol. 27, No.1 (2009), pp. 64-81; C. Heyns, and M. van der Linde,
Human Rights Law in Africa, Volume 5 International Human Rights Law in Africa & Domestic Human Rights
Law in Africa (2-volume set) (Martinus Nijhoff, 2004). Sadurski, Rights before Courts: A Study of Constitutional
Courts in Postcommunist States of Central and Eastern Europe (Dordrecht: Springer, 2005), p. 177.
30
See Perspectives on a New Complaint and Inquiry Procedure: The Optional Protocol to the ICESCR, Special
Issue of the Nordic Journal of Human Rights, Vol. 27, No.1 (2009); and R. Kayess and P. French, ‘Out of
Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’, 8(1) Human Rights
Law Review (2008), pp. 1-34.
31
E.g.,, Concluding Observations of CESCR: Canada UN Doc. E/C.12/CAN/CO/4-E/C.12/CAN/CO/5 (2006).
See also the Committee’s General Comment 9, The domestic application of the Covenant (Nineteenth session,
1998), U.N. Doc. E/C.12/1998/24 (1998).
32
For an overview of the literature on the causes see M. Langford, 'Domestic Adjudication of Economic, Social
and Cultural Rights: A Socio-Legal Survey', 11 SUR -International Journal of Human Rights (2010)
33
See the part concession in M. Dennis and D. Stewart, ‘Justiciability of Economic, Social, and Cultural Rights:
Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and
Health?’, 98 American Journal of International Law (2004), pp. 462-515, 462.
34
See, e.g., Vienna Declaration of 1993; C. Beitz, The Idea of Human Rights (Oxford University Press, Oxford,
2009); J. Waldron, ‘Socio-Economic Rights and Theories of Justice’, in Thomas Pogge (ed.), Freedom from
Poverty as a Human Right, Vol. 2 (UNESCO, Paris, 2009); C. Sunnstein, The Second Bill of Rights: FDR’s
Unfinished Revolution and Why We Need It More Than Ever (Basic Books, New York, 2004).
29
8
requires government restraint. For instance, in Aquino, the Supreme Court of Argentina struck
down a 1995 law which severely circumscribed worker’s compensation on the basis that it
would violate a wide range of international standards, including the ICESCR.35 Equally, the
assumption that civil and political (CP) rights are cost-free personal freedoms is conceptually
problematic. The right to a fair trial and vote are largely positive rights requiring significant
expenditure on courts, prison systems, legal aid and electoral systems, and a growing
jurisprudence on positive obligations on CP rights has developed. 36 As Menéndez puts it, ‘All
rights, and not only social rights, are public goods rendered possible by public institutions’.37
As to the latter, the accountability function of judicial review has attained more
legitimacy during recent democratic revolutions. In Latin America and some African and
Asian countries, a strong emphasis was placed on social justice and transformation by
political movements and human rights organisations. Constitutional recognition of ESC rights
was thus a natural part of the reform package in the post Cold War era. In post-Communist
countries it worked in a reverse and partly cynical fashion. In the shift to a market-based
economy, recognition of ESC rights provided a signal from the newly governing elites to the
general population that social and economic benefits would not be rapidly removed in the
transition. This accountability-based justification conforms with some of the defences of
judicial review of human rights. For example, Andreas Føllesdal, taking a Liberal
Contractualist position, argues:
Liberal Contractualism grants that democratic, majority rule among elected and
accountable representatives may be one important mechanism to ensure the protection
and furtherance of the best interests of citizens. But other arrangements may also be
required, such as super-majoritarian features, constraints and checks on parliament and
government of various kinds. There is no prima facie normative preference for
unrestrained parliaments.38
35
Aquino, Isacio v .Cargo Servicios Industriales S. A. s/accidentes ley 9688, 21 September 2004. See discussion
in Chapter 8, Section 4.1.
36
See, e.g., A. Mowbray, The Development of Positive Obligations under the European Convention on Human
Rights by the European Court of Human Rights (Hart Publishing, Oxford,2004).
37
A. Menéndez, New Foundations for Social Rights: A deliberative democratic approach, ARENA Working
Papers WP 02/32, University of Oslo, 2005, p. 10.
38
"Why international human rights judicial review might be democratically legitimate." 52 Scandinavian Studies
in Law (2007) 103-122
9
The response of courts to these increased powers has been varied although generally most
active in countries with the greatest divides in social equality.39 Of import is that many have
attempted to navigate, to differing degrees, the concerns over democratic legitimacy and
judicial institutional capacity to adjudicate in this area by restricting their contribution to
reviewing the appropriateness of existing government policy or setting minimum standards.
For example, the Colombian Constitutional Court has recognised that obligations concerning
ESC rights are progressive in character40 but has drawn on General Comment No. 3 of the UN
CESCR to stress that the State must immediately “devise and adopt a plan of action for the
implementation of the rights”41 and provide the “minimum conditions for dignified life”. The
South African Constitutional Court has rejected the idea of immediate enforcement of a
minimum core obligation but adopted a reasonableness approach. In the Grootboom housing
rights case, it stated:
The measures [by government] must establish a coherent public housing program directed
towards the progressive realisation of the right of access to adequate housing within the
State's available means. The program must be capable of facilitating the realisation of the
right. The precise contours and content of the measures to be adopted are primarily a
matter for the Legislature and the Executive. They must, however, ensure that the
measures they adopt are reasonable.42
Many courts have also attempted to overcome their institutional limitations by
experimenting with procedures in order to gather more information and expertise (e.g.
specialist bodies, use of expert witnesses and accepting submissions from amicus curiae
interventions). Innovative remedial orders have also been adopted in order to allow the
government sufficient space to find a solution. For example, in Eldridge v British Columbia,
which concerned the provision of interpretive services to deaf patients in hospitals, the
Canadian Supreme Court stated that: “A declaration, as opposed to some kind of injunctive
relief, is the appropriate remedy in this case because there are myriad options available to the
39
For a review of jurisprudence, see M. Langford (ed.), Social Rights Jurisprudence: Emerging Trends in
International and Comparative Law (Cambridge University Press, 2008); R. Gargarella, P. Domingo and T.
Roux (eds.) Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor?
(Aldershot/Burlington: Ashgate, 2006); and F. Coomans (ed.), Justiciability of Economic and Social Rights:
Experiences from Domestic Systems (Intersentia and MCHR, Antwerpen, 2006).
40
See, e.g., SU-111/97.
41
See cases T-595/02 and T-025/04.
42
Government of the Republic of South Africa v Grootboom & Ors. 2000, Constitutional Court of South Africa,
4 October 2000, (11) BCLR 1169 (CC), para. 41.
10
government that may rectify the unconstitutionality of the current system. It is not this
Court’s role to dictate how this is to be accomplished.”43
2.2 Affirmative Action and Bills of Rights
The constitutional inclusion of equality rights clauses carries a less contested history. The
most well known recognition has been the Fourteenth Amendment to the US Constitution in
1868: "no state shall ... deny to any person within its jurisdiction the equal protection of the
laws".” Since then, the right of equality before the law and equal protection of the law (as
articulated in the 1948 Universal Declaration of Human Rights) has been incorporated in
numerous constitutions and international standards. The 1990 Constitution of Nepal is no
exception and Article 11(1) provides that “All citizens shall be equal before the law. No
person shall be denied the equal protection of the laws.”
What has been contentious is the content of the right, particularly whether it encompasses
indirect discrimination (discrimination in fact) and substantive equality (discrimination in
effect) and whether it permits affirmative action. The question of indirect discrimination has
animated litigation in the field of education. In the 1930s, the Permanent Court of
International Justice’s found restrictions on the running of mother tongue schools by Albania
violated the rights of Greek minority in fact44 while, more recently, the European Court of
Human Rights held that placement of children of Roma descent in schools for children with
disabilities is likewise discriminatory.45 However, it is possible to find judgments to the
contrary; the results of the cases often turn on how far courts are willing to look beyond the
formal equality of the situation. Possibly more disputed are substantive interpretations of
equality, which require States to take positive action to ensure equality in practice.
International human rights bodies have championed this understanding46 and there are some
notable domestic examples.47 Whether affirmative action schemes or policies (particularly
quotas or preferential selection) compromise the right to equality generated the most heat. The
European Court of Justice (ECJ) and the US Supreme Court have tightly restricted the reach
43
[1997] 3 S.C.R. 624.
Minority Schools in Albania, Permanent Court of International Justice, PCIJ Reports 1935, Series A/B, No. 64.
45
D.H. v. Czech Republic, ECtHR, 13 November 2007, App. No. 57325/00, 47 EUR. H.R. REP. 3 (2008).
46
See Human Rights Committee, Non-discrimination (Thirty-seventh session, 1989), Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRI/GEN/1/Rev.6 at 146 (2003). para. 10; CESCR, Non-discrimination in economic, social and cultural rights
(art. 2, para. 2, of the ICESCR) (Forty-second session, 2009), U.N. Doc. E/C.12/GC/20, 2 July 2009
47
E.g. Eldridge v. British Columbia (Attorney General) Supreme Court of Canada, 9 October 1997 [1997] 3
S.C.R.
44
11
of such schemes,48 the Indian Supreme Court has tried to set outer limits49 through to the more
permissive approaches of the South African50 (and Nepali) courts.
This troubled judicial history has engendered constitutional responses in order to provide
interpretive clarity or overrule decisions. A growing number of constitutions take a more
robust approach to equality; e.g., the South African Constitution adds an additional clause:
“Equality includes the full and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative and other measures designed to protect or advance
persons, or categories of persons, disadvantaged by unfair discrimination may be taken.” One
can also increasingly find general ‘affirmative action’ clauses concerning women, children
and indigenous peoples. Likewise, an increasing number of constitutions (including Nepal in
1990) include saving clauses for affirmative action policies. Many follow the language in
ICERD and CEDAW, which permits such measures as long as they are temporary and end
when their objective has been achieved. However, indigenous rights and some minority rights
(e.g. culture, language and religion) are usually seen as not subject to a time limitation.
However, what it is notable is that most constitutions don’t mandate specific affirmative
action policies for particular groups in their bill of rights or provide general affirmative action
rights for most minority groups. Although, specific quotas for political representation and
sometimes workplace and education can be found elsewhere in some constitutions.
2.3 Effectiveness
The debate on the constitutional inclusion of relatively robust ESC and equality rights has
clearly changed direction in recent years. However, its’ greatest challenge perhaps now comes
from the field of critical legal studies.51 It is questioned whether judicialisation of any human
right carries the promised positive effects. Courts are said to be the wrong place to look for
social transformation due to their inherent conservatism, their institutional weakness in
enforcing decisions and their potential to distract social struggles from politics. Research on
48
Kalanke v Bremen, ECJ, ECR I-3051; Regents of the University of California v. Bakke, Supreme Court of the
USA, 28 June 1978, 438 U.S. 265 (1978).
49
For example, it has struck down what it views as excessive or unjustified educational and workplace quotas,
particularly those that exceed 50 per cent of the population, unless there are exceptional circumstances: Indra
Sawhney v. Union of India, Supreme Court of India, 1992 SCC (L & S) supp. 1.
50
See O. Dupper, 'Remedying the Past or Reshaping the Future? Justifying Race-Based Affirmative Action in
South Africa and the United States' 21 The International Journal of Comparative Labour Law and Industrial
Relations (2005) pp. 89-130.
51
See M. Pieterse, Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship
Revisited, Human Rights Quarterly, Vol. 29, No. 3 (2007). The critique has now been mainstreamed: See, for
example, G. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of
Chicago Press, 1991). pp. 796-822; Waldron, pp. supra note 23.
12
the effects of ESC rights judgments is only beginning to obtain a degree of methodological
sophistication and what conditions favour broader impact. The evidence tends to be mixed so
far but one fairly rigorous comparative study of five developing countries concluded that
‘legalizing demand for SE [socioeconomic] rights might well have averted thousands of
deaths’ and ‘enriched the lives of millions of others’.52 Thus, one key questions for the Nepali
constitutional design ought to be whether it supports or frustrates trasnformational litigation.
3. Social-Economic and Equality Rights in Nepal: Constitutional Practice So Far
The Nepali discussion over the constitutional inclusion of socio-economic and equality
rights does, and should, not occur in a legal vacuum. Since the promulgation of the 1990
Constitution, a significant jurisprudence has developed. As discussed, Article 13 of this
constitution provided a classical right to equality and a savings clause for special measures for
women, children, persons with disabilities, the aged and disadvantaged groups (women, Dalit,
indigenous groups, Madeshi, peasants, labourers and backward classes). This is followed by a
lengthy article proscribing discrimination on the basis of race and caste (Article 14). The right
of women to be free from discrimination (with particular mention of reproductive rights,
physical violence and inheritance rights) and the right of children to identity and protection is
recognised in Articles 20 and 22. In addition, under a potentially powerful but somewhat
oddly-titled ‘right to social justice’, women and disadvantaged groups have the right to
“participate in the state mechanism on the basis of proportional inclusive principles” (Article
21).
ESC rights were only introduced in 2007 Interim Constitution. A number of freestanding
rights were enshrined: the right to education in one’s mother tongue (Art. 17.1), right to live
in a clean environment (Art. 16.1), protection from exploitation and forced labour (Art. 29)
and decent working conditions (Art. 30.1). A second and larger group of ESC rights were
recognised but their content was limited to that which was prescribed in law. Thus rights to
free basic health services (Art. 16.2), the right to free education up to secondary level (Art.
17.2), rights to employment, social security and food sovereignty (Art. 18) and right to form
trade unions (Art. 30.2) exist as “provided for in the law”.
52
V. Gauri and D. Brinks. (ed.). Courting Social Justice: Judicial Enforcement of Social and Economic Rights
in the Developing World (New York: Cambridge University Press, 2008).
13
Following the model of the Indian Constitution, a number of ESC and equality rights are
framed as Directive Principles in Part IV of both Constitutions. Even though the principles
cannot be enforced in court,53 they arguably add meaning to the fundamental rights or assist in
the implementation of international human rights obligations assumed by Nepal. 54 This
medial position has been adopted formally by almost all South Asian courts, including Nepal.
In Yogi Narahari Nath, the Supreme Court observed that even though the Court cannot
enforce Directive Principles, if the State acts is discordance with them, the Court can point out
that disjuncture. 55
3.1 Judicial Response and Method
While the Interim Constitution provides modest recognition of equality and ESC rights,
comparative experience shows that the interpretive and institutional role of courts is equally if
not more important.56 Nepal has largely followed the Indian path of robust public interest
litigations (PIL) that permits everyone to submit complaints informally and directly to the
Supreme Court. Unlike in India, this PIL jurisdiction was vested in the Supreme Court by the
1990 Constitution.57 However, the Court has tried to ensure the right is not abused by those
with no clear interest, an increasing problem in the Indian courts.58 In Radheshyam
Adhikari,59 the Court found that the claimant must have “meaningful relation” with the issue.
The dispute must not a vehicle for publicity or protecting vested interests but rather address
the public interest or concern ordinary people or a particular group or community.
Substantively, the Court has adopted an integrative and organic approach to rights
interpretation. In several cases the Supreme Court has identified the linkages between various
rights and stressed how violations of one right can impinge on the realisation of other rights.
This has led to ESC rights being recognised within civil rights. For instance, in Prem Bahadur
Article 36.1 states in relation to Part IV: “No questions shall be raised in any court as to whether provisions
contained in this Part are implemented or not”.
54
Nepal is also obligated to implement rights in international treaties, such as ICESCR, CERD and CEDAW, by
virtue of the provision of the Nepal Treaty Act which occupies a pre-eminent position in the Nepali legal
framework.
55
Yogi Naraharinath v. Prime Minister, Supreme Court of Nepal (‘SCN’), March 199, N.K.P. 2053 No 1, p 33.
56
See discussion in Langford, supra note 32.
57
Article 88(1) provides for the right of every Nepali citizen to file a petition in the Supreme Court to have any
law declared unconstitutional or a right enforced.
58
V. Gauri, Public interest litigation in India: overreaching or underachieving?, Policy Research Working
Paper Series 5109, The World Bank, 1990.
59
Radheshyam Adhikari v Cabinet Secretariat, SCN, (April 1992), N.K.P. 2048, vol.12 p . 810
53
14
Khadka60 where the Court interpreted the right to employment guaranteed by Art 18 of the
Interim Constitution as part of the right to live with human dignity and linked it with the right
to equality, the right against untouchability and racial discrimination, the right to environment
and health, the right to education and culture, women’s rights, the right to social justice and
the right of the child.
Of late, the Court has begun to move towards a more substantive vindication of rights and
remedies. In two cases brought by Prakashmani Sharma, , it emphasised that deaf persons
must have equal access to education in practice61 and highlighted that the creation of
infrastructure and physical facilities was necessary to ensure that the reproductive rights were
realised.62 The Court observed that "in the absence of any legal, institutional and procedural
and result oriented infrastructure, this right would be limited to formalities."63
The Court has also adopted novel and ingenious strategies in designing remedies. It has issued
directive orders requiring the Executive to develop the formulation of legal policies and laws
to protect particular rights.64 In several cases, it has the parameters for this process, such as
ordering constituted committees to first study situation and report back 65 or asked the
Government to create such committee. In Pundevi Maharjan v. Government of Nepal & Ors. ,
for example, a directive was issued ordering Government to establish a Committee to study
how the rights, interests and social security of Kumaris can be promoted.66 The Court has also
issued continuing mandamus,67 awarded interim relief to facilitate the recourse to justice68 and
60
Prem Bahadur Khadka & Ors. v Government of Nepal & Ors, SCN, January 2009, Writ No. 066-WO-07193.
See also Liladhar Bhandari & Ors. v Government of Nepal & Ors, SCN, 7 December 2008, Writ No. 0863 of
the year 2064 (case relating to violation of property rights of the displacees due to conflict).
61
Prakashmani Sharma & Ors. v. Office of the Prime Ministers & Ors, SCN, 16 April 2008, Writ no 0283 of
2063.
62
Prakashmani Sharma & Ors. v. Government of Nepal & Ors., SCN, June 2008, Writ No. 064-WO-0230.) in
Ananda Bhattarai (ed.), Landmark Decisions of the Supreme Court on Gender Justice (NJA, Nepal 2010) at
pp144-160
63
Ibid., p 153
64
Reena Bajracharya v. Royal Nepal Airlines Corporation & Ors., SCN, June 2000, N.K.P. 2057 no 5 p376;
Meera Dhungana v. Cabinet Secretariat & Ors., SCN, March 2004, N.K.P. 2061 no 4 p 377; Sapana Pradhan
Malla & Ors. v. Ministry of Law, Justice and Parliamentary Affairs & Ors., SCN, December 1995, N.K.P. 2053
no 2, p 105. Sarmila Parajuli & Ors. v. Cabinet Secretariat & Ors., April 2004, SCN, N.K.P. 2061 vol 10 p
1312.
65
E.g., Tek Tamrakar & Ors. v. HMG Cabinet Secretariat & Ors., SCN, September 2005, Writ No. 121 of 2060.
66
SCN, Aug 2008, Writ No. 3581 of 2062.
67
Prakash Mani Sharma & Ors. v GON, Office of the Prime Minister, Council of Ministers & Ors., 16 April
2008, Writ No. 0283 of 2063 (deaf persons case); Praksah Mani Sharma & Ors. v GoN, Council of Ministers,
16 December 2009, Writ No. 3447 of 2060 ( ground water case).
68
Rajendra Prasad Dhakal & Ors. v GoN, Ministry of Home & Ors., 1 June 2007, Writ No. 3775 of 2055. 1
NJA L.J.at pp 301-340(2007).
15
created committees to award compensation to the victims according to particular guidelines.69
There is also an increasing trend to issue Guidelines where Parliament is yet to enact law on
matters pertaining to the protection of human rights.70
3.3 Specific ESC rights cases
The emerging ESC rights jurisprudence is too immense to summarise here and we will restrict
our focus to jurisprudence concerning marginalised groups that has been shaped in terms of
socio-economic rights, particularly the right to food and health. 71
The Interim Constitution of Nepal guarantees to every citizen the right to food sovereignty
(Art. 18(3)).72 The term ‘food sovereignty’ is a rather novel term73 and its content is not
immediately clear, at least in the traditional sense of right-duty relation.74 The Supreme Court
of Nepal has largely interpreted this right in terms of the classical right to adequate food and
the right to be free from hunger under the ICESCR, which has been ratified by Nepal. 75 The
Court noted these rights are also indivisibly linked to human dignity and are indispensable for
the fulfilment of other rights enshrined in the constitution and the ICESCR and ICCPR. The
Court found that the State was not to remain oblivious of its responsibility of securing ESC
rights on the pretext that there was no law in place. The Court appears to partly acknowledge
the broader claims connected with the food sovereignty movement (e.g., domestic control
over food protection, decision-making and seed varieties) by observing it was the
constitutional responsibility of the state to ensure food availability and absence of food
shortage.
69
Babujuddin Minhya & Ors. v Government of Nepal & Ors, SCN, February 2009, Writ No. WO-0338 of 2064.
Prakash Mani Sharma v Ministry of Women, Children and Social Welfare & Ors., 28 November 2008, SCN,
Writ no 2822 of 2062 (procedural guidelines for the prevention of sexual harassment against working women at
workplaces like dance restaurants and dance bars); Gopal Shivakoti & Ors. v Ministry of Finance & Ors., April
1994, SCN, N.K.P. 2051 no 4. P. 255 (standards for the exercise of the right to information); Sapana Pradhan
Malla v GoN, Prime Minister and Council of Ministers, 25 December 2007, SCN, Writ no 3561of 2063
(guidelines for the protection of the right to privacy of women, children and HIV/AIDs infected persons involved
in law suits).
71
For analysis of other cases, see Byrne and Hossain, supra note 29 and M. Langford, A. Bhattarai and L.
Sharma, The Socio-Economic Rights Jurisprudence of Nepal, Working Paper (on file with authors).
72
Articles 33(h) and 35(1) also use the term ‘food sovereignty’.
73
The global peasant movement Via Campesina developed seven principles of food sovereignty in 1996, which
include accepting food as a basic human right, agrarian reform, protecting natural resources, recognizing food
first as nutrition and then only as trade, ending globalisation of hunger, prohibiting food as a weapon, small
farmers’ control over food.
74
For an analysis on how the concept relates to human rights, see S. Ratjen, S. Monsalves, and F. Valente, The
Human Rights Way Towards Food Sovereignty (FIAN International, Heidelberg, 2007).
75
Bajuddin Minhya, supra note 73.
70
16
The issue of mass starvation has come to the court at least two times76 and has followed a
similar trajectory to the right to food cases in India.77 In the pre-2007 case of Madhav Kumar
Basnet v. Prime Minister& Ors. 78 the petitioner contended that a situation of mass starvation
was being faced by the people in remote districts of Nepal and ask for an emergency order for
provision of foodstuffs.79 A large number of people had died and in some cases women had
poisoned their offspring and committed suicide to avoid starvation. The Ministry of Finance
and the Ministry of Health accepted that they had an obligation and acknowledged that there
was mass starvation but claimed that rice had been supplied and subsidies for transportation to
the household of affected families had been given. The Supreme Court declined to issue the
order of mandamus as sought but acknowledged that protection of the life and property of the
people was the responsibility of responsible government.
In 2008, the question re-arose under the Interim Constitution. In Prakash Mani Sharma &
Ors. v. Government of Nepal,80 it was claimed that scarcity of food, mismanagement in the
distribution of food by the Nepal Food Corporation, distribution of rotten food had led to
mass-starvation and the outbreak of diarrhoea in 12 hill districts.81 The petitioner sought a
remedy for the guarantee of the right to access to food and proper transport and distribution of
foodstuff in the food deficit areas. While the case is still pending, the Division Bench of the
Supreme Court issued an interim order on 25 September 2008, which recognised every
citizen's fundamental right to live with human dignity and requested the respondent
authorities to immediately transport and supply foodstuff in affected districts.
There are also relevant several decisions that cover different aspects of the right to health.82
For example, uterus prolapse83 is a serious problem being faced by Nepali women and studies
76
Other cases have also addressed the right to food: e.g. Raju Prasad Chapagain & Ors. v. HMG, Ministry of
Health & Ors., November 2004, Writ no. 2621 of 2059 (State failed to implement 1992 law on breastmilk
substitutes, in particular to ensure supervision and monitoring); Babujuddin Minhya & Ors., supra note 69 (State
failed to provide support to petitioners who suffered serious destruction of their crops by wild animals every
year).
77
See Order dated November 28, 2001 in W.P.(C) No. 196/2001 (People’s Union for Civil Liberties v. Union of
India).
78
SCN, October 1998, Writ No. 3341 of 2055.
79
The districts included Jumla, Mugu, Kalikot, Dolpa, Bajhang, Bajura and Darchula, in Mid and Far West
Nepal.
80
Case filed on 15 September 2008, Writ no. 065-w0-149.
81
Kalikot, Humla, Mugu, Dolpa, Bajura, Achham, Dailekh, Darchula, Baitadi, Dadeldhura, Rukum and Jajrakot
82
Some other right to health cases include those concerning the health rights of all women: e.g. In Prakashmani
Sharma v HMG, Ministry of Women, Children and Social Welfare & Ors., SCN, September 2003, Writ No. 88 of
2059, NKP 2060 Decision No. 7268, p. 726 the petitioner claimed that on account of women’s different
reproductive role they had a right to maternity leave of 150 days. The Court contextualised maternity leave as a
labour market issue and after making reference to a host of international treaties and standards and finding that
“women are in need of a secure environment from pregnancy to the delivery stage and then after for a certain
17
have shown that access to maternal health facilities is correlated with caste and ethnicity. 84 In
Prakashmani Sharma and Others85 the petitioners cited research which showed that the
problem of uterus prolapse was affecting at least 600,000 women, especially those in the Hill
districts. The key causes were the lack of nutritious food during pregnancy, lack of care and
health services for lactating mothers, discriminatory social and cultural practices against
women, lack of awareness on reproductive health, lack of access to health centres, poor
availability of equipment and medical practitioners, unsafe abortion, poverty.
The Supreme Court responded with a landmark judgment that examined the relevant human
rights in great detail. The Court observed that the problem of uterus prolapse implicated the
rights to life and social justice but also that reproductive health is not a matter confined to
women. Taking the view that right to reproductive health requires effective protection, it held
that the State must adopt the necessary laws and measures and create a satisfactory and
conducive environment for fulfilment. The Court issued a directive order that required the
Prime Minister and the Office of the Council of Ministers to hold the necessary consultations
with health experts and civil society representatives and draft a Bill and submit to the
Parliament as soon as possible. It also issued a mandamus order requiring the Ministry of
Women, Children and Social Welfare and Ministry of Population and Health to prepare
special work plans and to provide free consultation, treatment, health services and facilities to
the aggrieved women and to set up various health centres and to initiate effective programs
with the aim of raising public awareness on problems relating to reproductive health of
women and the problem of uterus prolapse.
It is worth noting though that the Court has not always sided with the petitioners in ESC
rights cases. In Mohan Kumar Karna & Ors. v. Ministry of Education and Sports,86 the
petitioners argued that Rule 109 of the Education Rules 1992, which allowed a school
management committee to levy fees beyond the monthly and re-admission fees, violated the
right to equality, educational, cultural and privacy rights under the 1990 Constitution. The
period”, issued a directive order to the government to make necessary arrangements to fix a minimum period of
leave.
83
Uterine prolapse is the falling or sliding of the uterus from its normal position in the pelvic cavity into the
vaginal canal. Uterine prolapse usually happens in women who have had one or more vaginal births.
84
A study on emergency obstetric care found that the principal users of services were high-caste Brahmin/Chettri
women and in some districts their use was four times greater than other women. Nepal Safer Motherhood Project
and Institute of Medicine, Nepal, November 2004 quoted in DFID, How to reduce maternal deaths: rights and
responsibilities, February 2005.
85
Prakash Mani Sharma & Ors. v GON, Office of Prime Minister and Council of Ministers & Ors., (June 2008),
Writ No. 064-WO-0230, supra note 66.
86
SCN, March 2003, N.K.P. 2060 No 7/8 p 551.
18
Supreme Court observed that education was a matter to be realised subject to the availability
of economic resources. Thus, permitting a school committee to charge some additional fees
when required was not inconsistent with the Constitution and prevailing law. The Court
observed that books were being provided to students in these schools and that free education
of the students from families below poverty line and from Dalits, ethnic communities and girl
students up to lower secondary and secondary level was being implemented.
3.4 Equality rights cases
A number of cases have more openly addressed the intersection of equality and socioeconomic rights, particularly education and health. In an early case under the 1990
Constitution, the State was under a duty to develop appropriate policies and plans for the
poor, women, orphan children, the elderly to exercise their rights to education, health and
social security.87 More recently, it has indicated that the allowance for special measures may
actually carry some form of positive obligation. In Meera Dhungana88 the Court stated that
the principle of positive discrimination went beyond creating equal opportunity and required
meaningful steps to ensure substantive equality:
In a society with extreme inequality, and diversity the term “justice” should aim to secure
substantive justice to the people of backward class by making special arrangements,
construed to have embraced the principle of substantive equality.
What is interesting that more than half of these leading equality rights cases concern persons
with disabilities89 as well as the rights of women and children.90 This raises some questions.
87
Praksahmani Sharma & Ors. v Ministry of Women, Children and Social Welfare, SCN, May 2007 Writ No.
3564 of 2063. This was derived from the intersection of directive principles and constitutional rights. The
authorities were ordered to develop policies and determine parameters for the protection of these rights and
interests by constituting a committee and evolve policies and ensure the extension of services for the protection
of disabled persons.
88
Meera Dhungana v Office of Prime Minister and Council of Ministers & Ors. (Writ No. 01—063-00001 of
2063 (June 2007) (RNA pension and gratuity case) in supra note 66 at pp 134-144
89
Sudarshan Subedi & Ors. v. Govt of Nepal, Council of Ministers & Ors., SCN, November 2003, Writ No.
3586 of 2057 (directive order for free education to blind, deaf, disabled and intellectually disabled students in
public schools, universities and training centres); Prakash Mani Sharma & Ors. v GON, Office of the Prime
Minister and Council of Ministers & Ors., 16 April 2008, Writ No. 0283 of 2063 (State must make necessary
and appropriate arrangements for higher education of the deaf persons as it does for normal persons with specific
orders on provision of teachers and course materials); Raju Prasad Chapagain & Ors. v. Prime Minister and
Council of Ministers, SCN, October 2008, Writ No. 129 of 2063, N.K.P 2066 no 1 p 34 (Provision of the
National Code and other laws that allowed imprisonment of the mentally ill persons declared ultra vires and
authorities ordered to develop action plan for the medical treatment of such persons and transfer persons
presently held in the Kavre prison to medical centres and until such arrangement was made make provision for
their medical treatment in the prison by expert medical doctors).
19
Has the court has been less sensitive to the ethnic, linguistic and religious group-based
concerns? Or are these other equality issues of a more pressing nature? Or has the Court has
showed an even balanced approach to addressing equality issues as they arise. We don’t take
up the answer here and this section will concentrate though on a number of cases largely
concerning discrimination based on ethnicity, caste, religion and language.
Mohan Sashanker91 concerned the denial of access of non-Upadhyaya Brahmin caste students
to Nepal Veda Vidyasharm, a Sanskrit education school in Kathmandu which received grants
from the State through the Trust Corporation and the Pashupati Area Development Trust. The
Court determined that the School was a ‘public institution’ by virtue of its funding support
and observed that any form of distinction affected the enjoy the right amounted to
discrimination. It considered the restrictions a discriminatory monopoly which was
inconsistent with the right against untouchability and racial discrimination, the right to
religion and the right to social justice. The Court noted:
Education is to be acquired by human beings, not by a particular caste. The prestige of
Sanskrit language does not diminish when acquired by persons of a particular caste and
increase when pursued by persons of another caste…such a distinction only promotes
inequality in society.92
Similarly in Dilbahadur Bishwakarma,93 the Supreme Cour found that the clause 14.8.6 of the
Bi-rule which allowed entry to the Tindhara Sanskrit Hostel – a residential facility for
students acquiring Sanskrit education- to persons under the age of 24 years who had
undergone the thread ceremony was discriminatory on the basis of caste.
Mirroring the large Indian jurisprudence, Pradhwosh Chhetri and Others94 contained a
challenge to educational quotas. Following the initiation of the policy in 2003,95 the
Tribhuvan University Council asked the Institute of Medicine to reserve 10% of places to
Dalits, 15% to ethnic communities and 20% for women. The petitioners contended that the
reservation by the Council violated the right to equality and other rights in the 1990
90
Raju Prasad Chapagain & Ors. (on Behalf of Pro Public) v. Prime Minister and Council of Ministers & Ors.,
SCN, November 2008, Writ No. 63-WS-0031 (educational institutions are liable for deaths of children and
National Code provision declared ultra vires on the grounds of a number of constitutional rights);
91
Mohan Sashanker v. GoN, Prime Minister and Council of Ministers & Ors., SCN, June 2009, Writ No. 3416
of the year 2063, see 3 NJA L.J. 247(2009)
92
Ibid, at p 259.
93
Dilbahadur Bishwakarma & Ors. v Cabinet Secretariat & Ors., SCN, January 2006, Writ No. 44 of 2062.
94
SCN, Date of Decision, NKP 2061 No 7. p 901
95
Budget speech of the Minister of Finance in the Parliament for Fiscal Year July 2002/June 2003.
20
Constitution and, moreover, that a law must be in place authorising such reservations as
required by Section 11(3) of the Constitution. The Court disagreed with the first claim and
instead criticised the Government for not taking special protective for marginalised groups at
an earlier stage; 14 years had passed since the promulgation of the Constitution. However, it
agreed with the second claim that protective measures could not be implemented without
making laws and thus quashed the decision of the Council. Nonetheless, it issued a directive
order to the Cabinet to enact a law for the protection of women, children, aged, physically and
mentally incapacitated persons, and educationally and socially backward community, within
the same fiscal year.96
4. Assessing the Court’s Performance and Potential Extension of Powers
Over the last two decades, human rights litigation in Nepal has steadily gained maturity and
drawn the Supreme Court into lightening rod concerns of discrimination and social justice that
fuelled the armed conflict and sit at the centre of discussions over a new constitutional
dispensation. Following the lead of the Indian Supreme Court, the Nepali judiciary has been
willing to play an increasingly robust role. Through liberal rules of standing, teleological and
substantive legal interpretation, use of ‘soft’ international jurisprudence and comparative law
to shape its finding combined with an array of strong and flexible remedies it has been
relatively active role in bringing constitutional rights to bear on pressing social issues.
If the Supreme Court faces two criticisms, it would probably be that of activist legal
interpretation and a failure to ensure its judgments are implemented. While some of the
Court’s interpretations may be novel, in terms of say Anglo-American jurisprudence, it could
be argued that such interpretations are justified by the pressing nature of the societal problems
and the absence of effective and representative government.97 Moreover, the Court has shown
a fair degree of deference, declining to find violations in some cases and making orders for
the Government to adopt laws or adopt solutions rather than substituting its own opinion.
Thus, in current arguments over whether to remove the “accordance with law” clause from
current and proposed ESC rights, the judiciary deserves a certain amount of trust. Thus far, it
has tended to set the parameters for law-making as opposed to providing binding and
comprehensive rulings on the content of rights.
96
Interestingly, the Court also asked the respondents to clearly lay down grounds for determining who was
educationally and socially backward.
97
On this contextual justification for legitimacy, see W. Sadurski, 'Judicial Review and the Protection of
Constitutional Rights', 22(2) Oxford Journal of Legal Studies (2002), pp. 275-99.
21
The second criticism is of perhaps greater concern although the extent of non-enforcement of
judgments in Nepal is still under research. Refreshingly, the Supreme Court is seized of the
matter. In 2007, it created a monitoring division to oversee the implementation of its decision
and interact with relevant stakeholders and in 2009 established an Implementation
Directorate. However, greater attention should be given to this issue in the constitutional
drafting and lessons learned from other jurisdictions could be incorporated.
5. Towards a New Constitution
As discussed in Section 1, the Constituent Assembly was formed in 2008 to draft the new
Constitution for a “democratic, inclusive, federal republic of Nepal”. In November 2009, its
Committee on Fundamental Rights released a concept paper and draft bill of rights.98 This
draft notably goes a step further than the Interim Constitution in expanding the scope of ESC
and equality rights. Indeed, if one is concerned with the overall protection of human rights,
the limitations of the freedom of expression and fair trial might be viewed with more alarm.
The main trend in the area of ESC rights has been to clarify and remove restriction on
currently recognised rights and introduce some new rights and obligations:
 Right to environment (Article 15): the draft extends the right to explicitly include
concepts of health and sustainability. Notably, it provides that every person shall have
the right to be protected from the adverse effects of climate change and that victims of
environmental pollution or erosion have the right to compensation.

Right to education (Article 16): The draft declares primary education compulsory,
maintains the right to free education up to secondary level and now provides that
citizens coming from poor families shall have the right to higher education free of cost
as provided in law. Communities also have the right to establish schools using their
own mother tongue.

Employment rights (Article 18/19): The draft introduces the right to employment
(although the terms are to be set out in law) and a right to freedom of choice of
occupation and social security as part of remuneration. It further provides that the
unemployed workers shall have the right to allowance as provided by law.
98
Constituent Assembly, Report of the Committee on Fundamental Rights and Directive Principles, 2009, pp.
13-58
22

New health rights (Article 20): a number of additional rights have been added to the
right to health provision - the right to health information, right to equal access to
health services and right to water and sanitation. The basic right to health care also no
longer carries the proviso of being provided for in law.

Right to food (Article 21): The draft rectifies the confusion caused in the Interim
Constitution and provides that every citizen shall have the right to food, right to
security against the scarcity of food and the right to food sovereignty. The Constituent
Assembly has also sought to provide a definition of food sovereignty.99

New housing, social security and consumer rights. The draft provides that every
citizen has the right to access to suitable housing (as provided in law) and protection
from eviction without an order of the Court (Article 22), the right to social security (as
provided for in law) (article 28) and the right of consumers to obtain quality goods and
services (Article 29).
This decision to move beyond directive principles to express rights is mostly welcome
from a substantive and legal perspective. It allows courts can apply the rights more directly
and coherently and judgments from countries with directly justiciable ESC rights arguably
have more consistent jurisprudence. However, it is clear from the draft that there is dissensus
in the Constituent Assembly over the scope of judicial power. Some of these new rights are
free-standing, others are limited to being provided for in law – namely employment, social
security and housing. Article 31 then contains the rather ambiguous clauses:
1. The state shall take appropriate measures to implement the rights provided for in this
constitution regarding education, health, employment, housing, food, social security
and social justice.
2. For the rights mentioned in this chapter, the state shall make legal provision in order
to implement these rights within two years.
It states: “The right to food sovereignty mainly concerns with the right to food production, distribution and
regulation. This right has been provided for ensuring every citizen, as provided in law, the right to determine
matters concerning agriculture, food and land use as per the national and social need and specific environmental,
social, economic and cultural situation, and the right protect and preserve indigenous seed varieties, and the
enactment of effective laws by the state for this purpose”. Constituent Assembly, Report of the Committee on
Fundamental Rights and Directive Principles, 2066, at p 54
99
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Does this now make all of the ESC rights subject to provision within law? Or is it a midway
provision such that only restricts judicial authority if laws are made within two years. Or, if
read literally, is it just a legal obligation to take measures to realise these rights within two
years100 and to avoid the problem of the lack of law as seen in the jurisprudence. The latter
interpretation might be the most persuasive but a better approach might be to provide a clearer
obligations clause for ESC rights like that provided by the South African constitution: e.g.
that the rights must only be progressively achieved within maximum available resources.
Moreover, clarifications and additional requirements could be added. The state must
immediately take steps towards that end and such steps should be reasonable and a minimum
level of other rights must be achieved immediately (as consistent with the jurisprudence under
the ICESCR) and Colombian, Hungarian and Swiss courts.
Similarly, there are number of innovations in the fields of equality rights. While the scope of a
number of rights has been extended, it is notable that no general right of affirmative action has
been established. Rather, affirmative action or ‘positive discrimination’ is mentioned as a
right for women, children and Dalits and Muslims are included in the social justice article.
This is perhaps positive as it may not encourage undeserving groups to claim protection.
However, the silence of on general indigenous rights is surprising (see following article) and
the substantive dimensions of the right to equality could be better emphasised. The changes
are as follows:

Right to equality (Article 3): The grounds for prohibited discrimination are extended
to include those recognised by UN human rights treaty bodies, namely sexual
orientation, physical condition, disability, state of health, marital status, pregnancy,
financial status, origin. Further, the Article provides that there shall be no
discrimination on grounds of sex for wage and social security or the rights of children
to parental property and the groups mentioned for special measures has also been
enlarged.101

Dalit Rights (Article 9): The draft moves beyond the various prohibitions in the
2007 draft to include rights to participate in all the organs of the state on inclusive and
100
This mimicks Article 14 of the ICESCR as regards the right to primary education
It now reads “women, dalits, indigenous people, Janajatis (ethnic groups) Madhesis (plain dwellers), farmers,
labourers, marginalized areas, Muslims, backward communities, minorities, communities which are on the verge
of extinction, or deprived communities, youth, children, elders, sexual minorities, disabled persons.”
101
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proportional basis and positive discrimination in education, health, employment and
social security.

Rights of Women (Article 23): The draft introduces more elaborate provisions,
particular in the area of protection from physical, mental, sexual, psychological or
other forms of violence or exploitation, the right to participate on inclusive and
proportional basis in the state structures and the right to ‘positive discrimination”
concerning right to education, health, employment and social security.

Rights of the Child (Article 24): These rights are expanded in some detail in the area
of education, health, nourishment, protection, recreation, child labour and personality
development by the family and state. Juvenile friendly justice is guaranteed and
destitute children, orphans, mentally retarded, disabled, victims of conflicts, displaced
and children at risk have the right to special protection and facilities by the state.
In conclusion, what is of most concern is the lack of attention to access to justice and
enforcement of judgments. Consideration should be given to including a right to legal aid for
indigent persons in both civil and criminal matters, subject to the resources of the state. This
right is increasingly being recognised as a human right102 and legal aid is being
operationalised in Nepal. It could ease the reliance on NGOs and campaigning individuals to
run all social equality cases.
Experience has also shown that it is important that some official institutions that can proactively take up individual complaints with authorities. For example, it was the official public
defenders in Argentina that took the first cases to court on the right to water on behalf of
various rural and remote communities, challenging pollution of groundwater sources and the
need for basic water access.103 The national human rights institution could potentially play
this role with field offices and the UN CESCR has commented on the need for national
human rights institutions to address ESC rights.104 Consideration should be given to ensuring
the availability of mechanisms to enable the enforcement of all human rights judgments.
See A. Durbach ‘The Right to Legal Aid in Social Rights Litigation’ in Langford, supra note _, pp. 59-71.
See C. Fairstein, ‘Legal Strategies and the Right to Water in Argentina’ in E. Riedel and P. Rothen (eds.) The
Human Right to Water (Berlin: Berliner WissenschaftsVerlag, 2006). pp. 93-112
104
UN Committee on Economic, Social and Cultural Rights, General Comment 10, The role of national human
rights institutions in the protection of economic, social and cultural rights (Nineteenth session, 1998), U.N. Doc.
E/1999/22 at 18 (1998).
102
103
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Better powers of enforcement could be included with powers given to the implementation
division of the Court.
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