2.3.2 Fundamental Rights, Directive Principles, Policies of the State

Fundamental Rights: An Overview

Fundamental rights are the basic rights and freedoms that every individual is entitled to by virtue of being human. These rights are often enshrined in a country's constitution and are protected against infringement by the state or other individuals. Fundamental rights are considered essential for the protection of human dignity, liberty, and equality, and they form the foundation of a democratic society.

Fundamental rights typically include:

• Right to equality
• Right to freedom
• Right to life and liberty
• Right against discrimination
• Right to education
• Right to property (in some countries)
• Right to religion and freedom of expression
• Right to justice

Historical Development of Fundamental Rights in Nepal

1. Pre-Democratic Era (Before 1951)

Before the establishment of democracy in Nepal in 1951, the concept of fundamental rights was virtually absent. Nepal was ruled under the authoritarian Rana regime for over a century (1846–1951). During this period, the people had little to no legal protections, and civil liberties were heavily restricted.

2. Interim Constitution of 1951

With the end of the Rana regime and the establishment of constitutional monarchy in 1951, fundamental rights became a part of the constitutional framework. The Interim Constitution of 1951 provided some fundamental rights to the citizens of Nepal, but they were limited and not fully implemented in practice.

3. Constitution of the Kingdom of Nepal, 1959

The 1959 Constitution was the first fully democratic constitution of Nepal, which formally recognized fundamental rights. However, this constitution was short-lived, as the monarchy suspended it in 1960, dissolving the democratic government.

4. Panchayat Era (1960–1990)

During the Panchayat system (a party-less political system) under King Mahendra and his successors, the 1962 Constitution provided a limited set of fundamental rights, but these were subordinated to the monarchy's interests. The king held significant power, and political freedoms were severely curtailed during this period. There was no multiparty democracy, and fundamental rights were not fully respected.

5. Constitution of the Kingdom of Nepal, 1990

After the People's Movement (Jana Andolan) of 1990, Nepal adopted the 1990 Constitution, which established multiparty democracy and a constitutional monarchy. This constitution significantly expanded the range of fundamental rights for Nepali citizens, making them justiciable, meaning citizens could approach the courts if these rights were violated.

• Right to equality
• Right to freedom of expression and association
• Right to property
• Right to religious freedom
• Right to life and liberty
• Right against untouchability and discrimination

6. Interim Constitution of Nepal, 2007

The Interim Constitution of 2007, promulgated after the Second People's Movement (Jana Andolan II) and the end of the monarchy, included more progressive provisions for fundamental rights. It recognized not only civil and political rights but also introduced economic, social, and cultural rights.

• Right to employment and social security
• Right to education and health
• Right to information
• Rights of women, Dalits, and marginalized communities

The interim constitution laid the foundation for inclusive democracy and social justice, reflecting Nepal’s transformation towards a republican federal system.

Fundamental Rights in the present Constitution of Nepal

The Constitution of Nepal 2015, promulgated on September 20, 2015, is the current constitution that transformed Nepal into a secular, federal democratic republic. The 2015 Constitution provides a comprehensive list of fundamental rights and goes further by incorporating many economic, social, and cultural rights in addition to the traditional civil and political rights. The provisions related to fundamental rights are in Part 3 of the constitution, from Article 16 to Article 46.

Here is an outline of the fundamental rights as per the Constitution of Nepal 2015:

Civil and Political Rights

1. Right to Life (Article 16):

   • Every person has the right to live with dignity.
   • No one shall be deprived of personal liberty, except in accordance with the law.

2. Right to Equality (Article 18):

   • All citizens are equal before the law and entitled to equal protection of the law.
   • There shall be no discrimination based on religion, race, caste, ethnicity, sex, or physical condition.

3. Right to Freedom (Article 17):

   • Every citizen has the freedom of speech, assembly, association, movement, and profession.
   • Freedom of the press and expression is guaranteed.

4. Right to Justice (Article 20):

   • Every individual has the right to fair trial, legal representation, and due process.

5. Right against Torture (Article 22):

   • No person shall be subjected to torture or cruel, inhuman, or degrading treatment.

6. Right to Information (Article 27):

   • Every citizen has the right to access information held by public institutions.

7. Right to Privacy (Article 28):

   • Every individual has the right to privacy regarding personal information, home, property, documents, and communications.

8. Right to Religion (Article 26):

   • Every person has the right to profess, practice, and preserve their religion.
   • Nepal is a secular state, but religious conversion by force or inducement is prohibited.

9. Right against Preventive Detention (Article 25):

   • No person shall be held in preventive detention for more than required under the law.

Economic, Social, and Cultural Rights

1. Right to Education (Article 31):

   • Every citizen has the right to free and compulsory education up to the basic level and free education up to the secondary level.

2. Right to Employment (Article 33):

   • Every citizen has the right to employment.
   • The state shall make provisions for the protection of the rights of workers.

3. Right to Health (Article 35):

   • Every citizen has the right to basic health services from the state.
   • No person shall be deprived of emergency health services.

4. Right to Food (Article 36):

   • Every citizen has the right to food sovereignty.
   • The state is responsible for ensuring food security.

5. Right to Housing (Article 37):

   • Every citizen has the right to appropriate housing.

6. Right to Social Security (Article 43):

   • The state shall provide social security to the disabled, helpless, vulnerable, senior citizens, and marginalized groups.

7. Right to Language and Culture (Article 32):

   • Every community has the right to protect and promote their language, script, and culture.
   • Each individual and community has the right to education in their mother tongue.

Group-Specific Rights

1. Rights of Women (Article 38):

   • Women have equal rights in all aspects of life.
   • Special provisions exist to prevent violence against women, including domestic violence, human trafficking, and sexual exploitation.
   • Women have reproductive rights and the right to participate in all state structures.

2. Rights of Children (Article 39):

   • Every child has the right to education, health, nutrition, and protection from exploitation and abuse.
   • Children have the right to name and nationality from birth.

3. Rights of Dalits (Article 40):

   • Dalits have the right to participation in all state mechanisms and the right to education, employment, and representation.
   • The state shall work to eliminate caste-based discrimination and untouchability.

4. Rights of Senior Citizens (Article 41):

   • Senior citizens are entitled to special protection, social security, and care.

5. Rights of Indigenous Nationalities (Article 42):

   • Indigenous communities have the right to identity, participation, and representation in state mechanisms.
   • They have the right to protect and promote their traditional knowledge, culture, and practices.

Judicial Protection of Fundamental Rights

The Supreme Court of Nepal has the authority to enforce fundamental rights through the issuance of writs (legal orders). Citizens can approach the court if they believe their rights have been violated.

Conclusion

The development of fundamental rights in Nepal has evolved from limited protections under authoritarian regimes to the comprehensive and inclusive rights enshrined in the Constitution of 2015. The current constitution reflects Nepal’s transition to a federal democratic republic and incorporates a wide range of rights, ensuring civil, political, economic, social, and cultural rights for all citizens. These rights form the cornerstone of Nepal’s democratic structure and are fundamental to the protection of human dignity, equality, and justice in the country.

Directive Principles

The Directive Principles, Policies, and Obligations of the State under the Constitution of Nepal 2015 are guidelines that the government is expected to follow when formulating laws and policies. These principles aim to promote the general welfare of the people and the overall development of the country. Although these principles are not legally enforceable by courts (i.e., they cannot be claimed as fundamental rights), they provide a framework for governance and are meant to guide the state toward achieving social justice, economic prosperity, and environmental sustainability.

Directive Principles, Policies, and Obligations of the State: Overview

These principles are detailed in Part 4 of the Constitution of Nepal 2015, encompassing Articles 49 to 55. They focus on various aspects such as political, economic, social, cultural, and environmental goals that the state should pursue.

Key Directive Principles

1. Political and Governance Principles (Article 50 (1))

• The state should ensure inclusive democracy, pluralism, and rule of law.
• Participation of marginalized and disadvantaged communities, including women, Dalits, indigenous nationalities, Madhesis, Tharus, Muslims, and other backward classes, in all state structures.
• The establishment of a federal democratic republican system with equitable distribution of powers and resources across federal, provincial, and local levels.
• Protection of the fundamental rights and freedoms of citizens, along with human rights.
• Promotion of local self-governance and decentralization for effective democratic participation at the grassroots level.

2. Social and Cultural Principles (Article 50 (2))

• The state is obligated to protect and promote the social and cultural diversity of the country.
• Efforts to eliminate social inequalities, discrimination, and oppression based on caste, class, gender, language, and religion.
• The state should preserve and promote the language, culture, and traditions of indigenous groups and marginalized communities.
• Ensure social justice by safeguarding the rights of women, children, senior citizens, minorities, and persons with disabilities.
• Promotion of education and healthcare, making them accessible to all segments of society, with a focus on disadvantaged and marginalized groups.
• The state should work towards the eradication of social evils such as untouchability, child marriage, dowry, and other forms of exploitation and injustice.

3. Economic Principles (Article 50 (3))

• The state should work to create an equitable and prosperous economy.
• Promotion of economic self-reliance and the development of an economy that ensures social justice.
• Emphasis on the industrialization of the country, ensuring the protection of labor rights, and providing employment opportunities for all citizens.
• Sustainable use of natural resources for economic development and to improve the quality of life for the people.
• Ensuring equitable distribution of the benefits of economic growth, particularly to marginalized communities, by promoting inclusive economic policies.
• Provision of land reform to ensure land is distributed equitably, particularly benefiting landless and marginalized communities.

4. Principles Related to International Relations (Article 50 (4))

• The state should conduct its international relations based on the principles of sovereign equality, non-alignment, peaceful coexistence, mutual benefit, and respect for international law.
• Commitment to international peace, security, and disarmament, and to preventing the use of force or threat of force in international relations.
• The state should work to uphold human rights, environmental protection, sustainable development, and global cooperation in its international engagements.
• Promotion of friendly relations and economic partnerships with other countries.

5. Obligation to Implement Fundamental Rights (Article 49)

• The state has an obligation to make progressive efforts to implement fundamental rights as listed in the constitution.
• The economic and social rights of citizens must be promoted, ensuring that vulnerable and marginalized groups receive attention in policy implementation.
• The state should provide education, healthcare, food security, social security, and housing as part of its duty to realize fundamental rights.

Key Policies of the State

1. Policies Related to Social Justice and Inclusion

• Ensuring proportional representation of women, Dalits, indigenous nationalities, Madhesis, Tharus, Muslims, and other marginalized groups in state mechanisms and public services.
• Promoting equal access to education, healthcare, employment, and social services for all citizens.
• Enhancing the political participation of women, youth, and marginalized communities.
• Special measures to uplift the economic and social status of the poor, backward classes, and minority groups.

2. Policies Related to Good Governance

• The promotion of transparency, accountability, and efficiency in the functioning of the government.
• Strengthening anti-corruption measures and ensuring the integrity of public institutions.
• The use of modern technology and information systems to improve service delivery and public access to information.

3. Policies Related to Education and Health

• Ensuring free and compulsory education up to the basic level and free education up to the secondary level.
• Improving the quality of education and making higher education accessible to disadvantaged groups through scholarship programs.
• Providing basic healthcare services to all citizens, with a focus on marginalized and vulnerable populations.
• Ensuring access to reproductive healthcare and family planning services.

4. Policies Related to Economic Development

• Promotion of inclusive and sustainable economic growth.
• Development of infrastructure (e.g., roads, electricity, water supply) to foster economic growth and improve the quality of life.
• Encouraging foreign investment, industrialization, and agricultural development to create employment opportunities.
• Land reform to ensure equitable distribution of land resources and support to landless and marginalized communities.

Obligations of the State (Article 55)

• The state is obligated to carry out its duties and responsibilities in line with the directive principles and policies stated in the constitution.
• The state must respect, protect, and promote the fundamental rights of citizens.
• It must ensure inclusive representation in all state organs, effective service delivery, and public welfare.

Conclusion

The Directive Principles, Policies, and Obligations of the State in the Constitution of Nepal 2015 provide a comprehensive framework for guiding the government in promoting social justice, inclusive development, economic prosperity, and environmental sustainability. These principles serve as an essential part of the state’s duties to ensure the well-being of citizens and to work towards an equitable society. Although these provisions are not justiciable in courts, they play a critical role in shaping the policies and governance structures in Nepal.

Policies of the State

Under the Constitution of Nepal 2015, the term "Policies of the State" encompasses broad guidelines that are expected to shape the government’s approach to governance, development, and social justice. These policies are intended to ensure that the state functions in a manner that promotes welfare, equality, and sustainable development.

13 Policies of the State

Here are the 13 key policies of the state as outlined in the Constitution of Nepal 2015:

1. Policy of National Unity and Integrity:

   • Ensure national unity and maintain the integrity of the country by promoting harmonious relations among diverse communities.
   • Strengthen national sovereignty and territorial integrity.

2. Policy of Social Justice and Inclusion:

   • Promote social justice by addressing inequalities and ensuring fair treatment for all, particularly for marginalized and disadvantaged communities.
   • Enhance representation and participation of marginalized groups, including women, Dalits, indigenous nationalities, and others.

3. Policy of Good Governance:

   • Foster good governance by ensuring transparency, accountability, and efficiency in public administration.
   • Combat corruption and uphold the rule of law.

4. Policy of Economic Development:

   • Promote inclusive economic development that benefits all segments of society.
   • Encourage industrialization, investment, and job creation while ensuring equitable distribution of economic resources.

5. Policy of Education:

   • Ensure free and compulsory education up to the basic level and make secondary and higher education accessible.
   • Promote quality education and vocational training to enhance skills and employability.

6. Policy of Health:

   • Provide basic health services to all citizens and improve healthcare infrastructure.
   • Ensure access to reproductive health services and promote public health initiatives.

7. Policy of Social Security and Welfare:

   • Ensure social security and welfare for vulnerable groups, including the elderly, persons with disabilities, and the poor.
   • Provide support for basic needs such as housing, food, and employment.

8. Policy of Environmental Protection:

   • Protect natural resources and ensure sustainable use of the environment.
   • Address climate change and promote conservation efforts.

9. Policy of Infrastructure Development:

   • Develop and maintain infrastructure such as transportation, energy, and communication to support economic growth and improve quality of life.

10. Policy of Labor and Employment:

    • Promote fair labor practices and protect workers' rights.
    • Create employment opportunities and improve working conditions.

11. Policy of Science and Technology:

    • Encourage scientific research and technological innovation to address national challenges and promote development.
    • Support the growth of technology sectors and digital literacy.

12. Policy of International Relations:

    • Conduct foreign relations based on principles of mutual respect, non-interference, and peaceful coexistence.
    • Promote international cooperation and uphold commitments to global peace and sustainable development.

13. Policy of Cultural Preservation:

    • Protect and promote the cultural heritage, languages, and traditions of various communities.
    • Support cultural diversity and integration while respecting indigenous and minority cultures.

Conclusion

These 13 policies are designed to guide the government of Nepal in achieving its constitutional objectives and ensuring comprehensive development across various sectors. They reflect a commitment to addressing both immediate and long-term challenges while promoting the well-being of all citizens and fostering a harmonious and equitable society.