Analysis

Nepal’s Constitution: Protective of sexual minorities

Jivesh Jha

jivesh-jha

It’s often said that mere non-discrimination will not bring the disabled and sexual minorities into mainstream since the persons falling under these categories require further affirmative action plus constitutional framework of equal rights rather than sympathy.

In this context, the Nepali state is the first and foremost country in the South Asian region to explicitly recognise fundamental rights of sexual minorities.

The charter permits state to make provisions for incorporating weaker sections of societies, including sexual minorities, into governmental apparatuses on the basis of inclusion principle. The provision beginning with the marginal note of “Right to Social Justice” under Article 42 reads as “Socially backward women, Dalits, Adibasi, Adibasi Janajati, Madhesi, Tharu, minorities, persons with disability, marginalised, Muslim, backward classes, gender and sexual minorities, youths, peasants, workers, oppressed or citizens from backward regions, and economically poor Khas Arya shall have the right to participation in the state bodies on the basis of principle of inclusion.”

The guarantee of equality, promise of non-discrimination and special provisions for bringing the weaker sections into the mainstream would have little meaning when the persons with disabilities and sexual minority are left untouched.

Like sexual minorities, the Constitutions of South Asian states, save for Nepal, Maldives and Sri Lanka, remained reluctant to ensure protection from discrimination to the person with disabilities. Nor do the Constitutions prescribe that special provisions would be made ensure that the disabled persons are included in the mainstream.

Articles 18 and 42 of Nepali charter, Article 17 of Maldivian statute and 12(4) of Sri Lankan statute—which are in fundamental rights chapter—are good provisions relating to prohibition against discrimination on the ground of disability.

However, it would be incorrect to claim that other Constitutions are yet to plant fair corpus for non-discrimination provisions.

The Indian Constitution, the eldest Constitutional charter in the region, under Article 15(1) and (2)—which falls under the chapter of fundamental rights—has a welcome provision relating to prohibition of discrimination on the basis of religion, race, caste, sex or place of birth. This provision prohibits discrimination not only by the state but also by citizen with respect to access of shops, hotels, public restaurants and public places, among others.

In order to strengthen the notion of equality, the Indian charter embodies five clusters— religion, race, caste, sex, or place birth—on which it’s been provisioned that distinction would not be made. The similar provision is embodied under Article 28 and 26 of Bangladeshi Constitution and Pakistani charter, respectively. Unlike India, the Sri Lankan charter provisions that no discrimination would be made even on the ground of language; however, the four other clusters, except place of birth, remains the same as of India.

Unlike India, Article 7(15) of Bhutanese charter explores that the distinction between citizens shall not be made on the ground of race, sex, language, religion, or politics.

While the other states seem pledged to end discrimination along religious lines, Maldivian statute remains tight-lipped to rule out any form of discrimination on the basis of religion. Article 17 casts an obligation on the state not to make discrimination against any citizen on the grounds of race, national origin, colour, sex, age, mental or physical disability, political or other opinion, property, or birth. The preceding provision—Article 16—provides that the rights and freedoms must be limited in order to protect Islam. The respective articles ensure the rights of exclusively Sunni Muslims. Though the charter is positive about the rights of Sunni Muslims, it excludes other sects.

In contrast, the respective article of Afghani constitution provisions that any kind of discrimination and distinction between citizens of Afghanistan shall be forbidden. “The citizens of Afghanistan, man and woman, have equal rights and duties before the law,” reads Article 22.

In a bid to quicken the pulse of equality, the Nepali charter incorporates more than a dozen of non-discrimination clusters. Article 18 of the statute dealing with right to equality ensures that there would be no discrimination on the grounds of origin, religion, race, caste, tribe, sex, physical conditions, disability, health condition, matrimonial status, pregnancy, economic condition, language or geographical region, or ideology.

While the other Constitutions permit state to make special provisions for the welfare of women, children or any socially and educationally backward classes citizens or for Scheduled Castes (SC) and Scheduled Tribes (ST), the Nepali charter leaves the member nations of South Asian Association for Regional Cooperation (SAARC) far behind when it comes to acknowledge that the Constitution has paved ways for making of special provisions for the protection, empowerment or advancement of the women lagging behind socially and culturally, Dalits, indigenous communities, Madheshi, Tharu, Muslims, oppressed class, backward communities, minorities, marginalized groups, peasants, workers, youths, children, elderly citizens, gender and sexual minorities, persons with disabilities, persons in a state of pregnancy, incapacitated and the helpless persons, and of the citizens who belong to backward regions and financially deprived citizens including the ‘Khas Arya’.

Against five clusters of India (for non-discrimination) the Nepali charter scripts more than two dozen clusters that facilitate positive discrimination. Nepali charter is the first fundamental document in Asia to rule out discrimination on the ground of pregnancy and matrimonial status. The respective articles in Constitutions of Bhutan, Maldives, Pakistan, and Afghanistan put the rights of the persons developing marital bonding with other nationals beneath the social and political status.

The Constitutions also remain indifferent to ensure the rights of the persons whose either of the parents is citizen of another country. However, the Nepali charter also bars a person, whose one of the parents is a non-Nepali national, to acquire citizenship by descent. They are entitled to get citizenship by naturalisation and according to Article 289 naturalised citizens are not eligible to hold vital government posts. So, the provision has potential to challenge the essence of prohibition of discrimination on the ground of matrimonial status.

AP Photo/Niranjan Shrestha

Although the fundamental rights of the different weaker sections has been ensured in the Constitutions, millions of people with disabilities and sexual minority remain outside the ambit of what is considered “society” and “fundamental rights.”

Instead of being merely sympathetic, the laws should be enforced both in letter and spirit with a view to ensure that the disabled and sexual minority populations are given a fair representation in state and non-state apparatuses.

In a sense, having disability or different sexual identity (than male and female) forces those “unlucky” persons to be excluded from all aspects of society, including with respect of higher education, workplace, public place, transportation and everywhere else. And, they are the persons who are more prone to meet with sexual and other forms of violence.

The amendments should be made in the Constitutions of South Asia to ensure that each and every law can be viewed through the lens of fundamental rights of disabled persons, sexual minorities, pregnant women or other classes of person lagging behind the mainstream. Also, the provisions should be made to ensure that the disabled or sexual minorities are able to articulate their moral and political citizenship in every sphere.

The concerns of these people also make sense politically, since the persons with disabilities and sexual minorities constitute a sizeable vote bank. However, their concerns are yet to make sense constitutionally as political class entertains their votes but not their rights. Beyond any reasonable doubt, Nepali Constitution is a step ahead in the right direction in South Asia to acknowledge the rights of sexual minorities and disabled persons.

The author is LLB final year Nepali student in Dehradun, India

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