BETWEEN INDIA AND NEPAL: THE COMPARATIVE ANALYSIS OF SOCIO-ECONOMIC RIGHTS REGIME ACROSS BOTH THE COUNTRIES 

1950 Indo-Nepal Treaty of Peace and Friendship - Wikipedia

Prime Minister of Nepal, Mohan Shamsher Jang Bahadur Rana and Indian Ambassador to Nepal, Chandeshwar Prasad Narayan Singh signing the treaty, 31 July 1950.

 

by Viraaj Gaur and Laabhesh Thapa        10 January 2021

After long deliberation, the new constitution of Nepal was promulgated on 20th September 2015. The emphasis on drafting the new constitution of Nepal can be discovered as exclusionary and extractive policies were in practice under Nepal’s monarch rule, which continued for more than two centuries in the country, and dissatisfaction among the citizens was fueling up rampantly. The new constitution of Nepal attempts to create a society that is economically and socially just, and achieving this constitution has made the socio-economic rights justiciable, enumerating the same as fundamental rights.

Why the constitutional Assembly classified Socio-Economic Rights?

The liberal philosophers highly regarded the citizen’s property rights in Nepal where there was an absolute rule of the monarch held the property, and the citizens were not vested with the Rights of the property the citizens under the Raikar system was treated as tenants of the land which belonged to the monarch. The feudal lords belonged to Nepal’s high castes, and the general citizens can ingress to these lands as tenants. In the country that is basically relying on agriculture as their primary source, the state resources were highly concentrated in the Ruling elites’ hands. Thus, Dalits, Janjati, Madhesis ( people living in the Terrai region ) were pushed to enduring backwardness in the Nepalese society.

The preamble of the new constitution of 2015 in Nepal mentions in its encompassing language that reflects the constitution’s determination for the inclusion of socio-economic rights. The insecurity of Dalits, Janjatis, and Madhesis that their rights will be disregarded so, the new constitution has given prominence to the fundamental Rights so that the rights should not be disregarded. Nepal is a very new constitution, which was enacted in 2015. Before that, it was mostly monarch-based rule, and Focus was not on Fundamental rights.

As we cannot compare the two constitutions because the two constitutions are different, their backgrounds are different. Nepal’s constitution is a newer one, which is emerging, whereas India’s constitution is much older as it became effective on 26 January 1950. For a longer period, Nepal’s constitution was following the interest of the Monarch. Though it cannot be compared Nepal’s constitution has been motivated by Indian Constitution, some of the Provisions has been taken from India’s constitution as Nepal’s constitution is emerging it would be a substantial step to refer to the provisions of Indian constitution to recognize the fundamental rights, the Judiciary could glance through the various broad Judgments that the Indian courts have passed related to socio-economic rights. The socio-political context of Nepal is very similar to that of India. Both the countries share a common culture and ways of life both countries share a unique history, geography, and cultural heritage, and there has been frequent exchange of ideas between the countries.

The Nepalese Supreme court has taken proactive engagement following the footsteps of India concerning the Fundamental Rights. Indian courts can be termed as an “engaged court,”   as these courts have three institutional characteristics as the socio-economic rights have existed. The Supreme Court of India is guided by these socio-economic rights that have existed in its interpretations. There is a tradition of Public Interest Litigation. These institutional characteristics and jurisprudence have influenced most of the courts in South Asia, and Nepal is one. Amendment of the Indian constitution regarding the Justifiability of Economic, Cultural, and Social Rights in 2002 is progressive learning that can be taken from India. The amendment which initiated Article 21 – A. Under part 3, Article 45, “Free and compulsory Education, “which was the directive principle, was transposed to the Right to Education Act. In India, the unenforceable directive principle can become enforceable Fundamental rights. This is the tendency that can be noted and that turn from Directive principle to fundamental rights is possible through judicial activism and legislation.

In Nepal, the position for the Right to Free education had been Fluctuating as in 1990 the right to free education lacked the provision under Article 18 of the constitution of 1990 of Nepal it was only guaranteed the communities in Nepal to open schools and Article 26 of the 1990 Nepalese Constitution noted marginal state policies in which corpus of directive principle was accommodated. The interim constitution of 2007 Article 17 of the constitution of 2007 envisaged the Right to get free education up to the secondary level. Still, in the scheme of the constitution, there were no provisions for Free and compulsory education. Still, a substantial change occurred in Nepal’s 2015 constitution, which incorporated progressive and ambitious fundamental rights under Part III of the constitution, which reflected a paradigm shift. Article 31 of Nepal’s new constitution advocates for Free and compulsory education, and in 2018 Nepalese Parliament came up with the Right to free and compulsory education act, 2018.  Regarding the Right to free and compulsory Education, Nepal also progressed like India, and it has been observed that this 2009 Act of India has influenced the 2018 Act of Nepal.

For the justiciability of socio-economic rights, judicial enforcement is a crucial factor. Nepal has followed India’s path of  Public interest litigation as the socially relevant problems are solved by providing the Judicial remedies, and locus standi is diluted. Despite not having any justiciable provision in Nepal’s 1990 Constitution, the relief was awarded by the court in a host of such Public interest litigations dealing with socio-economic rights claims.

The Nepalese courts, including other South Asian courts, were influenced by the jurisprudence of “ Right to life”  by the Indian courts by adjudicating under the right to life and paving the way for socio-economic rights. The Indian courts have broadly and expansively interpreted the “Right to life” clause and thus, derived various socio-economic rights out of that clause.

By taking the reference from this, Nepalese courts also commenced giving teeth to various SE rights and started to interpret and subsumed them under the doctrine of  “ Right to Life, “ such as the right to breastfeed and clean environment, and drinking water.

Right to Privacy in Nepal was considered as Fundamental Rights in Nepal before that of India under Article 28 of the Nepalese constitution Right to privacy was considered as fundamental rights in India Right to privacy became Fundamental Rights on August 24, 2017, in the case of Puttuswamy vs. Union of India. One-Third Reservation of women in Legislature – Nepal made a progressive approach towards the Right of women by ensuring it as a fundamental right and setting 33 percent of reservations of Nepalese women in the legislature under Article 84 of the constitution.

The broader interactions and institutional factors make the socio-economic rights justiciable the text of the constitution is not the factor that makes these rights justiciable. After the new constitution, Nepal has begun to evolve with a broader approach in socio -economic rights and interpreted much of the directive principles under fundamental rights. And taking the reference from India has helped Nepal achieve these goals; Nepalese courts have interpreted and followed  Indian courts and Judges to recognize socio-economic rights and interpret them as fundamental rights. It will take time to evolve and adopt a broader approach regarding socio-economic rights fully as it is a newer constitution.

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