Thursday, 25 April, 2024

The Gender-friendly Constitution

Jivesh Jha


The world has witnessed a tremendous change in the traditional concept of society, culture and rights. Change is incremental, and while there are a lot be expected when it comes to securing the rights of Nepali women, considerable progress has been made.
Globally, women have become more concerned about their rights and they have stood against all forms of discrimination and violence perpetuated on them. A United Nations’ treaty that is critical in accessing the progress of the government in eliminating discrimination is the ‘Convention for Elimination of All forms Discriminations against Women’ (CEDAW), which was adopted in 1979, and it later became an international bill of rights for women on September 3, 1981 on ratification by 189 States. Ratified by Nepal in 1991, this treaty is regarded as a powerful international convention to ensure gender equality and mitigate violence against women.
Acknowledging CEDAW, the drafters of 2015 Constitution of Nepal have floated ample provisions to ensure the protection of women’s rights in broad and universal principles of equality and participation. The preamble of the Constitution takes pledge to end all forms of discrimination lying along the gender basis. In the similar vein, the constitutional provisions related to equality and affirmative actions seek to ensure adequate representation of women in public life. To be specific, Article 38 states that all the rights relating to women shall be the fundamental rights. Moreover, Nepal sets aside 33 per cent of parliamentary seats for women, which is a major breakthrough.
This constitutional provision would certainly help increase the participation of women in politics and public life, which may just be a single step, but it is nevertheless a step ahead in the right direction. Now what remains is for these laws to be put into practice in letter and spirit.
This way the charter does include positive elements for the mainstreaming of women. The cornerstones are set by two arrangements in particular. First, the constitution from the very initial stage ensures the rights of women as a fundamental right under Article 38. In an endeavour to create an egalitarian society, Article 38 guarantees plethora of fundamental rights to women. It includes equal right to women in lineage, right relating to safe motherhood and reproductive health, right to participate in all state structures on the basis of principle of proportional inclusion, right to special opportunity in spheres of education, health, employment, and social security on the basis of positive discrimination and right to property and family affairs.
Second, Nepal reserves for women 33 per cent of positions in legislative spectrum under Article 84(8). In yet another breakthrough, the charter in its 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 gender or communities.”
Interestingly, the similar arrangement is made for the selection or election of Speaker and Deputy Speaker of the House of Representatives; Chairperson and Vice-Chairperson of the National Assembly; Mayor and Deputy Mayor of municipalities and among other (elected) executive offices. More so, Article 18 (1) enshrines a general principle of equality before law and outlaws any form of discrimination. The succeeding clauses (of Article 18) specifically forbid discrimination on the ground of sex. Also, the charter allows the state to positively discriminate in favour of women by enacting special laws to improve their social conditions and ensure social, economic and political justice.
Likewise, the fundamental law puts an obligation on the state to ensure no room for gender-based discrimination regarding remuneration at workplace, or gender-based discrimination regarding right to parental property. Regardless of these legal developments, gender equality cannot be ensured unless we develop an attitude of zero tolerance against violence within our homes and outside
In contrast, the Women’s Reservation Bill has become a story so far in India as it has been pending in the parliament since 1996. The 18 year-journey of the said Bill received a knee-jerk reaction by the male parliamentarians and was marked by high drama parliamentary discussions in 2015 as well. So, India has a long way to go for ensuring the reservation of one-third seats for women in legislative bodies due to lackadaisical attitude of the office bearers of parties. In contrast, Nepal’s constitution from its’ earlier stage envisaged one-third seats for women in all state machineries so as not to let the dreams of women turn sour.
Imagine how distinct the world would be for women if we succeed in preventing child marriage, female genital mutilation, domestic violence, use of abusive words, rape, marital rapes among other forms of violence against women, or hostility of police or legal professionals towards those who testify on cases of violence against women.
It’s accepted that there is “a bit of her” in everyone—be it father, mother, and brother. “You never just humiliate a woman by not ensuring their rights, you humiliated everyone else too,” the women activists rightly say. Yet, this researcher humbly submits that its’ the need of the day to buy the uncontested saying of Mahatma Gandhi. His said, “Democracy is something that would give the weak the same chance as the strong.” There is a dire need to change the mindset that leads to draw a conclusion: Promises are meant to be broken, especially when they relate to women’s rights, respect and dignity.
So, there is no need to be disappointed with some of the conflicting provisions. They can be amended in course of time. Like other constitutions of the world, this document will evolve with the change of time and context. There is no need of protesting against the constitution. We should realise that our constitution is one of the best documents in the world, and a leading one in terms of protecting the rights of women.

(Jha is a Section Officer at Janakpur High Court, Birgunj Bench)