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The festival of Chhath, which typically begins six days after Diwali-- the festival of lights-- is not only a celebration of devotion but also a symbolic act of fighting against water pollution. Devotees stand and take dips in the water while offering prayers to the Sun god, believing that their closeness to water connects them with the divine and that the benevolent Sun God blesses their families.

As a matter of fact, Chhath aims to unite people in the fight against the environmental hazards. The four-day long festival, which observes the third day as Sandhya Arghya (evening offering), and the final day of Usha Arghya (morning offering), is celebrated on the banks of rivers or ponds. The very essence of this festival rests on the cleanliness of the surroundings, the Ghat and the water. The devotees undertake a rigorous fast of more than 36 hours, offering prayers to both the setting and the rising Sun while standing in the water. They take holy dips and present Prasad to the Sun during both offerings. 

Selection and cleanliness of Ghat

The male members of every family have a solemn duty to reserve an area at the Ghat, the bank of watercourse, by drawing a circle or square in the sand in which their respective family members could take shelter (in sitting mode) on the third and fourth day, that is on the day of evening and morning prayers.  

As there is fair struggle among devotees to secure the best spots, every family reaches with broom and hoe tools to clean and reserve an area at the Ghat. The Chhath spots come alive with the sparkle of hundreds of lit earthen lamps and bulbs used in well-designed tents. 

It has become a common practice to use Sound boxes and other musical instruments to play devotional songs and music to please the gods. However, the devotional songs do not necessarily cause disturbance in society. In Nepal, there have been no cases filed against Chhath Puja organizers for causing noise pollution or disturbance due to these songs. However, in Mumbai, India, every year some members of society file cases against Chhath organizers for audible disturbances caused to residents near Juhu Beach argues Kathryn C Hardy in her work Indian Sound Cultures, Indian Sound Citizenship (2020) published by University of Chicago Press.  

In Nepal's Terai/Madhesh, it is considered auspicious to use cow dung to purify the sand or worshiping spot. Cow dung is valued for its purifying properties, cleansing the area and preparing it perfectly for worshiping the gods. 

Among many values associated with the festival, the value of ‘Suddhi’ (cleanliness) stands out as a fundamental principle, deeply woven into the spiritual and social fabric of the celebration.  Cleanliness, or 'Shuddhi' in Sanskrit, is not merely a physical state but a spiritual and moral concept. It encompasses purity of mind, body, and environment, reflecting a holistic approach to living in harmony with oneself and the cosmos. This principle finds profound expression during the festival, which serve as occasions to purify and rejuvenate both the individual and the community. 

Honouring pure waters 

The Chhath festival glorifies the importance of pure waters. It exemplifies how clean water is central to this festival. Millions of devotees converge at the confluences of sacred rivers and ponds to observe the festival and to offer their prayers to the Sun god. 

The devotees take dip in the holy waters, believing it cleanses them of sins and purifies their souls. This spiritual cleansing is complemented by the meticulous efforts to keep the sites clean and environmentally sustainable, reflecting the deep-rooted connection between spiritual purity and environmental stewardship. 

The festival not only emphasizes on maintaining pollution-free waters but it also advocates for the conservation of soil to sustain life.  During the Chhath festival, there is a message to stand for soil conservation so that it remains fertile for future generations, ensuring abundant crop production globally to prevent famine and malnutrition. Devotees are seen worshiping God to bless them with fertile land so their households can be abundantly nourished with food. 

SDGs

The festival advocates for pollution-free soil and water, cleanliness of ponds and rivers, prayers for agricultural productivity, equality among devotees, and the use of organic foods in Prasad. Women play a central role throughout the festivities. In one way or another, these practices support and reinforce the goals of the United Nations' Sustainable Development Goals (SDGs), including "No poverty", "Good Health and Well-being", "Clean water and Sanitation", "Sustainable cities and Communities", "Gender equality" and "Empowering women in decision making process." 

Eco-friendly 

This eco-friendly festival strictly prohibits the use of non-biodegradable materials. For example, bamboo products, crucial for the ceremonies, are preferred for their biodegradability, showing devotees' deep commitment to environmental sustainability,' argues Akanksha Yadav and Vinita Chandra, in their journal article titled “Chhathi Mai in popular imagination: Exploring narratives, worship and rituals in North India”, published in Rupkatha Journal on Interdisciplinary studies in Humanities.  

The devotees believe that their prayers reach and are addressed by the God when they offer them standing in pure waters. They feel their devotion is incomplete unless they pray while standing in clean water.  The link between Chhath festival and cleanliness extends beyond ritualistic practices to societal norms and values. Cleanliness is not only encouraged for personal well-being but also as a mark of respect for others and the environment. This ethos is reflected while preparing offering food ('Prasad') to deity and then consuming it as a divine blessing, underscoring the sanctity of cleanliness in all aspects of life.

Way forward 

Although its been nowhere prescribed for bombarding of crackers to celebrate Chhath, these days people are seen cracking crackers and ultimately contributing in air pollution. This could be taken as adverse impact of modernization on Chhath. 

The festival serves as powerful reminders of the importance of cleanliness as both a spiritual practice and a social responsibility. Through rituals, customs, and everyday behaviours, the devotees ought to uphold the principle of cleanliness as integral to their way of life, fostering harmony within themselves, their communities, and the natural world.

Its high time we uphold the purity principle of the Chhathfestival throughout the year, keeping our waters and soil clean and actively combating environmental hazards. 

(Jha is author of Beneath the Sun: Equality for Everyone, The Spirit of Chhath Festival)

As consumers, we all have experienced instances of being misled or cheated. Fortunately, we now have a dedicated avenue for seeking justice: the Consumer Court. 

The government of Nepal published a notice in the Gazette on Feb 10, announcing the formation of such a court in the Kathmandu Valley, which will begin hearing the cases from March 15. Such courts are yet to take shape in other parts of the country, though Section 41 of the Consumer Protection Act, 2018 allows relevant authorities to establish consumer courts across the country.  

In 2022, the Supreme Court’s division bench of Justices Bam Kumar Shrestha and Nahkul Subedi, in the case filed by Forum for the Protection of Consumer Rights, directed the government to establish consumer courts in all provinces to uphold consumer’s rights and interests and curb unfair trade practices. 

Three years into the top court ruling and nearly six years after the enactment of the Act, 2018, the government has decided to partially implement the legal mandates by constituting a Consumer Court in the capital city. Against this backdrop, let’s have a look at the legal arrangements under the 2018 Act, a specialized legislation designed to safeguard the interest of buyers.   

Consumer Court 

The law envisages that the Consumer Court shall consist of a Chairperson, a government-designated district judge, and two gazetted second class officers. One of these officers must be from the judicial service, while the other may be selected from the administrative service at the discretion of the government. The decisions of the Consumer Court can be challenged before the concerned High Court within 35 days.

Rights of consumers

Article 44 of the Constitution of Nepal grants every consumer the right to obtain quality goods and services. The government has enacted “Consumer Protection Act, 2018” to translate the constitutional mandates into action. This law intends to provide remedy to the aggrieved consumers, secure their rights and address their concerns. 

Section 3 of the Act guarantees rights to every consumer to have quality goods and services. Clause-2 confers extensive rights to consumers, including the right to have accessible reach over goods and services, right to select quality goods and services at competitive prices and the right to know the details of products such as price, quantity and purity. 

This respect, the consumers have the right to know about the composition of the product, the distributor, manufacturer and among other details as to the product. Along with this, the consumers have the right to initiate legal action against unfair trade practices. They could claim compensation against the loss caused by the goods and services.

Government role 

As per Section 4(1), the government shall keep an eye on details of the product such as quality, maximum retail price, label and advertisement for the protection of consumer rights.

The Ministry of Industry has been conferred with a plethora of powers, including that of formulating policy as to goods or services' standard, price and accessibility; framing plan of action to fight against “unfair trade practices” and initiating a regular analysis of goods and services consumed in the country. 

The “Consumer Protection Council” led by the Minister for Industry, Commerce and Supplies plays an instrumental role in making policies on the matters incidental to the rights of consumers.

There appears to be a “Central Market Monitoring Committee” under the coordination of the Secretary, Ministry of Industry. This Committee has been entrusted with the power to ensure “protection of the rights and interests of the consumers or for making coordination among the bodies involved in the monitoring or inspection of the supply system.” This Committee dispenses many functions, including that of identifying the shortage of goods or services in market; to monitor and supervise the “Supply System”, to make recommendation for “market monitoring”, to maintain coordination in the function of the “Market Monitoring Team” and “Local Monitoring Committee” or to form committees or subcommittees or to set up “Consumer Information Centre. The “Market Monitoring Committee” could be established at provincial levels [Section 27].

Duty of manufacturers 

The manufacturer would have to use labels in their products by displaying the credentials like the name and address of the manufacturer, composition, weight and quantity, batch number, date of manufacture, expiry date, guarantee and warranty details. 

The information about the products produced from Nepal should be written in Nepali or English. The products without label should not be sold or distributed in Nepal [Section 6(4)]. However, the unpacked agricultural produce or fruits could be sold in the open market without a label. But, the vegetables and fruits which are for export need to be labelled. 

Also, the manufacturers have a duty to manufacture quality goods and services. They should refrain themselves from producing sub-standard products. The service providers should maintain transparency.

Unfair trade practices

Under Section 16, the Act provides that no person shall do or cause to do any form of “unfair trade practice”. The goods and services providers or any person should not hide information as to the label, price and other details and fix a new one to charge more than the actual retail price. The advertisement should not be made false or misleading.

The substandard goods should not be re-labelled for deception purposes. The creation of artificial shortage of goods, hoarding has been banned by this law under Section 16. The goods which are not good for consumption should not be sold or made available to consumers. Section 18 outlaws the sale or distribution of the substandard goods. 

The government of Nepal has been empowered to determine the list of essential food and other goods or services by notification in gazette [Section 19]. This respect, the law remains centralized. This law suggests that the employees of the Centre, Province or local bodies could be designated as Inspectors.  

Way forward 

Protecting and promoting consumerism is a challenging task unless there is awareness among buyers (Caveat Emptor) and accountability among sellers and service providers (Caveat Venditor). The establishment of institutional mechanisms, the formation of consumer courts across the country and the strict enforcement of law and order are essential to effectively realize the mandates of the consumer protection laws.

The state has made a positive step toward advancing consumerism by establishing a dedicated court, initially in Kathmandu. For true progress in consumer rights, the government, people, manufacturers, sellers, service providers and all stakeholders must stand on the same page. After all, Nepal deserves a robust system and society that upholds the rights of its consumers.

Chhath is a unique Hindu Vedic festival being observed in India and Nepal since ancient times. Dedicated to the Sun God and his wife Usha, also known as Chhathi Maiya, Chhath is celebrated over four days.  During the festival, devotees observe rigorous fasting and offer prayers to the setting and rising sun. It is believed that being close to water connects devotees with the divine, and the benevolent Sun God blesses their families.

Chhath Puja is among the most widely celebrated festivals in Nepal. It typically begins six days after Deepawali, the festival of lights. The word "Chhath" means six. In ancient Prakrit, "Chhath" translates into sixth, reflecting that this festival is celebrated twice a year on the sixth lunar day of the Chaitra and Kartik months of the Hindu calendar.

The Rituals

In general, it is believed that Chhath Puja begins with Nahay Khay, but this is only partially true. The Puja actually commences with “Machh-Maruwa Barnai” — a vow taken a day before Nahay Khay to refrain from consuming onion, garlic, and non-vegetarian foods. On this day, devotees bathe, offer prayers to the Sun God, and then eat food prepared in their own kitchens, as consuming food bought from hotels or markets is considered unholy.

Kharna is observed on the second day. Devotees fast until the evening, when the Kharna rituals are completed. Kheer (a rice and milk pudding sweetened with jaggery) and puri are offered to the deity and shared among family members after sunset. Throughout the Chhath festival, the offerings are traditionally prepared on an earthen stove, or chulha, using mango wood whenever possible.

Evening and Morning Offerings

The third day is known as Sandhya Arghya (evening offering), also called Pahila Arghya (the first offering). This is considered the most challenging day for devotees, most of whom are women. They observe a strict fast, abstaining from both food and water. 

In the evening, devotees take ritualistic dips in neighborhood ponds or rivers which continue until sunset. They offer prayers to the Sun God with fruits and prasad prepared in their own but separate kitchen. These offerings include items like Thakuwa, Bhuswa, Khaja and Mithae, and fruits such as oro blanco grapefruit, sugarcane and bananas.

On Usha Arghya (the morning offering) on the fourth day, devotees break their fast after offering prayers to the rising Sun. They take dip in the water and present all the prasad to the Sun God once again.

An intriguing aspect of Chhath Puja is the dual worship of Usha and Pratyusha, who are both considered consorts of Surya, the Sun God. Usha, symbolizing the first ray of the morning sun, plays a key role in the concluding rituals, while Pratyusha, representing the last ray of the day, is revered during the evening. This dual worship is believed to symbolize the transformative power of the solar cycle and the cyclical nature of life.

Festival of Equality and Cleanliness   

Primarily observed by women, this festival requires neither male priests nor the recitation of mantras to perform the Puja. It is open to all, regardless of gender, caste, or economic status, with nearly identical offerings for everyone. Emphasizing the cleanliness of riverbanks, ponds, and water bodies, the festival fosters equality and fraternity among devotees. In essence, it celebrates cleanliness, equality, and community spirit.

Dedication  

Chhath is a devout offering for the well-being of family members, highlighting the sacrifices that women make for the longevity of their husbands and the prosperity of their families. The festival embodies ancient traditions passed down through generations. Its rituals stress purity and discipline, bringing families together to perform ceremonies that strengthen unity and community spirit. Beyond its religious significance as an expression of gratitude to the Sun God for sustaining life, Chhath promotes values of prosperity, health and longevity for families.

Social Harmony   

The festival transcends religious boundaries and unites people across caste, creed and social status, fostering harmony and mutual respect. Rituals emphasize environmental conservation, such as bathing in natural water bodies at sunrise and sunset, symbolizing purification of the body and soul and underscoring the importance of ecological balance.

More than just a festival, Chhath is a testament to cultural heritage, religious devotion and social cohesion. It promotes values of discipline, devotion, and environmental stewardship, while celebrating a shared heritage that binds communities. Chhath remains deeply significant, symbolizing reverence for nature and gratitude to the life-sustaining Sun God, Surya, making it an integral part of cultural tapestry in Nepal and India.

Lessons to Learn   

The festival advocates an eco-friendly approach, reflected in devotees’ efforts in prepare the Ghats and maintaining the cleanliness of water, soil and a pollution-free atmosphere. 

Chhath promotes equality, fraternity and social harmony. Meanwhile, the rigorous fast of more than 36 hours undertaken by women devotees reflects their deep familial devotion, prioritizing the well-being of their loved ones.

If we succeed in maintaining a pollution-free environment, a society free from violence against women, and an equal society without discrimination, only then can we truly honor the messages of the Chhath festival.

Jivesh Jha is the author of Beneath the Sun: Equality for everyone, The Spirit of Chhath Festival (2024)   

‘Purush Pariksha’ (The Test of Man) is an exploration of the great poet Vidyapati’s story collection that has been translated from Sanskrit into Nepali by Dhirendra Premarshi, a renowned writer and committed researcher on the great poet and his cultural ethos.

The book was published by Ambar Publication House, New Delhi. It’s a collection of 44 stories of the poet which provides universality, artistry, intellectual values, and the qualities that a man should have to fight against life’s challenges. Vidyapati’s original work has already been translated into Hindi, English, Bengali, and other languages. The current Nepali translation is a first of its kind by Premarshi. 

Premarshi’s work welcomes readers with a preface written by Prof Dr Laxman Prasad Gautam, a faculty member of Nepali Language and Literature at the Central Department of Nepali, Tribhuvan University, Kathmandu, who takes them through the origins of this translation. 

Prof Gautam argues, “Taking into account the stories written by Vidyapati and their commentaries published in Sanskrit, English and Hindi, the translator, himself, an acclaimed laureate of Maithili and Nepali literature, has succeeded to upkeep the fundamental literary spirits of the great poet’s writings.” He further states that Premarshi’s work is an idealistic translation in recognition of literal and semantic translation of the writings of the great poet, who is often called Kavi Kokil (Poet Cukoo of Mithila).

Purush Pariksha is simple and persuasive, speaking of the translator’s skills, his mastery of language, his devotion towards culture and literature. He makes things easily understandable.

Purush Pariksha would have been authored by Vidyapati during 1412 to 1416 on the direction of Shiv Singh, king of the then Mithila state. King Shiv Singh was Vidyapati’s childhood friend and he was on the throne for four years. This text was firstly translated by Har Prasad Ray in 1815 in Bangla language. It was then translated into English in 1830 by Kali Krishna Bahadur. Chanda Jha took the initiative to translate it into Maithili language in 1885.

The conversation between Subudhi, a monk, and one of the kings named Paravar make up the theme of the book. The literary work provides guidelines for the kings and administrators in their dealing with the officials. For instance, in the fifth chapter, Premarshi provides an instance where Vidyapati had suggested that a king would fail to learn about the overall facts of the incident if he deploys informers who lie. Similarly, if a king favors a wrong person, he would not only commit sins but would also invite troubles for himself.

Vidyapati’s work is not only an exploration of moral lessons but also a political treatise that provides ample practical knowledge about the art of statesmanship. The book can be considered an essential work in propounding the theories of literature, criminal law, administrative law, politics and economics. 

If there is one reason to read Premarshi’s translated and edited work is his endeavor to give conceptual clarity on the writings of the great poet Vidyapati. The book discusses the views, theories and wisdoms propounded by the great poet. His political and administrative theories also find a prominent place in the book. I believe Premarshi’s Nepali translated version of Vidyapati’s Purush Pariksha should be a mandatory reading for sociologists, anthropologists, poets, lawyers, teachers, and students of various subjects, including literature and law.

Every right comes with a reasonable restriction. If right goes without restriction, there would be chaos in society. In this context, the right to free speech is considered the mother of all freedoms since it has a special and crucial place in the hierarchy of freedoms. The right to think and speak freely, as well as to receive information and to participate in open discussions without fear of government restriction, could be considered the core of free speech. The freedom to converse on an issue is the opportunity to speak freely.

However, the right to speech does not give license to defame or harm others. Recently, a media outlet got a directive from the Press Council Nepal to remove a piece of fake news claiming the involvement of Justice Anand Mohan Bhattarai, lawyers and media entrepreneurs to dismiss more than 400 corruption cases. Issuing a press statement on April 28, Judges’ Society Nepal demanded stern action against Sidhakura, the show in question, for broadcasting the ‘news’ without checking the facts, thereby attacking not just a judge but the judicial system as a whole. Relevant agencies of the state have initiated legal proceedings against the media.

Against this background, let’s delve into freedom of speech. 

Constitutional scenario

The Constitution of Nepal 2015 prohibits the enactment of any law and order at the cost of fundamental freedoms and constitutional values. Article 1 declares any law, which is inconsistent with the constitution, ‘void’, meaning that the fundamental freedoms, which include freedom of speech and expression, cannot be curtailed in the name of any law.

Article 16 states that every person will have the right to life with dignity. Article 17(1) guarantees the right to freedom, including personal liberty. Article 17(2) guarantees fundamental freedoms, like freedom of opinion and expression; freedom to assemble peacefully; freedom to form political parties; freedom to form unions and associations; freedom to move and reside in any part of the country; and freedom to engage in any occupation.However, these freedoms are not unrestrained. As with every right, the right to speech and expression also come with reasonable restrictions. A citizen cannot exercise his freedom of speech in a way that undermines the nationality and sovereignty or jeopardizes the harmonious relations among the people, incites hatred, defamation, offense or is contrary to decency or morality or public order.

This way, a person can voice his concerns in every way, and the way he wishes to but cannot defame or challenge other’s dignity or the law of the land. Simply put, you can enjoy your rights without violating others’ rights. Article 19 deals with the right to communication. This clause prohibits pre-censorships of publication and broadcast of content or information through any medium. This means broadcasting or press materials cannot be seized at the sweet will of the government.

The constitution disallows untouchability and discrimination and prohibits them under Article 24. This means one is not competent to shape his views discriminating against his fellow citizens or members of the family. Article 27 envisages that every citizen will have the right to information. Right to speak or right to know is considered part and parcel of speech and expression and the same is the case with right to privacy (Article 28), which guarantees a person’s right over personal facts, leaving it up to the individual to decide when and under what circumstances to make them public. 

Remedy

The constitution provides remedy clauses that confer a citizen the right to move the Supreme Court (under Article 133) and High Court (under Article 144) at the instance of violation of his/her fundamental rights.

Judicial interpretation 

The Supreme Court in the case of Advocate Ratna Kumari Shrestha v Sudhir Sharma, editor-in-chief of Kantipur daily and others (2073 BS NKP, Decision Number 10370) held, in the name of the exercise of press freedom, it would not be justified to allow one to affect the dignity, independence and functioning of the courts. Nor, would it be in the interest of a democratic system to regulate press freedom at the cost of contempt of court. Both of these institutions—press and judiciary—should have to stand within their limits. If there is dissemination of information in such a way that it would tend to diminish the authority of the court, judges or cause contempt of court, then it would not be considered an exercise of the freedom of the press, rather it would form a basis for punishing an outlier on the charge of contempt of court. In the name of freedom of speech and expression, a media has no right to arbitrarily criticize the court’s decisions and thereby adversely affect the dignity of the court which would have an impact on the people’s faith in the judiciary. A media will be liable for contempt of court if it disseminates information to downgrade the authority and sanctity of the court and judgeship, the apex court held further.

In Thir Prasad Pokharel v Harihar Birahi, editor of Bimarsha Prakashan Pvt Ltd (2049 BS NKP, Decision Number 4604), the apex court held that Nepal’s constitutional norm and values are clear on a point that there shall be no pre-censorship, neither cancellation of registration of the newspaper, nor shall there be any shutdown or confiscation of printing press.

Global precedents

In India, the preamble of the Indian Constitution at the very outset clarifies that the democratic credentials, like liberty of thought, expression and belief; justice along the social, economic and political; or equality and fraternity, would be secured and promoted by the governments. Article 19(1)(a) guarantees freedom of speech and expression.

The laws in the USA not only recognize the right to fly the national flag but it has gone to the extent of holding flag burning as an expression of free speech and expression of its citizen against the establishment but Indian constitution does not approve the latter part of the right, India’s apex Court ruled in the case of Union of India v Naveen Jindal (2004). 

The First Amendment to the Constitution of the United States provides that the Congress shall create no law abridging the liberty of words or of the press.  In the 19th century, Germany guaranteed freedom of opinion in its Constitution with an express prohibition of press censors.

Interestingly, Sweden became the first country in the world to adopt a provision for the availability of official information for the citizens on their demand. The right to freedom of speech is recognized as a human right under article 19 of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (ICCPR).

The way forward

The right to freedom of speech and expression is a fundamental right enshrined in the Constitution.  It expressly guarantees the right to voice our concerns through speech, expression or vote. Yet, it does not confer a license to defame others or violate the laws of the land. So, the freedom of speech is neither unrestrained, nor does it allow us to question the sanctity and integrity of others.

Publishing a fake news content to defame persons of high moral character or to post comments on social media to defame others or to speak in a way that tends to undermine the authority and sanctity of judicial institutions cannot be considered part and parcel of freedom of speech. It's high time to protect and promote the constitutional ethos, for Nepal deserves to uphold the press freedom by every possible means and in every given way.

Constitutionally and politically, women are empowered in the days we live in. In Nepal, the constitution and other prevailing laws are in place to protect and promote the rights of women. The constitutional arrangements ensure one-third representation of women in the legislature, which is a major breakthrough. However, it’s not the end but a means to achieve gender equality.

To argue that countries like Nepal have, exclusively, felt the burn of gender-based discrimination and they have to adopt progressive laws to uproot inequalities would be a futile claim. Developed countries like the United States (US) too have experienced gender inequality.

The American case

In the case of Bradwell v State of Illinois (1872), Justice Bradley of the US Supreme Court held that the natural and proper timidity and delicacy, which belongs to the female sex, evidently makes it unfit for many of the occupations in civic life. The paramount destiny and mission of the women are to fulfill the noble and benign offices of the wife and mother. This is the law of the creator.

In this case, the state of Illinois denied Bradwell, a woman lawyer, an advocate’s license. The US Supreme Court (SC) argued that such a restriction from Illinois was not in contravention to the 14th Amendment to the Constitution. Bradwell was admitted to the Illinois Bar in 1890.

In Hoyt v Florida in 1961, the US SC upheld a law placing a woman on the jury list if she made a special request because as put by Harland, J, “a woman is still regarded as the center of the home and family life.”  

Departing from the previous position, the US SC in the case of Muller v Oregon (1908) was of the view that the woman’s physical structure and the performance of maternal functions place her at a disadvantageous position for subsistence. It is still true that in the struggle for subsistence, she is not an equal competitor with her brother. She will still be where some legislation to protect her seems necessary to secure a real equality or right.

Nevertheless, the instances show that the judicial department in the US has interpreted the laws progressively as well as regressively. In June 2022, in a devastating decision that will reverberate for generations, the US Supreme Court has abandoned its duty to protect fundamental rights and overturned Roe v Wade (1973), ruling there is no constitutional right to abortion. The ruling in Dobbs v Jackson Women’s Health Organization abandons nearly 50 years of precedent and marks the first time in history that the Supreme Court has taken away a fundamental right.

In Roe case, it was held that the specific guarantee of “liberty” in the 14th Amendment of the US Constitution protects individual privacy that includes the right to abortion prior to fetal viability.

Nepal’s case

Women across the world have fought against all types of abuses and become more aware of their rights. These prejudices led the world community to pass gender sensitive domestic as well as international laws. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which was adopted by the United Nations in 1979 and ratified by 189 states on 3 Sept 1981, is a treaty that is essential for assessing the government’s progress in eradicating discrimination. This treaty, which Nepal ratified in 1991, is recognized as a strong international agreement to protect gender equality and lessen violence against women.

Acknowledging CEDAW, the drafters of the 2015 Constitution of Nepal have floated ample provisions to ensure the protection of women’s rights through broad and universal principles of equality and participation. The preamble of the Constitution pledges to end all forms of discrimination based on gender. In a similar vein, the equality clauses and affirmative action clauses of the Constitution seek to ensure adequate representation of women in public life. To be specific, Article 38 provisions that all the rights relating to women shall be the fundamental rights. These rights include equal right to lineage, right to safe motherhood, and right to reproduction. In addition to this, Nepal has set aside 33 percent of seats for women in the legislature.

Article 70 envisages that “while conducting election of President and Vice-president under this Constitution, the election shall be held so as to represent different genders or communities.” Interestingly, a similar arrangement has been made for the election of Mayor and Deputy Mayor of the municipality. In the case of the Speaker and Deputy Speaker of the House of Representative, one of them must be a woman and so is the case with the Chairperson and Vice-chairperson of the National Assembly.  

This arrangement endeavors to press forward gender sensitive laws and policies. The reservation benefits ensured to women are there to supplement the principle of proportional inclusion.

The inclusivity and diversity are the core focus of the 2015 constitution,” argues Prof Bipin Adhikari in his book, Salient Features of the Constitution of Nepal, 2015.

Way forward

The traditional ideas of society, culture and rights have undergone a significant change the world over. While there is still more to be done to protect women’s rights, there has been significant progress toward this end.

Change happens gradually. Nepal’s Constitution gives the government an enhanced role to establish and enact initiatives, programs and regulations that will safeguard and advance the rights of women and children. A beginning in the right direction is having one-third representation of women at legislative spectrum.

In the words of Mahatma Gandhi, “Democracy is something that would give the weak the same chance as the strong.” Nepal’s constitution contains progressive provisions that support the cause of women. But passing fair rules without enforcing them in the letter and spirit would only be cosmetic.  Prof Adhikari in his book, From Exclusion to Inclusion: Crafting a new legal regime in Nepal rightly observes: Nepal’s journey towards inclusion depends, to a great extent, on the quality of democracy and constitutionalism it will achieve on the foundation of its constitution.

Summing up, the mere glorification of the laws and celebration of International Women’s Day (without implementing rules) would be a mockery of democracy.

The constitution of Nepal guarantees equitable participation of different communities in state mechanisms. Its preamble envisages an equitable society based on proportional, inclusive, and participatory values in order to combat prejudice, and to advance social justice, equality, and diversity.

The federal system of governance, pluralism, egalitarianism, rule of law, inclusivity, and good governance are the basic tenets of the 2015 constitution. The goal is to establish “sustainable peace, good governance, development, and prosperity through the federal democratic republican system of governance,” as stated in the final section of the preamble. 

The federal structure was adopted to ensure that the provinces, while remaining independent in their jurisdictions, combine themselves for the national purpose. The administrative powers are divided between the center and province; and both are supreme in their respective areas. In a federal democracy, there appears to be “effective innovation within the system both at the federal and state level” argues John Warhurst, professor of political science at Australian National University.

 In a paper presented at International Conference on Federalism, Devolution of Power and Inclusive Democracy in Nepal and Asia organized by Kathmandu University School of Law in Kathmandu on Nov 22-23, Prof Warhurst argues, “The federal system has survived wars, pandemics and natural disasters with mixed success. Its operations have evolved to meet new circumstances and the aspirations of different political leaders and political movements and parties.” 

He is of the view that the benefits of federalism could be seen in its flexibility to deal with regional differences, including economic and financial disparities and to respond to local cultural differences and varying needs. In Nepal’s case, Madhesh is considered as the flagbearer of federalism, as the people and the Madhes-based parties have been the most vocal advocates for the strengthening of the provincial system. 

The Madhesi community, one of the underprivileged groups, believed that federalism could be the best alternative to achieve self- rule at the province and shared rule at the center. The federal practices could be meaningful in many respects. It could help us to champion the regional or local expectations and aspirations. We should enact laws and policies in furtherance of the local demands and culture. The center should coordinate and cooperate with the provinces as our constitution has been modeled on the principle of cooperation, coexistence and coordination, as enunciated under Article 232. 

Federal features

Article 56 of the constitution envisages that the federation, provinces, and local governments are the political entities that exercise the sovereign power. The charter has empowered all the three tiers of the government to legislate in line with the matters enumerated under the Schedules. Our constitution provisions that the laws enacted within the jurisdiction of Federal List would prevail over the laws framed under concurrent or Provincial List. And, the laws of Concurrent List would prevail over the Provincial List. At this juncture, the constitutional mandates of India and Nepal stand on the same page.

The supremacy of the constitution is yet another essential element of federalism. Article 1 declares the charter as the fundamental law of the land which itself has a rationale that the constitution is supreme in the state. Laws that are inconsistent with the constitution shall, to the extent of such inconsistency, be void. The independence of judiciary and bicameralism further supplement the notion of federalism. In the federal system of governance, the power is divided between the national government and provincial governments. 

The federal system of the United States has not been fully adopted even in India because the American model may not have suited India. Further, India had followed a more or less Canadian system rather than the United States of America’s system of federation. In the United States, the residuary powers are reserved to the states by the constitution. While in India, the residuary powers are given to the center under Article 248 because India has followed here the Canadian system, vesting the residuary powers in the union. Much like India, the residual power rests with the federation in Nepal (Article 58, Constitution of Nepal).

Blame game

Some argue that federalism has become a costly affair. Some say corruption is at its zenith due to federal structure. In fact, none of the systems of governance could give you a magic stick to give solutions to every problem. A system of governance could work as a lamppost showing vivid paths. 

In Nepal’s case, there has been a trend of blaming the constitution to cover up all the mistakes committed by the political actors, and as a result of which, we are witnessing the seventh constitution in hand. As a matter of fact, no self-respecting nation should allow its fundamental law of the land to be used like a playing card at the behest of certain political actors. Our constitution guarantees the right to employment as a matter of fundamental rights, but the state has failed to stabilize and stop the outflow of migrant workers.

Remittances are the foundation of Nepal’s economy, constituting about one-third of the GDP, sustaining the national economy as well as adding to the household income. In contrast, right to education and healthcare are also acclaimed as the fundamental rights, but the government-aided educational institutions and hospitals have measurably and miserably failed to stand up to the peoples’ expectation. Resultantly, there appears to be privatization in the education and health sectors. Can we blame the constitution for all these problems?

Way forward

If every political party had their own interpretation of the constitution, in such a case, the premier book would be rendered meaningless. In Nepal’s case, the political leaderships had never adhered wholeheartedly to any constitution. The reason is that they always wanted to stick to the chair and milk money; and to that end, they used various players and shaped the constitution to suit their needs.

To tell you the truth, Nepali federalism has been designed on the basis of working of federalism in US, Canada, Australia, India, and others. Yet, it deviates from those federalism in many respects as it establishes its own distinctive features suiting its national interest. The center’s strong influence could favor centralizing tendencies but cannot subvert federal fabrics. Nepal’s constitution provides ample opportunities for the provincial and local governments to recognize and address the local concerns. As Prof Warhurst argues that federalism favors local and regional concerns, the legislation could be enacted by the provincial and local governments to address the regional and local needs and aspirations.

From ensuring federalism to rule of law, to good governance and inclusivity, the latest constitution has everything progressive for the people. The only thing we need is to implement the constitution in a true and material sense. After all, our federal democracy deserves to be nationally integrated, politically and economically coordinated and intellectually uplifted. And, for that to happen, this current constitution needs to be upheld.

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There is no evidence to support that rigorous jail sentences reduce the number of hardcore criminals or violent acts perpetrated in a society. Correspondingly, there is no research which suggests that the convicts given a premature release through pardon have reformed themselves and rehabilitated in society.

When you read news stories that reveal that pardoned persons got arrested in connection with a crime, then you start believing that convicts cannot change. If convicts cannot change, then we are fooling ourselves by setting them free to walk under open sky.  

Recently, Lok Bahadur BK, one of the 670 convicts, who walked free on the basis of a presidential pardon granted on the Constitution Day (Sept 19) on the government’s recommendations for “exhibiting good conduct”, was again arrested for allegedly murdering Bhawana BK of Rukum district. Murder convict Yograj Dhakal Regal, doing a 20-year term, also got freed for a brief period, only to be arrested after a Supreme Court order.  

Pardoning hardcore criminals is nothing new in Nepal. Former lawmaker and Maoist leader Balkrishna Dhungel, awarded life term in 2004 for masterminding the murder of Ujjan Kumar Shrestha of Okhaldhunga during the Maoist insurgency in 1998 along with the confiscation of his property, had received a pardon in 2018 along with around 800 convicts. But the Supreme Court had issued an order against the government vis-a-vis the pardon granted to Dhungel.

Legal recognition

Article 276 of the Constitution of Nepal 2015 provides that the President of Nepal “may grant pardons to persons convicted, and suspend, commute, or reduce any sentence imposed by any court, judicial or quasi-judicial bodies or administrative officer or authority.” But this provision is not absolute in nature, as the prevailing criminal law of the land has put certain restrictions on the exercise of this power. 

Section 159(4) of the National Criminal Procedure Code, 2017 prohibits pardoning of people convicted of corruption charges; rape; genocide; human trafficking; money laundering; abduction or enforced-disappearance; (possession of) explosives; murder in a cruel and inhumane way; and narcotic drugs trafficking or transaction punishable by a sentence of imprisonment for a term exceeding three years.

The pardoning could help the convict walk free before the completion of the sentence so inflicted, but it does not necessarily mean they are innocent. In other words, pardoning could ensure a premature release but cannot eliminate the stigma or guilt.

Global precedent

The constitutional power to pardon is not a unique concept in Nepal. It was derived from the Royal Prerogative of Mercy. This power is delegated to the Lord Chancellor in England whereas in the United States (US), it’s secured under the constitutional scheme.

Article II, Section 2 of the US Constitution envisages that the President “shall have the Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

The Constitution of India also recognizes presidential power of pardoning under Article 72, which confers on the head of the state the power to grant pardons, reprieve, respite, and commute or reduce the sentence of any person convicted of any offense.

Unlike in the US, the president of India or Nepal does not act in person but on the aid and advice of the Council of Ministers headed by the Prime Minister.

Is it an absolute power?  

The Supreme Court of Nepal on November 2 in the case of Bharati Sherpa v the Office of the President, Kathmandu and Others observed that the remission, respite, reprieve, remission or commutation of the sentence should be based on public interest, prevailing laws and the rulings of the Supreme Court.

The presidential clemency for the sake of political adjustment or political bargaining shall amount to violation of the constitution and established legal norms, the Supreme Court of Nepal held in the case of Resham Lal Chaudhary and Others v Government of Nepal (2023). 

The author holds a degree in Constitutional Law

This is part 1 of a two-part series