Private: Constitutional Law – I Content
Right to Equality
Under Right to Equality, we have the following titles:
- 4.1 Right to Equality
- 4.2 Article 13-‘Affirmative Action’ and Doctrine of Reasonable Classification’
- 4.3 Rule against ‘Arbitrariness’
- 4.4 Right to “Proportional Inclusion” and Constitutionality of Reservation Policy
- 4.5 Special Provisions for Women
- 4.6 Rights of Indigenous People
4.1 Right to Equality
- All citizens shall be equal before the law. No person shall be denied the equal protection of the laws.
- There shall be no discrimination against any citizen in the application of general laws on grounds of religion, race, gender, caste, tribe, origin, language or ideological conviction or any of these.
- The State shall not discriminate among citizens on grounds of religion, race, caste, tribe, gender, origin, language or ideological conviction or any of these.
Provided that nothing shall be deemed to prevent the making of special provisions by law for the protection, empowerment or advancement of women, Dalits, indigenous ethnic tribes [Adivasi Janajati], Madhesi or farmers, labourers or those who belong to a class which is economically, socially or culturally backward, or children, the aged, disabled or those who are physically or mentally incapacitated.
- There shall be no discrimination with regard to remuneration and social security between men and women for the same work.
The Interim Constitution, unlike the 1990 Constitution, also deals with the rights of women, and the right against untouchability and racial discrimination separately. The commentary below is based on the ‘right to equality’ under the 1990 Constitution.
The fundamental right in Article 11(1) combine the English doctrine of the rule of law with the “equal protection clause” of the Fourteenth Amendment of the US Constitution. Thus they guarantee both to right to be “equal before the law” (equality before the law) and the right to “equal protection of the laws.”
In Benjamin Peter v. Home Ministry [ref. 33 NKP 749 (2048)], the Supreme Court ruled that the provision of Article 11 of the 1990 Constitution which deals with the right to equality is a provision of general nature, meant for all round application, and the provision regarding the certificate of citizenship as expressed in Part 2 of the Constitution is of a special nature, and meant for the situations specified therein. Thus, the argument that this special provision does not tally with the general provision is not a reasonable argument: if the government enters into an agreement contrary to the special provision of the Constitution, the agreement will not be enforceable. Thus, the two limbs of the right to equality – equality before the law and equal protection of the laws – must be understood in the context of citizens and not foreigners.
In Balkrishna v. Parliament Secretariat, [ref. 35 NKP (450- 2050); see also Keshav v. Minister for Gen Administration, 35NKP 299(2o50)] Section 4(1)(3) of the Labor Act 1991 was challenged as being unconstitutional. The impugned provision stated that the manager of every enterprise shall give a letter of appointment to an applicant, whichever is the case, before putting him to work according to a classified category, and shall give preference to Nepalese citizens in doing so. So far as the first portion of the provision was concerned, the Court ruled that it regulates matters of appointment and that the state had the power to regulate appointments. The second sentence, on the other hand, enabled the undertaking permanently to appoint a foreign national and the Court ruled that this was unconstitutional, [ref. ibid. at 465] reiteration that the right to equality and equal protection of laws is a right that belongs to citizens of Nepal. The demand for necessary manpower to run industries in Nepal must be fulfilled by Nepalese citizens themselves, and so a constitutional freedom granted to Nepalese citizens (a freedom to work to secure livelihood on the basis of due returns) was violated by section 4(1) of the Labor Act 1991 through a provision which caused those citizens to compete with non-citizens for appointment in Nepalese enterprises: there can be no condition or equal protection of laws between unequal because the Constitution itself has reasonably distinguished between citizens and non-citizens. Article 26(6), which requires the state to pursue a state policy of increasing the participation of the lab our force, the chief socioeconomic force of the country, in the management of enterprises by gradually securing employment opportunities to it, ensuring the right to work, and thus protecting its rights and interests was also violated and although the directive principles and policies are not enforceable in court, they provide valuable assistance with interpretation of the provision of the Constitution. The formulation of a law in this way on the pretext of industrial station policy, therefore, contravened the very constitutional system as there is no doubt that the right to contest for appointment subject to the required conditions or qualifications is a right guaranteed to all Nepalese citizens. [ref. inid. at 462-64 (paras 13-14)]
Additionally, the impugned provision would have necessitated a non- citizen who was permanently appointed to employment being granted permanent residential status which would have betrayed the very purpose and foundation of the Constitution, and would be contrary to the interests of the people. The Supreme Court ruled, therefore, that the provision was not only contrary to the legal traditions and judicial principles but also to the directive principles and state policies prescribed in the Constitution. [ref. ibid. at 464-65 (para. 15)]
In another leading case decided in 1994, the Supreme Court was also concerned with the right of non-citizens to equal treatment but this time in a different context. In the case of Mira Gurung [ref. Mira Gurung v. Central Immigration Department, Thamel, 36 NKP 68 (2051)] the main issue was whether it is reasonable under Article 11 of the Constitution to reject the granting of a residential visa to the alien husband of a native wife under Rule 14 of the Alien Rules 1975, when the law affords a foreign wife of a native husband the right to a visa. The court ruled that any person applying for a visa is a foreigner to Nepal and that therefore the law governing the relationship between an applicant for a visa and the authority responsible for considering that application Prima facie does not involve questions of discrimination under Article 11. The impugned clauses of Rule 14, however (clauses 3 and 4) provided for visa arrangements not relating only to alien subjects but also to nationals of the country on the basis of marital relationships with Nepalese citizens. Under these clauses it is not a person’s status as an alien which is important, but the fact of marriage to a Nepalese citizen, and so the ability to apply is linked to that relationship. Since the Rule in question allowed the authorities to refuse a visa to the husband of a Nepalese wife where it would have been granted to the wife of a Nepalese husband (and not limited in time), [ref. ibid.at 73-76 (para. 14)] the Supreme Court ruled that the provisions in question led to unequal treatment and discriminatory practices on the grounds of sex against Nepalese wives with foreign husbands as compared to Nepalese husbands with foreign wives, and that they were therefore in contravention of the right to equality.
Equal before the law; equal protection of the laws: Article 11(1) protects both a citizen’s right to be “equal before the law” as well as the right of a person to “equal protection of the laws”, and the two rights are quite different. The first phrase is of particular, rather than general, application and acknowledges that no citizen shall be accorded special privileges, and that none shall be above law. It appears that the word “law” in this expression is used in a generic sense, a philosophical sense. Equality before law therefore means that all person or classes of persons are equally subject to the ordinary laws of the land and that no one can claim any privilege (though exceptions in favor of foreign diplomatic missions and legations, the jurisdictional immunity of the king, the special protection accorded to certain officers and judges, and privileges to certain associations and interests, such as trade unions, have been recognized under the Constitution). The first phrase is thus a negative concept, for it implies absence of any privilege in favor of any particular individuals. [ref. Arun Kumar Rai v. Cabinet secretariat, Writ No. 166/2048 (unpublished)]
The second phrase, however, is of general application and requires that “equal treatment of the laws” must be guaranteed to all persons, natural and legal, Nepalese and foreign.
Although general in application, the word “laws” in the phrase “equal treatment of the laws” denotes specific laws in force and means that the same laws should be applied alike without any discrimination in all situations. [ref. ibid.] Thus this clause is positive in operation, assuring equality of treatment to all in equal circumstances, and is, to some extent, a corollary of the first clause: it would be a contradiction to say that any violation of equal protection of laws would not result in violation of equality before the law. [ref. Hari Prasad Sharma v. Cabinet Secretriat 37 NKP 665 (2052)] The second phrase, however, also has an extended meaning so as to protect those who are in reality not equal. It is now generally accepted that there are no universal laws of universal application, and that social circumstances and facts are not universally the same. Thus, of equality is to be real the unequal have to be made equals. Although Article 11(1) is couched in absolute language, it is settled that protective discrimination or a doctrine of classification is inherent in it. Put another way, the right to legislate must imply the right to classification is inherent in it. Put another way, the right to legislate must imply the right to classify for the purposes of legislation. [Brandeis, J., dissenting, in Quader City Cab Co. v. Pennsylyanid, 277 US 389, 405 (1928)] In this connection Abraham Lincoln observed:
The authors [of the Bill of Rights] intended to include all men but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color size, intellect, moral development, or capacity. They define with tolerable distinctness in what respects they did consider all men created equal- equal with “certain inalienable rights, among which are life, liberty, and the pursuit of happiness”. This they said, and this they meant. They did not mean to assert the obvious untruth that all were actually equal enjoying that equality, or yet that they were about to confer it immediately upon them. In fact, they had no power to counter that such a boon. They meant simply to declare the right, so that enforcement of it might follow as fast as circumstances should permit. [ref. The Collected Works of Abraham Lincoln, Vol. II, at 450; (1953)]
The importance of Article 11(1) is that citizens are entitled to be treated as if they are equal on all matters important to them, and matters really importance to them are matters that are common to all men. Article 11(1) therefore relies on moral judgments to the effect that equality is good, and that it ought in some cases to exist, and that this is so in spite of the obvious ways in which men are unequal in strength, talent and intellect. The claim that men are equal is a claim that in fundamental respects, regardless of obvious differences, all men deserve to be given certain kinds of treatment. They have a right of certain kinds of equal treatment in crucial aspects of their lives, thought not in all.
In the Iman Singh case [Iman Singh Gurung v. HMG/ Secrtariat of the Council of Ministers, 34 NKP 710 (2049)] the provision of a controversial clause of the Army Act 1959, which imposed military law on a civilian, was considered and declared ultra virus to the Constitution by the Supreme Court. A civilian, Iman Singh Gurung, was sentenced to eight years imprisonment by a military court on a charge of instigating a soldier, Bharat Gurung, to commit an offence under Section 45(b) of the Act. Section 1(3(d) of the Army Act provided that a non-military man may be tried under the Act for, among other things , encouraging soldiers to breach any provision of the Act . The petitioner contended, amongst other things, that his right to be tried as a civilian in an ordinary court which fell within the guarantee to equality had been infringed. The Supreme Court agreed and declared s. 1(3)(d) of the Army Act to be inconsistent with Article 11(1) and, therefore void.
Vindicating the contentions of the petitioner, the court ruled that any act done by an official or agency of the state for the enforcement of law, or any law passed by the legislature, must not accord unequal treatment between citizens, for that offends the guarantee of the right to equality and the spirit of the Preamble which envisages a bond of unity between Nepalese people on the basis of equality. Accordingly, it contravenes the principles of equality to deprive a citizen, or a group or class of citizens, of those rights, privileges and protections that are made available to other citizens or groups or classes of citizens, or to load some with greater liability and responsibility that other. Every citizen has a right along with all other citizens to the protection of his person, life, property and goodwill, and to fight illegal encroachment upon, or injustice against, him, and to have recourse to an ordinary court of justice as established by the law for the enforcement of his rights. [ref. ibid. at 720] The Chief Justice further observed in the Iman Singh case, [ref. Iman Singh Gurung v. HMG/ Secretariat of the Council of Ministers, 34 NKP 710 (2049)] that the right to equality also consists of a right to invade justice as per ordinary procedures from ordinary courts of justice established under ordinary laws of the land. This right is a condition precedent’ for the protection and enforcement of other fundamental rights and therefore has its own intrinsic importance. For the enforcement of rights guaranteed under the Constitution or laws, consideration of the case by a competent and independent judicial body is essential. In its absence, rights will have no practical importance. [ref. ibid. at 725 (para. 23)] The Supreme Court also pointed out in the Iman Singh case that Article 88(2)(a) of the Constitution clearly states [ref. Iman Singh Gurung v. HMG/Secretariat of the Council of Ministers, 34 NKP 710 (2049)] that the Supreme Court can interfere with the proceedings and decisions of a Military Court on the ground of absence of jurisdiction or on the ground that a proceeding has been initiated against, or punishment given to, a non-military person for an act other than an offence relating to the army. Offences such as illegal accumulation of foreign exchange, smuggling and corruption (for the purposes of the Prevention or Corruption Act 1960) are offences of a non-military, civil nature. Just because such offences had been committed by members of the military, and because the person concerned was tried and punished under the Army Act, these offences cannot be termed as military offences. [ref. ibid. at 730 (para. 23)] To be termed as a military offence, an offence must be directly related to military organization, and must involve the carrying out of military duties and discipline. [ref. To reach these conclusions, the court also took recourse to the foreign precedents established in Wolfe Tone’s case 27 St. Tr. 614 (1798); Wose v. Withers 3 Cranch US 331; 2 led 457; and Callahan v. Parker 395 US 258 (1969)]
The right to equality, and the need for classification, requires special focus with regard to administrative discretion. [ref. Amir v. Ministry of Construction and Transport 29 NKP 114 (2044)] There may be many situations where and Act or statute, instead of making a classification itself, confreres powers on the executive in that regard. In such cases, if the Act confers unregulated discretion on the executive, it would be void under Article 11. If, on the other hand, the Act has laid down some principle or policy for the guidance in the exercise of discretion by the executive in making classification, then it would not be void as offending against Article 11. Thus, in Baburam paudel [ref. Baburam Paudel v. HMG/ Cabinet Secretariat, 36 NKP 143 (2051)] the Supreme Court held that discriminatory use of discretionary power violated Article 11 of the Constitution.
If the legislative policy is clear, and as an effective method of carrying out that policy a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject matters of legislation in accordance with the objective indicated in the statute. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can be annulled as offending against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it to be discriminatory, irrespective of the way in which it is applied.
Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of power given by law does occur, but the validity of law cannot be contested because of such an apprehension. Discretionary power is not necessarily a discriminatory power.
The basic rationale behind Article 11(1), and other clauses that follow is that it strikes at arbitrariness in state action and ensures fairness and equality of treatment. Thus, equality is the antithesis of arbitrariness and where and act is arbitrary, it is implicit in it that it is unequal – both according to political logic and constitutional law – and violates Article 11. [ref. Iman Singh, 34 NKP 710 (2049)]
Considering this rationale, and upholding the power of His Majesty’s Government compulsorily to retire civil servants before reaching retirement age, the Supreme court observed in Baburam paudel, [ref. Baburam Paudel v. HMG/ Cabinet Secretariat, 36 NKP 143 (2051)] that the process followed to reach a decision on such retirement should be just and reasonable and that the court is imbued with the power to check whether this decision of government has been duly made as per the provisions of the Civil Service Act. [ref. ibid] The court refused to see the relationship between HMG and civil servants as a relationship between the government and civil servants and, as such, the rules are as much binding on the government as they are on civil servants. The doctrine of pleasure (or holding office during the pleasure of the government) does not mean that the government can take the civil service law for granted and is immune from applying the procedures laid down: the doctrine of pleasure is not a doctrine of authoritarianism and does not allow the government to ignore applicable statutes and laws. [ref. ibid. at 161 (paras. 46, 47)] Similarly, a decision which is inconsistent with the Constitution and laws cannot be rendered constitutional or lawful b the doctrine of submission. An unconstitutional or unlawful decision is always unconstitutional or unlawful and the court cannot ignore questions of law, constitutionalism, and jurisdiction, but must consider each case on its facts on a case to case basis. [ref. ibid. at 163 (Para. 56); the doctrine of submission as noted in this case is in fact the doctrine of acquiescence as understood as a species of stopple- i.e. a silent appearance of consent and failure to make any objections in such situations where a person’s knows or ought to know that he is entitled to enforce his right and neglects to do so for such a length of time as would imply that he is intended to waive or abandon his right. See Yeach v. Stockmar, CA Colo, 482 F. 2d 820, 834]
In Krishna Prasad Lamsal’s case, [ref. Krishna Prasad Lamsal v. Cabinet Secretariat, 4 S.Ct.Bull. 2 (Poush 1-15, 2052)] the Supreme Court again ruled that the Constitution has not specified the organization, conduct, and terms and conditions of the service of the Civil Service. All that the Constitution says in its Article 124 is that the government may, in order to run the administration of the country, constitute services as may be required, and that the organization, operation and conditions of service thereof shall be as determined by an Act. Until such an Act has been enacted, the government according to the doctrine of necessity is empowered to conduct the civil service in accordance with the Rules made under the previous Act, which has not yet been challenged. Applying this principle, the Supreme Court declined to declare Ultra virus Rules 7(1) and 7(2) as being in violation of Article 124 of the Constitution. Echoing the earlier decision in the Baburam Poudel case the Court said that whilst the relationship between a civil servant and His Majesty’s Government cannot be compared with that of master and servant, the doctrine of pleasure did not entitle the government to insist on compulsory retirement where the decision reached was arbitrary in nature: every action which has a bearing upon the right of a person must vindicated by express legal authority, and the rule of law envisages that every such action is governed by a law which is limited in its ope
In Tirtha Koirala v. HMG, [ref. 4 S.Ct.Bull. 1 (Poush 1-15, 2052)] the Supreme Court also declared ultra vires an amendment to Rule 106(d)(8) of the Civil Service Rules 1993 which gave appellate jurisdiction to the government over a decision of the Supreme Court in relation to disciplinary action against the Registrar of the Supreme Court.