In the stream of research, there is a concept of barefoot research, which aims to debunk local realities or the truth and realities on the ground. In this context, Dr Sohan Prasad Sah and Devraj Humagain’s edited work “Madhesh Pradeshma Paidal Anusandhan” [Barefoot Research in Madhesh Province] published by Martin Chautari, Kathmandu this year, provides a concise introduction to barefoot research, dimensions of social and cultural discrimination, discourses on the governance of central and provincial governments, issues of landlessness, struggles of statelessness, trials and tribulations of women leaderships at local bodies, pain and sufferings of rape victims and comment on Chure Bhavar politics.

The book brings together a collection of twelve chapters which provide a critical investigation into the key issues, principles and themes on ground realities of Madhesh, Nepal’s journey with federal democracy and the failure of governments to upkeep governance and rule of law.

The book begins with an introductory where Dr Sohan Prasad Sah discusses the barefoot research and its scope in Madhesh province. He opines that barefoot research promotes the ground realities. This mechanism of research enables people to enrich their capacity building and ensures that the local issues are fairly disseminated at provincial and national level, believes Dr Sah.  

Dimensions of discrimination

In the first chapter, Dr Gopal Thakur, who is nationally known for academic research and writings, shades light on linguistic, cultural and politico-economic differences and discriminations between Soit, the so-called Terai upper castes, and Solkan, the so-called Terai-Madhesh lower caste community members. He argues that the opportunities provided by the state should be justly distributed between Soit and Solkan.

BP Sah, an eminent media person, discusses the production of discriminatory media contents, which are more in the nature of hate speech targeting Madheshi and marginalized communities in Nepal. His research discusses how the discriminatory contents are being uploaded and disseminated through online platforms like Youtube, Facebook, TikTok and Twitter.

Sah believes that the persons involved in dissemination of hate speech through new media, often, get spared by the state. He argues, the new media platforms are being misused in such a way that they are appearing like a “new virtual village” enticing hatred and hate speech. His chapter is a good read to understand the dimensions of sociological and cultural discrimination being spread through online media platforms.

Governance matters   

There appear three chapters on governance discourse. The authors—Manju Yadav, Surendra Kumar Kamati and Kusumlata Tiwari—delve deep to discuss discourses relating to provincial governmental apparatuses and their policies and programs and their governance for strengthening democratic credentials.

Manju Yadav, a former lawmaker of Madhesh Province, examines the effectiveness of the seven thematic committees formed at the provincial assembly of Madhesh Province. She argues that the Madheshi parties, who claim to be champions of inclusivity and federalism, have grossly failed to ensure the fair representation of women at different thematic committees of provincial assembly. She reveals that the committees are yet to come up with their annual reports.

Surendra Kamati, a journalist-based in Siraha district, discusses the Constituency Infrastructure Development Programme, commonly known as the Constituency Development Fund. He argues that there is a dire need of holding a debate as to the relevance of this fund at provincial level. As the Fund has been extensively misused by lawmakers, it should be discontinued.

Kusumlata Tiwari, a Research Scholar of MPhil (Anthropology) at Tribhuvan University, writes on the “Save Daughter; Educate Daughter” plan of Madhesh. She believes the plan floated by the Madhesh Province government has certainly played a crucial role in increasing the access of girls and adolescents to education in southern plains.

She writes, “The initiative to distribute bicycles to schoolgirls under the campaign of “Save Daughters, Educate Daughter” has encouraged girls to continue their education.” We could easily find the level of confidence and energy among schoolgirls riding bicycles to reach their schools, she mentions. She is of the opinion that these types of initiatives should be promoted as they would play a significant role in limiting school dropout ratio.

Concerns of Dalits

John Locke said that life, liberty and property are inalienable rights. If right to property is inalienable, then how could Dalits be deprived of the right to own land. After all, land is not just about livelihood but also dignity.

In this respect, Om Prakash Ram, a human rights activist, investigates reasons that led to landless life of Dalit community members. He argues that the politico-legal transformations are yet to resolve the issues of landlessness of Dalits. “A large section of Dalit community members in Terai have received the status of Sukumbasi (squatters) but they are yet to receive land.” He writes: “The governmental initiatives aimed at removal of landlessness among Dalits are yet to yield a desired result.” 

Ranjit Kanaujiya, a researcher who has had the privilege to work with UN agencies, also contributes a chapter on the issue of landlessness among Dalits. He argues that the dispute on property ownership is not a new recipe in Madhesh. In Gaushala Municipality of Mahottary district, a section of Dalit community members have been facing land disputes since the last five decades,” argues he. He then goes on to claim that the state apparatuses have been apathetic towards the landless Dalits. “The government agencies are reluctant to bring robust schemes for removal of Dalit landlessness.”

Grassroots politics

The democratic countries have struggled to ensure proportional representation of women in the political landscape. Salma Khatun, a social activist in her chapter, argues that the optimism, however, proved to be misused. Equality of women in politics is not on any parties’ agenda because of their patriotic mindset, she argues adding “of late, the ordinary people’s (esp. women’s) access to local bodies has become easier with the entry (and success) of women in active politics of local bodies.”

However, she believes that the political parties are complicit in the systematic exclusion of women. Khatun argues that women leaders have skills to strike a balance between social and developmental issues. “We give priority to social issues too.”

Deb Narayan Mandal, founder of Mithila Wildlife Trust, discusses the initiatives taken to protect and preserve the forest cover of Dhanushadham.

Jitendra Kumar Kushwaha, a researcher at Barefoot Lawyers, writes on the pain and struggle of being stateless. He argues that a large chunk of people are deprived of citizenship because of the derogatory procedures associated with the constitution, laws and administrative agencies. Even though the constitution guarantees equality before law, equal protection of laws and right to live with dignity to every person, the constitutional guarantees are not available to a section of citizens who don’t have citizenship certificates,” writes Kushwaha.

Social and political violence

Gunjan Ray, a human rights activist, discusses the challenges faced by rape victims and the complexities brought about by the legal procedures. She believes that the rape victims, often, become hostile not because of their wish but because of state’s failure in ensuring them a safe atmosphere to live.

Moreover, “even the judicial procedures and court are not victim-friendly. The recording of statements of rape victim should be done in closed session (so as to protect the privacy of victims) but its strict adherence is yet to be seen in trial courts.”

“As male advocates are, often, engaged in recording the statements of rape victims, they hesitate to express freely,” writes Ray.

Sabin Khanal, a lecturer of English literature, assesses the rise and fall of Chure Bhavar politics. He argues that the leaders’ involvement in criminal activities badly affected the Chure Bhavar politics.    

If there is one reason to read Dr Sohan Prasad Sah and Devraj Humagain’s edited work it is their endeavor to give conceptual clarity on the barefoot research, and its application to understand the ground realities of Madhesh. The book does not only discuss the dimensions of inclusion but also devotes a good deal of sections for programs and policies of the state. Their edited book should be a mandatory reading for the sociologists, anthropologists, lawyers, teachers and students of various streams, including that of social sciences and law. 

jhajivesh@gmail.com

In this context, Dr Newal Chaudhary’s The Art of Cyber Law & Cyber Crimes published by Mission Legal Services Pvt Ltd, Kathmandu (in July, 2023), provides a concise introduction to cybercrimes, evolution of cyber law, emerging issues in cyber law, classification of cybercrimes, the use of Artificial Intelligence (AI) in cybercrimes, Intellectual Property Rights (IPR) of digital goods and cyberspace, E-commerce and legal issues, laws relating to cybercrimes in Nepal, and internet governance and international laws relating to cybercrimes.

The book brings together a collection of seven chapters which provide a critical investigation into the key issues, principles and themes on cybercrimes, Nepal’s journey with cyber democracy and international practices.

A short foreword by Prof Dr DN Parajuli, an eminent jurist and Campus Chief of Nepal Law Campus, Kathmandu, sets the tone for the discussion on the civil and international laws and practices relating to cybercrimes: “This book bridges theory and practice in cyber law. “The Art of Cyber Law & Cyber Crimes” is not just theoretical; it is a practical guide tackling pressing cyber law issues from data privacy to intellectual property rights, cyber bullying to hacking. Dr Chaudhary covers these topics clearly and thoroughly,” he writes.  

In the first chapter, Dr Chaudhary, who is a Law faculty member at Tribhuvan University, sheds light on the basic concepts, evolution, nature, emerging trends, sources and need of cyber law. Understanding the principles of criminal law is essential to prosecute the offenders and to address the legal implications of the cyber activities, like hacking, identity theft, phishing, cyberbullying and online frauds,” argues Dr Chaudhary. After all, cyber law is multidisciplinary in nature.  

The journey of cyber law began in Nepal with the enactment of the Electronic Transaction Act, 2063 BS (2006 AD). Cyber law is rapidly evolving and multi-disciplinary in nature that employs both civil and criminal laws. “Its nature is global, requiring international co-operation to address cybercrimes and enforce regulation” argues he, adding, that the cybercrimes have potential to transcend the national boundaries, as “the internet and digital technologies have facilitated worldwide connectivity and communication.”

In this respect, cybercrimes can occur from anywhere around the world, making it challenging to determine the jurisdiction in which the crime was initially originated. In fact, cyberspace’s ostensible multi-dimension suggests that the cyber law cannot be studied in isolation; rather it requires the overall understanding of various fields, like technology, law, economics, and psychology to comprehend the actual implications in the crime.  

In his book, Dr Chaudhary devotes a good deal of sections to explain the sources and scope of cyber law. For instance, “The scope of cyber law includes areas such as regulating electronic transactions, protecting personal data and privacy, safeguarding intellectual property rights, preventing cyber crimes, and addressing issues relating to online freedom of speech and expression and its content regulation.” he writes on page 17.

The online platforms provide opportunity to the people from all walks of life to participate in public discourse. But, it’s unfortunate to see that people often use digital platforms as a sword to cause defamation, incite hatred or promote hate speech. He opines that defamation, false accusations and hate speech could not be pardoned in the name of freedom of speech and expression. Every right has restrictions.

In Chapter 2, Dr Chaudhary sheds light on different dimensions and historical development of cyber law in its entire length and breadth. He employs tables to explain the fundamental differences between computer crimes and cyber crimes. For instance, crimes like, hacking, data breaches and denial-of-service attacks which are exclusively committed by the use of computers could be categorized under computer crimes whereas phishing, malware attacks, online fraud could be placed in the nature of cybercrimes. The former is prosecuted under traditional criminal law, while the later is prosecuted under traditional criminal law plus cyber law. In this chapter, the concepts of AI, Nepal’s legal framework, constitutional landscape and international practices have also been explained by the author.   

Chapter 3 deals with the concept of IPR of digital goods and cyber space. Prof Chaudhary argues that cybercrimes do not solely limit themselves to fraud, cyber bullying, identity theft, but also to infringement of copyright and trademark of various business and other organizations. “Intellectual property rights face several challenges and limitations in the realms of cyberspace,” he maintains on page 118.

Digital privacy, difficulty in enforcement, privacy concerns, domain name disputes, different regulation and licensing requirements in different countries, and determining the boundaries of fair use are some of the key challenges before the IPR in the digital age.

In Chapter 4, he critically studies the frontiers of E-commerce in the light of prevailing legal frameworks. He assesses the domestic and international laws recognizing electronic commerce. For instance, the concept of digital signature has been duly recognized under Section 2 of the Electronic Transaction Act (2063 BS). The advent of digital payment and digital cash could be taken as a boon for electronic commerce.

Nevertheless, “Preventing fraud and deceptive practices is a significant concern in e-commerce,” argues Dr Chaudhary on page 133. 

Dr Chaudhary is right in holding that the world community deserves to introduce strong cyber security measures to protect the data of citizens and government organizations.

In Chapter 5, the author discusses the prevailing laws and policies relating to cybercrime. He has discussed the relevant provisions of international conventions, judicial decisions of the Supreme Court of Nepal, and the global precedents. Our laws, like National Criminal Code, 2074 BS (2017), Electronic Transaction Act, 2063, Copyright Act, 2059 BS (2002), and Consumer Protection Act, 2075 (2018) host plethora of provisions that supplement and supplant the cyber law regime.

Dr Chaudhary then goes on to discuss the concept of internet governance. The internet governance refers to the processes, policies and mechanism by which the development, operation and the use of the internet are managed and coordinated” writes he on page 181. He argues that it’s high time for the world communities to invest in cyber diplomacy. The government of the United States is to be credited for pioneering cyber diplomacy by introducing the US International Strategy for Cyberspace.  This document happens to be the first government document concentrating on the international elements of cyber threats.    

In the final chapter—chapter seven—Dr Chaudhary discusses the international conventions relating to cybercrime. The Budapest Convention on Cybercrime, which entered into force on July 1, 2004, happens to be the world’s first international treaty designed to focus on addressing the challenges posed by cybercrime. This chapter deals with various dimensions of international laws and suggests ways for bringing reformation in existing legislation.

If there is one reason to read Dr Chaudhary’s timely exposition is his endeavors to give conceptual clarities on cybercrime and their recognition under cyber law. He does not only discuss Nepal’s perspective on cyber law but also devotes a good deal of section for international precedents. His book should be a mandatory reading for the lawyers, judges, judicial officers, teachers and students of various streams, including that of social sciences and law. 

jhajivesh@gmail.com

Undoubtedly, progress and pollution go together. There can be no end to progress in terms of industrialization, commercialization and globalization, and consequently, no escape from pollution. Still, we cannot turn a deaf ear to the environmental protection measures, as it’s our responsibility to ensure that our development practices meet the needs of the present without compromising the ability of future generations to meet their own needs.

The problem of environmental pollution is not a noble concept. It is as old as the emergence of people on the planet. Atharva Veda says that a pollution-free clean environment keeps all people, birds and animals living happily. In Veda, air, water, earth, sky, sun and trees are considered as deities.

In Rigveda, it’s been said that fresh air works as the panacea of all diseases. It directs one not to do any act that lessens or degrades the quality of oxygen. These concepts are recognized by laws, conventions and science of today. Take an example of the Rio Declaration of 1992. Principles 4 and 25 of Rio Declaration say that peace, development and environment are interdependent and indivisible.

Environment protection: A religious affair 

Environmental pollution was controlled rigidly in ancient times. It was not only an affair limited to an individual but the society as a whole accepted its duty to protect the environment, held by the Supreme Court of India in the case of TN Godaverman Thrimulpad v Union of India (2002).

In Amarnath Jha v Government of Nepal and Others, the Supreme Court of Nepal held that every person shall have an inherent right to live in a pollution-free environment to lead a dignified life [2073BS, Decision Number 10743].

Kautilya’s Arthashastra said it was the Dharma of each individual in society to protect nature. Similarly, the Yajna or sacrificial fire is apparently done to worship one or other deity and it ultimately purifies the air. The Samaveda highlights the importance of the Yajna as it helps in keeping away the mosquitoes and other insects. In Padma Purana and Karma Purana, it is mentioned that the trees, like Peepal, Bel, Neem etc are the abode of the God and they are not to be cut.

In Buddhism, the principle of Simplicity preaches for sustainability and the Principle of Ahimsa (Non-violence) preaches for the love for flora and fauna. King Ashoka wanted the non-violence to be the cultural heritage of the people. The Holy Koran declares that everything is created from water. Allah is considered to be the owner of the land and mankind is the trustee, whereas other living creatures are considered to be the beneficiaries.   

Nepal is the land of rites and rituals. The belief and cultural practices followed here show a deep concern for the protection and preservation of the environment.   

Socio-cultural legacy

Nepal is a multi-religious country where people belonging to every sect and faith live with co-existence. Our cultural legacy shows that we have never been cruel towards the environment. In fact, environmental protection is the cultural heritage of Nepal.

Every religious, cultural work we make, symbolizes environmental protection. See, Chhath festival. It’s the festival demanding cleanliness of waters. The devotees offer prayers to the Sun god by standing in the waters.

In Baisakh, the first month of the year in Nepal’s Bikram Sambat calendar, people in Terai-Madhesh celebrate Jur Shital festival which also promotes protection of trees and soil. The festival begins with elders sprinkling cool water on the heads of their relatives. The family members spread water on the plants and trees. In addition to this, there is a culture of playing the traditional game Kado-Mati (mud-soil) which is similar to mud bath. These cultural practices symbolize conservation of soil, trees, and water.

Our holy texts, laws and court judgments too show that the country has been serious towards environmentalism. We should develop a conscious approach and strike a balance between environmental protection and development, held by the Supreme Court of Nepal in the landmark case of Advocate Narayan Prasad Devkota v Government of Nepal and Others (2066 BS, Decision Number 8521). The apex court in this case held that bad socio-economic policy of the country is to be blamed for environmental degradation.

Constitutional goals

The Constitution of Nepal guarantees the right to clean environment as a fundamental right [Article 30].  The constitution declares various rights associated with the protection of the environment. Specific provisions associated with the environment are; the right to live in a clean environment, right to clean water and hygiene; right to food sovereignty; the right of state to carry out land reforms on agriculture and environment; and right of consumers to have quality foodstuffs and services.

The Constitution obliges the state to control and prevent any act or omission polluting or likely to pollute the environment. The Supreme Court and High Courts (under Article 133 and 144, respectively) can issue required direction, order or writs for this purpose.

The Constitution confers power to the Centre, provinces as well as local governments to adopt and enact policies for protecting the natural environment. The Directive Principles provided in part-IV of the constitution, calls upon the local/ provincial governments to adopt policies for the protection and promotion of the environment [Article 51].

The Environment Protection Act, 2019 has been enacted by the government to implement Article 30 of the Constitution. The Act aims to protect and improve the environment and to mitigate the pollution; to enforce the right to clean environment; to grant compensation to victims of environmental pollution; and to implement EIA, Environmental Study and Environment Examination reports.   The Act has set heavy fines for non-compliance of law and government policies. Section 35 of the Act envisages that there could be a fine of up to five million at the instance of non-compliance of EIA by a proponent. Similarly, defiance of Initial Environmental Examination would lead to a fine of up to one million.

Way forward

On June 5, World Environment Day (WED), with the theme of “Beat Plastic Pollution,” we should evaluate if we have succeeded—or even tried—to acknowledge our cultural heritages, messages of the holy texts and green laws that were passed to preserve and advance the environment.

As a rule of state, environmental pollution is a business of shame in the environment. Environmental pollution also symbolizes that our mechanisms are not operating as per the mandate of law. Eventually, pollution rapes rule of law. Kathmandu’s deteriorating air quality and Nepal’s failure to upkeep sustainable development practices would certainly question our capability to deal with environmental menaces.   

This year’s event, which is being hosted by Cote d’lvoire in collaboration with the Netherlands, comes with the added duty of leading a worldwide movement against plastic waste.

Our legal as well as cultural practices endeavor to regulate the conduct of mankind in such a manner which is conducive to nature and not adverse to nature.  It’s high time for us to realize that all our sacred texts, laws, judgments, conventions and cultural practices show the proximity of mankind with nature. It’s time to implement our green laws, to acknowledge the messages of our cultural practices and to revive our heritage of environmental protection.   

Expounding the theory of utilitarianism, Bentham argued that the governmental actions should be to foster happiness or pleasure and oppose actions that cause unhappiness or harm. In this respect, he favored a political structure where the state’s politics and economics are designed for promoting prosperity among the people.

Under Nepal’s current legal regime, money lending is such a profitable business where the money lender makes a fortune by making the debtor agree on a sum which is much higher than the actual transaction taking place. In every village and town of Madhesh Province, you will find a few money lenders whose job is to lend money to the poor and needy persons. The Tarai courts are filled with loan cases. Surprisingly, the district courts have more than 75 percent of Tamasuk (loan deed) cases.

In fact, borrowing and lending is not an illegal tender but truth and fairness ought to be the two attributes that need to prevail in the entire money-lending business, which the Tamasuk trap does not ensure.

Tamasuk trap

In Madhesh, there is a practice of making loan deed (Tamasuk) of much higher principal amount than the real transaction undertaken between the parties. If a loan debtor pays the amount to the creditor on time, then in such a case, he would have to bear the actual principal amount along with its interest. But, if he fails to reimburse the loan amount on time, the creditor would invoke the jurisdiction of the court by producing the loan deed, which generally sees an agreement between the debtor and creditor where the debtor has agreed to pay the amount within a stipulated time frame and in case of otherwise, the creditor would have all rights to realize the money by all legal means. In fact, the actual transaction does not appear on deed. Rather, it’s a subject of mutual understanding.

Let me explain this situation with an example. If Mr A, who is a money lender, provides loan to Mr B with a sum of NPR 500,000 then Mr A will prepare a loan deed of NPR 1500,000 to which Mr B will agree, on record, to pay 1500,000 with interest at the rate of 10 percent annually within a stipulated period which is prescribed in the deed. This has become a reality in Terai-Madhesh. It’s also a medium to make black money into white.   

The high voltage drama starts in case of any default or breach of agreement or say in case of non-payment of loan on time. The money lenders find the Benches of courts as perfect forums for realizing their claims. As law recognizes documents, which have evidentiary value, the courts pass judgments in favor of money lenders who have produced the original copy of the loan deed.

In addition, the moneylenders seek stay order on the properties of the loan receiver (debtor).  So, the money lending business has become an easy means of earning out of proportion.

A judge recording statements in a money lending case (or cases relating to loan deeds) does not inquire about the source of income of the loan provider. In courts, there is an established practice of not asking a money provider to prove if there was any banking transaction done by him on the date on which he has provided the sum to the borrower. So, in loan cases, the source of income remains outside the purview of judicial determination.

Generally, the deed is made in backdate–before Bhadra 1, 2075 (17 August 2018), the date of implementation of National Civil Procedure Code 2074 BS (2018). After all, the Code of 2074 requires the loan deeds of 50,000 and more to be registered at local bodies. Tamasuk (loan deed) stands valid for ten years from the date of its making.

Practices in South Asia

In Pakistan, the provincial governments are empowered to enact laws on money lending. Take the example of Pakistan’s Punjab Money Lending Ordinance (1960). It provides arrangements for money lending in the jurisdiction of the province of Punjab, Pakistan. Under Section 2(b), capital is defined as the sum of money which a money lender invests in the business of money lending. Section 3 provides mandates for license. It provides that money lending shall be carried in accordance with the terms and conditions prescribed under the license. The District Administration Office is empowered to issue licenses. Section 5 provides that the license would be canceled when the court finds a money lender carrying fraudulent transactions. If a money lender is found showing the loan amount of the sum advanced to be in excess of that actually advanced plus legitimate expenses incurred, then in such a case, their license would be canceled. Section 13 obliges money lenders to maintain accounts.

Like in Pakistan, the state governments in India have jurisdiction to adopt laws on the subject of money lending. Each state has their money lending related law in India. But, the laws are almost similar in nature. Take the example of Maharashtra. The Maharashtra Money-lending (Regulation) Act (2014) provides that no money lenders shall carry on business of money lending except in the area for which he has been granted a license and except in accordance with the terms and conditions of such license. Section 10 provisions that every year the license needs to be renewed. Section 18(2) provides that the Registrar shall issue an order stating the instrument or conveyance as invalid and may order for restoration of possession of property to the debtor who has executed the instrument or conveyance as security for loan advanced by money lender. Simply put, if a loan receiver has transferred his plot of land in the name of creditor against the loan, then the same transfer could be annulled at the order of the Registrar. Section 23 provides that the actual amount of loan and interest under transaction shall only be valid. Section 25 provides that each of the lenders would provide debtors a legible statement as to the amount of loan advanced during the year; total amount of repayments received and the principal amount and interest due at the end of year. Section 39 envisages that whoever carries on business of money-lending without obtaining a valid license, shall on conviction, be punished with imprisonment of either description for a term which may extend to five years or with a fine which may extend to 50,000 or with both. Bangladesh’s Money Lenders Act (1993) has similar provisions.  

Protect the poor     

Article 56(6) of the Constitution of Nepal obliges the federal, provincial and local governments to protect the fundamental rights and to promote egalitarian society. Right to property has been guaranteed as a matter of fundamental rights under Article 25. The unruly money lending business has become a bane in the country. It’s making the poor further poorer and the rich more richer, which goes against egalitarianism. Ultimately, this whole jurisprudence of Tamasuk is maximizing pain and minimizing pleasure; ensuring maximum happiness for the minimum number of people. And, it goes against Bentham’s theory of utilitarianism. This Tamasuk business neither secures poor persons’ right to property, nor does it promote egalitarianism. It’s high time for the government to emerge as a true custodian of fundamental rights and protect the rights and interest of the subjects, as they have reached a social contract with the electorates to protect their rights and concerns.

Given the misuse of law and lenders’ attitude of earning out of proportion through Tamasuk, the government could adopt a law, requiring the courts to seek the source of income of the loan provider. Along with this, there could be a legal arrangement demanding proof of banking transactions done between loan debtor and creditor on the day of making of Tamasuk. Like in Pakistan, the District Administration Offices could issue licenses to money lenders. Money lending should not be done without a license.

In case of Tarai-Madhesh, courts could adopt a practice of mandatorily referring the loan cases, where both parties are present before the court, into mediation for amicable settlement. Its high time money lending business is reformed and strictly dealt with. Above all this, government and private banks should introduce easy schemes of providing loans to the needy ones at the time of their need.  

Jivesh Jha, formerly a Lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court, Janakpurdham.

 jhajivesh@gmail.com

The concepts of equality, fraternity, dignity or positive discrimination were prevalent in the society during the early Vedic period. The references of it were found in scriptures, like Vedas, Upnishad, Yajnavalkya’s Smiritis, Manusmiriti, Mahabharata, Ramayana, Kautilya’s Arthasashtra and among others. Dharma was the essence of rule of law and pivotal on which universally accepted rights/facts revolved. The obedience of law and order was considered to be the sacred (fundamental) duty of every person. It’s high time for the academia and governments to make robust efforts to revive and uphold rich social values of the ancient times.

In this context, Dr Upendra Kumar Tripathi, Professor of Vedic Science at Banaras Hindu University (BHU) and Dr Anoop Kumar, Assistant Professor of Law at BHU, have brought an edited book, Vedic Tradition of Law & Legal System which provides a concise introduction to the concept of Veda, Dharma, perspectives of Bhagvad Geeta and other scriptures, constitutional and legal arrangements relating to Vedic system.

Key issues and principles

The book brings together a collection of 35 chapters which provide a critical investigation into Veda’s key issues, principles, concepts, comparative frameworks, judicial decisions, recent trends in judicial review, global precedents and world’s constitutional as well as judicial position in protecting and promoting the Vedic views and tradition.

The book delves deep into the concept, doctrine and practices enshrined under Smiritis, Vedas and Hindu scriptures. It tries to find answers to why modern democracies are failing to uphold the social values of the past. The conceptual underpinnings are refreshing because they come through verses of Holy Scriptures which are meaningful in real life and they show vivid paths to foster a sustainable democracy.

A 35-page long “Introduction” to the book by the authors is like an icing on the cake. Dr Tripathi and Dr Kumar, whose recurring theme has been the search of Vedic tradition, provisions and practices of Holy Scriptures and recent legal and judicial trends in the world, provide an incisive and in-depth analysis of the authoritative texts, laws and Sanskrit verses.

In introduction, Professor Dr Upendra Kumar Tripathi and Dr Anoop Kumar argue that Vedas, as the source of law, provide foundation for the evolution of law. “Veda, Samhita, Brahmana and Upnisad primarily constitute the foundation of Vedic tradition of law. This knowledge database is utmost significant for the welfare of individuals in present day social order and state structure,” they write.

The laws for regulating Hindu society from time to time are codified in Smiritis. The Smiritis have laid down definite rules and laws to guide the individuals and communities in their daily conduct and to regulate their manner and custom.

The Manu Smiriti remains one of the finest embodiments of classical law and of fundamental importance in any study of law in Vedic tradition.  The book is divided into five parts with as many as 35 chapters written by different distinguished scholars. The first part of the book contains 15 chapters that relate to “Dimensions of Vedic Jurisprudence and Tradition.”

Views on legal system

In the first chapter, Justice BN Srikrishna, former judge of the Supreme Court of India, writes: “The most important and the earliest of the metrical Smiritis is the Manava Dharma Shastra or Code of Manu. It is closely connected with the Mahabharata, of which three volumes alone (III, XII, XVI) contain as many as 260 of its 2684 Shlokas.”

Justice Srikrishna further writes that Vedanta teaches us that all humans are one family. The Universal Declaration of Human Rights (UDHR), 1948 states that all human beings are born free and equal in dignity and rights. This fundamental human value is seen as Vednatic thought. Geeta, in Chapter-6, Verse 29, says all humans are equal, argues he.

He further argues that justice is identical with divine reason, with the divine nature and essence, which, being eternal and immutable, excludes all ideas of arbitrariness.

 Malbika Majumdar, a former Professor of Delhi University, unravels facets of Mimamsa jurisprudence. According to her, the idea of law continues to grow and the process never seems to be ending.

RP Rai and Kiran Rai in their chapter, entitled, “Influence of the Vedas on Hindu law and the Role of Uttar-Mimamsa” argue that the Vedas are the oldest religious texts still in use and the Hindu law is considered to be among the world’s oldest known system of jurisprudence.”

Kavitha Balakrishnan in her chapter “Legal Trajectories of Ancient India: Reflections in Smiritis” writes that each country develops legal system according to culture developed through ages. She highlights that sacred law (Dharma), evidence (Vyavahara), history (Charitra) and edicts of kings (Rajasasana) are the four legs of law.

In addition to this, there is a pressing need of re-designing the legal education programs to promote Indic values, write Gigimon VS and Adithya Anil Variath in their chapter.  Also, Harekrishna Satapathy’s chapter examines Vedic views of legal education.

Sapindar Kaur in “Diversity in Concept of Dharma and its Relationship with Indian and International Legal Thought” argues that diversity in Hinduism is there because it consists of sects, sub-sects, communities with varied traditions and inclusive of Buddhism, Jainism and Sikhism.

Kartikey Singh Somvanshi in “Vedic Knowledge: A Symphony of Modern Era” discusses Vedic traditional texts and their utility in present legal structure. Durgesh Shukla has discussed laws and politico-economic principles given by Chanakya.

In “Tracing the Development of Dharma from Ancient to Modern Society,” Mozamil Ahmad writes: “Over time, Dharma has operated as a unifying force for the diverse evolving customs. The Sashtras like the religion of Hinduism are not Monolithic, the continuous interpretations and re-interpretations offer society to rediscover itself again and again. The continuous comparison of the sources of Dharma with the modern legal tradition merges to contribute towards a better society.”

In the 12th chapter, Paragati Bajpai shares instances which suggest that Dharma is the source of law. “Dharma and law are interwoven even in present time and cannot be separated.” In the succeeding chapter, Paranjul Dalela and Shirish Parashar have also discussed Dharma as source of law from a different perspective.

Sruti Badu discusses the juristic personality of idols in India in 14th chapter. In the 15th chapter, Mitsu Parikh and Ankitashri Tripathi discuss the verses of Bhagvad Geeta as the source of law. “Prosperity has bred greed and corruption. Reminding oneself of our magnificent past and enriching scriptures and knowledge of their essence can bring back the balance we need to develop into thoughtful beings and evolve,” they write.

Live and let live  

The second part of the book hosts eight chapters that delve into the study of constitutional provisions and environmental concerns from the lens of Vedic tradition. In the 16th chapter, Amar Pal Singh and Shivani Chauhan discuss the fundamental duties. “The whole idea is determinable on the basis of Dharma which involves both moral and legal duties to be discharged without any exception,” they write. They cite a Sanskrit verse which says there are only two conclusions of all 18 Puranas and the commentaries of Vyas: Welfare of others is virtuous and teasing others is sin.

“We should nurture and raise a generation that would sacrifice one (person) for the sake of the family; give up a family for the sake of a town; sacrifice a town for the benefit of the nation; and also leave the earth for the benefit of the soul.”

Professor VS Mishra, who teaches Law at Banaras Hindu University, discusses constitutionalism and rule of law. The judiciary has created a congenial environment for sustaining democracy and the rule of law through transformative constitutionalism, he argues.

In the 18th chapter, the book devotes a good deal of sections to explaining the land administration. In the 19th chapter, Pavithra R shades light on Mimamsa rules. The chapter argues that Mimamsa rules could help to resolve conflicts, as they serve as tools to address the problems of contemporary days.

Pragyan Deep Agarwal and Sunny Khatri present a description on Hindu temples and argue that temples are the backbone of Vedic culture.

Nitish Rai Parwani in his chapter discusses the state and nation. He argues that a nation is more stable than a state, for a nation can survive even without sovereignty.

Saurav De explores Vedic literature to explain different dimensions of environmental protection. He explains how Vedas embody verses in protection of the natural environment. Nistha Tiwari too explains environmentalism through the lens of Vedic tradition.      

The third part of the book embraces four chapters which give a perspective on criminal law under Vedic tradition. In the 24th chapter, Akhilendra Kumar Pandey, a professor of law at BHU, discusses the laws given by Manu, Yajnavalkya and other scholars. He argues that punishment should ideally be uniform. He believes that the doctrine of guilty mind, deterrence as one of the justifications, uniformity and individualization of punishment were very much present in old Indian traditions.

Rajasi Guharoy, Assistant Professor of Law at Adamas University, Kolkata, discusses the instances that suggest that the basic principles of law remain the same as it was during the Vedic period. Indrajeet Dey, an advocate at Calcutta High Court, discusses about Vedic tradition and sentencing policy. In modern world, where there is a debate about introduction of castration as form of punishment for offenders of sexual violence, the Mahabharata and Bhagwat Purana have dealt with such issues already, he argues.

“There is a need for spiritual education amongst the persons running the system as well as the convicts who are seeking to correct themselves,” says Professor Guharoy.

The 27th chapter of the book written by Vishnu Pandey discusses the concept and forms of punishment in Vedic tradition. He discusses the theories laid down under the writings of Manu, Yajnavalkya, Kautilya, Katyayana, among others. 

 The fourth part of the book includes three chapters on family laws in Vedic tradition. The Vedic views of inheritance, marriage, gifts to married daughters, Mitakshara and Dayabhag schools, rights of women and children under Vedic as well as modern legal system have been discussed in this part. In this section, Brajkisore Swain, Saugata Talukdar and Aradhna Nair have contributed their insightful chapters.

Under the fifth part, the book presents views on commercial law from the perspective of Vedic tradition. Mayank Paratap in his chapter argues that some of the living examples of basic principles of contract law can be seen in Hindu scriptures. Uniformly, all Smiritis lay down that a person is competent to contract only after he attains the age of 16 years. Kautilya in Arthasashtra states that forced or fraudulent transactions shall be null and void. Contract without free consent is also considered invalid by the Smiritis. “Only a significant difference between modern law and Dharmasastra is that if the former is considered with only conduct of the human beings, the latter dealt with both conduct and character.”

The concluding part of the book carries five chapters which provide lucid views on taxing system, patenting and intellectual property rights from the Vedic perspective.

The editors Dr Kumar and Dr Tripathi in Introduction write: “The book presents perceptions of different authors on the various facets of Vedic tradition of law and legal system. A common concern visible in this book is that the legal tradition of Bharatvarsh should be explored in comparison with contemporary legal regimes.”

Reason to read

If there is one reason to read Dr Tripathi and Dr Kumar’s timely exposition it is their endeavors to give conceptual clarities on the Vedic science and its impact on modern legislations, and its role in upholding fundamental freedoms, rule of law and constitutionalism since ages. They do not only discuss Vedic philosophy from an Indian perspective but also devote a good deal of section for international precedents. Their book should be a mandatory reading for lawyers, judicial officers, adjudicators, journalists covering Vedic and legal affairs, teachers and students of various streams, including that of social sciences and law.

Jivesh Jha, formerly a Lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court, Janakpurdham.

 jhajivesh@gmail.com

According to the United Nations Commission on Human Rights, there are eight key attributes of good governance–participation, rule of law, transparency, responsiveness, consensus-oriented system, equity and inclusiveness, effectiveness and efficiency and accountability. In 1992, the World Bank in its report of “Governance and Development” floated the definition of good governance as the “the manner in which the power is exercised in the management of a country’s economic and social resources for development.”   

The provisions, like one-third representation of women in legislature, proportional representation, inclusivity in state affairs, equality and equity for mainstreaming the weaker sections, federal structure to frustrate centralizing tendencies and guarantee of human rights, envisaged under the Constitution of Nepal favor the attributes of good governance. But, the problem lies in implementation of law and order in a true and material sense. Every five years, the country goes to election for a fresh mandate. The political parties contesting the elections float ambitious plans and policies through their election manifestos and electioneering but the actual work remains modest.

The new government must work for job creation and improving education and healthcare for the people.

Unemployment, inflation, expensive healthcare services and costlier education remain major challenges. Timely intervention is needed in these sectors. From government schools to government hospitals, everywhere quality of service is substandard. As harsh as it may sound, it is a fact that government hospitals, by and large, are neither well-equipped nor dedicated to serve the patients. Private hospitals, whose main priority is to milk money, can be a lifeline but they cannot be a substitute for government hospitals. In a welfare state, it’s unjust to let the patients die just because they cannot afford medical treatment at private or government hospitals.

An interesting phenomenon that can be seen in our part of the world is that doctors have served as lawmakers—of which some became ministers, while some held higher government offices.  Moreover, we had the privilege to see a medical doctor–Dr Ram Baran Yadav–serving as President of the country right after the removal of constitutional monarchy. Despite this, neither legislators nor top officials have contributed anything substantive for the betterment of healthcare services in Nepal. As a matter of fact, similar is the situation with the education sector.

It is sad to observe that the standard of education in our country is continuously deteriorating due to its commercialisation and over-privatization. Our political parties are yet to form a consensus on employment, education and healthcare—which are basics for leading a meaningful life. Our leaders are yet to stand against over privatization of education and healthcare. There is no check and balance for government-aided schools and hospitals. There is a lack of implementation of rules and regulations by the private sector and there is corruption in the public sector. 

Even the mandatory laws are under violation by medical staffers. Section 29 of the Public Health Act (2018) envisages that the doctors would prescribe the medicine under generic name. Section 32 of the Act prohibits health professionals working in government hospitals from working in the private sector. But in practice, doctors are reluctant to prescribe medicines under generic names and the civil hospital doctors’ priority for private clinics and hospitals are known facts. They are not abiding by the laws. But they face no actions. 

Even the government schools and colleges have measurably failed to upgrade themselves in line with the needs and expectations of young generations. Parents are compelled to send their kids to private schools because of their obsession with English-medium education. Even if they are incorrect, they want to hear their kids say a few lines in English. Unfortunately, many parents now view private schools more as a status symbol that they want to uphold, even if the fee of the school is extremely high.

The majority of government hospitals and educational institutions are victims of negligence, chronic shortage of resources and poor delivery.  In addition to this, our governmental initiatives have been poor in providing appropriate jobs to youths who are academically sound. They are bound to leave the country in search of better opportunities. Ironically, there is a common presumption that good students and sound professionals don’t have a better future in Nepal. It’s high time to curb this mindset by creating job opportunities.    

Job creation is the only solution to the unemployment problems. Owing to lack of employment prospects, the youths today either live with an apprehension of unemployability or they leave the country to find jobs abroad. We are yet to introduce measures to stabilize and stop the outflow of migrant workers. Remittances are the foundation of Nepal’s economy, constituting about one-third of the GDP, sustaining the national economy as well as adding to household incomes.

Good governance is needed 

The people have elected parliamentarians with high hopes and expectations. Better employment opportunities, improved education system, job-oriented and skill-based courses are obvious expectations of the youths from the new government. It’s high time political parties stood on the same page, at least, in case of infrastructural development and ensuring employment. Poor governmental institutions, over privatization of education and healthcare and unemployed youths in every nook and corner would frustrate good governance. We have progressive constitution protecting and promoting good governance. Now, it’s time to deliver and implement our laws, for Nepal deserves to abide by good governance.

Moreover, a cleanliness drive is in the villages, ponds and markets. The local folks are rigorously engaged in cleaning watercourses (ponds or rivers where Puja is to be performed). This festival advocates for cleanliness and the natural environment. 

The festival, which is associated with faith, purity and devotion to the Sun God, has become a Mahaparva (grand festival) which is mostly observed by married women and it witnesses a complete submission of devotees before the Chhathi Maiya.  As the word Chhath means six, it is celebrated on the sixth day of the month of Kartika. However, in ancient Prakrit, the word Chhath means sixth, as the festival is celebrated twice every year on the sixth lunar day of Chaitra and Kartik months of Hindu calendar. The Chhath celebration usually begins six days after Diwali, the festival of lights.

Chhath in Hindu scriptures  

Also known as Kartik Chhath Puja, Chhath is a festival popularly celebrated in Nepal’s Tarai region and India’s Bihar, Jharkhand and the eastern part of Uttar Pradesh. The festival is dedicated to Sun God and his wife Shasti Devi (Chhathi Maiya).  Chhathi Maiya is believed to be the consort of Sun God. 

Vedas mention Usha, wife of Sun God, as Chhathi Maiya. Regarded as a solar festival, Chhath is not a gender-specific festival but has traditionally and socially been women-centric as Chhathi Mai is said to be protector of goddess of children, ensuring their longevity and good health.

All the devotees without any distinction of caste, color or economy, arrive at the bank of rivers or ponds for extending prayers,promoting equality and fraternity.  

There is a fair corpus of Hindu scriptures mentioning the importance of Chhath. Of them, Ramayana and Mahabharata hold much water.  After returning from a 14-year exile, Lord Rama and Mata Janaki (Sita) observed a fast in the honor of ‘Surya Dev’ (Sun God) and broke it only at dawn the next day. Since then, Chhath Puja has become one of the most important festivals among Hindus, which is celebrated with devotion and dedication every year in the month of Kartika (Shukla Paksha).

In Mahabharata, Karna, the son of Surya Dev and Kunti , offered prayer by standing in the waters and distributed Prasad among the devotees, Rishis and others. Yet another story holds a significant space in Hindu texts about how Draupadi and Pandavas performed similar worship to defeat and dethrone Kauravas.

The rituals 

The devotees express their solemn gratitude towards lord Surya and perform important rituals over a period of four days. The people, generally women, who hold fast, are called Vrati.  This festival is neither caste or class-centric. In fact, it’s the festival which promotes socialism, equality, cleanliness and fraternity among the community members.

The Chhath Puja begins with a vow to remain pure and sublime by not taking onion, garlic, hotel-made foodstuffs or other non-vegetarian food till the conclusion of the festival. In other words, it’s a complete submission to God.

It is believed that the bath on the occasion of Chhath works as a healer of leprosy and other skin diseases. The holy baths on this auspicious festival work as catalysts to impress Chhathi Maiya, for there is an assumption from time immemorial that the god blesses her devotees with well-being, prosperity and longevity.

The devotees by relinquishing impure foodstuffs (that is, non-vegetarian, and onion and garlic) make a humble submission that they have submitted themselves before the God for observing Puja and pledge to live under the blessings of the God throughout the life.

This way, the devotees on the first day take a vow to not to consume fish and other non-vegetarian food items or any other unholy products during this four-day long festival. It’s called “Machh-maruwa Barnai.”  

In general, it’s believed that Chhathi puja starts from Nahay Khay. But, it’s partially true. The Puja commences from “Machh-maruwa Barnai–the day before “Nahay Khay”, where the devotees and their family members take a pledge to refrain from eating non-vegetarian foods, garlic and onion-made food items. On this day, the devotees take food after taking bath and offering prayers to Sun God. The devotees consume foods that are prepared in their own kitchen.  It’s considered unholy to consume foods bought from hotels or markets. 

The Kharna is considered as the second day. The devotees fast till the conclusion of Kharna in the evening. Kheer made up of rice, milk and Gund (Jaggery) and Puri are offered to the God and distributed among the family members later in the evening (after sunset).  

The third day is called Saunjh ka Arghya (evening offering), often called Pahila Arghya. This day is considered to be the toughest day for the devotees, who are mostly women. They observe a rigid fast where they neither take water nor any food item. They take dips in the waters, mostly neighborhood ponds or rivers, in the evening and it goes till the sunset. They offer prayers to Sun God with all the fruits and Prasad prepared in their own but separate kitchen, like Thakuwa, Bhuswa, Khaja, Mithae and other fruits, including oroblanco grapefruit, sugarcane and banana.  

The offerings which include a pair of coconut, turmeric roots, green vegetables that are grown under soil such as radishes, sweet potato or carrot, are kept in a “Sup” (winnow) made up of sticks of bamboo.  In addition to this, the offerings are also kept in potteries.

A woman smears vermillion on the forehead of another woman at the Ghat (bank of rivers or waters). It is considered auspicious to do so while extending prayers to the Sun God.   There is a common belief that women apply long yellow vermillion from head to nose to impress Chhathi Maiya to seek her blessings for the longevity of her husband and for the prosperity of her family members. 

On the Bhor ka Arghya (morning offering), the fourth and final day, the devotees break their fast after offering prayers to the rising Sun. They take a dip in the waters and offer every Prasad to the Sun God again.

This way, the devotees take fast without consuming a single drop of water, or other foods for more than 36 hours (beginning from Saunjh ka Arghya to the Bhor Ka Arghya). Eventually, the Prasad is distributed among family members and friends after completion of morning offerings.

Importantly, the festival is synonymous to the sacrifice and dedication of women devotees. The devotees take fast and abstain from taking even a single drop of water for more than 36 hours and apply vermillion to impress the Chhathi Maiya so as to seek her blessings for the wellbeing of her husband and kids.

This showcases that women, in our part of the world, always put husband, children and family first. They take rigorous fast to seek blessings of God and that too for the prosperity of her family members. It’s believed that childless couples take fast to seek blessings of the Sun God for getting progeny. 

There was and is a ritual of offering 70 types of homemade foods and fruits. However, it has some exceptions as well. If a devotee fails to offer all 70 types of food items, s/he has to offer Gamhari rice, which is exclusively cultivated in Tarai and northern India, as a substitute for all the other lacking food items. 

Cleanliness, socialism, equality and fraternity   

A few things about Chhath are worth remembering here. This festival demands clean and green waters. This way, it advocates for a pollution-free atmosphere. Chhath seeks to unite the people in the fight against environmental hazards. 

The male members of every family have a duty to reserve an area at the ghat, the bank of watercourse, by drawing a circle or square in the sand in which their respective family members could take shelter (in sitting mode) on the third and fourth day, on the days of evening and morning prayers. As there is a fair struggle among devotees to secure the best spots, every family reaches with broom and hoe tools to clean and reserve an area at the ghat. 

Dedicated to Chhathi Maiya and Sun God, Chhath is one of the unique festivals that does not require worship of any idols.  

Moreover, it’s the festival which tightens the bonds of equality, fraternity, unity and integrity. Every devotee—rich or middle class—prepares almost similar Prasad and other items to offer to the Almighty. All the devotees without any distinction of caste, color or economy, arrive at the bank of rivers or ponds for extending prayers. In this respect, the festival promotes equality and fraternity.  

Maybe this is the only festival that goes without necessity of male priests and utterance of Sanskrit mantras. However, on the final day–on Bhorka Arghya–a woman devotee at the ghat (bank of pond or river) recites a story of how Chhath puja began and became a part of festivity among its devotees.   

Dedicated to Chhathi Maiya and Sun God, Chhath, an ancient Hindu Vedic festival observed in India and Nepal, is one of the unique festivals that does not require worship of any idols. The festival finds a prominent place in both Ramayana and Mahabharata.

Message to take 

The food items prepared for Prasad or the melodious songs played at the Ghat or streets showcases our culture and invoke people to revive our cultural, traditional and linguistic legacy. This is also a forum to celebrate our folk music, dance, drama and revive our forgotten and fading cultural legacy of the region.

Cleanliness, fighting against environmental pollution, equality, socialism, natural products, fraternity and submission to the God for the prosperity of the community members are the messages of the Chhath, the grand festival, and it’s high time we acknowledged these messages in our daily life. 

Our atmosphere deserves to be pollution-free, at least for keeping the messages of Chhathi Maiya alive throughout the year.

This festival celebrates the Goddess Durga’s victory over demon Mahisassura to protect the Dharma. In addition to this, Vijayadashami signifies Lord Rama’s victory over Ravana. The annual festival is celebrated with great enthusiasm and fervor. In Nepal’s southern plains, devotees sacrifice goats on the seventh (Saptami) and eighth day (Ashtami) of Dashain to please goddess Durga.  

Dashain is, however, not about shedding blood to please god. It’s propitiating Goddess Durga to get her blessings for a healthy, prosperous and meaningful life. Janakpur’s Rajdevi temple is famous for the sacrifices of goats on the eighth day of Dashain. Locals believe the ritual of slaughtering goats here at the temple has been taking place since time immemorial.

Hindus in Nepal customarily offer goats for sacrifice to appease the almighty God and Goddess, especially power goddesses Durga and Brahma, the creator of this universe, for peace, property and prosperity.

In general, around 14 to 15 thousand goats are sacrificed on Asthami every year at Rajdevi temple. The slaughtering generally begins after 7:30 PM and concludes before sunrise (6 AM). People consider this act as a vow to the gods.

However, animal sacrifice receives condemnation and criticism every year. Animal rights activists argue that animal sacrifice is not an essential ritual in the worship of a deity. However, the devotees are not in favor of putting an end to this centuries-old ritual of sacrificing animals. They believe that the Hindu devotees bring animals to please their goddess Kali.

The animal sacrifice has been considered holy in the Hindu scriptures. It has been mentioned in 10th verse of the 12th chapter of the holy text Durga Saptashati. Apart from this, Devi Bhagabat and many other religious texts also advocate for animal sacrifices to please the almighty.

As a matter of fact, a large section of devotees in Janakpurdham who offer sacrifices to goddess Durga believe that the goddess Durga would bless them peace, prosperity and success if they sacrifice goats on the seventh or eighth day of Dashain. Some say there would be uproar, not only in Janakpurdham but also across the country if animal sacrifices would be completely stopped.

Along with that, some bad practices have started in the name of sacrifices. A section of youths considers sacrificing goats as a matter of fun. They offer goats to celebrate picnics or just for the sake of festivity, not with the true spirit of the festival.

Interestingly, priests who are involved in animal sacrifice are vegetarians but they support and encourage the devotees to offer goats, saying that such an act would appease goddess Durga and that she would fulfill their wishes. But, they never disseminate a message that Hinduism is a religion that supports peace. God cannot be satisfied by the blood of innocent animals.

It is to be noted here that Nepal is a member state of the World Organization on Animal Health. The member states are duty-bound to ensure five basic freedoms to animals: Freedom from hunger, thirst and malnutrition, freedom from fear and distress, freedom from physical and thermal discomfort, freedom from pain, injury and disease, and freedom to adopt normal behavior.

As such, the state could intervene to strike a balance between the law and religious practices. There could be a law demanding a procedure of killing of animals so as to cause the least pain. Sadly, the goats are killed by untrained persons causing much pain to them. The innocent animals, who have no voice and cannot fight back, are killed and other goats also see their fellow animals getting killed.

Animal sacrifice is not limited to one particular religion or community. There are many communities in the southern plains of Nepal which believe that animal sacrifice rituals bring them success and prosperity in business, studies, or prosperity. If they don’t do it, they believe, there will be no success.  Thus, there may not be a complete ban but if it’s a person’s religious practice to sacrifice animals, then there should be criteria on how to kill animals (by inflicting the least pain possible).

Goats sacrificed at the Rajdevi temple are often imported from neighboring Indian markets. Thus Indian farmers benefit from sacrifice rituals in Nepal. Many purchase big, healthy and expensive goats to offer to goddess Durga. Then they preserve the meat for a few days and organize a feast.

The Hindu texts actually advocate sacrificing sins and wrongdoings to please god. Animal slaughtering can’t please the god. Religious freedom is safeguarded by our constitution. But, it cannot offer a blanket power to sacrifice animals. As every right comes with certain limitations, religious freedom to sacrifice animals could also have certain restrictions—the procedure of killing animals that could inflict lesser pain to animals.  

Slaughtering in the name of ceremony or religion is evil. Like us, they too deserve rights and respect. Hinduism is the religion of peace. Over and above all this, paying tax to fund the death of innocent animals could not be considered a justified act.

Let’s think of adopting measures that cause the least pain to the animals. A complete ban may not be possible but let’s think of what is possible today.

The article originally published October 13, 2021 has been republished.

In fact, observing the constitution and becoming familiar with its provisions is a fundamental duty of every citizen by virtue of Article 48 of the Constitution.  But have we succeeded in implementing our constitution in letter and spirit? As a matter of fact, the constitutional mandates are mere black letters of law in our context. They are yet to come into full-fledged implementation. Here is how.

Under the new Constitution, Nepal’s federal structure is merited with a development that divided the country into seven provinces, with clear lists of legislative powers for the federal, provincial, and local governments. The other main characteristic features of the charter are inclusiveness and commitment of the state to guarantee fundamental rights, like right to health, employment, education, and environment to all. The milestone for this constitutional spirit was set by the 2007 Interim Constitution and the 2015 charter gave emphasis on the continuance of this inclusivity with certain modification in number of clusters, keeping in mind the rights of women, the disabled, sexual minorities and other oppressed groups.

However, the cherished dreams of the constitution are yet to come true. Let me discuss here some of the laws enacted to implement the provisions of fundamental rights.

Right to environment

 In Nepal’s context, the right to a clean and green environment to every citizen [Article 30] is merely a promise of the state to its citizens. And this promise is meant to be broken, not observed. In order to protect ecological interests, Nepal’s Parliament passed the Environment Protection Act in 2019, which replaced the previous environmental protection legislation of 1997.  The federal, provincial and local governments and even private individuals are obligated to safeguard and conserve the environment under this green law.

The Act includes a number of clauses aimed at environmental conservation and enhancement. The Act’s preamble envisions that the pollution victims have the right to seek compensation from the individuals or entities responsible for the pollution. This arrangement is in accordance with Nepal’s Constitution’s ‘polluter pays’ principle as stated in Article 30(2).

Apart from this, Local Government Operation Act (2017) hosts a plethora of provisions where the local units have been conferred with the power to enact laws, policies and other measures. Section 11(2) (i) empowers the local bodies to adopt and enact measures to contain the pollution and to ensure clean water and fresh air.

But in practice, pollution is what troubles the Nepalis. In 2021, Kathmandu stood ninth on the world’s most polluted cities’ index.  In the case of local bodies, they have also failed miserably to act for the protection of the environment. For instance, Janakpur is known for stranded pigs, solid wastes from hospitals and households on the streets, unmanaged drainages, bad smells of rotten things, and abnormally high number of mosquitoes.

Given these bad precedents, it suffices to conclude that Nepal’s environment laws are merely cosmetic in nature.

Right to employment

The government has enacted The Right to Employment Act (2018) to give effect to Article 33 of the Constitution that confers a fundamental right on every citizen to select employment.

The preamble of the Act (2018) intends to ensure employment to every citizen. Section 11(2) empowers the Employment Service Center (ESC), which is to be established by the Government of Nepal under Section 10, to prepare a list of ‘actual’ unemployed persons from the list of total applicants. The Act does not incorporate any provision suggesting the time period within which jobs will be provided to the applicants. The Act contains nothing to foil the outflow of migrant workers. Despite these legal arrangements, the youth unemployment and outflow of migrant workers have been one of the most pressing issues being faced by Nepal.

The constitutional mandates are mere black letters of law in our context. They are yet to come into full-fledged implementation.

Right to safe motherhood

The Right to Safe Motherhood and Reproductive Health Act (2018), which is enacted to give effect to Article 38 of the Constitution, is also with ill fate. This Act has welcome provisions but they are yet to be taken seriously. For instance, Section 13(3) provisions for a designated place for breast-feeding in every office. Unfortunately, there are a handful of non-government and government offices in Nepal that have made arrangements for designated places for breast-feeding.

Moreover, Section 32(3) directs the private hospitals to charge affordable fees. But, the Act does not contain any explanation as to what constitutes ‘affordable’ fees. So, what’s the yardstick to determine if the fee is affordable or hardly affordable ? The private hospitals may interpret any sum of fees as an affordable fee. Again, this law, too, is ignored.

Right to education

The Right to Free and Compulsory Education Act (2018), which is adopted to implement Article 31 of the constitution that deals with right to education, is an instrument of guarantee in a sense that the onus to ensure free and compulsory education lies on the state.

Though the Act envisaged that the provincial governments and local bodies would aggressively ensure that the children are brought into schools, the school dropout rates show the non-compliance of the legal arrangements. A report of the School Sector Development Program says that about 86 percent of children who enroll in grade one reach grade five and only 74.6 percent survive to grade eight. This shows a grim face of reality.

The Act provisions that the persons who would not have received basic level education–from class one to eight–would not be eligible for any government or non-government jobs or benefits after 10 years (after April 13, 2028).

So, we could have islands of unemployed youths if we fail to educate our children.

Nelson Mandella has said, “Education is the most powerful weapon which you can use to change the world.” We can bring a change in the country if we succeed to enforce this Act in true and material sense. It is yet to be seen if this Act will be truly implemented.

Think beyond celebration

The 2015 Constitution of Nepal is the seventh constitutional document in a span of approximately 68 years. Mere celebration of the Constitution Day without a commitment of implementing its provisions would be of no use.

We have enacted a good deal of laws but they are of cosmetic value only. Consider the Right to Food and Food Sovereignty Act (2018). It’s a welcome legislation which aims to foster the cause of socio-economic democracy. This Act encourages the federal, provincial and local authorities to take (joint) initiatives in limiting the complexities coming in the way of food sovereignty. But, we don’t have sufficient food productivity. Our dependence on import of foods from India and abroad shows that we have failed to ensure food sovereignty in our country.

The debates, dialogues and discourse for reformative laws without ensuring a reformation in true sense would be a joke. Our all laws, not only some of the laws that are discussed here, deserve to be implemented. Action speaks louder than words. HLA Hart, a jurist of the Analytical School of Jurisprudence, has rightly said that enactment of law is one thing while implementation is the other. Our failure to abide by the constitutional ethos is contempt of the constitution. The violation of the Constitution is a fraud on the constitution. It’s high time to abide by the constitution.

In Madhesh, if there is something which is profitable it’s none other than the money lending business. It’s a general practice of lending money to the needy people and asking the loan debtor to agree on the loan deed of three times higher the amount actually taken from the creditor. As the deed, which is duly signed, has an evidentiary value, the creditors knock the door of the court at the instance of non-realization of the loan amount within a stipulated time frame set under the deed.

Mediation in Nepal

The Mediation Act (2011) and its Rules framed in 2013 provide for the procedure of mediation to settle a dispute in a speedy and simple manner. Section 3 of this Act provisions that, in case, parties intend to settle a case which is pending before the court through mediation and such dispute may be settled through compromise, the adjudicating authority may pass an order to refer the case into mediation center for reaching into a compromise. In Nepal, it’s a general trend of the courts to refer the civil cases, including that of matrimonial disputes and land encroachment issues, into mediation.

The National Civil Code (2017), which is a general substantive law in Nepal, contains provisions for mediation in civil matters. Take an example of divorce. Section 97 of the Code provides that if a petition has been filed in district court for divorce by husband or wife, the court would have to compulsorily pass an order, directing the parties to sit for the mediation.

As law recognizes documents the courts pass judgments in favor of money lenders who have produced the original copy of the loan deed. Thus money lending business has become an easy means of earning out of proportion.

The Civil Procedure Code (2017), which is a civil procedural law, under Section 193 provides that if a case is sub judice and the parties wish to enter into a compromise at any stage, they may make a joint petition, stating that the matter has to be resolved on certain grounds. If, in reading out the contents of the deed of compromise, the parties agree to enter into a compromise, the judge shall cause both parties to affix their respective signature and thumb impression on such a deed of compromise and authenticate that the deed of the compromise has been executed in his or her presence, attach one copy with the concerned case file and give one copy each to the plaintiff and defendant.  Section 194 further clarifies that disputes may be settled through mediation. However, there are some cases which cannot be mediated. Section 195 envisages that a case instituted where the government of Nepal is a plaintiff and a case related to public, government or community property shall not be settled by a compromise or mediation. However, for maintaining the property of the government, mediation could be undertaken.

The cases such as dishonor of cheque, forgery, criminal trespass and looting mentioned under Schedule 4 of National Criminal Procedure Code (2017) could be mediated. In addition to this, cheating cases (which is a matter of Schedule-1 of the National Criminal Procedure Code) instituted by an individual can be mediated but if the matter relates to the looting or misappropriation of government property, then it cannot be mediated. Similarly, cases of contempt of court and Public Interest Litigations cannot be resolved through mediation. 

Most importantly, the laws in Nepal provide economic benefits to the litigants if they resolve their issues by way of amicable settlement. If the parties reach a compromise before the court passes the orders for evidence collection, the party would have to bear only 25 percent of the court fee. But, if the compromise is reached after the collection of evidence, the party would have to bear 50 percent of the court fee. This shows that the dispute settlement by way of compromise is better from a financial perspective as well. 

Money lending in Madhesh

Money lending has become an evil culture in Madhesh where it’s a popular practice of taking loan from the money lenders at the time of need. In fact, borrowing and lending is not an illegal tender but truth and fairness ought to be the two attributes that need to be upheld in the entire money-lending business.

 In Tarai, there is a practice of making loan deeds of much higher principal amount than the real transaction undertaken between the parties. If a loan debtor pays the amount to the creditor on time, then in such a case, he would have to bear the actual principal amount along with its interest. But, if he fails to reimburse the loan amount on time, the creditor would invoke the jurisdiction of the court by producing the loan deed, which generally sees an agreement between the debtor and creditor where the debtor has agreed to pay the amount within a stipulated time frame and in case of otherwise, the creditor would have all rights to realize the money by all legal means.

Generally, if the debtor pays the loan on time, then he would have to pay the actual principal amount, which is much lesser than the amount appearing on the deed, and its interest. But at the occasion of his failure to pay the loan, then he has to bear the principal amount plus interest which is, generally, much higher than the actual amount he has taken from the creditor. In fact, the actual transaction does not appear on paper. Rather, it’s a subject of mutual understanding. The creditors often maintain a personal diary where they maintain an unofficial record of actual transactions.

Let me explain this situation with an example.

If Mr A, who is a money lender, provides loan to Mr B with a sum of NPR 500,000, then Mr A will prepare a loan deed of NPR 1500,000 in which Mr B will agree, on record, to pay 1500,000 with interest at the rate of 10 percent annually within a stipulated period which is prescribed in the deed. This has become a reality in Tarai. 

The high voltage drama starts in case of any default or breach of agreement, or say, in case of non-payment of loan on time. The money lenders find the Benches of courts as perfect forums for realizing their claims. As law recognizes documents, which have evidentiary value, the courts pass judgments in favor of money lenders who have produced the original copy of the loan deed. So, the money lending business has become an easy means of earning out of proportion.

A judge recording statements in a money lending case (or cases relating to loan deeds) does not inquire about the source of income of the loan provider. In courts, there is an established practice of not asking a money provider to prove if there was any banking transaction done by him on the date on which he has provided the sum to the borrower. So, in loan cases, the source of income remains outside the purview of judicial determination.

Generally, the deed is made in backdate–before Bhadra 1, 2075 (17 August 2018), the date of implementation of National Civil Procedure Code (2018). After all, the 2018 Code requires the loan deeds of 50,000 and more to be registered at local bodies. Tamasuk (loan deed) stands valid for ten years from the date of its making.

Need for reformsGiven the misuse of law and lenders’ attitude of earning out of proportion through Tamasuk, the government could adopt a law seeking the source of income of loan providers. Along with this, there could be a legal arrangement demanding proof of banking transactions done between loan debtor and creditor on the day of making of Tamasuk. Like in India, money lending should not be done without a license. In case of Tarai-Madhesh, courts could adopt a practice of mandatorily referring the loan cases, where both parties are present before the court, into mediation for amicable settlement. It’s high time the money lending business is reformed. Above all this, government and private banks should introduce easy schemes of providing loans to the needy ones at the time of their need.

Dr Jha, a former Commissioner of Truth and Reconciliation Commission, borrows the words of Professor Krishna Prasad Upadhyay to trace the historical legacy of Vidyapati with Nepal. Prof Upadhyay argues that Vidyapati was born in 1407 BS in modern India and Nepal’s ancient Mithila.

Vidyapati was born in ancient Nepal’s Mithila’s Darbhanga district’s Bisapi village, which at present falls under India’s Madhubani district. He was son of Ganapati Thakur and Ganga Devi. The name Vidyapati is derived from two Sanskrit words, Vidya (knowledge) and Pati (master), meaning a man of knowledge. He is widely known for his love-lyrics and poetries dedicated to lord Shiva and goddess Durga. Vidyapati is also known by the nickname of ‘Maithil Kavi Kokil’ (the poet cuckoo of Maithili).

In the first chapter, she has accessed the historical facts and life of Vidyapati. Though scholars are at odds regarding the actual date of birth of the great poet, the historical facts suggest that he could have been born in 1350 AD. “In, Songs of Vidyapati, Dr Subhadra Jha writes that Vidyapati was with us from 1352 to 1448,” writes Jha on page 13.    

 In the second chapter, she discusses the writings of Vidyapati.  The ‘Kavi Kokil’ floated the idea of promoting the local literature and culture by proposing a saying: ‘Desil Baina Sabhjan Mitha’, which means the local literature, culture, among others is the sublime thing, writes Dr Jha on page 25. Apart from Maithili, the great poet has penned many scholarly books in Sanskrit which include Bhuparikrama, Purushpariksha, and Likhnavali.

Vidyapati’s writings could be chiefly categorized into three—erotic, devotional and miscellaneous,” writes Dr Jha on page 35. He has written scores of poems to persuade Lord Krishna, Lord Shiva, Goddess Durga and others. Romanticism, which includes a peculiar sense of delight in devotion, is the spirit of Vidyapati’s poetry, argues Dr Jha.

In the third chapter, she devotes a good deal of portion to access Vidyapati’s religious affection. Vidyapati’s songs are considered auspicious among Mithila people. Till today, the temples and governmental and non-governmental bodies of India and Nepal provide full patronage to the classical songs/writings of the great poet. On page 37, she writes, the myths say that he was such a great devotee of Shiva that the Lord was pleased with him in such a way that once he decided to come to live in Vidyapati’s house as a servant. As a servant he is said to have taken the name of Ugna. At several places in the region, Lord Shiva is still worshiped by this name. He composed several songs in the form of Nacharis to please the Lord.  Ugna Temple in Madhuvani district is dedicated to this divine incident.

In Vidyapati’s writings, we can find the mixed flavor of devotion and romance. The fourth chapter of the book aims to find whether Vidyapati is a devotional or romantic poet.  In writings, he dives deep into romanticism and emerges with devotion,” argues Dr Jha, adding, “On the basis of Vidyapati’s Padavali, scholars argue that he was a poet of the romantic genre.”

“Though we can find that Sanskrit literatures had significant impacts on Vidyapati’s writings, his literatures are unique and unparalleled,” she writes in the fifth chapter.

The book’s sixth chapter delves deep to debunk the nexus of Vidyapati with Nepal.  Nepal’s Saptari district had the privilege to host Vidyapati for 12 years,” writes she on page 86. He stayed in Nepal from 1406 to 1418. On page 117, she quotes Satya Mohan Joshi, a cultural expert, to substantiate her claims. Joshi maintains, “The songs of Vidyapati may not be chanted by Maithili speakers of Nepal and India on a daily basis but there has been a practice of observing songs of great poet everyday by Newar community members.” 

Joshi further says that Vidyapati is famous among Kathmandu valley people for a number of reasons. Firstly, Kathmandu valley loves Maithili and secondly, Tirhutiya Brahmin had made strong influence in the capital back then.   

Dr Jha has debunked the historical facts associated with the great poet Vidyapati. She devotes a good deal of section for governmental initiatives undertaken to honor Vidyapati. 

She puts facts which prove that Vidyapati is famous among non-Maithili speakers too. As a matter of fact, the great poet’s song is chanted everyday at Lalitpur’s Krishna temple by Newari community members.

In the sixth chapter, Dr Jha discusses the praiseworthy initiatives undertaken by the governments to commemorate the great poet Vidyapati. His literary works have been preserved by the Department of Archaeology, Kathmandu in digital form.

In Nepal, the Vidyapati Memorial Day is celebrated every year on the day of ‘Troyodashi’ of ‘Kartik Suklapakasha’ to remember the literary contributions of the greatest poet. The Day is observed with full enthusiasm by reciting the Maithili and Sanskrit verses of Vidyapati. Conceived in 2011 [2068 BS] by then Finance Minister Bharat Mohan Adhikary, Vidyapati Puraskar Kosh  (Vidyapati Award Fund) is one of the highest literary awards bestowed upon authors by the government of Nepal every year. The award is given in five different genres—Maithili literature, Maithili art and culture, Maithili research, Maithili script and Maithili translation—to the writers for their outstanding performance in protection and promotion of Maithili. The government of Nepal declares the names of recipients every year on Vidyapati Memorial Day and the award is distributed before the end of the fiscal year. In addition to this, Madhesh Province government had allotted Rs 130 million in 2021 to construct a monument of Vidyapati and beautify the ponds bearing the name of the great poet. It’s a matter of pride and honor to see that big monuments of Kavi Kokil have been explicitly created in Janakpur and Ilam to keep the memory alive.

In “Epilogue,” Dr Jha has discussed the historical facts associated with the great poet. On page 154, she writes that it’s high time to establish libraries, research centers, scholarships, and research grants in the name of Vidyapati to protect and promote the Maithili literature. “The governments’ actions to commemorate Vidyapati are praiseworthy; however, they don’t appear to be adequate,” she writes. Finally, she mentions some of the famous songs and stanzas of the great poet in the appendix section.

Dr Jha has debunked the historical facts associated with the great poet Vidyapati. She does not only discuss the writings of the Kavi Kokil but also devotes a good deal of section for governmental initiatives undertaken to honor Vidyapati. Her book should be a mandatory reading for journalists covering Maithili literature and culture, cultural experts, teachers and students of various streams, including that of literature, social sciences and history.  

Jivesh Jha, formerly a Lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court, Janakpurdham.

jhajivesh@gmail.com

In other words, judicial review means the judiciary can declare a law or legislation as unconstitutional if it is beyond the competence of the legislature according to the distribution of powers or if it’s in contravention of the fundamental rights or any of the mandatory provisions of the constitution. In Nepal’s context, Article 1 expressly secures constitutional supremacy and declares that any law inconsistent to the constitution would be void to that extent. The judicial review is thus the interposition of judicial restraint on the legislative as well as executive organs of the government. 

In this context, Dr Bhimarjun Acharya’s book The Concept of Judicial Review provides a concise introduction to the concept of Judicial Review, constitutional arrangements relating to judicial review in Nepal, case laws pronounced by the sufficiently superior courts of Nepal, India, the United States (US), the United Kingdom (UK) and others.  The book brings together a collection of six chapters which provide a critical investigation into the key issues, principles, concepts, comparative frameworks, judicial decisions, recent trends in judicial review, global precedents and Nepal’s constitutional as well as judicial position in safeguarding the rights and interests of the people. 

The book delves deep into the concept, doctrine and practices of Judicial Review and tries to find answers to why Courts judicially examine the legislations and actions of the governments in a particular situation. The conceptual underpinnings are refreshing because they come through landmark judgments which are based on real life and they have secured the rights and interests of the people.

A 34-page long “Abstract” to the book by the author, a celebrated constitutional law commentator, is like an icing on the cake. Acharya, whose recurring theme has been the search for provisions and practices of judicial review in Nepal, India, the UK and the US among other countries, provides an incisive and in-depth analysis of the judicial interpretation for watering democratic/fundamental freedoms and constitutionalism.

Chapter-wise analysis

In the first chapter, Dr Acharya, a distinguished lawyer, introduces the concept of Judicial Review (JR). The JR is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by an authority.  On page 2, he writes, the system of JR can be classified into two types, namely, the judicial review of administrative action and the judicial review of the legislative acts.

The doctrine of judicial review has, in its long course of practice, been assessed as or shifted into the system or to an institution. Supremacy of the constitution and fundamental rights are upheld by it. In fact, there can be no living or a genuine constitution without judicial review.

Judicial review simply is a type of court proceeding in which the judge reviews the lawfulness of the decision or action made by a public body.

He writes: “In Nepal, the Constitution of Kingdom of Nepal, 1990, had ensured the system of Judicial Review as a basic structure of the constitution and it was not amendable part of the constitution.” The recently promulgated Constitution of Nepal has continued the provision of JR through its Article 133. Likewise, the High Courts enjoy the power of JR through Article 144 of the Constitution.

The crux of the system of JR fundamentally lies in the independence of the judiciary. It is said that judicial independence is maintained by the system of JR and that it becomes one of the fundamental components of constitutionalism and that of the rule of law.

Article 133 of the Constitution gives unlimited grounds of locus standi. “Any Nepali can file a writ petition in the Supreme Court (SC) seeking order to declare the legislative acts and administrative actions void to the extent of inconsistency with the constitution,” writes Dr Acharya on page 6. Explaining the significance of the concept of JR, he argues (on page 8) that “there will be no constitution without fundamental rights, no fundamental rights without judicial review and no judicial review without competent, impartial, responsible and independent judiciary.”

In addition to the concepts of JR, he has also discussed the fundamental rights and the directive principles too in the first chapter.

Dr Bhimarjun Acharya not only discusses Nepal’s perspective on judicial review but also devotes a good deal of section for international precedents.

In the second chapter, he discusses the concept of JR. He has cited international precedents that played a stellar role in the consolidation of the concept of JR. Lord Diplock of the House of Lords in Council of Civil Services Union (CCSU) v Minister for the Civil Services (1985) had laid down three grounds of JR: Illegality, irrationality and procedural impropriety.

The JR of legislative enactments is one of the peculiar features of constitutions of the United States, India, Nepal and so forth. There cannot be any JR of legislation in England where the parliament is supreme and it does not have any constitutional fetters on the powers of legislation.

He devotes a good deal of portion on limitations of JR, writs and their application in the field of JR. The constitution of Nepal has explicitly mentioned the provisions of Public Interest Litigation (PIL), which is a very much advanced form of judicial activism and cannot be found in Austrian and American models. In the US, there appears to be a robust practice of PIL but the same has not explicitly been mentioned in their constitution.

In the third chapter, Dr Acharya sheds light on the evolution of JR. As a constitutional practice, the JR is usually considered to have begun with the assertion by John Marshall, Chief Justice of the United States, in Marbury v Madison (1803), of the power of the SC to invalidate laws enacted by the Congress. In this case, learned Justice Marshall had asserted that it’s up to the judicial department, which is entrusted with the power, to say what the law is. In saying so, he clarified that the judiciary is the ultimate authority to decide the constitutionality of any law and order of the state.

On page 125, he writes, France has had a Constitutional Council since 1958, which, though not a true court, can set aside unconstitutional statutes upon the petition by the President of republic or by the Prime Minister, the Chairman of either of the two legislative assemblies, or a parliamentary minority.

In the fourth chapter, he has discussed Nepal’s perspective on JR. In Nepali context, Chief Justice Hari Pradhan of the Pradhan Nyayalaya (apex court of the country which was established in 1940) in Bed Krishna Shrestha v Ms Secretary, Department of Industry, Commerce, Food Civil Supplies (2010 BS) ruled that the power of judicial review was vested in Pradhan Nayalaya. Interpreting Section 30 of the Pradhan Nayalaya Act (2008 BS) as a source of power of the extraordinary jurisdiction, the court held that power and obligation of the Pradhan Nayalaya, under Section 30, was to prevent unlawful action in case it infringed on the fundamental rights of people.

Thus the Bed Krishna Shrestha case in Nepal established that the apex court had the power of judicial review. In Mrigendra Shamsher Rana v Inspector General of Police (2011 BS), Chief Justice Hari Prasad Pradhan for the first time in the judicial history of Nepal issued a directive order to the government to initiate immediate amendment in Raj Kaj Act. 

In BP Koirala v Prime Minister of Nepal Government (2013 BS), the Supreme Court (SC) held that it had the power to issue appropriate orders and writs for enforcing the rights of the people conferred under the prevailing laws.

The pronouncement of Pradhan Nyayalaya in  Bed Krishna Shrestha v Ms Secretary, Department of Industry, Commerce, Food Civil Supplies (2010 BS) can be compared with the pronouncement of American Supreme Court in Marbury v Madison (1803) in which Chief Justice Marshall has claimed that the power of the JR is inherent power of the apex court, argues Dr Acharya.  

In this chapter, he has discussed the essential features of Nepal’s current constitution as well as the erstwhile constitutions of 1948, 1951, 1959, 1962, 1990, and 2007. In addition, he has cited dozens of landmark judgments of the apex court of Nepal.

In the fifth chapter, he has discussed the paradigm shifts that have come over in verdicts to analyze the progress of JR in Nepal. In this section, he has incorporated a number of leading case laws pronounced by Nepal’s topmost court to uphold constitutionalism and rule of law. 

Dr Acharya gives the title of “Epilogues” to the final (sixth) chapter, where he has discussed the system of JR and its practices in the US, UK, India, Nepal and other countries.

On page 359, Dr Acharya writes: “The Nepali model of judicial review also needs to be modified and reformed. We need to establish a special Constitutional Court, like in most European countries outside the regular judicial system. The concept of establishing a Constitutional Bench in the Supreme Court has not worked properly.” “It can be right to observe that there can be no real constitution in absence of the system of JR,” he further writes.

Reason to read  

If there is one reason to read Dr Acharya’s timely exposition it is his endeavors to give conceptual clarity on the judicial review and its role in upholding fundamental freedoms, rule of law and constitutionalism. 

He does not only discuss Nepal’s perspective on JR but also devotes a good deal of section for international precedents. His book should be a mandatory reading for lawyers, judicial officers, adjudicators, journalists covering legal affairs, teachers and students of various streams, including that of social sciences and law. 

Jivesh Jha, formerly a Lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court, Janakpurdham.

jhajivesh@gmail.com

In this context, Parliamentary Committee Practices: From the First Parliament to Federal Parliament edited by Thira Lal Bhusal provides a concise introduction to Nepal’s parliamentary history, working of the Parliamentary Committees and their significance in the oversight and enactment process. The book, which is published by Journalists Society for Parliamentary Affairs with support from Parliament Support Project, brings together a collection of five chapters which provide a critical investigation into the key issues, principles and themes on parliamentary democracy, parliamentary system of governance and international practices. A short foreword by Bernardo Cocco, Deputy Resident Representative for UNDP Nepal, sets the tone for the discussion on Nepal’s parliamentary practices. “This book is a good read for all who have interest in knowing the historical development of Parliamentary Committees and parliamentary system of Nepal,” writes Cocco.

In the first chapter, Bhusal, an eminent journalist, sheds light on Nepal’s experience with the parliamentary system. “Nepal should have headed on the strong pitch of democratic process followed by periodic democratic elections after the downfall of Rana oligarchy,” argues Bhusal. However, this could not happen.

Nepal witnessed the first general election in 2015 BS (1959). Rana rule came to an end in 1951. India had its first general election in 1951 whereas Nepal held the same after eight years. “In South Asian context, Nepal’s experience with parliamentary system is neither novel nor its short-lived,” argues Bhusal, adding, “unfortunately India and Nepal—two of the South Asian states—started their journey towards parliamentary system around the same time. However, over the years, India has consolidated its democratic system but Nepal failed to do so.” In fact, Nepal’s ostensible political instability and frequent ups and downs came in the way of parliamentary system.

Nepal experienced its first parliament in 2016 BS with a bicameral legislature. However, this parliament could not survive for long. It was dissolved by the then King Mahendra after 18 months of its formation. Afterwards, the party-less system of governance of King Mahendra existed for three decades where there was no room for parliament.

After the restoration of democracy in 2046 BS (1990), the country observed a general election in 2048 BS and henceforth, we developed a practice of having bicameral legislature at the center. Again, this system failed to last long. “This parliamentary system suffered backlash in 2051 BS with the dissolution of the House of Representative,” writes Bhusal. He argues that the Himalayan Republic felt the need of having a Constituent Assembly (CA) for enacting a fresh Constitution for the people. The drafting process (2008 to 2015 AD) kicked off in 2008 with the formation of CA-I, the unicameral body of 601-member, after its election. “The new constitution institutionalized a bicameral legislature at the center and a unicameral one at the provincial level.”

As the Parliamentary Committees work as a workshop of the parliament, they are called Mini Parliament. “The Parliamentary Committees play significant roles in law enactments and matters concerning far reaching consequences. It’s a universal practice to have different committees at parliament to address the serious issues of the people and to enact laws suiting the time and context,” argues Bhusal. He further says, “As Committees at parliament have remarkable roles to play, their actions and inactions are seriously studied world over.”

Bhusal’s timely exposition does not only sketch Nepal’s perspective but he also explains international precedents. “England is the first country in the world to have officially formed a parliamentary committee in 1571 and Public Accounts Committee in 1861.”

Acknowledging the British practices, India introduced the Public Accounts Committee in 1921 after its first mention in the Government of India Act, 1919. However, Bhusal maintains that the Public Accounts Committee became a Parliamentary Committee in India in 1950 with the promulgation of the Constitution.

Bhusal not only discusses Nepal’s perspective on parliamentary system but also devotes a good deal of section for international precedents. 

In his book, Bhusal devotes a good deal of sections to explain the functioning of parliamentary committees. For instance, “Parliamentary Hearing Committee is a novel concept in Nepal which came into practice after the second amendment to the 2007 Interim Constitution,” he writes on page 25. The Parliamentary Committees draw their authority from Article 292 of the Constitution of Nepal. “The composition/structure and jurisdiction of the Parliamentary Committees had never been fixed or permanent. There appears alteration in the Committees after every general election since 2015 BS,” argues Bhusal.

In Chapter-2, Bhusal shades light on different Parliamentary Committees and their functions in entire length and breadth. Chapter 3 deals with women’s representation in the parliamentary spectrum. “Since 2017, nine Committees (out of 16) were headed by women. Currently, the number of women MPs stands at 90 at House of Representatives while 22 at Upper House. In total, we have 112 women MPs which ensures 33.53 percent of representation,” further writes  Bhusal on page 79.

In Chapter-4, he critically studies the working of the Committees. “The Parliamentary Committees have failed to deliver because of a number of reasons. At times, it’s seen that the Committees keep changing their agendas.” On page 121, he writes that the Committees have themselves admitted that politicization of the issue is a big problem.

Bhusal is right in holding that politicization is to be blamed for the non-compliance of the recommendations of the Committees. “We don’t have adequate resources and research for the proper implementation of the recommendations of the Committees.”

In Chapter-5, the editor has incorporated views of five eminent persons, including Dr Bipin Adhikari and Umesh Mainali. Umesh Mainali, former Chair of the Public Service Commission, believes that “powerful persons should take the command of different Committees formed at the Parliament. If this could happen, then only, there would be close cooperation and coordination between parliament and its Committees.” In parliamentary democracy, “Separation of powers is confusion of power. There could not be actual application of separation of powers in parliamentary democracy as political parties with majority are, often, at the helm of power and in a position to direct the will of the government and House as well,” argues Mainali.

Seconding the views of Bhusal, Professor Dr Bipin Adhikari, founder Dean of Kathmandu University School of Law, argues that the Parliamentary Committees should be given resources. “It’s often seen that the Committees don’t have resources to hire experts. Members of Parliament engaged in Committees are yet to be provided with their own offices. If data is something to stand by, our Committees have produced noteworthy reports in matters relating to corruption and scams.” Dr Adhikari makes an important claim that Committees have performed their job effectively despite ineffective governments at the helm.  

If there is one reason to read Bhusal’s timely exposition it is his endeavors to give conceptual clarity on the parliamentary committees and their roles in a democracy. He does not only discuss Nepal’s perspective on parliamentary system but also devotes a good deal of section for international precedents. His book should be a mandatory reading for journalists covering parliamentary affairs, judges, judicial officers, teachers and students of various streams, including that of social sciences and law. 

Jivesh Jha, formerly a Lecturer of Law at Kathmandu University School of Law, is currently a Judicial Officer at Dhanusha District Court, Janakpurdham.

jhajivesh@gmail.com

Janakpurdham is undergoing a severe environmental crisis. Some decades ago, water did not come in plastic gallons but was extracted through hand pumps. Now hand pumps have gone dry and Janakpur dwellers rely on either water gallons or on water supply from the government.

You see stranded pigs, solid wastes from hospitals and households on the streets, unmanaged drainages, bad smells of rotten things, and abnormally high numbers of mosquitoes. An over populated and polluted Janakpur cannot survive rapid unsustainable development, which badly harms the natural environment. It’s unfortunate that the focus of civic responsibilities and citizen’s involvement has been solely on electoral participation. Governments have failed to establish any institutional forums for involving volunteers on issues like environmental protection. The laws of the land confer power on the local bodies and provincial governments to act on ecology. For this, budget and aid are also allocated from the federal government and donor agencies but the actual implementation remains modest.

So what are the legal provisions for environment protection? What can the local bodies do about it? This article is focused on these two key issues.

What laws promise  

The health of the environment and the community’s economic situation are inextricably linked. The preservation of the environment is a worldwide concern.  In order to protect ecological interests, Nepal’s Parliament passed the Environment Protection Act in 2019, which replaced the previous environmental protection legislation of 1997.  The federal, provincial and local governments and even private individuals are obligated to safeguard and conserve the environment under this green law.

The Act includes a number of clauses aimed at environmental conservation and enhancement. The Act’s preamble envisions that the pollution victims have the right to seek compensation from the individuals or entities responsible for the pollution. This arrangement is in accordance with Nepal’s Constitution’s ‘polluter pays principle’ as stated in Article 30 (2). Pollutants are defined as chemical waste, heat, sound, and electronic magenta/radiations that harm the quality of the natural environment, according to the Act of 2019. Similarly, “harmful substances” refers to hazardous wastes moved over national borders, as specified by the Basel Convention of 1989.

Development work that does not conform to the Environment Study Report (ESR), Environmental Management Plan, Environment Assessment Report, or Supplementary Environment Impact Assessment reports is prohibited by the 2019 Act. However, the erstwhile 1997 Act demanded only Initial Environment Examination and EIA. This paradigm shift clarifies that the current Act puts additional restrictions to reaffirm our ties with nature and sustainable development.

The 2019 Act provides ample powers to the second and third tiers of government to adopt plans and policies for the conservation of the environment. For instance, Section 3 (2) (b) of 2019 Act envisages that the Environment Study Report shall be submitted to the provincial government in cases where the development project falls under the jurisdiction of provincial law. Likewise, Section 3 (2) (C) directs the local governments to oversee Environmental Study Report and Initial Environmental Examination in case of proposals relating to development falling under the jurisdiction of local levels. Still, the law mandates that the EIA will be regulated by the provincial government even if the developmental project falls under the local jurisdiction. Nevertheless, the proponent is duty-bound to prepare ESR in line with the standards and quality determined by the Government of Nepal.  The concerned agency—federal, provincial or local government—may immediately prevent the project from being implemented if a proponent executes a project without having ESR.

If sustainable development is to become a national priority, we must think about major reforms, including environment decentralization for a climate resilient future.

In order to ensure the compliance of ESR and standards relating to pollution control, the provincial government may designate any officer as Environmental Inspector to inspect over the compliances prescribed by the Act. Interestingly, the local governments have also been empowered to employ “any employee” as Environmental Inspector to monitor whether or not the acts to be performed pursuant to ESR have been performed effectively. 

Under Section 18, both federal and provincial governments have power to establish laboratories to study, test or examine the samples collected to analyze pollution. Similarly, the federal or provincial governments can issue pollution control certificates to any industrial enterprise.   Along with this, the provincial government is under an obligation to make public necessary information required to combat pollution, and climate change. The Act envisages that the provincial governments would give priority to the issues of biodiversity, climate change, or strategies to mitigate pollution in developing plans and policies for the province. In order to avoid adverse impacts of environmental risks or climate change, the provincial, local or federal government may adopt adaptation plans in their respective jurisdiction. Under Section 30, the federal government has power to declare an environment protection area in consultation with provincial or local government.

The legislation foresees the Environment Protection and Climate Change Management National Council under the chairmanship of Prime Minister where the Chief Ministers of provinces are ipso facto members. The Chief Ministers could press and pass their agendas from the meetings of the Council which would ultimately help the second-tier governments to adopt measures to mitigate pollution and climate change under their respective jurisdiction.

In this respect, it can be said that Nepali environment laws are more progressive than India’s. In India, the Environment Protection Act (1986) does not confer power on the state governments to adopt plans and policies or establish laboratories or inspect any plant.      

In Nepal, provincial and local governments are empowered to adopt measures to fight against climate change and pollution. They can establish laboratories to test the samples to analyze the quality of air or water or natural environment. 

The Nepali law does not confer power on the provincial governments on the matters of national importance, climate change, carbon trading and among others. It appears that the role of provincial government is rather secondary. The provincial and local governments are obliged to act in furtherance of the direction and policies issued by the federal government.

If sustainable development has to become a national priority, we must think about major reforms, including environment decentralization for a climate-resilient future. In this context, the Local Government Operation Act (2017) hosts a plethora of provisions where the local units have been conferred with the power to enact laws, policies and other measures at their competence for the protection and promotion of green democracy. The local bodies have been vested with power to adopt and enact measures to contain the pollution and to ensure clean water and fresh air. The local governments are entitled to bring policy measures for waste management in coordination and cooperation with private citizens, NGOs and other organizations.

According to the Local Government Operation Act, the local government could adopt policy and law regarding the conservation of ecology, biodiversity, environmental risk reduction, pollution, and reduction of carbon emissions. However, there are provisions which suggest that the local bodies would have to act in pursuance of the federal and provincial governments.

Section 11(4) envisages that the local bodies may adopt laws, policies and other measures for the protection and conservation of biodiversity, forest and the environment in line with the central and provincial laws. The law empowers the local governments to make policy, rules, and measures for managing, protecting and promoting forests, biodiversity, migratory species, flora and fauna, and monuments of historical importance, and to maintain their record in their respective jurisdiction.

In doing so, the local bodies could come up with a detailed report about the number of monuments, flora and fauna, forests and the overall situation of the environment in their jurisdiction. There are provisions that the community forest consumer committee shall prepare an annual working plan regarding the sale and use of timber and other forest produce and the said working plan has to be submitted before the concerned local unit for approval. 

What should be done?

We are celebrating World Environment Day today with the theme of “living sustainably in harmony with nature.” As we do so, we also need to analyze whether or not we have succeeded, even tried,  in enforcing the green laws promulgated for the protection and promotion of the natural environment. 

Nepal cannot survive with unsustainable development practices, especially given that Nepal is an ancient country of an environment-friendly people. Nepal has ample constitutional and legal provisions to promote environmentalism. The government just needs to implement them.

It’s high time for the federal government to bring a mechanism of cutting the financial aid to the local governments if they fail to curb the pollution in their respective jurisdiction.

All the 753 local units deserve to become pollution-free palikas. Janakpur, the land of Goddess Sita, deserves to be free from pollution. I look forward to the time when I can proudly announce during the official meetings that I am from Janakpur, a clean, pollution-free holy city of Nepal.