DEFINITIONS OF COMMON TERMS OF HUMAN RIGHTS.

A

ACCOUNTABILITY: States and other duty bearers are accountable and must act within the rule of law. They are answerable for the observance of human rights. They have to comply with the legal norms and standards enshrined in human rights instruments. Where they fail to do so, aggrieved rights-holders are entitled to institute proceedings.

C

CIVIL AND POLITICAL RIGHTS: The rights of citizens to liberty and equality; sometimes referred to as ‘first generation rights’. Civil rights include freedom to worship, to think and express oneself, to vote, to take part in political life, and to have access to information. These rights are often mentioned in conjunction with ‘second-generation’ economic, social, and cultural rights, which have sometimes been regarded as lesser rights.

COLLECTIVE RIGHTS: The rights of groups to protect their interests and identities.

COMMISSION ON HUMAN RIGHTS: The Commission was the UN’s principal mechanism and international forum concerned with the promotion and protection of human rights. In March 2006, the UN General Assembly voted overwhelmingly to replace the Commission with the UN Human Rights Council.

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMNATION AGAINST WOMEN (CEDAW) : (adopted 1979; entered into force 1981): The first legally binding international document prohibiting discrimination against women and obligating governments to take affirmative steps to advance the equality of women.

CONVENTION ON THE RIGHTS OF THE CHILD (CRC) : (adopted 1989; entered into force 1990): Convention setting forth a full spectrum of civil, cultural, economic, social and political rights for children. Since its adoption, it has been ratified more quickly and by more governments than any other human rights instrument. The USA and Somalia are the only countries which have failed to ratify. The Convention is also the only international human rights treaty that expressly gives non-governmental organisations (NGOs) a role in monitoring its implementation (under Article 45a).

CONVENTION: Also called Treaty or Covenant, it is a binding agreement between states. Conventions are stronger than Declarations because they are legally binding for governments that have signed them. When the UN General Assembly adopts a convention, it creates international norms and standards. Once a convention is
adopted by the UN General Assembly, Member States can then ratify the convention, promising to uphold it. The UN can then censure governments that violate the standards set forth in a convention.

COVENANT: Binding agreement between states; used synonymously with Convention and Treaty. The major international human rights covenants, both passed in 1966, are the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

CULTURE: Culture is comprised of values, attitudes, norms, ideas, internalized habits and perceptions as well as the concrete forms or expression they take in. For example, social roles, structures and relationships, codes of behaviours and explanations for behaviour that are to a significant extent shared among a group people. Culture is learned and internalized, and influences people’s actions and interpretations of circumstances at the same time as people in turn influences the content of culture by their compliance with it or by challenging it.

CUSTOMARY INTERNATIONAL LAW: Law that becomes binding on states although it is not written, but rather adhered to out of custom. When enough states have begun to behave as though something is law, it becomes law “by use”; this is one of the main sources of international law. For example, laws of war were long a matter of customary law before they were codified in the Geneva Conventions and other treaties. The vast majority of the world’s governments accept in principle the existence of customary international law, although there are many differing opinions as to what rules are contained in it.

D

DECLARATION: Document stating agreed upon standards but is not legally binding. UN conferences, like the 1993 Conference on Human Rights in Vienna and the 1995 World Conference for Women in Beijing, usually produce two sets of declarations: one written by government representatives and one by Non Governmental Organisations (NGOs). The UN General Assembly often issues influential but legally non binding declarations.

DUTY BEARERS: Human rights are linked to duties, accountability, obligation and responsibility. Duty bearers are the actors collectively responsible for the realisation of human rights. Those who bear duties with respect to a human right are accountable if the right goes unrealised. When a right has been violated or insufficiently protected, there is always someone or some institution that has failed to perform a duty.

E

ECONOMIC AND SOCIAL COUNCIL (ECOSOC): Assists the General Assembly in promoting international economic and social cooperation and development. ECOSOC has 54 members, all of whom are elected by the General Assembly for a three-year term. The president is elected for a one-year term and chosen amongst the small or middle powers represented on ECOSOC. The Council meets once a year in July for a four-week session. Since 1998, it has held another meeting each April with finance ministers heading key committees of the World Bank and the International Monetary Fund (IMF). Viewed separate from the specialised bodies it coordinates, ECOSOC’s functions like those of other UN organs include information gathering, advising member nations, and making recommendations. In addition, ECOSOC is well-positioned to provide policy coherence and coordinate the overlapping functions of the UN’s subsidiary bodies; it is in these roles that it is most active.

 

ECONOMIC, SOCIAL AND CULTURAL RIGHTS: These rights relate to the conditions necessary to meet basic human needs such as food, shelter, education, health care, and gainful employment. They include the rights to education, adequate housing, food, water, the highest attainable standard of health, the right to work and rights at work, as well as the cultural rights of minorities and indigenous peoples.

ENVIRONMENTAL, CULTURAL AND DEVELOPMENTAL RIGHTS: Sometimes referred to as third generation rights, these rights recognise that people have the right to live in a safe and healthy environment and that groups of people have the right to cultural, political, and economic development.

G

GENDER: Cultural interpretation of biological sex; definitions of what is considered to be feminine and masculine in particular cultural and social settings, and expectations of women and men, boys and girls with respect to these definitions; social, economic and political relationships between males and females in specific societies.

GENERAL MEASURES OF IMPLEMENTATION: Strategies identified by the Committee on the Rights of the Child that States can apply to ensure the effective implementation of the CRC. The measures are broadly categorised into administrative and legislative measures.

GENOCIDE: The systematic killing of people because of their race or ethnicity.

H

HUMAN RIGHTS: These are the rights possessed by all persons, by virtue of their common humanity, to live a life of freedom and dignity. They give all people moral claims on the behaviour of individuals and on the design of social arrangements. Human rights are universal, inalienable and indivisible. The idea of human rights as inalienable means that it is impossible for anyone to abdicate their human rights, even if he or she wanted to, since every person is accorded those rights by virtue of being human. It also means that no person or group of persons can deprive another individual of her or his human rights. The indivisibility of human rights means that none of the rights considered to be fundamental human rights are more important than any other; they are inter-related. These rights express our deepest commitments to ensuring that all persons are secure in their enjoyment of the goods and freedoms that are necessary for dignified living.

HUMAN RIGHTS TREATIES, COVENANTS AND CONVENTIONS: are part of international law. Used interchangeably, treaty, covenant and convention refer to legally binding agreements between states. These agreements define the duties of states parties to the treaty, covenant or convention. They apply in times of peace and conflict. Human rights treaties regulate obligations of states towards persons in their own territory (rather than towards other states). Even though the UDHR is not a convention, it has become ‘common law’ and is now considered legally binding for all states.

HUMANITARIAN LAW: (Geneva Conventions) rules the behaviour of states and other combatants in armed conflicts. It clarifies obligations between states, e.g. on: hijacking, nuclear weapons, airspace, extradition, laws ruling the behaviour of parties in armed conflict.

I

INALIENABILITY: Human rights are inalienable: they cannot be taken away by others, nor can one give them up voluntarily.

INDIVISIBILITY: Human rights are indivisible in two senses. First, there is no hierarchy among different kinds of rights. Civil, political, economic, social and cultural rights are all equally necessary for a life of dignity. Second, some rights cannot be suppressed in order to promote others. Civil and political rights may not be violated to promote economic, social and cultural rights. Nor can economic, social and cultural rights be suppressed to promote civil and political rights.

INTERDEPENDENT: Refers to the complementary framework of human rights law. For example, your ability to participate in your government is directly affected by your right to express yourself, to get an education, and even to obtain the necessities of life.

INTERGOVERNMENTAL ORGANISATIONS (IGOs): Organisation sponsored by several governments that seek to coordinate their efforts; some are regional (e.g., the Council of Europe, the Organisation of African Unity), some are alliances (e.g., the North Atlantic Treaty Organisation, NATO); and some are dedicated to a specific purpose (e.g., the UN Centre for Human Rights, and the United Nations Education, Scientific and Cultural
Organisation, UNESCO).

INTERNATIONAL BILL OF HUMAN RIGHTS: The combination of the Universal Declaration Of Human Rights (UDHR), the International Covenant On Civil and Political Rights (ICCPR) and its optional Protocol, and the International Covenant on Economic, Social and Cultural Rights (ICESCR).

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR):
Adopted in 1966, and entered into force in 1976. The ICCPR declared that all people have a broad range of civil and political rights. One of the components of the International Bill of Human Rights.

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
(ICESCR): Adopted in 1966, and entered into force 1976. The ICESCR declares that all people have a broad range of economic, social and cultural rights. One of the components of the International Bill of Human Rights.

INTERNATIONAL LABOUR ORGANIZATION (ILO): Established in 1919 as part of the Versailles Peace Treaty to improve working conditions and promote social justice. The ILO became a specialized agency of the United Nations in 1946.

L

LEGAL RIGHTS: Rights that are laid down in law and can be defended and
brought before courts of law.

M

MEMBER STATES: Countries that are members of the United Nations.

MORAL RIGHTS: Rights that are based on general principles of fairness and
justice; they are often but not always based on religious beliefs. People
sometimes feel they have a moral right even when they do not have a
legal right. For example, during the civil rights movement in the US,
protesters demonstrated against laws forbidding Blacks and Whites to
attend the same schools on grounds that these laws violated their moral
rights.

N

NATURAL LAWS: Rights that belong to people simply because they are human beings.

NONBINDING: A document, like a DECLARATION, that carries no formal legal
obligations. It may, however, carry moral obligations or attain the force of law as INTERNATIONAL CUSTOMARY LAW.

NONGOVERNMENTAL ORGANISATIONS (NGOs): Organisations formed by people outside of government. NGOs monitor the proceedings of human rights bodies such as the Commission on Human Rights and are the “watchdogs” of the human rights that fall within their mandate. Some are large and international (e.g., the Red Cross, Amnesty International); others may be small and local (e.g., an organization to advocate for people with disabilities in a particular city). NGOs play a major role in influencing
UN policy, and many of them have official consultative status at the UN.

O

OPTIONAL PROTOCOL (OP): An optional protocol to a treaty is a multilateral agreement that States parties can ratify or accede to, intended to further a specific purpose of the treaty or to assist in the implementation of its provisions.

P

POLITICAL RIGHTS: The right of people to participate in the political life of their communities and society. For example, the right to vote for their government or run for office. See civil and political rights.

PROTOCOL: A treaty that modifies another treaty (e.g., adding additional procedures or substantive provisions).

R

RATIFICATION, RATIFY: Ratification, acceptance and approval all refer to the act undertaken on the international plane, whereby a State establishes its consent to be bound by a treaty. Most multilateral treaties expressly provide for States to express their consent to be bound by signature subject to ratification, acceptance or approval.

REALISATION of human rights. A human right is realised when individuals enjoy the freedoms covered by that right and their enjoyment of the right is secure. A person ’s human rights are realised if sufficient social arrangements are in place to protect her/him against threats to her/his enjoyment of the freedoms covered by those rights.

RESERVATION to a treaty (covenant, convention) indicates that a state party does not agree to comply with one or more of its provisions. Reservations are, in principle, intended to be used only temporarily, when states are unable to realise a treaty provision but agree in principle to do so. Reservations can be made when the treaty is signed, ratified, accepted, approved or acceded to. Reservations must not be incompatible with the object and the purpose of the treaty. Furthermore, a treaty might prohibit reservations or only allow for certain reservations to be made.

S

SELF-DETERMINATION: Determination by the people of a territorial unit of their own political future without coercion from powers outside that region.

SIGNING, SIGN: In human rights the first step in ratification of a treaty; to sign a Declaration, Convention or one of the Covenants constitutes a promise to adhere to the principles in the document and to honor its spirit.

STATES PARTY(IES): A State party to a treat is a State that has expressed its consent to be bound by that treaty by an act of ratification, acceptance, approval of accession etc, where that treaty has entered into force for that particular State. This means that the State is bound by the treaty under international law.

T

TREATY BODIES: The committees formally established through the principal international human rights treaties to monitor States Parties’ compliance with the treaties. Seven Treaty bodies have been set up for the core UN human rights treaties to monitor states parties’ efforts to implement their provisions. There will be eight once the new Convention on the Rights of Persons with Disabilities enters into force and spawns its own committee.

TREATY: See Convention.

U

UNITED NATIONS CHARTER: Initial document of the UN setting forth its goal, functions, and responsibilities; adopted in San Francisco in 1945.

UNITED NATIONS GENERAL ASSEMBLY: One of the principal organs of the UN, consisting of representatives of all member states. The General Assembly issues DECLARATIONS and adopts CONVENTIONS on human rights issues, debates relevant issues, and censures states that violate human rights. The actions of the General Assembly are governed by the United Nations Charter.

UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR): Adopted by the General Assembly on December 10, 1948. Primary UN document establishing human rights standards and norms. All member states have agreed to uphold the UDHR. Although the declaration was intended to be nonbinding, through time its various provisions have become so respected by States that it can now be said to be Customary International Law.

UNIVERSALITY: Human rights belong to all people, and all people have equal status with respect to these rights. Failure to respect an individual ’s human right has the same weight as failure to respect the right of any other —it is not better or worse depending on the person ’s gender, race, ethnicity, nationality or any other distinction.

 

TOP LAW COLLEGES IN NEPAL.

1 NEPAL LAW CAMPUS :

Nepal Law Campus (NLC), a leading institution of the country, is the oldest college imparting legal education in Nepal since 1954. NLC is located at the heart of the Capital.Nepal Law Campus has a five year Bachelor of Arts Bachelor of Laws (B.A.LL.B) Programme, three year Bachelor of Laws (LL.B.) Programme and three year Master of Laws (LL.M.) programme, which was introduced by the Faculty in 2012.

2  NATIONAL LAW COLLEGE :

National Law College (NaLC) is established with a mission to uplift legal education of our country. NaLC is affiliated to Tribhuvan University of Nepal. NaLC has two graduate level programs, Bachelor of Arts combined with Bachelor of Laws (B.A. LL.B) and Master of Laws (LL.M).

3 KATHMANDU SCHOOL OF LAW : 

Kathmandu School of Law, established in 2000 AD as a community-based, non-profit academic institution is an only institution to impart pragmatic and community responsive legal education in the country. KSL offers five-year . BA.LLB course after completing +2 or intermediate course in any stream, followed by LL.M, one year interdisciplinary M.A. Programs in Human Rights and Conflict and International Humanitarian Law.

4 CHAKRABARTI HABI ACADEMY COLLEGE OF LAW :

Chakrabarti Habi Education Academy, College of Law is a constituent college of the Chakrabarti Habi Education Academy. The College of Law was established in 2010 with the affiliation from the Purbanchal University. Presently, Chakrabarti Law offers five years BA.LLB and two years LL.M. degree.

5 PRITHIVI NARAYAN CAMPUS :

Prithvi Narayan Campus was established in 2017 B.S. and has been offering 18 master degree programs and bachelor programs as well. It is one of the largest campus of Nepal situated in western region. Prithvi Narayan Multiple Campus is a government campus which is affiliated to Tribhuvan University.

6 MAHENDRA MULTIPLE CAMPUS DHARAN :

Mahendra Multiple Campus (MMC), Dharan is a constituent campus of Tribhuvan University located in Dharan-10, Sunsari, Koshi, Nepal.MMC has been offering higher education in Humanities, Management, Law and Education since 2012 BS.

7 MAHENDRA MUTILPLE CAMPUS NEPALGUNJ :

Mahendra Multiple campus Nepalgunj established as Narayan Inter College in 2014 is one of the oldest and bigest educational institutions of the mid western and far western development region of Nepal. At present, the campus is offering bachelor and master level programs in Humanities, Management and Education; bachelor degrees in Law and Science.

8 BUTWAL MULTIPLE CAMPUS :

Butwal Multiple Campus is one of the biggest campus of Lumbini Zone. It offers different Bachelors and Masters program with affiliation from Tribhuvan University. The college offers several courses in the disciplines of Arts, Science, Commerce and Law etc.

9 BRIGHT VISION COLLEGE (BVC) BIRATNAGAR :

Bright Vision College (BVC) Biratnagar, established in 2010. Affiliated with Purbanchal University the college offers quality law education in LL.B and LL.M program.

NEPAL LAW CAMPUS - TOP LAW COLLEGE OF NEPAL.

Nepal Law Campus (NLC), a leading institution of the country, is the oldest college imparting legal education in Nepal since 1954. NLC is located at the heart of the Capital.Nepal Law Campus has a five year Bachelor of Arts Bachelor of Laws (B.A.LL.B) Programme,three year Bachelor of Laws (LL.B.) Programme and three year Master of Laws (LL.M.) programme, which was introduced by the Faculty in 2012.

NLC publishes an academic and research based journal as an annual publication namely Nepal Law Review (NLR). Articles on legal and constitutional issues, legal developments, commentaries, analysis, book reviews, case comment and comprehensive overview in the field of domestic and international law can be submitted for publication.

NLC has its own well furnished and well equipped library with text books, reference books, Law Journals, Gazettes, Nepal Law Reports (NLR), and  e-library. NLC has well equipped computer lab with internet facility.NLC has its own dispensary for the primary health services. The primary health service coulld be provided to students if required.Indoor and outdoor games would be offered to the students.

NLC has well furnished and well equipped classrooms including multimedia projector. It has also a separate Moot Court room and a seminar hall.

 

Reena Bajracharya v HMGN

Right to Equality / Gender Equality

COURT : Supreme Court of Nepal

CASE : Civil Case

BACKGROUND

This case is related on Gender Equality in employment. The subject of this case is Certiorari. The petitioner of this case is Reena Bajracharya and Others and the respondent of this case is Royal Nepal Airlines Corporation (RNAC).The fact of this case is Gender Discrimination in Retirement.

DETAIL

The petitioners were female cabin crew Air-hostesses, employed by the Royal Nepal Airlines Corporation (RNAC). RNAC’s Service Regulations Rule 16.1.1 provides that crew personnel would retire at the age of 55 and non-crew personnel at the age of 60. Rule 16.1.3 provides that Air-hostesses would retire either once she has passed the age of 30 or once she has served over 10 years. The second amendment of the regulations adds a provision that the airline would allow serving additional three years after the age of 55, subject to a health examination. Rule 4.1.3 provides that air hostesses and aircraft hosts are of same service group. However, craft hosts are allowed to work for three additional years, which presents an inequality between male and female.

The RNAC Service Regulations violate Articles 11(1) and 2, 12(2)(e), 17 of the Constitution of the Kingdom. Article 15 of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides that women and men should be treated equally. Nepal is a party to the Convention, thus, according to Article 9 of the Treaty Act, the Convention is equivalent to Nepal law. RNAC Service Regulations also contravene the Convention.

In other countries craft-hosts and air hostesses are treated equally with regards to their age. Article 11 of the Constitution completely prohibits gender discrimination. Article 131 of the Constitution provides that laws inconsistent with the Constitution would cease to operate one year after its commencement. However, the regulations remain operative, and their second amendment promotes discriminations.

Therefore, the petitioners demanded to annul the discriminatory Rule 16.1.3 of the said Regulations by the writ of Certiorari, and to issue directives of Mandamus to the respondent to treat male and female personnel equally. The petitioners also requested an interim order according to which female personnel would not be required to retire until a final decision in the case had been reached.

The respondent institutions stated that Rule 16.1.3 had been made in consideration of the nature of the job to be performed by female personnel, which had never been questioned since 2031 BS. Articles 11(3), 26(7) do not provide absolute rights to women, they only provide for scope to offer special types of amenities and conditions. The said Rule was formulated according to the considerations on the physical condition of women and the nature of the job.

The Rule had not restricted the freedom of profession. Rule 16.1.3 provided that air hostesses might be employed for jobs on the ground after their retirement. The petitioners had committed to the terms and conditions upon entering employment. They are bound to respect the conditions under the general principle of contract law. The petitioners are working past the age of 30 despite the proviso under Rule 16.1.3 and are treated equally among other personnel.

Air service is special and sensitive in nature. This gives more importance to other issues than the protection of rights. For that reason it had been considered that only women up to the age of 30 would be competent for the service and it had been managed accordingly in the Regulations. There was no discrimination for remuneration. Therefore SC was requested to nullify the petition.

VERDICT

According to the Regulations of the Corporation, personnel means Pilot, Co-pilot, Flight Engineer, Radio Officer, Flight Navigator, Air-hostess, Cabin Assistant, and Purser appointed in the service of the Corporation in any grade. It deemed that other provisions including working hours and leave facilities, except the one in question, are equal to all. The issue of gender equality raised by the petitioners seemed relevant to be analyzed considering the developments and provision of human rights. The issue of gender equality has been raised from time to time in the democratization process of Nepal and after the commencement of the Constitution 1990.

There is a proclamation in the Constitution ensuring fundamental human rights and Nepal has signed a number of Conventions including the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Section 9 of the Treaty Act 2047 focuses on prompt implementation, keeping them in a higher grade than Nepal laws. Nepal’s acceptance of the international spirit of CEDAW has been justified by the spirit of proviso and Article 11(3) of the Constitution. The importance of gender equality is inseparable from the development of national human rights, so there should be no point in law and activities which may hint at gender discrimination.

With this understanding it has been necessary for the Court to see whether the provision in Rule 16.1.3 of the Regulations is consistent with the above mentioned Articles 11(5), 11(2), 11(3) and 11(5) of the Constitution which has internalized the spirit of Article 15 of the 1979 Convention. Article 11(1) provides for equality before law; Article 11(2) stipulates protection against discrimination on the ground of religion, gender etc. in the application of the law; 11(3) stipulates that the State would not discriminate against anyone on the ground of gender, colour etc.; and 11(5) guarantees equal remuneration for equal work. According to these fundamental points, it is evident that security and amenities in service shall be equal.

The proviso of Article 11(3) is not restrictive but is of a positive nature for legislating for progress and the protection of women. It is not a provision for compromising the equal treatment of women. Additionally, Rule 16.1.3 directly contravenes Article 26(7) which directs the State to encourage the participation of women in the national development.

Therefore, it can be said that the Rule provides for conditions by which the petitioners would be deprived of equal opportunities in serving. A law giving room for discretion could not establish the right to equality. Estoppel may not be applied to legal rights and the principle of delay may not be applied to a constitutional question. Therefore, Rule 16.1.3 of the above mentioned regulation is against equality, inconsistent with the constitutional provision and is to be declared void through the issuance of a writ.

Meera Dhungana AND Meera Parajuli v HMG,Ministry of Law and Justice

PROPERTY RIGHT OR CASE OF PARENTAL PROPERTY

DATE : 2050 B.S

COURT : SUPREME COURT OF NEPAL

CATEGORY : CIVIL CASE

BACKGROUND

This was public interest litigation filed by two female lawyers in Supreme

Court of Nepal. The issue of constitutionality of clause 16 of the Aungsabanda of Muluki Ain this provisions were challenged for two reasons:

Firstly, to claimed a parental property she should remain unmarred
Secondly, she should attain an age of 35 year even getting share of property if she gets marriage then she should return that property.

DETAILS

The petitioners claimed that these clauses were clear contraventions of Article 11 and 17 of the constitutions of kingdom of Nepal. This expressly prohibits discrimination on the ground of sex. The major issue of the case was whether clause 16 of the chapter on Aungsabanda or partition of property was constitutional or not? Petitioners request that many laws, especially those that are discriminatory to women’s rights including Number 16 of the Chapter on Partition of Property of Muluki Ain should be declared null and void. The petitioner seek the nullification of Number 16 of the Chapter on Partition of the Muluki Ain by raising arguments that, the provision is against-

Article 1 of the 1990 Constitution- all laws inconsistent with the Constitution will ipso facto be void in tune of Article 131 of the Constitution;

Article 131 of the 1990 constitution- all laws which are inconsistent with the Constitution shall stop to operate after one year of the commencement of this Constitution.
Article 11 (2) of the 1990 Constitution guarantees no discriminatory treatment against any citizen in application of general laws on grounds, inter alia of sex;
Article 15 of the UN Convention on the Elimination of All forms of Discrimination against Women provides that women have all property rights on an equal footing with men.

Clause 16 of Chapter : ” the daughter who has reached the age of 35 and remained unmarried is entitled to get share in property as equal to the son.If she gets married or elopes after receiving the share property, then she has to return the remaining property to the person who is entitled to it”

VERDICT

The judgment did not come out as per the petitioner's expectation. The main text of the judgment reads as follows;

Taking into consideration of the social conditions of men and women, the Nepalese law has adopted only some different process of getting partition share. Instead of depriving a daughter of the right to get a share or making discrimination against her, the right of a daughter to get a partition share has been managed in slightly different manner from that of son, taking into account of the social status of women. For instance, according to clause 16 of the chapter of AUNGSABANDA , an unmarried daughter should attain the age of 35 years in order to get partition share, while even a married daughter should attain the age of least 35 years or complete 15 years of marriage to get partition share. In regard to the process of partition share, a son gets the same, which cannot be disregarded. Before declaring clause 16 of chapter of AUNGSABANDA unconstitutional and making provision as to the same entitlement of a daughter to partition share as that of a son, the negative sides thereof or its implication on the society should also be taken into account. This will result in a great impact on the structure of the patriarchal society like ours, handed down from ancient times; a daughter may not be compelled to get married and go to her husband;s house after marriage, and while on the other hand declaring Clause 16 unconstitutional and making provision entitling a daughter to get partition share as of a son, a married daughter will be entitled to get partition share from the properties of both her father and husband, and son will be entitled to get partition share only from the property of his father. This will create the right of a daughter to obtain more partition share than a son;s right to obtain partition share, thus it will create conditions discriminatory against son. This will affect the laws of the country made in regard to the property right.

The judgment flash the discussion of whether there should equal share of children on property nationwide and the whole country acted as big parliament. This has helped extremely in generating gender equality consciousness in the country.

After this judgment, the 11 th Amendment in the Muluki Ain has brought some positive changes on property rights of women. According to the new amendment, unmarried daughter are also entitled over the parental property rights. Till the 10 th amendment, daughters were entitled to obtain parental property after reaching the age of 35. The present amendment has included daughter as coparcener without such limitation of age. However, the marital status of daughter is still a determining factor. After marriage daughter are not entitled to parental property right.

 

MAN BAHADUR VISWAKARMA V. HMG

RIGHT TO EQUALITY (RIGHT AGAINST CASTE DISCRIMINATION)

COURT: Supreme Court Of Nepal

CATEGORY: Civil Case

BACKGROUND:

Article 11(4) of the Constitution of the Kingdom of Nepal provides that no person would be discriminated against on the grounds of caste or untouchability or prohibited to use any public entity or be present in public places. Such action would be punishable in accordance ith the law. Similarly, the provision in the Civil Code (Muluki Ain) provides that anyone committing such an offence would be imprisoned for one year and fined up to the amount of Rs. 3000. These mentioned provisions are positive, timely and humanitarian; however, the respondents have maintained a clarification on the provision of in Clause 10(a) of the chapter saying that "the treatment which has been practised traditionally in a temple or religious place would not constitute discrimination.

DETAILS:

Article 11(4) of the Constitution of the Kingdom of Nepal provides that no person would be discriminated against on the grounds of caste or untouchability or prohibited to use any public entity or be present in public places. Such action would be punishable in accordance with the law. Similarly, the provision in the Civil Code (Muluki Ain) provides that anyone committing such an offence would be imprisoned for one year and fined up to the amount of Rs. 3000. These mentioned provisions are positive, timely and humanitarian; however, the respondents have maintained a clarification on the provision of in Clause 10(a) of the chapter saying that "the treatment which has been practised traditionally in a temple or religious place would not constitute discrimination." Temples or religious places are public places and the clarification is inconsistent with Article 11 of the Constitution. In many religious places, Dalit castes, including the petitioner, are prohibited to enter public places in the name of tradition.

Therefore, the clarification in Clause 10(a) of the chapter on conduct is demanded to be declared unconstitutional. The respondents asserted that Article 19 of the Constitution provides that every religious group has the right to religion, keeping their independent identity. The treatment which has been practised from the beginning would not constitute discrimination. All temples and religious places could not be public, they may be private too. In some temples and religious places, it has been a practice from the very beginning that only particular religious creed or persons are allowed to enter and others are restricted from entering. The provision could not be interpreted as inconsistent with the right to equality and the right to religion. Therefore the petition was requested to be quashed.

VERDICT:

The Constitution has not only prohibited untouchability and other social wrong traditions but has also declared such acts punishable. The questioned clarification seems for making the main provision explicit. The main provision provides for punishment for the act of discriminating on the grounds of untouchability and restricting from public use. But the clarification seems to be supporting the discriminatory treatment. By the clarification the scope of the provision has been restricted and limited.

Clause 10(a) reveals that the prohibition of the discrimination as directed by Article 11(4) of the Constitution itself is sufficient for prescribing penalty. Therefore there seemed no need for such an explanation providing an exceptional provision. Such an exceptional legal provision would otherwise implicate the main provision and the Constitution would be controlled by the normal law. The fundamental difference between the Constitution and normal law might be absconded and constitutional purpose might be defeated. The questioned clarification restricts and limits the provision of Article 11(4) of the Constitution; therefore, it seems inconsistent with it and is declared invalid.