by Jesselina Rana
Recently, the Constituent Assembly of Nepal, after years of deliberation, passed the Constitution of Nepal, making the erstwhile Hindu kingdom a federal, secular republic. The Constitution emerged after years of turmoil, from the royal massacre to civil unrest, as well as the recent devastating earthquake. In 2006, when a peace treaty was signed between the government of Nepal and the Maoists, an interim government was formed that promised to promulgate a Constitution. Almost a decade down the line, Nepal finally has a Constitution. However it wasn’t met with the zeal and enthusiasm that was initially anticipated.
The Constitution, while certainly progressive in several respects, still poses certain problems to many stakeholders. The new Constitution attempts to break down forms of patriarchy by making way for gender parity in certain respects. For example, Nepal has historically not recognized a Hindu woman’s right in ancestral property, but that has since been remedied by the new Constitution, which grants equal rights to men and women in ancestral property (however, the clause is silent on whether this would apply retrospectively or not). Spouses now have equal rights in family matters and property. However, feminists in Nepal argue that while equality in terms of occupation and lineage has been enshrined, the Constitution continues to discriminate against women by not recognizing the right of a woman to give a Nepali citizenship to her child.
For a very long time, people (in particular, men), have come into Nepal from bordering nations. These men often marry Nepali women and have children with them. But once the child gets Nepali citizenship, a lot of men are quick to dispossess their families of their property. To solve such a problem, the Constitution lays down a clause which feminist advocates in Nepal are claiming to be discriminatory. To prevent exploitation of women by foreign men (which is a small population to begin with), the Constitution now clubs the issue of exploitation of women in border areas very conveniently with the rights of a woman to confer citizenship on her child in one clause. The clause, while attempting to remedy the problem of dispossession, prevents a woman alone from giving her child Nepali citizenship. A single mother has to prove that her husband was a Nepali citizen in order for her child to receive Nepali citizenship. Where a Nepali woman is married to a foreigner, she can only confer naturalized citizenship to her child after her husband receives naturalized citizenship of Nepal (after having lived there for 15 years), whereas a Nepali man can confer citizenship by descent to his child. Furthermore, when a Nepali man marries a foreigner, she immediately receives Nepali citizenship upon relinquishing her previous citizenship.
The Constitution, in its chapter on fundamental rights, has given due recognition to choosing one’s own sexual orientation. It also mentions in its Equality clause that no person shall be discriminated on grounds of their sexual orientation. However, it is completely silent on matters relating to same-sex marriage. Over the last decade, the following instances have occurred pertaining to same-sex marriage:
- In 2007, the Supreme Court of Nepal decriminalized homosexuality.
- In 2011, a committee, set up to make amendments in the 160 year old Mulki Ain (Nepali civil code), sought to criminalize homosexuality by prescribing criminal prosecution for “unnatural sex without consent” and defined marriage as a “union between man and woman”. This was meant to overturn the landmark judgment.
- In 2015 the first transgender woman in Nepal received her passport with her gender as “other”, even though the option was available since 2011.
- The new constitution does not mention the term “same-sex marriage” anywhere.
- Only in the Equality clause does it mention that people of any sexual orientation and all sexual minorities are to be treated equally.
- There is no law prohibiting homosexuality in Nepal, however the clause on bestiality mentions the criminalizing of any “unnatural sex”, which is a very wide term and can be used against homosexuals.
The constitution is deemed to be more progressive than most other constitutions in the world, in terms of recognizing and protecting the rights of the transgender community; however matters relating to same-sex marriage have not been mentioned. Advocates for LGBTQ rights are set to bring about the necessary changes in the law in the near future.
One of the main highlights of the entire process was the riot caused by the Tharu and the Madhesi (Indian origin) ethnic communities in southern Nepal. The Tharu, Madhesi, and other marginalized communities believe that the proportion of representation given to them by the interim Constitution has been drastically diminished in the new Constitution, as a result of which they have been rioting and burning copies of the Constitution. As many as forty people have been killed in the riots, so far. In light of these circumstances, the Indian government, through their foreign ministers in Nepal, gave a 7-point recommendation/alteration letter that the Indian government proposes for the Nepali Constitution. These recommendations, however, have been perceived as undue interference by a foreign party in a domestic issue. The situation seems to deteriorate in Nepal as India has shut its borders and has stopped the supply of oil and other necessities to Nepal, in light of the continuing protests and riots in southern Nepal. The southerners are still burning the constitution and causing “bandhs” all over the country as a symbol of rejection of the new Constitution.
The Constitution may not have lived up to the expectations of many; however it provides some sort of closure to the people of Nepal. Having gone through the fall of the monarchy and civil unrest, the people are well aware that although it may not be a perfect start it is still some sort of a start, after years of waiting for good governance. The law may not be what was anticipated by everyone, but there is scope for future amendments and hope for a better future for the Himalayan nation.