RIGHT TO EQALITY ACT

RIGHT TO EQALITY UNDER INTERNATIONAL AND NATIONAL LEGAL

FRAME WORK

International Legal Frame Work

The concept of equality has emerged from the existence of human civilization as the world has been facing unequal treatment among people on the basis of status, power, race, sex, religion etc. from the same time. However, there have been efforts in regards to right to equality in many countries at various phases of time. In the history of right to equality, the people of ancient Greek City State were allowed the equal freedom of speech and equality before law. They were known as ‘ISOGORIA’ and ‘ISONOMIA’ respectively.¹¹ With the passage of time the concept of equality can be found in British legal system i.e. in Magna Carta 1215, Petition of Rights 1628, Bill of Rights 1689. In the same way such rights were also incorporated in American legal system, i.e. in Virginia Bill of Rights 1776, American Declaration of Independence 1776, American Bill of Rights. Like wise, French Contribution in this regard is also of immense value.¹² But these efforts were limited to the respective countries only. And unequal treatment continued to be practiced round the world. The world faced very panic situation in this regard during the first and second World Wars. The concept of right to equality each and every aspect of human life emerged only after the establishment of United Nations Organization at international level. Right to equality and non-discrimination is the main purpose of this Organization. The following instruments of UN at international level are of immense value in this regard.

The UNO aims to reaffirm faith in fundamental human rights, in the dignity and worth of human person, in equal rights of men and women and of nations large and small and to achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, language or religion.

Thus the concept of right to equality emerged as human rights universally applicable to all people of this world irrespective of their any status. This concept being an essential substance of human rights emerged as the foundation of freedom, peace and justice in the world as the Universal Declaration of Human rights come into existence in 1948. This declaration is considered as a common standard of achievement for all peoples and nations around the world. According to this declaration all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. In the same way, everyone is entitled to all rights and freedoms set forth in this declaration, without distinction of any kind such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.¹⁵ This right to equality and non-discrimination without discrimination on any basis are the main features of this declaration. In its various articles, this declaration has guaranteed the notion of equality in each and every aspect of human life i.e. right to life, liberty and security, right against slavery and servitude, right against torture or to cruel, inhuman or degrading treatment or punishment, right to recognition everywhere as a person before the law and equal protection of law, right to criminal justice, right to freedom of movement, residence, thought, religion, conscience, opinion and expression, property, nationality, marriage, participation, employment, education, and culture etc. Thus, this declaration covers almost all aspects of human life and guarantees these rights as human rights enjoyable on the equal basis of right to equality and without discrimination on any basis.

These rights were further reaffirmed in the International Covenant on Civil and Political Rights 1966 and International Covenant on Economic, Social and Cultural Rights 1966. In fact these two covenants not only reaffirmed the notion of equality and non-discrimination on any basis but also categorized or specified the rights into civil and political rights and economic, social and cultural rights. On the other hand the covenants obliged state parties to protect and promote the rights set forth in the covenants and provide effective remedies if violated. At the same time these covenants also established implementing mechanism through observation, monitoring, complaint handling, reporting to protect and promote these rights at international level.

Likewise, the UN adopted various other international instruments i.e. CERD, CRC, CEDAW etc. to protect rights of people concerned on the basis of equality and non-discrimination. Despite of above-mentioned instruments, realizing the unequal treatment towards women all over the world, Convention on the Elimination of All Forms of Discrimination Against Women came into existence to eliminate all forms of discrimination against women in 1979. CEDAW is the greatest achievement as an international instrument regarding the rights of women. This convention, for the first time, not only defines the term “discrimination against women” as any distinction, exclusion or restriction made on the basis of sex which has the effect of purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on basis of men and women, of human rights and fundamental freedom in the political, economic, social, cultural, civil or any other field, but also obliges state parties to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and to take all appropriate measures in all fields of life, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.

Thus right to equality can be viewed as an integral and indivisible part of international instruments and as the foundation of all rights of people enjoyable without any discrimination on any basis all over the world. In other worlds right to equality has been felt essential for the protection of all other rights of people and an unavoidable requirement of democracy and rule of law in modern world.

B. National Legal Framework

Nepal is constitutionally a Hindu Country. Hindus make up religious majority and as such Nepal’s legal framework is largely shaped in accordance with the Hindu Orthodox value system. With the existence of Licchavi dynasty in 4^th century, Hindu rulers applied the customary rules of their religion as laws to govern the behavior of their subjects. Caste system, patriarchy type of society, right, recognition, treatment and punishment as per the status, caste and sex of individual or community were some major areas of inequalities vested in Hindu value system and the same were practiced under various laws for a long period of time. The Code of Human Justice (Manab Nyaya Shastra) of 14^th century and Muluki Ain 1910 are major examples of such practices in Nepal. On the other hand, Rana Regime ruled over Nepal for 104 years till 2007 B.S. They applied same values and laws to rule over the people of Nepal. There was no chance of equality on any ground. Any one, who spoke for equality or opposed their system, was killed or disappeared.

However, at the end of Rana Regime, Prime Minister Padma Smasher promulgated the Government of Nepal Act, 2004 the first ever written constitutional document of Nepal. This constitution was said to be democratic one as it had guaranteed some fundamental rights. According to the constitution, “ Subject to the principles to public order and morality this constitution guarantees to the citizens of Nepal freedom of a person, freedom of speech, liberty of the press, freedom of assembly and discussion, freedom of worship, complete equality in the eye of law, cheap and speedy justice, universal and equal suffrage for all adults…as defined by the laws of the state at present existing and laws and rules to be made hereunder” Thus, the concept of equality in the eye of law was embodied in this constitution for the first time in Nepalese legal system. However, this constitution could not be applicable and the situation remained the same.

In the history of Nepalese constitution other three constitutions were promulgated in different times till the Constitution of Kingdom of Nepal promulgated in 2047. The right to equality and non-discrimination on any basis and equal protection of law were guaranteed under the articles 14, 15 and 16 of the Interim Government of Nepal Act 2007. But there was no provision for remedies in this constitution. Likewise, article 4 of the Constitution of Kingdom of Nepal 2015 had also guaranteed the same rights and it had also guaranteed the right to constitutional remedy. Again, the Constitution of Nepal replaced this constitution in 2019. This constitution authorized king as the sovereign power and recognized party less system of governance. However, this constitution was also said to be democratic and protector of people’s rights. Under part 3 of this constitution right to equality without discrimination and equal protection of law were guaranteed as fundamental rights of people. This constitution was applied for about three decades but as it had prohibited multi party system and was against the will of Nepali people, it was also replaced by the Constitution of the kingdom of Nepal 2047.

C. Right to Equality under the Constitution of the Kingdom of Nepal 2047

The Constitution of the Kingdom of Nepal has been considered as the most democratic constitution in the history of Nepal ever since. Multi party democracy, Rule of law, independent and competent judiciary, protection of basic human rights, adult franchise is some important feature of this constitution and these notions are not amendable. This constitution is the fundamental law of land all laws inconsistent with it shall, to the extent of such inconsistency, be void. The constitution guarantees almost the rights guaranteed under the Universal Declaration of Human Rights in its part 3 as fundamental rights of people. Right to equality and equal protection is one of those fundamental rights in this constitution.

According to the article 11 of the constitution, all citizens shall be equal before law. No person shall be denied the equal protection of the laws. No discrimination shall be made against any citizen in the application of general laws on grounds of religion, race, sex, caste, tribe or ideological conviction or any of these. The state shall not discriminate among citizens on grounds of religion, race, sex, caste, tribe or ideological conviction or any of these. No person shall, on the basis of caste, be discriminated against as untouchable, be denied access to any public place, or be deprived of the use of public utilities. Any contravention of this provision shall be punishable by law. No discrimination in regard to remuneration shall be made between men and women for the same work.

At the same time, the constitution also provides special provision to make law for the protection and advancement of the interests of women, children, the aged or those who are physically or mentally incapacitated or those who belong to a class, which is economically backward.

In this way the Constitution of the Kingdom of Nepal 2047 has guaranteed the right to equality and equal protection of law as fundamental rights of people. On the other hand, any international instrument to which Nepal is a party is applicable as the domestic law of Nepal.This provision has further guaranteed the notion of right to equality and equal protection law and has incorporated the international and universal notion of right to equality and non-discrimination into Nepalese legal system.

SOME CONTRADICTIONS

Though the Constitution of the Kingdom of Nepal has guaranteed the right to equality and non-discrimination and instrumentally Nepal is obliged to create equality among people without discrimination on any basis according to international human rights instruments, Nepalese legal system still maintains some inequalities among people on various grounds. Constitutionally, women’s individual identity is denied for acquiring citizenship of Nepal. As per the constitution and Citizenship Act 2020, a child cannot get citizenship on the basis of his or her mother’s identity. His or her father’s identity must be presented and he must be a Nepalese citizen.

Women were deprived from parental property before the 11^th amendment on the Muluki Ain in 2058. Though the amendment provided daughter inherent right to property, she should return it to natal family after her marriage. In the same way Army Act 1959 bans the recruitment of women into Royal Nepal Army.

According to the shadow report presented by Forum for Women, Law and Development, at present there are several direct discriminatory laws that challenge the spirit of the Constitution. Legal discrimination against women persists with respect to criminal punishment, property, citizenship rights, marriage, divorce, transaction, tenancy abortion, rape and other family laws.

The Supreme Court of Nepal has also denied the right to equality in some cases. For example, three sons of a Nepalese mother were not provided citizenship according to her identity by the government of Nepal, which was against the right to equality guaranteed under article 11 of the constitution and various international instruments to which Nepal is a party. Despite of this protection, the Supreme Court gave its verdict stating that the provision of article 11 of the constitution does not imply on the matter of citizenship as it is a specific matter and the law requires the father not the mother of a child to be a Nepali that is an essential requirement for acquiring citizenship of Nepal. However, the court has also given positive decision regarding right to equality in many cases too.