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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

On 20 Sept 2015, Nepal adopted its first federal democratic republican Constitution promulgated by the Constituent Assembly, a historic step for a nation that had gone through a decade-long Maoist insurgency, royal massacre, Madhes movements and other  political deadlocks.  The seven years’ exercise finally produced a new Constitution. Nepal formally abolished its legacy of Hindu monarchy and emerged as a federal democratic republic. Over the years, the political instability was so heightened that the country saw 15 prime ministers since 2006. Even after the delivery of the 2015 Constitution, the country witnessed eight prime ministers. The drafting process (2008 to 2015) kicked off in 2008 with the formation of Constituent Assembly-I, the unicameral body of 601-member, after its election. In fact, the demand for a new Constitution was raised by Maoist rebels, who waged a decade-long civil war which ended with the 2006 comprehensive peace accord. The Constitution aimed to reinforce Nepal as a secular, democratic republic with a provision for safeguarding the religion, and federate the country into seven provinces.

Bag of progressive provisions  

While celebrating Constitution Day, it’s high time for us to rejoice in the progressive provisions. It stands as the first national  charter in South Asia to include an explicit mandate of one-third representation to women in legislative apparatus. The Constitution expressly guarantees the rights of transgender people. This paradigm shift has made the country bound to adopt affirmative action to ensure the proportional representation of oppressed groups, including that of transgender and disabled persons, in the state apparatuses. In yet another breakthrough, the charter institutes fair corpus of provisions for language as well. In order to flourish the languages given by mother, it's been provisioned that the languages given by mother shall be the national languages. The fundamental rights provisions are praiseworthy. Take the example of the right to privacy. Right to privacy is yet to be expressly mentioned in the Indian constitution; however, the same right has been enlisted under fundamental rights in Nepal. Still, the right to privacy is protected as an intrinsic part of the ‘right to life and personal liberty’ clause in India.

The provisions relating to fundamental rights have been embodied under Part-III (Article 16-48) of the Constitution. There are ample provisions which are progressive in nature. For instance, right to information, right to communication, right to justice, rights of victim of crime, right against torture, right to free legal aid, right to privacy, right to property, right to clean environment, right to language and culture, rights of women, rights of Dalits, rights of senior citizens, and  right to social security, among others, are the provisions which appear progressive in one way or the other.

Our progressive fundamental rights would become meaningless unless implemented in true and material sense. The state is failing to implement these rights in letter and spirit due to its poor economy and political instability. It’s the fault of the government, not the Constitution.

Constitutional supremacy

The Constitution of Nepal under Article 1 secures the supremacy of the constitution, while Article 133 and Article 146 confers power on the Supreme Court and High Courts, respectively, to issue any form of writs and determinations to secure the fundamental rights of the people. Our Constitution confers a wide range of powers on the judicial department to judicially review the actions of executive and legislature.

The Supreme Court in the case of  Bed Krishna Shrestha v Ms Secretary, Department of Industry, Commerce, Food Civil Supplies (2010 BS) held that power and obligation of the Pradhan Nayalaya, under Section 30, was to prevent unlawful action in case it infringed on the fundamental rights of people. In Mrigendra Shamsher Rana v Inspector General of Police (2011 BS), Chief Justice Hari Prasad Pradhan for the first time in the judicial history of Nepal issued a directive order to the government to initiate immediate amendment in Raj Kaj Act. The 1990 constitution had considered the provision of the Judicial Review as one of the sacrosanct parts of the charter.  This way, the judicial department has the ultimate power to test the constitutionality of the action of the government under writ jurisdiction.

In the United States, in 1789, Judiciary Act conferred power on the US courts to review the governmental actions. In 1803, Chief Justice Marshal in the case of Marbury v Madison held that it is the judicial department to say what the law is. Article-III, Section-2 of the US constitution envisages that the Judicial power shall extend to all cases arising under the constitution, laws of US and up to certain specified controversies.  Likewise, Article VI, Section 2 provides that the US constitution is supreme and the laws inconsistent to it would be void.

Similarly, in the United Kingdom (UK), where the constitution is unwritten, and parliament is supreme, the courts have been conferred with power to interpret the laws. In Germany, the constitutional court is empowered to strike down not only ordinary laws but also constitutional amendments for being incompatible with the basic features of the constitution. Interestingly, the concept enjoys a similar currency in Nepal as well. 

Missed opportunities

The preamble acknowledged the glorification of various movements in the past such as the people’s movements and Maoist insurgency. But, the Constitution does not recognize the Madhes uprisings that led to the inclusion of federalism into the characteristics of the new Nepal. Had the makers of the Constitution recognized the Madhes movements, it could have further amplified the acceptance of the Constitution in the southern plains. It was a missed opportunity.

The charter provisions that the “operation, supervision, and coordination of Nepal police and provincial police shall be as provided by Federal law” [Article 268 (3)]. In doing so, the makers of the Constitution have offered a little say to the provincial legislatures in enacting policies for the police apparatus. 

Article 56 confers the power to declare village councils and municipalities to the federal government. It means the provinces do not have the power to restructure local bodies in the future. Article 203 does not give power to the provincial governments to levy tax without the consent of the central government. 

Moreover, the drafters ought not to have rejected calls to revert back to a Hindu state. It was the Hindu identity of Nepal that was crucial in bringing the Madhes and Hill people together. It would have been better had the CA members given due respect to the things which could be crucial in bringing Madhesis and Pahadis together.  Still, there would be political debates, there would be heated arguments also, at times there would be protests on the streets, yet amidst the noise and chaos, what the preamble of 2015 Constitution has taught ordinary population and those who claim to be representatives of people is that despite extraordinary diversity and differences along the lines of ethnicity, caste or religion, Nepal must remain one and march ahead with full faith on democratic credentials.

Way forward

There is no need to be disappointed with a handful of conflicting provisions, which may appear to be unitary in nature. They can be amended. From ensuring equality to providing positive discrimination to marginalized communities, from guaranteeing one-third representation of women in legislature to allowing transgender to seek citizenship certificates with recognition of sexual orientation and promoting egalitarianism, equity and good governance, our Constitution appears to be a progressive document. It’s high time to popularize these progressive measures. It’s time to implement them in letter and spirit.  The Constitution of Nepal—like other constitutions of the world—will also evolve with the passage of time. Nepal deserves constitutional democracy and rule of law. It’s time to live with the constitution.  

The law regulates the relationship between community members. It’s often said that a law works as a tool to provide solutions for the problems of human beings.  The legal mandates can never be a combination of meaningless and purposeless words.

In fact, laws are tailored in pursuance of social reality.  The words, like help, support or social relations have been the hallmarks of Nepali society. The competent Parliament of Nepal has enacted a fair corpus of laws that recognize the prevailing culture of helping and extending support to fellow community members. Of many, there is a law on usufruct which has a robust base on supporting and helping others in good faith. 

The usufruct law aims to promote social relations. After all, we have seen a large chunk of people showing social solidarity with the people and the government at the time of their need. On a societal level, many rural folks stay at the flats of their known ones in urban areas for education and employment purposes. This way, our society has been caring and acting in a socially acceptable manner since time immemorial.

This respect, the law on usufruct envisaged under the National Civil Code, 2017 endeavors to protect social relationships and promote fraternity among community members. A usufruct is the combination of two property rights, “usus” (i.e., right to use something without damaging something) and “fructus” (i.e., right to enjoy the fruits of the property being used).  

Taking care of other’s property     

Section 352 of the Civil Code envisages that the owner of the property—be it movable or immovable—may allow others to use or enjoy his property free of cost. In fact, usufruct is an opportunity created by the owner of a property for his un/known ones to avail the benefits, use or enjoy his property for certain duration in good faith. However, it’s neither the transfer of title, nor is it the transfer of ownership.

It’s like a contract whereby the owner allows the possessor to use or enjoy his property for a stipulated period and return him the same in the same manner and in the same position without causing any damage to it. This respect, it’s a matter of trust excelled by the owner of the possessor.

The consent of other coparceners is necessary while giving any immovable property—like land or trees bearing fruits—in usufruct (Section 354). The usufructuary, the person who uses the property obtained by way of usufruct,  shall use or enjoy the property in good faith and adopt due diligence and care of the same (Section 355). The possessor of usufruct is entitled to file a lawsuit for the protection or enjoyment of the property (Section 355(4)).

Conditions

As the usufruct does not confer ultimate ownership, the possessor is not entitled to make alteration in the substance and form of the property without the consent of the owner. The usufructuary may lend the property on rent, lease or mortgage but with the consent of the owner. There shall be no requirement of written deed in case where the rent amount does not exceed 20,000/- per month (Section 358).

Sections 359 and 360 again remind that the possessor would have a duty to maintain and adopt reasonable care of the owner’s property. Section 361 casts a duty on the usufructuary to clear the bills, like electricity bills or water bills and other taxes. Section 362 provides for the duty of the usufructuary to inform the owner about any encroachment or damage caused to his property.

Limitations

Above all this, the usufruct cannot be everlasting. In case of natural person, the contract of usufruct would cease at the instance of the death of the usufructuary, i.e., the legal person holding the property by usufruct; or at the completion of 49 years of usufruct contract or whichever is earlier (Section 363).

The usufruct contract comes to an end at the dissolution of any institution; or at the completion of 29 years; or whichever is earlier—in the case of an artificial person.  If the usufructure is more than one, the usufruct would deem to be terminated on the date on which the last survivor usufructuary dies. The usufruct would also come to an end at the accomplishment of a purpose.. 

The owner could terminate or cancel the contract at the instance when it is found that the property in usufruct is not safe or wrongly used, abused or damaged (Section 364). The owner has the power to take his property back in possession at any given time. But, if the usufructuary does not wish to enjoy the property obtained under provision of usufruct, he may return such a property to the owner at any time by giving a notice of at least 45 days (Section 365).

Section 367 is the statute of limitation which prescribes that an aggrieved party (in usufruct) could file a lawsuit within six months from the date of commission of an alleged act.

Social support

The usufruct may be established over every kind of property, like movable and immovable property. In Nepal’s case, the general implementation of usufruct law could be seen in case of farmhouses, houses, farming lands, among others. The owner of a property could yield income from his property with the help of usufructuary.

Of late, it’s hard to trust someone. Our society is witnessing cases of criminal breach of trust, cheating, fraud and cases of illegal occupation of property on a daily basis. These incidents have led people to think twice before allowing someone to step into their property as a usufructuary. Nevertheless, our substantive and procedural laws are there to punish the outliers.

“The earth belongs in usufruct to the living,” said Thomas Jefferson. We can think of Jefferson’s earth as a place where a disadvantaged group or possessor (in general) is allowed to use and enjoy the fruits of the owner’s property without causing any damage to it. The mechanism of usufruct provides opportunity for a large chunk of people to reside at other’s place, cultivate other’s farmland, or yield income from other’s property or generate income and benefit for and from the owner of a property.

Way forward

As a matter of fact, it’s beneficial to the possessor as well as the owner for a number of reasons.

In usufruct, the owner’s property remains safely managed by usufruct and the latter finds it an opportunity to use and enjoy the property of others for a certain period. Secondly, the usufructuary could generate income for the owner by way of lease or other mechanisms but with the consent of the owner.  This way, our law endeavors to tighten the bond of social solidarity. It aims to bridge the gap between haves and have nots and attempts to promote fraternity. It’s high time to rejoice the social solidarity among the community members and to promote the message of usufruct, for our society deserves to support each other to survive and thrive in a bond of trust.