Constitutional Crisis in Nepal

Nepal is governed according to the Constitution of Nepal, which came into effect on September 20, 2015, replacing the Interim Constitution of 2007. The Constitution was drafted by the Second Constituent Assembly following the failure of the First Constituent Assembly to produce a constitution in its mandated period

Previous Constitutions

Previous constitutions of Nepal were enacted in 1948, 1951, 1959, 1962, 1990 and 2007.

1. In 1948, the Government of Nepal Act was enacted. Since the mid-nineteenth century, the country had been a monarchy where the prime ministers, from the Rana dynasty, had sweeping control over the affairs of the state. The 1948 document introduced limited democratic elements, but the experiment was not successful due to the misgivings of the Rana rulers to give away power.
2. The revolution of 1951 in Nepal, also referred to as Sat Salko Kranti(“Revolution of 2007 BS”), was a political movement against the direct rule by the Rana dynasty of Nepal. It marks the beginning of the political awakening and democratic movements in Nepal, and resulted in immediate abolition of the institutionalized hereditary Prime Minister system in Nepal.
3. The Interim Government of Nepal Act 1951 was promulgated after the Revolution of 1951 that the end of the Rana period. This text strengthened the authority of the king, and introduced relevant reforms such as the creation of the Supreme Court and the inclusion of fundamental rights and socio-economic goals to be pursued by the state.
4. The CONSTITUTION OF THE KINDOM OF NEPAL, 1959 followed the previously mentioned interim text. Interestingly, despite the establishment of a bicameral parliament, the king continued to hold important powers such as the prerogative to appoint half of the members of the Senate and the suspension of parliament under certain circumstances.
5. In 1962 a new constitution came in to eliminate political parties, and to introduce the so-called panchayat system. In this model, panchayats were councils organized at the local level, presumably to ensure the representation of citizens. However, the king exercised much stronger authority than in the 1959 regime and could modify the constitution or suspend it in case of emergency.
6. In 1990, the first Jana Andolan, brought multi-party democracy back to Nepal. The 1990 People’s Movement  was a multiparty movement in Nepal that brought an end to absolute monarchy and the beginning of constitutional democracy. It also eliminated the Panchayat system. The movement was marked by a unity between the various political parties. Not only did various Communist parties group together in the United Left Front, but they also cooperated with parties such as Nepali Congress. One result of this unity was the formation of the Communist Party of Nepal (Unified Marxist-Leninist).
7. The CONSTITUTION OF THE KINGDOM OF NEPAL(1990) lifted the ban on political parties, described a democratic representative system where the authority of the king was curtailed, and enshrined fundamental rights.
8. Again following the second jana-andolan an interim constitution was promulgated in 2005.

Reservation in India

The provisions made in the Articles 16, 335, 338, 340, 341 & 342 of the Constitution relate to reservation, protection and safeguards, in public employment in respect of the persons belonging to the SCs/STs and other backward classes. In this Unit we will learn in detail about the all the above articles except Article 340 to 342.

PREAMBLE OF THE CONSTITUTION

The word ‘social justice’ in the Preamble implies recognition of greater good to a larger number without deprivation of legal rights of anybody.

The concept of equality, enshrined in the Preamble has also found expression as a fundamental right in Article 14 to 16, which we shall discuss in the next section.

RIGHT TO EQUALITY-Article 14

The Article 14 of the Constitution is one of the fundamental rights of the Constitution of India.

Article 14 of the Constitution reads: “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”

What do the two phrases in this Article namely “equality before the law” and “equal protection of law” mean? On the face of it the two phrases may seem to be identical, but in fact, they mean different things.

Court Cases & Constitutional Amendments related to reservations in India

The basis of providing reservation is giving proportionate opportunities to the people of Scheduled Castes, Schedule Tribes and other backward classes. The reservation is intended to aggrandise the social diversity in campuses and workplaces. Reservation in our Country is known as ”Quota” system.

Article 15(1) of Indian Constitution lays down that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

Lot of verdicts of our Indian Judiciary as to reservations have been modified subsequently by our parliament through Constitutional Amendments Acts. However, some rulings of our Courts have been scoffed by State and Central Governments. Some Judgments upheld the reservations and some rulings for fine turning its implementation regarding reservations. In this context, it is also appropriate to see observation of a Distinguished Teaching Professor at the University of Texas at Austin. ”While reservation is a political hot button, it is about societal endurance, ethics, and value issues. If it is a pure political solution then, unfortunately, premier institutions will probably lose the battle”.

Soon after the enforcement of the Constitution two cases reached this Court from the State of Madras – one under Article 15 and the other under Article 16. Both the cases were decided on the same date and by the same Bench. The one arising under Article 15 is State of Madras v. Champakam Dorairajan [1951] and the other arising under Article 16 is Venkataraman v. State of Madras ,1951.

State of Madras Vs. Smt. Champakam Dorairanjan, 1951

Court pronounced that caste based reservations as per Communal Award violates Article 15(1).

The Constitution (First Amendment) Act, 1951

(Art. 15 (4)) introduced to make judgement invalid.

Art. 15 (4): Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

M R Balaji v Mysore 1963

Article 21: A journey from “Procedure established by law” to “Due process of law”.

Article 21: Protection of life and personal liberty :  No person shall be deprived of his life or personal liberty except according to procedure established by law.

Procedure Established by Law

It means that a law that is duly enacted by legislature or the concerned body is valid if it has followed the correct procedure.In this the court would assess that whether there is law or not, whether the Legislature is competent to frame the law and whether it had followed the procedure laid down to legislate and would not assess the intent of the said law.

Following this doctrine means that, a person can be deprived of his life or personal liberty according to the procedure established by law. So, if Parliament pass a law, then the life or personal liberty of a person can be taken off according to the provisions and procedures of the that law.

Amendability of Fundamental Rights

First let us consider the meaning of fundamental right “Fundamental rights can be termed as basic rights of the individual.” These rights ensure the fullest physical, mental and moral development of every citizen. Fundamental Rights generate a feeling of security amongst the minorities in the country. They establish the framework of ‘democratic legitimacy’ for the rule of the majority. No democracy can function in the absence of basic rights such as freedom of speech and expression, freedom of religion etc.

They are the rights of the people preserved by our Constitution.

Article 13 (2) and (3) of the Constitution of India Provides that:

(2) The state shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention of this clause shall be, to the extent of contravention, be void

(3) (a) “Law” includes any ordinance, order, bye law, rule, regulation, notification, custom usage having in territory of India the force of law.

The parliament which can curtail one fundamental right today may in future take away all the fundamental rights guaranteed under Part III. Time may come when the parliament in exercise of its power under Art. 368 remove the chapter of fundamental right.

The Constitution (First Amendment) Act ,1951

In  1951, several State legislative measures passed for giving effect to a policy of agrarian reform faced a serious challenge in the Courts.  In order to  assist  the  State Legislatures to give effect to the policy, Arts. 31A and 31B were  added to the Constitution  by the Constitution (First Amendment) Act, 1951.  Article 31B provided that none of  the Acts  specified  in  the  Ninth  Schedule  to the Constitution  shall  be deemed to be void or  ever  to have become void.

Shankari Prasad V. Union Of India, 1951

Important cases

Important Cases

1: Minerva mill Vs union of India 1980.

S.C declared 368(4) and (5) unconstitutional

368(4) – no amendment of this constitution shall be called in question or challenged in court.

368(5) – there shall be no limitation on constituent power of parliament to amend any provision of constitution.

 

2: Indira Sahani Vs Union of India 1992

reservation of 27% of seats in favour of OBC is constitutionally valid.

 

3: Nagraj Vs union of India

reservation policy shall satisfy the constitutional requirement

 

4: Balaji Raghawan Vs union of India 1996

DPSP & “reasonableness’ of restrictions under Art. 19”

DPSP & “‘reasonableness’ of restrictions under Art. 19”

Directive principles have also come to be regarded as relevant for considering ‘reasonableness’ of restrictions under Art. 19. A restriction promoting any of the objectives of the directive principles could be regarded as reasonable. Thus, Art. 47 which directs the state to bring about prohibition of consumption of intoxicating drinks except for medical purposes, could be taken into account while considering the reasonableness of a prohibition law under Art. 19. Art. 47 relate the idea of prohibition to public health. Therefore, to enforce prohibition effectively, the law could define the word ‘liquor’ broadly so as to include all alcoholic liquids which might be used as substitutes for intoxicating drinks to the detriment of health. But exemptions of medicinal preparations containing alcohol would not be reasonable under Art. 19(6).

Directive principles being fundamental to the governance of the country, what is directed as state policy cannot be regarded as unreasonable or contrary to public policy. the supreme court has asserted that an importance consideration which must weigh with the courts in determining the reasonableness of a restriction is that it should not contravene the directive principles. The directive principles aim at establishing an egalitarian society so as to bring about a welfare state and these principles should be kept in mind in judging the question as to whether or not the restrictions are reasonable vis-à-vis Art 19. Prohibition of slaughter of cows, bulls and bullocks to enable the public to have a sufficient supply of milk, and to ensure availability of sufficient number of draught cattle for agricultural operations was held reasonable under Art 19(6) in view of the directive principle contained in Arts 47 and 48.

The wealth tax act was held reasonable in view of Art 39(c) to prevent concentration of wealth in a few hands. Acquisition of agricultural land above the ceiling and its distribution among the landless fall under art 39(b) and (c).