Tag: Article 42

A symbolic movement for social justice and inclusion

Months before the promulgation of the Constitution on Ashwin 3, 2072 (September 20, 2015) debates on social justice, inclusion, and reservation had pervaded the Constituent Assembly and the streets. At Tri-Chandra Multiple Campus, where I was doing my bachelor’s at that time, there would be heated debates between friends. Some were favour of the policies, some against, and still some demanding a nuanced and balanced approach. Although the policies are etched in the Constitution through the Preamble, Fundamental Rights, and State Policy, the following questions are still relevant:

1. Is social justice necessary in Nepal?

2. Has inclusion changed anything?

3. Can we afford the current model of reservation?

This article, a continuation of the Constitution Study series, gets into the constitutional promises, actual practice, and way forward in the matters of social justice, inclusion, and reservation.

In this post, you’ll read about…

1. Initiation in the Democratic Era (2007-2017)

Democracy is often thought of as an idea that automatically includes everyone in the state structure and governance. The truth is: it is not enough. Nepal’s democratic movements in 2007 B.S. (1951) barely scratched the Rana oligarchy and gave power to another group of elites.

2. Reversal in the Panchayat Era

The Panchayat era (2017-2046) stripped even the right to voting. It created a monolinguist, monocultural, and monoreligious nationalism in a country with diverse languages, cultures, and religions. On the surface, Nepal was united by a single language, culture, and religion, but underneath the seed of conflict was brewing.

3. Resurgence during Civil War

The Jana Aandolan of 2046 brought on the surface some issues related to women and Dalits, but it still could not accept the diversity as the national characteristic. While the Maoist movement did not begin with the issues of social justice and inclusion, it picked the idea to mobilize and motive more people into the war against the government. The narrative of historical injustice struck the chord of the marginalized, and they went wholeheartedly into the war.

4. Outcry during the Constituent Assembly Era

Issues of social justice, inclusion, and reservation found their way into the mainstream after the 2062/63 Jana Aandolan II. The Madhesh Aandolan of 2063 and 2064 aggressively demanded federalism and correction of historical injustices. Movements of Aadivasi Janajatis (indigenous groups), women, Dalits, and others before the promulgation of the Constitution institutionalized the issue.

5. Constitutional Implementation Era

There are still some debates regarding social justice, inclusion, and reservation despite constitutional promises. Complaints about elite capture have raised concerns on the fair and just implementation of those provisions and if it is necessary to amend the Constitution and other laws.

6. Nepal’s Global Commitments

Apart from the above domestic movements, Nepal’s ratification of different international human rights laws also gave way to social justice, inclusion, and reservations for the marginalized, such as:

CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women)
CRC (Convention on the Rights of the Child)
ICCPR (International Covenant on Civil and Political Rights)
ICESCR (International Covenant on Economic, Social and Cultural Rights)
UNCRPD (Convention on the Rights of Persons with Disabilities)

The Constitution’s Bold Promise and Its Global Roots

Article 18 of the Constitution enshrines Equality before Law, guaranteeing non-discrimination based on origin, religion, race, caste, tribe, sex, physical condition, condition of health, marital status, pregnancy, economic condition, language, region, ideology or any other status. It also introduces affirmative action, mandating the state to enact special laws and policies for the protection, empowerment, and representation of marginalized communities, including women, Dalits, indigenous groups, Madhesis, Tharus, Muslims, people with disabilities, and backward regions.

Similarly, Article 24 prohibits untouchability and caste-based discrimination in any form. Article 42 guarantees the Right to Social Justice, enabling marginalized groups to participate in state bodies on the basis of proportional inclusion.

State Policies (Article 51(j)) also include the matters of social justice and inclusion. It guides the State to work towards building an environment to allow the participation of diverse groups in governance, and ensuring their political, social, cultural, and economic protection.

But do these lofty provisions translate into meaningful transformation?

Positive Outcomes

Data from the Economic Survey 2081/82 shows that social indicators such as education and health have improved overall, but gaps persist:

The Human Development Index is 0.622, which is still low compared to regional peers.
Education statistics reveal glaring disparities. Community schools with predominantly marginalized students consistently perform worse than institutional schools. SEE results show deep inequalities in quality and accessEconomic Survey 2081-82.
In social security, over 3.5 million people benefit from allowance schemes (elderly, disabled, widows), but reports of exclusion and misuse remain frequent.

Nepal’s 16th Five-Year Plan also highlights the goal of creating a just and equitable society, explicitly targeting:

Increased participation of women, Dalits, Madhesis, and other marginalized groups in decision-making.
Reduction in multidimensional poverty.
Inclusive economic growth through social protection and targeted investments.

However, the same plan admits to persistent inequality, elite capture, and weak implementation mechanisms, especially at the local level.

Persisting Challenges

Lack of civic awareness and knowledge (sometimes even denial) on historical inequalities, and attitude of the rulers and the ruled keep bringing up problems in effectively implementing the constitutional provisions of social justice and inclusion. These problems can be summarized as:

Implementation Gap: Laws exist, but mechanisms are weak, underfunded, or politicized.
Elite Capture: Affirmative action benefits the dominant voices within marginalized categories, while the poorest remain excluded.
Data Deficiency: Many groups are invisible in national surveys and policy planning, making targeted interventions difficult.
Social Attitudes: Deep-rooted biases in bureaucracy, politics, and society obstruct real transformation.

Even programs meant to uplift the marginalized are often politicized, leaving the truly marginalized behind.

We must confront the bitter truth: A policy that looks fair on paper can still feel unjust in practice.

The Way Forward

If we want real change, we must ask tough questions and act boldly:

Is inclusion reaching the poorest within marginalized groups?
If not, we need audits and reforms to prevent elite capture. We may even have to limit the number and period of reservations an individual can get.
Are our education and healthcare systems inclusive by design?
Can we make inclusion part of everyday governance?
Are we prudent enough to let the Constitution and laws guide us?

We are not doing favour by implementing social justice and inclusivity. They are not gifts. They are orientation towards basic human rights. And the longer we delay its full realization, the more fragile our democracy becomes.

A symbolic image of justice in Nepal under the control of shadowy figures while the others are in trouble

Crisis of Justice in Nepal: Who Gets It and Who Doesn’t

By Sandeept

On June 11, 2025

In Constitution Study, Humans and Humanity, Nepal, Nepali

Constitution Study #8: An analysis of eroding faith on justice in Nepal

In this article, we discuss…

Political Meddling and Public Distrust in Justice

In recent years, public confidence in Nepal’s judiciary has eroded to alarming levels. From controversial rulings to suspected backdoor deals, the very institution meant to safeguard fairness and the rule of law now finds itself entangled in political webs.

Recent Examples of Political Interference:

Attempt of Impeachment against Chief Justice Sushila Karki (2017): On April 30, 2017, 239 Members of Parliament (MPs) filed the impeachment motion against Karki. It was the first time any Chief Justice had faced impeachment. The then Judge of the Supreme Court Cholendra Shamsher Rana ruled against the move on May 5 and reinstated Karki.
Chief Justice Cholendra Shamsher Rana’s Suspension (2022): Rana faced impeachment proceedings not solely due to his alleged misconduct, but also due to political realignments. Reports suggested political parties coordinated the move when he resisted some executive appointments—blurring the lines between accountability and retaliation.
Impunity in Corruption Cases: Several politicians implicated in high-profile scams (e.g., the Lalita Niwas land grab, gold smuggling cases, and fake Bhutanese refugee scandal) have either evaded prosecution or benefited from procedural delays. Courts appear reluctant to confront power centers.
Selective Enforcement: Political opponents often face swift charges, while ruling party members are granted procedural leniency, bail, or silence from investigative agencies.

The judiciary’s proximity to party interests has created a justice system that feels arbitrary, inconsistent, and aligned with power rather than principle. This has weakened the moral authority of the courts and shaken citizens’ belief in equal justice.

What Does the Constitution Say?

Despite the current realities, the Constitution provides a comprehensive framework for justice in Nepal:

Article 20: Right to Justice

Guarantees the right to fair trial, legal counsel, and presumption of innocence.
Emphasizes judicial independence and impartiality.

Article 21: Rights of Crime Victims

Ensures victims’ rights to information, participation, compensation, and dignified treatment.

Mandates proportional inclusion of women, Dalits, Adivasis, Madhesis, Muslims, backward regions, and gender minorities in state bodies.

The Constitution, on paper, envisions justice not only as due process in courts but as a tool of social transformation. Justice in Nepal is not just about being heard—it’s about being seen, represented, and uplifted.

Loopholes That Enable Political Influence

While the Constitution upholds judicial independence in principle, several weaknesses open the door for manipulation:

Judicial Council Composition (Article 153):
- The Chief Justice heads the Council, but its members include a minister, the senior-most justice of the Supreme Court, a nominee of the President (on executive advice), and a senior advocate recommended by Nepal Bar Association.
- The fact that three of five members are directly affiliated to politics (and there is a high possibility of the Chief Justice and the Judge to be politically oriented as well) allows ruling parties to influence judge appointments, transfers, and promotions.
Impeachment as a Political Tool (Article 101):
- Judges can be impeached by a fourth of Parliament members. While this ensures accountability, it can also be abused as a weapon by political factions.
Delay in Judicial Appointments:
- The executive has frequently delayed nominations to influence court compositions during key cases.
No Constitutional Limit on Interim Orders:
- Frequent, ambiguous interim orders from courts create a perception of tactical favoritism, especially when sensitive political or corruption cases are involved.

Why People Are Losing Faith

The erosion of judicial credibility isn’t merely procedural—it’s deeply emotional and experiential. People lose faith when:

Cases drag on for years without resolution.
Judges with known political leanings preside over politically sensitive cases.
Victims of caste-based violence or rape fail to get justice while perpetrators are shielded by local or national politicians.
Legal aid remains inaccessible for those who can’t afford it, making justice a privilege for the rich.

In Fiscal Year 2022/23, Nepal scored 0.52 in the Rule of Law Index—barely halfway to an ideal system. That doesn’t mean there is no justice in Nepal. It means that the law works—sometimes. For some. But for millions of Nepalis, especially those from rural, Dalit, and indigenous communities, it works slowly, selectively, or not at all. Surveys and government reports suggest these groups rarely seek legal redress unless absolutely necessary—and when they do, they often feel unheard, humiliated, or dismissed.

The Path Forward: Reclaiming Justice

Justice in Nepal can be saved, but only through urgent reforms rooted in transparency, inclusivity, and courage.

Suggested Reforms

Revamp the Judicial Council: Exclude executive members; ensure the Council is independent with balanced representation from civil society, bar associations, and retired justices.
Transparent Appointment Processes: Publish criteria and reasoning for judicial nominations, transfers, and promotions.
Strengthen Legal Aid: Expand the budget and outreach of legal aid centers, particularly in marginalized and remote areas.
Language and Accessibility Reform: Provide translation and legal materials in local languages; make courtrooms less intimidating for laypeople.
Empower Local Justice Systems: Incorporate indigenous dispute resolution mechanisms under constitutional safeguards to serve communities historically left behind.
Establish Independent Judicial Oversight: Create an autonomous ethics commission for judges to investigate misconduct separate from parliamentary impeachment.

Conclusion: A Constitution is Only as Strong as Its Execution

The Constitution of Nepal speaks eloquently of justice—legal and social, personal and collective. But when laws are manipulated and courts become extensions of political games, the promise becomes a lie.

Justice must be rebuilt—not through slogans or courtroom formalities, but by restoring dignity to the powerless, accountability to the powerful, and trust to the people. Without that, justice in Nepal will remain, tragically, a word in a book few can afford to believe in.