Nepal’s Constitution and Lessons for India

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Nepal’s Constitution and Lessons for India

India wants Nepal to change some provisions. It would do better to adopt some itself.

Nepal’s Constitution and Lessons for India

An anti-India protest in Kathmandu

Credit: REUTERS/Navesh Chitrakar

On September 20, Nepal’s President Ram Baran Yadav announced that his country had a new constitution. The promulgation of the constitution is significant because it paves the way for the establishment of a democratic political system in the country. The constitution itself is the result of eight years of deliberation, including the failure of the first Constituent Assembly in 2012. It is the seventh constitution to have been adopted by Nepal in the last 67 years and the first by democratically elected representatives.

India’s Overreaction

The adoption of Nepal’s constitution has triggered alarm bells in India. According to reports in the Indian Express, a day after the constitution was promulgated; India expressed its displeasure about the content. New Delhi has reportedly asked Nepal to make as many as seven amendments to address the concerns of the Madhesis and Janjatis (minority groups in Nepal). These amendments, the report suggest, have been “conveyed to Nepal’s leadership through official channels.”

In the last few months, these communities have strongly protested against provisions of the constitution which they fear will impinge on their cultural identities. Prominent among the concerns are provisions related to the reorganization of provinces. The Madhesis largely inhabit the plain regions that border India. The protest has reportedly claimed 40 lives so far and New Delhi fears that violence may spill over to the Indian side if corrective measures are not taken.

The constitution was passed by a clear majority with 507 of the 598 constituent assembly members voting in favor. However, around 60 members from the Madhesis and Janjatis community boycotted the vote. India views the constitution as unrepresentative of a significant fraction of the population.

New Delhi’s response to the constitution has come as a surprise to many. As a democratic country itself, India has arguably overstepped the limits of suggestion and rather tried to impose its views on its much smaller neighbor. In various international forums, India has repeatedly advocated for a country’s right to self-determination. Unfortunately, this seems not to apply to Nepal.

The concerns that India has raised may well be real. The Madhesis and Janjatis may indeed be fearful of their future at the hands of the three big political parties in Nepal. As a friendly neighbor, it is certainly not unreasonable for India to suggest concerns. However, asking the country to made seven amendments to its constitution the day after it was promulgated goes well beyond suggestion. India must respect the will of the Nepali people and the democratic process through which the constitution was drafted and adopted.

Responding to the report in Indian Express, the Ministry of External Affairs has issued a statement stating, “The article is incorrect. Government of India has not handed over any list of specific Constitutional amendments or changes to the Government of Nepal…we continue to urge that issues on which there are differences should be resolved through dialogue in an atmosphere free from violence, and institutionalized in a manner that would enable broad-based ownership and acceptance.” The newspaper maintained that it “has confirmed from its sources that these amendments/changes were communicated by New Delhi to Katmandu. It stands by the report.”

A review of India’s response to the constitution support the Indian Express. Indian Foreign Secretary S Jaishankar was sent on a diplomatic mission to ensure that India’s concerns are amicably addressed. His visit was a failure. Immediately after Nepal adopted its constitution; India recalled its ambassador in Katmandu for a briefing. New Delhi has expressed its displeasure (and also here) without much impact. It is likely to perceive this as its weakening grip over the Himalayan state, notwithstanding its humanitarian aid in the wake of the recent earthquake and Prime Minister Narendra Modi’s visiting the country twice.

Lessons for Democracy?

India may praise itself as the “world’s largest democracy” but there are important lessons it can take from the new constitution of Nepal.

With the promulgation of this constitution Nepal has become the first Asian country to explicitly recognize the rights of the Lesbian, Gay, Bisexual and Transgender (LGBT) community. The provisions under Right to Equality clearly state that “no discrimination shall be made against any citizen in the application of general laws on grounds of religion, colour, caste, tribe, sex, sexual orientation, bodily condition, disability, status of health, marital status, pregnancy, financial status, origin, language or region, ideological conviction or any of these.”

The constitution also states that nothing shall prevent the state from the “making of special provisions by law for the protection, empowerment or advancement of [among others] gender-based and sexually oriented minorities.”

In contrast, same-sex relationship is a crime in India under Section 377 of the Penal Code, which awards punishment of “imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.” The Supreme Court in 2013 upheld Section 377 but left it to the wisdom of the parliament to decide whether to retain or repeal the draconian law.

The present Narendra Modi government recently informed parliament that it has no plans to repeal Section 377. The party in the past has welcomed the apex court verdict and also termed homosexuality as “anti-India.”

Recognizing the rights of women, the constitution of Nepal explicitly states that “women shall have equal ancestral right without any gender-based discrimination.” India has yet to introduce a similar right for women from all faiths. Moreover, ancestral property rights for women are not a fundamental right in India. Apart from this, the principles of positive discrimination and proportional inclusion have been employed in Nepal’s constitution to give women the right to participate in all agencies of State mechanism and in health, education, employment and social security. While India has implemented positive discrimination in various fields, it has a long way to go to ensure proportional inclusion of women in state mechanism.

Nepal also has become the second country after Bhutan in South Asia to abolish the death penalty. The Supreme Court of India in the past has accepted the fact that on various occasions innocent people have been executed. Since 1996, around 15 people have been erroneously given the death penalty. Two of them were hanged.

Under the new constitution, victims of environmental pollution or degradation in Nepal now have the fundamental right to receive compensation from the polluter. In India the “right to a clean environment” is not explicitly mentioned in the constitution, but the Supreme Court has interpreted it be included under the right to life. However, unlike Nepal, the victims of environmental pollution or degradation in India are not entitled to any compensation as a fundamental right. The state may impose a penalty on polluters but this does not necessarily mean that the affected will be compensated. The state gets richer; the victims poorer.

Similarly, while advocating for a fundamental right to education, the constitution makes special provisions for the empowerment of the differently-able citizens. It states, “Citizens with disability and economically poor conditions shall have the right to free higher education.” On the other hand, in India no such provisions are available under fundamental rights for the differently able to access free higher education. Provisions for free education are limited only to the primary level.

What Next?

A constitution can be a living document; India must desist from taking a strong position prematurely. Indian must acknowledge the fact that after years of political uncertainty, Nepal finally has a constitution which on the whole is progressive. Like any other constitution, it has loopholes. The Indian constitution itself is full of them. Yet India would baulk at another country trying to force change upon it. Suggestions are welcome, dictation is not.

Writing for The Hindu, senior Nepali journalist Kanak Mani Dixit says, “Perhaps the most welcome aspect is that amendments can be adopted with relative ease over the next two years and four months, as the Constituent Assembly enjoys a kind of afterlife as a Parliament with the same party based configuration. Everything except sovereignty and national integrity are open to amendment… it is important for India to let the neighbor sort out its challenges on its own.”

Given the deep historical, cultural and religious links the two countries share, careful employment of soft power diplomacy would very likely be a better way for India to express its concerns.

Mukesh Rawat is a New Delhi based freelance journalist. [email protected] He tweets @mukeshrawat705