CHAPTER ONE

INTRODUCTION
1.1 Background of the Study
The concept of equality generally refers to the absence of discrimination, emphasizing
the fair treatment and impartiality of individuals in society. It embodies the notion that
all people should be treated fairly and justly, regardless of their inherent or acquired
characteristics. At its core, equality is grounded in the belief that all individuals are
born with equal dignity and worth, and therefore, no one should be subject to unfair
treatment based on arbitrary distinctions. This principle of fairness advocates for the
idea that people should not be discriminated against on the basis of race, religion,
gender, caste, or other such factors that do not reflect an individual's inherent abilities
or character,
In its simplest form, equality is the notion that all individuals should be afforded the
same opportunities, rights, and privileges, and be treated with the same level of
respect and dignity. This means that every individual should have an equal
opportunity to participate in all aspects of society, from political participation to
access to resources, education, and healthcare. Furthermore, equality calls for the
abolition of discrimination in all its forms, ensuring that no person is marginalized or
excluded because of their identity or background. Discriminating against someone by
denying them equal opportunities or benefits because of their race, religion, gender, or
any other characteristic that does not affect their worth as a person is a violation of the
fundamental right to equality.
However, while the basic definition of equality can be understood as treating people
equally and providing them with the same rights, special privileges or advantages
provided to certain individuals or groups based on their identity, status, or needs may
be considered inequality. Such privileges often deepen social divides and contribute to
inequality, especially when those who are already at a disadvantage are overlooked or
neglected. For example, affirmative action policies, which are designed to help
historically marginalized communities, may be viewed as a form of providing
additional support to those who have been socially, economically, or politically
disadvantaged, but they also present a challenge in balancing the ideal of equality
with the need to address historical injustices.

1
While equality is often understood in terms of legal and political rights, the true
meaning extends beyond the mere equal treatment of individuals. It encompasses not
only the formal equality of being treated the same but also the substantive equality
that seeks to correct imbalances and provide individuals with the resources and
opportunities they need to have equal life chances. This recognition highlights the fact
that while all individuals are indeed born equal, they do not remain equal throughout
their lives. Life circumstances, such as poverty, education, health, or social status, can
create inequalities that undermine the initial equality of individuals. Thus, achieving
equality requires more than just non-discrimination; it also requires a proactive effort
from the state and society to ensure that all people have the same opportunities to
succeed, regardless of their starting point in life1.
In this context, the state's role becomes crucial in addressing the disparities that arise
over time due to social, economic, and political factors. A simple application of the
idea that everyone should be treated the same does not always result in true equality,
because not everyone starts from the same position. People from disadvantaged
backgrounds, for example, may need additional support to access the same
opportunities as those from privileged backgrounds. In such cases, affirmative
measures such as positive discrimination or equalizing policies might be necessary to
ensure that the state addresses these imbalances and provides individuals with the
means to overcome disadvantages.
The state must actively ensure that equality is not just a theoretical ideal but a
practical reality. This may involve creating policies that address systemic inequalities
and ensure that social justice is achieved. The implementation of such policies could
include targeted efforts in areas like education, employment, and healthcare, aiming to
uplift individuals who face structural barriers to their advancement. Through these
efforts, the state can work toward transforming society into one where equal
opportunities are available to all, and where discrimination based on immutable
characteristics is eliminated.
In conclusion, the principle of equality is foundational to the concept of human rights,
requiring a society that ensures fair treatment for all. However, as individuals are not
born into identical circumstances, equality must be understood not only as formal
equality but also in terms of substantive equality-meaning that equality should be

1
Assoc.Prof Dr. Binod Bashyal, Constitutional Law, 174(2021).

2
measured by the outcomes and opportunities available to people. The state's
intervention to correct inequalities and provide equalizing opportunities becomes
crucial in ensuring that the promise of equality is realized in practice and that all
citizens, irrespective of their background, can enjoy the rights and privileges to which
they are entitled.
Constitution is a document that lays out the legal framework of the State, laying down
the principal functions of the government and declaring the principles governing the
operation of those organs. This is indicative of the nature of a constitution and the
process through which it passes for its development. The constitution specifies the
main functions of the main branches of government as well as their relationships to
one another. It also establishes the structure of these branches.
With the evolution of constitutional law and the philosophy of constitutionalism "a
clear demarcation in the function between the legislature, executive and judiciary in
order that none should have excessive power and that there should be in place a
system of checks and balance between institutions" have been a key issue in the
constitutional discourses in the world 2 . This discourse later developed into the
doctrine of separation of power.
The importance of a constitution lies in the fact that it is the fundamental law of the
land and that all state administration agencies are compelled by it to operate within
the correct parameters in order to uphold the people's peace, progress, and prosperity
as well as the state's lofty goals. Each and every constitution is a dynamic document
that changes over time. The old provisions of the Constitution under which such a
troubling situation has arisen need to be either deleted or amended so that the
Constitution can meet the new challenges when difficulties arise for the State
authorities in implementing any of the provisions of the Constitution or when people
do not receive the necessary protection to their rights against unjust deprivation of
their freedoms under the Fundamental Rights.
In the legal systems of the present day political societies, generally, the practice has
been to set up certain machinery which may respond to the typical problems arising
from the functioning of the agencies of State administration or as a result of the
impact of the emerging conditions on the rights and interests of the individuals. In
some Constitutions, the body set up for this purpose is the Legislature, also known as

2
HILAIRE BARNETT, CONSTITUTIONAL AND ADMINISTRATIVE LAW (14TH ED. 2009).

3
Parliament or Assembly or Congress which is empowered to introduce changes in the
Constitution to tackle the problem arising from the disturbing trends. In some
Constitutions, it is the Executive known as the President or Governor General and the
Judiciary known as the Supreme Court or the High Court which is authorized to
introduce changes in the law. Such institutions are expected to deal appropriately with
the problems and keep the State machinery functioning properly in public interest.
From the commencement of the Constitution, the courts have been passing orders in
the exercise of their judicial powers adding to the body of the Constitutional law. The
work performed by the Courts is with regard to all those matters which are covered by
the Constitution and the Statutes of the appropriate legislatures. Since the researcher
has selected the area of Fundamental Rights in which the decisions of the Courts have
made a tremendous contribution to the development of the Constitutional Law of our
country. Thus, this research work is about the work of the Judiciary in addressing the
situations which called for an effective measure to afford protection to the
fundamental right, especially right to equality of the individuals.

1.2. Statement of the Problem

In last 69 years Nepal experienced 7 different constitutions at different time period.
The Nepalese judiciary has issued many significant rulings under those Constitutions
since the beginning, many of which have dealt with fundamental rights. All of this has
been caused by issues that have emerged as a result of various situations such as,
violation or lack of the rights of the individual because of abuse of power or misuse of
authority, discrimination practiced on grounds of religion, caste, region, and gender,
etc. There were cases of lack of rights to the marginalized groups by state also. There
were situations when the Human Rights granted under the Human Rights Conventions
were not recognized in favor of the affected individuals and despite the adherence of
the International Conventions they were not domesticated because of the problems of
legislative capability or lack of political will.

1.3. Research Questions

There are several issues of Fundamental rights. In this research the researcher tries to
find out, and analyze the right to equality as a fundamental right in context te Nepal.

4
So, in this research the researcher has taken the most genuine problem which are
listed in question form as below:
1. What are the concepts, nature of right to equality?
2. What are the national and international legal instruments which have guarante
right to equality in Nepal?
3. What is present scenario of the challanging implication of right to equality as
fundamental rights in Nepal?

1.4 Significance of the study

Fundamental rights are essential to protect the rights and liberties of the people
against the government. There are limitations upon the all power of the government.
Fundamental rights instrument in the constitution define a personal realm of
individual freedom and endow the bearer with the right of legal defense against the
state's power. They also define the objective fundamental norms or values known as
constitutional principles that the state must protect.
The present Constitution contains 31 fundamental rights in part three of the
constitution as Fundamental rights and duties. Magna Carta (1214) was a written
assurance given by King John to Englishmen for respecting the ancient liberties. It
was the first written document relating to fundamental rights of the citizens. The
philosophy of Magna Carta was witnessed in a public document of 1789, in France, in
the form of the 'Declaration of Rights of Man & the Citizens' which embodied the
natural, inalienable and sacred rights of Man and the citizens. After that the high
ideals of the Rights of individuals was witnessed in the Bill of Rights which the
Americans incorporated in their Constitution. India being the largest democracy in the
world has the longest constitution in the world. The Nepalese constitution is also
inspired by those constitutions.

1.5. Objectives of this study

The Objectives of this paper are;
1. To analyze how judiciary has interpreted and developed the right to equality.
2. To assess the impact of judicial decisions on developmental of constitutional
law in Nepal.

5
3. To study the constitutional and legal provisions for the challenges
implementation of right to equality in Nepal.

1.6. Scope of the Study

As stated above, research has been carried out with the objective of studying and
evaluating the contribution of judiciary, especially the Supreme Court of Nepal, in the
development of Right to Equality as a Fundamental Right, through its decisions.
To be more specific, the study covers concept of equality. This study has been done of
the landmark judgments of the Supreme Court involving the various norms of
Constitutional interpretation, such as the judicial creativity, the scope and effect of
judicial review and positive and liberal role of the judges in public controversies.
It is expected that the findings of this research will be of immense benefit to all those
who are concerned with the problem of protection to the Fundamental Rights of the
Individuals. They will be useful to the judicial review in respect of fundamental rights
especially right to equality.

1.7 Methodology of the Study

In this study, the researcher has applied multi-research methods, techniques and
methodology. In this research the researcher has used qualitative data and has adopted
content analysis as well as doctrinal research methodology according to need. The
research design of this study is analytical, descriptive, critical as well as historical.
The nature of the resources used in the study is primary and secondary sources of
data. International Human Rights Instruments, Constitution, Acts, Rules, Regulations,
By-laws, Policies and other international legal instruments related to right to equality
have been used as primary source of data. Secondary data, information and
knowledge have been collected and utilized from the various published research
works, authorized books, journals, periodicals, related thesis's, research reports and
relevant websites available from different libraries such as Central library of
Tribhuvan University, Central law library, Nepal Law Campus library, Nepal Bar
Association library, Supreme Court Library. After the collection of data analysis of
the contents, interpretation of data and information have been done. Information and
data are descriptively analyzed and analytically explained. In the study, research

6
methodology encompasses method of data collection, analysis, interpretation and
drawing conclusion. Uniform rule of citation is strictly adhered while citing from
authentic books or giving their references. In this study the researcher has used
Bluebook model 21st edition in text citation and APA model of Bibliography is kept
in the end part.

1.8 Scope and Limitations of the Study

There are various types of Fundamental rights, but this study will be limited on the
international and national legal instruments and mechanisms of Right to Equality as a
Fundamental Right in context to Nepal. The study is concerned within the
international and national legal instruments and mechanisms of equality rights. This
research has been completed according to the guideline and within the time frame as
prescribed by the Faculty of Law, Nepal Law Campus, Tribhuvan University.

1.9 Review of Literature

These literature reviews provide valuable insights into the development of the
Nepalese constitution through judicial decisions, with a focus on fundamental rights.
By synthesizing existing scholarship and analyzing relevant case law, these studies
contribute to our understanding of the role of the judiciary in promoting
constitutionalism, democracy, and human rights in Nepal."Judicial Activism and
Constitutional Development in Nepal: A Historical Perspective" In this seminal work,
Sharma, Gautam (2017) 3 trace the evolution of the Nepalese constitution through
judicial decisions, with a particular emphasis on the protection and expansion of
fundamental rights. Drawing on historical analysis and case law, the authors examine
the role of the judiciary in shaping constitutional norms and principles, especially in
the context of post-conflict transition and democratic consolidation. By analyzing
landmark cases related to fundamental rights, Sharma and Gautam highlight the
judiciary's pivotal role in upholding constitutional values and promoting social justice
in Nepal.
"Constitutional Adjudication and Human Rights Protection in Nepal: Comparative
Study"

3
(Gautam Sharma), Judicial Activism and Constitutional Development in Nepal: A Historical Perspective (2017).

7
Thapa and Shrestha (2019) conducted a comparative analysis of constitutional
adjudication and human rights protection in Nepal, drawing parallels with other
jurisdictions in the region. Through a review of judicial decisions and legal
scholarship, the authors assess the effectiveness of the Nepalese judiciary in
safeguarding fundamental rights enshrined in the constitution. By examining notable
cases involving issues such as freedom of expression, equality, and access to justice,
Thapa and Shrestha offer insights into the strengths and weaknesses of the Nepalese
legal framework for protecting human rights through judicial means."The Role of the
Supreme Court in Shaping Constitutionalism in Nepal: A Case Study of Fundamental
Rights Jurisprudence"Khanal and Subedi (2020) analyze the role of the Supreme
Court of Nepal in shaping constitutionalism and protecting fundamental rights
through its jurisprudence. By examining key decisions of the Supreme Court,
particularly those involving conflicts between state power and individual rights, the
authors assess the court's commitment to upholding the rule of law and fostering
democratic governance Khanal and Subedi's study sheds light on the dynamics of
judicial review and constitutional interpretation in Nepal, emphasizing the
significance of judicial independence and accountability in ensuring effective human
rights protection.
"Judicial Review and Constitutional Evolution: A Case Study of Fundamental Rights
Adjudication in Nepal"
This comprehensive study by Dahal and Bhattarai (2018) examines the trajectory of
judicial review and constitutional evolution in Nepal, with a specific emphasis on
fundamental rights adjudication. Through a systematic analysis of landmark case and
constitutional amendments, the authors trace, the evolution of judicial activism and its
impact on the protection and enforcement of fundamental rights. Exploring the
dynamics of judicial interpretation and decision-making, Dahal and Bhattarai shed
light on the evolving role of the judiciary in shaping constitutional norms and
ensuring accountability in governance.
"Commational Inspectato and Social Juice The Role of the Nepalese Judiciary in
Advancing Fundamental Rights"
This study by Regmi and Shrestha (2021) explores the intersection of constitutional
interpretation and social justice Nepal, with a focus on the judiciary's role in
advancing fundamental rights. Drawing on case studies and legal analysis the authors

8
examine how judicial decisions have influenced the realization of economic rights in
Nepal. By critically evaluating the judiciary's approach to balancing competing rights
and interests. Regmi and Shrestha offer insights into the challenges and opportunities
for promoting inclusive constitutionalism in Nepal.
"The Impact of International Human Rights Law on Judicial Decision Making in
Nepal: A Comparative Analysis"
In this comparative study, Bhandari and Pokharel (2019) assess the influence of
international human rights law on judicial decision-making in Nepal, particularly
concerning fundamental rights. Through a comparative analysis of domestic
jurisprudence and international human rights standards, the authors examine how
Nepalese courts have incorporated international legal norms into their rulings and
contributed to the progressive interpretation of fundamental rights. By highlighting
areas of convergence and divergence between domestic and international legal
frameworks, Bhandari and Pokharel offer insights into the dynamics of legal
transplants and norm diffusion in Nepal's constitutional landscape.
"Judicial Review in Nepal"
Khatiwada (2016)4 conducted a research to study the laws on the ground that those
laws violated the Right of Equality of the citizen granted by the constitution through
case laws. This paper tries to draw the importance of Judicial Review as an effective
means of checking executive and legislature and procting and expanding the rights to
equality of the citizens though Supreme Court decisions
These literature reviews provide further depth and perspective on the development of
the Nepalese constitution through judicial decisions, with a specific focus on
fundamental rights. By examining the interplay between judicial activism,
constitutional interpretation, and social justice, these studies contribute to our
understanding of the evolving role of the judiciary in Nepal's democratic transition
and constitutional governance

1.10. Organizations of the Study

This Case study is organized into the following five chapters, with its findings and
discussions presented accordingly.

4
Apurva, Khatiwada, Judicial Review in Nepal, (2006)

9
CHAPTER ONE INTRODUCTION gives an outline of the research work, the reasons
which have prompted the researcher to take up the task, the scope of the study, the
methodology adopted for study, the area of research selected for only and the aims
and objectives with which the research work has been done. CHAPTER TWO,
EVOLUTION OF NEPALESE CONSTITUTION which deals with the brief history of
Nepalese constitutional evolution from the first time to the present day constitution.
This chapter also enumerates the key constitutional principles evolved during the
development of those constitutions in Nepal. CHAPTER THREE, RIGHT TO EQUALITY
IN THE NEPALESE CONSTITUTION begins by addressing the constitutional and legal
provision relating to right to equality in Nepal.CHAPTER FOUR JUDICIAL
INTERPRETATIONS OF THE RIGHT TO EQUALITY includes various detailed case
laws propounded by the Supreme Court in the landmark cases in terms of right to
Equality. It studies the traditional approach used by courts to review legislative
actions and administrative decisions of state authorities. It then delves into the modern
methods developed by the judiciary, such as Judicial Activism and Judicial
Overreach, which have been employed to address violations of Right to Equality and
provide remedies to affected individuals through court rulings. CHAPTER FIVE
FINDINGS, CONCLUSION AND SUGGESTIONS is the last chapter that gives a summary
of the work done, the findings drawn by the researcher and offers necessary
suggestions to improve the status of law to enable the agencies of the State in
violating the rights of the individuals and depriving them of the fruits of liberty under
the Constitution and to improve the role of judiciary to be more proper and prominent
to maintain and protect democratic status of our country.

10
 CHAPTER TWO
Evolution of Nepalese Constitution
2.1 Historical Development of the Constitution
Nepal's journey from an autocratic system to a democratic constitutional framework
indeed marks a story of profound change, guided by shifting political ideologies,
aspirations for social equality, and an evolving demand for civil liberties. The
trajectory of constitutional law in Nepal mirrors its transformation, reflecting the
resilience and determination of its people to establish a legal and political framework
that ensures both governance and individual rights. This chapter examines the key
milestones that shaped Nepal's constitutional history, shedding light on the influences
that guided its development and the role of fundamental rights, rule of law, and
equality within its governance structures.5
This chapter explores the development of constitutional law in Nepal, tracing
significant historical milestones and examining how each period influenced the
establishment of fundamental rights, rule of law, and the principle of equality.
The popular revolution of 1951 ended the Rana regime and paved the way for the
emergence of Nepal's first attempt at constitutional governance. With the support of
the monarch, the Interim Government of Nepal Act, 1951 6 was enacted, marking
Nepal's initial step towards constitutionalism. This interim act introduced a more
democratic governance structure, laying a foundation for fundamental rights, although
they remained limited. The Interim Act aimed to include principles of equality and
personal liberties, signifying the shift toward a people-centered governance model.

2.1.1 Constitutional Law during the Rana Regime (1846-1951)

The Rana regime, which lasted from 1846 to 1951, was a period of autocratic rule
where power was centralized under the Prime Ministers from the Rana family. The
regime controlled the country's legal and judicial systems and did not establish a
constitution as understood today. There was no concept of rule of law or fundamental

5
Bhuwan Lal Joshi & Leo E. Rose, Democratic Innovations in Nepal: A Case Study of Political Acculturation
138-143 (1966).
6
KASHI RAJ DAHAL,SAMBH AIDHANIK KANOON(CONSTITUTUONAL LAW) (Pairavi Prakashan,
kathmandu, 1992)

11
rights for citizens; laws were arbitrary, and the people were effectively deprived of
any legal or political rights.7
However, this era did lay the groundwork for future demand for rights and legal
reforms. The oppressive nature of Rana rule generated discontent among citizens,
sowing the seeds for the future movements that would demand democratic
governance and constitutional reforms.

2.1.2 Constitutional Developments and the Interim Government (1951-1959)

The downfall of the Rana regime in 1951, achieved through a movement led by the
Nepali Congress in collaboration with King Tribhuvan, marked the beginning of
Nepal's transition toward constitutional governance8. In 1951, the Rana autocracy was
replaced by a coalition government, leading to the Interim Government of Nepal Act,
1951. This was the first constitutional document in Nepal, which, although temporary,
provided a framework for democratic governance. The Act emphasized fundamental
rights and laid the foundation for parliamentary democracy by introducing limited
political rights and establishing a democratic government under a constitutional
monarchy.
Despite its limitations, the Interim Government Act signaled a shift towards
constitutional rule and the recognition of citizens' rights, setting the stage for further
constitutional reforms.

2.1.3 The 1959 Constitution and the Introduction of Democracy

The 1959 Constitution of Nepal was the first formal constitution of the country. It was
enacted under King Mahendra, establishing a parliamentary system with a bicameral
legislature and recognizing fundamental rights. For the first time, Nepal held
democratic elections, and the Nepali Congress emerged as the majority party.
The 1959 Constitution marked a significant step forward by formalizing the rule of
law and enshrining democratic principles.9

7
YOGENDRA P. MISHRA, RANA POLITY IN NEPAL: ORIGIN AND GROWTH, 45-47 (1977).
8
INTERIM GOVERNMENT OF NEPAL ACT, 1951.
9
MAHENDRA LAWOTI, TOWARDS A DEMOCRATIC NEPAL: INCLUSIVE POLITICAL INSTITUTIONS
FOR A MULTICULTURAL SOCIETY 92-105 (2005)

12
However, this democratic experiment was short-lived. In 1960, King Mahendra
dissolved the elected government, arrested political leaders, and established the
Panchayat system, effectively ending the parliamentary system and suspending
constitutional law.10

2.1.4 The Panchayat Constitution of 1962

An Era of Absolute Monarchy Following the dismissal of the democratic government,
King Mahendra introduced the 1962 Constitution, which formalized the Panchayat
system, a party-less form of governance. Under this system, political parties were
banned, and all power was centralized in the monarchy. The 1962 Constitution
emphasized nationalism, promoted a single Hindu identity, and discouraged political
pluralism. While the constitution provided for limited fundamental rights, these rights
were largely ineffective due to the lack of judicial independence and the repressive
political climate.
This period from 1962 to 1990 was marked by political suppression, lack of public
representation, and restrictions on fundamental rights. However, the demand for
democracy and rights continued to grow, culminating in the People's Movement of
1990, which ultimately led to the end of the Panchayat system.

2.1.5 The 1990 Constitution and the Era of Multiparty Democracy

The People's Movement of 1990 resulted in the promulgation of the 1990
Constitution, which reintroduced multiparty democracy under a constitutional
monarchy. This constitution was a turning point in Nepal's legal history, as it
established a democratic framework with separation of powers, fundamental rights,
and judicial independence. For the first time, Nepal's constitution explicitly
recognized fundamental rights, including the right to equality, freedom of speech, and
property rights.
The 1990 Constitution represented Nepal's commitment to a democratic society,
balancing power between the monarchy and the elected government. 11 However,
despite these advancements, social and economic inequalities persisted, and political
10
KHADGA K.C., THE NEPALESE MONARCHY AND ITS MILITARY MACHINERY, SOUTH ASIA
RESEARCH 19, 19-35 (1984).
11
PRAKASH A. RAJ, A SHORT HISTORY OF NEPAL: FROM ANCIENT TO MODERN TIMES 124-131
(2009).

13
instability remained a challenge. The rise of the Maoist insurgency in the late 1990s
further underscored the need for deeper structural changes to address the grievances
of marginalized communities.12

2.1.6 The Interim Constitution of 2007 and the Federal Democratic Republic
Following a decade-long Maoist insurgency, the monarchy was abolished, and Nepal
was declared a federal democratic republic. In 2007, the Interim Constitution was
enacted, which symbolized Nepal's transition from a monarchy to a republic. The
Interim Constitution recognized Nepal as a secular state, introduced proportional
representation, and expanded fundamental rights. It also laid the groundwork for
restructuring Nepal into a federal system, intending to address the grievances of
ethnic minorities, marginalized groups, and regions historically excluded from state
power. This period marked a significant shift in Nepal's constitutional landscape,
where equality and inclusivity became central themes. The Interim Constitution paved
the way for the drafting of a new constitution, reflecting the aspirations of a diverse
and inclusive Nepal.

2.1.7 The Constitution of Nepal, 2015: A New Democratic Federal Structure

The Constitution of Nepal, promulgated in 2015, marked a new chapter in Nepal's
constitutional history. It was the result of extensive public participation and
consultation, embodying the aspirations of a federal democratic republic. 13 This
constitution introduced a federal system with three levels of government-federal,
provincial, and local aimed at decentralizing power and ensuring regional
representation. The key highlights of the 2015 Constitution include:
Fundamental Rights: A broad range of fundamental rights are explicitly guaranteed,
including the right to equality, social justice, and rights of marginalized groups.
Secularism: Nepal was declared a secular state, ensuring freedom of religion and
protection of all religious communities.

12
S. D. MUNI,DEMOCRACY IN NEPAL: POLITICAL DIMENSIONS OF A NEPALI MOVEMENT 44-58
(1973).
13
HARI BANSH JHA, CONSTITUTION-MAKING IN NEPAL AND THE QUESTION OF FEDERALISM,
ASIAN SURVEY 52, NO. 6, 1097-1105 (2012).

14
Federalism and Inclusivity: The constitution establishes a federal system with special
provisions for the representation of women, indigenous communities, and other
marginalized groups in government bodies.
Judicial Independence: The constitution reinforces the independence of the judiciary,
enabling it to interpret and protect constitutional rights.
The Constitution of 2015 is regarded as a progressive document, as it not only
reaffirms fundamental rights but also seeks to address historical inequalities through
affirmative action policies, including reservation systems for marginalized
communities.
The evolution of constitutional law in Nepal reflects the nation's pursuit of
democracy, equality, and justice. From an autocratic Rana regime with no formal
constitution to the current federal democratic republic, Nepal's legal framework has
undergone transformative changes to ensure that the rights and aspirations of its
people are upheld.14 The 2015 Constitution stands as a culmination of these efforts,
embedding democratic principles, social justice, and inclusivity into the fabric of
Nepal's governance. The progressive provisions in the 2015 Constitution, particularly
in terms of fundamental rights and equality, reflect Nepal's commitment to
overcoming its history of exclusion and marginalization. This ongoing evolution
highlights the importance of constitutional law as a foundation for achieving a just
and inclusive society in Nepal.

2.2 Key Constitutional Principles

From the evolution of Nepalese constitution to the present day Constitution on Nepal
(2015) Nepalese Constitution incorporates several foundational principles derived
from its commitment to democracy, federalism, inclusivity, and social justice. An
analysis of these principles with references to relevant provisions and case laws are as
below.

14
YASH GHAI, ETHNICITY AND AUTONOMY: A FRAMEWORK FOR ANALYSIS, IN
CONSTITUTIONALISM AND DEMOCRACY: TRANSITIONS IN THE CONTEMPORARY WORLD 12-14
(DOUGLAS GREENBERG ET AL. EDS., 1993).

15
2.2.1 Constitution as Supreme Law.
23 Article 1 of the present constitution states that The Constitution of Nepal serves as
the supreme law of the land. Any laws that conflict with its provisions shall be
rendered invalid to the extent of the inconsistency. The Constitutional bench of
Supreme Court reinstated the parliament which was dissolved by the then pm kp oli
for 2 times. In February 2021, the Supreme Court of Nepal overturned the decision,
declaring the first house dissolution unconstitutional. 15 The Court reinstated the
House, emphasizing that the Prime Minister cannot dissolve it unless constitutional
provisions for forming a government are exhausted.
In July 2021, the Supreme Court again intervened, declaring the dissolution
unconstitutional for the second time. 16 The Court ordered the appointment of Sher
Bahadur Deuba as Prime Minister under Article 76(5), which allows for the formation
of a minority government. In this case the judiciary played a crucial role in
safeguarding constitutionalism and democratic principles by countering executive
overreach.

2.2.2 Rule of Law

The Constitution of Nepal comprehensively guarantees a wide range of rights
categorized under civil and political rights, as well as economic, social, and cultural
rights. These are enshrined within the "Fundamental Rights and Duties" Part, which
Consists of 33 Articles. Through this framework, the Constitution safeguards essential
liberties, such as the right to life, equality, and personal freedoms, alongside
economic, social, and cultural rights, reflecting its commitment to a holistic vision of
human rights.
However, the robust protection of these rights underscores the principle of the rule of
law.One notable feature of the constitution enshrined in Fundamental Rights is the
right to equality, which is accompanied by provisions for affirmative action to ensure
inclusivity and address historical injustices. Additionally, the Constitution establishes
mechanisms for the enforcement of these fundamental rights. When violations occur,
individuals are entitled to constitutional remedies. The Supreme Court is empowered
to enforce these rights, maintaining its role as the guardian of constitutional integrity.

15
Sashank Koirala and others v Office of President et al., Writ No. 077-WO-0942 (2077 BS).
16
Sher Bahadur Deuba and Others v. Office of the President and Others, Writ No.078-WO-0766 (2078 BS).

16
Any Nepali citizen can petition the Supreme Court to invalidate a law or part of it if it
conflicts with the Constitution, imposes unreasonable restrictions on fundamental
rights, or contradicts laws made by higher legislative bodies. The Supreme Court
holds extraordinary authority to declare such laws void, either retroactively or from
the date of its decision, if they are found to be inconsistent.17
The Supreme Court has the extraordinary power to issue necessary orders and provide
remedies to enforce fundamental rights or any other legal rights when no alternative
remedy exists, or when available remedies are inadequate. It can also resolve
constitutional or legal issues in matters of public interest or concern.18
Under its extraordinary jurisdiction,19 The Supreme Court has the authority to issue a
range of orders and writs to enforce rights and settle legal matters. These include:
i. Habeas Corpus: A writ that requires a person to be brought before the court,
typically to address unlawful detention or imprisonment.
ii. Mandamus: An order directing a public official or authority to perform a duty
required by law.
iii. Certiorari: A writ issued to review the decision of a lower court or tribunal,
typically to correct errors in legal proceedings.
iv. Prohibition: A writ that prevents an inferior court or tribunal from acting
beyond its jurisdiction.
v. Quo Warranto: A writ challenging a person's right to hold a public office,
questioning the legality of their position.
These writs allow the Supreme Court to provide justice in cases of constitutional
violations, unlawful actions, or public interest disputes. They serve as tools to uphold
the rule of law and safeguard individual rights in Nepal.
Furthermore, High Courts are vested with the authority to issue appropriate orders and
directives to ensure the enforcement of fundamental or other legal rights. 20 This
power extends to situations where no alternative remedy is available, where existing
remedies are inadequate or ineffective, or in matters involving public interest or legal
questions of significant concern. This dual-layered judicial system reinforces the

17
CONST. OF NEPAL (2015), ART. 133(1).
18
CONST. OF NEPAL (2015), ART. 133(2).
19
CONST. OF NEPAL (2015), ART. 133(3).
20
CONST. OF NEPAL (2015), ART. 144.

17
Constitution's commitment to upholding and protecting the fundamental rights and
ensuring justice for all citizens.
In Case of Hariharan Raj Joshi v. HMG: 21 The Supreme Court emphasized the
principle of rule of law by an nulling government actions that violated constitutional
mandates.

2.2.3. Separation of Power

The principle of separation of powers refers to the division of government
responsibilities into distinct branches to limit any one branch from exercising the core
functions of another. Traditionally, it divides government into three branches: the
executive, which implements laws; the legislature, which makes laws; and the
judiciary, which interprets and applies the law. This concept is deeply rooted in
political philosophy, particularly in the works of Montesquieu in his 1748 treatise The
Spirit of the Laws, where he argued that political liberty is best ensured when the
powers of government are separated and balanced. The theory evolved from early
notions of governance where the concentration of power was seen as a threat to liberty
and equality, particularly after experiences with monarchies that wielded unchecked
power.
In the modern era, the separation of powers became a central tenet of constitutional
design, particularly after the American Revolution in the late 18th century. The U.S.
Constitution of 1787 enshrined this principle, serving as a model for numerous other
democratic nations, and establishing checks and balances, where each branch could
limit the powers of the others. The evolution of the separation of powers reflects a
growing recognition of the need to prevent authoritarian rule and ensure that power is
not concentrated in the hands of one individual or group. This has been central to the
development of constitutional democracies, as it enables the protection of
fundamental rights and the rule of law.
The importance of separation of powers in constitutional development cannot be
overstated. It fosters a system of checks and balances, ensuring that no single branch
can dominate or undermine the others, thereby safeguarding democratic governance.
The judiciary, for example, is able to act as a check on the legislature and executive

21
writ No 0844, NKP 2059BS

18
through judicial review, ensuring that laws and actions are consistent with the
constitution. In the context of fundamental rights, such a system provides a robust
mechanism for defending individual freedoms against potential government
overreach. The separation of powers also enhances the accountability of public
officials, as it ensures transparency and limits the scope of potential abuse of power.
Additionally, it helps in the effective functioning of government, as each branch can
focus on its designated responsibilities without undue interference from the others. In
countries like Nepal, the application of the separation of powers has been critical for
the constitutional development post-monarchy, ensuring a balance of power in the
aftermath of political transitions. The Constitution of Nepal, 2015 incorporates the
separation of powers, recognizing the necessity of a democratic structure that keeps
all organs of the state in check while advancing the principles of justice, equality, and
liberty.
The Constitution establishes a separation of powers among the Executive, Legislature,
and Judiciary, each with its own functions, powers, and limits. 22 Provides for a
23
bicameral legislature (House of Representatives and National Assembly):
Establishes the independence of the judiciary. In case of Supreme Court Bar
Association v. Government of Nepal (2003): The Court underscored the importance
of judicial independence, emphasizing that the judiciary must remain free from
political interference to ensure the proper functioning of the separation of powers.

2.2.4. Judicial Review

Judicial review is the authority of courts to examine the constitutionality of legislative
acts and executive actions. This principle ensures the supremacy of the constitution,
maintaining a balance between the legislative, executive, and judicial branches. The
concept of judicial review originated in the United States with the landmark case of
Marbury v. Madison, (1803)24, where Chief Justice John Marshall declared it the duty
of the judiciary to interpret the law and invalidate unconstitutional acts. Since then,
the doctrine has become an essential component of constitutional governance
worldwide.

22
Writ No. 0844, NKP 2059 BS.
23
Article 56, Const. of Nepal (2015).
24
Article 138, Const. of Nepal(2015).

19
The principle of judicial review has evolved differently across jurisdictions. In the
United States, it emerged as a foundational element of constitutional interpretation
under a rigid constitution. The UK, with its unwritten constitution, practices judicial
review in a limited scope, focusing primarily on administrative law under the rule of
law principles, as seen in cases like Anisminic Ltd. v. Foreign Compensation
Commission [1969] 25 . In India, judicial review is deeply embedded within the
constitution under Articles 13, 32, and 226, empowering courts to strike down
unconstitutional laws, as demonstrated in cases like Kesavananda Bharati v. State of
Kerala (1973)26.
Internationally, judicial review serves as a tool to ensure compliance with
constitutional mandates and human rights. For instance, Germany's Federal
Constitutional Court exercises robust judicial review authority, ensuring compliance
with the Basic Law. Similarly, the South African Constitutional Court has advanced
socio-economic rights enforcement through judicial review in cases like Government
of the Republic of South Africa v. Grootboom (2001)27
In Nepal, judicial review has its roots in the promulgation of the Government of
Nepal Act, 1948, which first introduced the concept of a constitutional court.
However, this framework remained largely theoretical due to political instability and
lack of enforcement mechanisms. The evolution of judicial review gained momentum
with the Constitution of the Kingdom of Nepal, 1951, which granted the judiciary
limited powers to review administrative actions.The Constitution of Nepal, 1990,
marked a significant step in strengthening judicial review by explicitly empowering
the Supreme Court under Article 88 to examine the constitutionality of laws and
executive actions. Landmark decisions like Meera Kumari Dhungana v. HMG
(2052) 28 established gender equality by invalidating discriminatory provisions,
showcasing the judiciary's proactive role in protecting fundamental rights.
The Interim Constitution of 2007 further expanded judicial review powers, reflecting
Nepal's commitment to constitutionalism and democracy during its transition from
monarchy to federalism. Under the current Constitution of Nepal, 2015, judicial
review is deeply entrenched. Article 133 grants the Supreme Court the authority to

25
Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147.
26
Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147.
27
Government of the Republic of South Africa v. Grootboom (2001) 1 SA 46 (CC).
28
Meera Kumari Dhungana v. HMG (2052).

20
interpret the constitution and invalidate unconstitutional laws and policies, as
highlighted in cases like Bal Krishna Neupane v. Parliament Secretariat and Others
(2018).
Judicial review in Nepal has played a critical role in upholding fundamental rights,
ensuring accountability, and maintaining the separation of powers. Cases such as
Chandra Kanta Gyawali v. Cabinet Secretariat (2020) highlight the judiciary's role in
addressing social justice issues and safeguarding equality. Moreover, judicial review
has been instrumental in addressing emerging human rights concerns, such as gender
and sexual minority rights, through decisions like Pinky Gurung v. Government of
Nepal (2023), which directed interim registration of same-sex marriages.
Despite its progress, judicial review in Nepal faces challenges such as political
interference, lack of enforcement
mechanisms, and public skepticism regarding judicial independence. Nevertheless, its
trajectory mirrors the global evolution of judicial review, emphasizing its
indispensability in upholding constitutional governance.
Globally, judicial review continues to evolve as a dynamic mechanism, adapting to
varying constitutional frameworks and political contexts. In Nepal, its development
signifies a growing commitment to constitutional supremacy, fundamental rights, and
democratic values. Through robust judicial review, courts have emerged as guardians
of constitutionalism, ensuring justice and equality in an ever-changing socio-political
landscape.

2.2.5 Public Interest Litigation

Public Interest Litigation (PIL) is a legal mechanism that allows individuals or groups
to seek judicial intervention on matters that concern the public at large, especially in
cases where fundamental rights are violated. PIL enables access to justice for those
whose rights have been infringed but who may not have the financial means or
resources to approach the court. The concept of PIL evolved from the notion of
"justice for all," offering the opportunity for citizens to challenge laws, executive
actions, or administrative decisions that negatively impact the collective welfare of
society. PIL has played a pivotal role in advancing human rights and promoting the
rule of law, particularly in countries with developing judicial systems.

21
Public Interest Litigation originated in the United States in the 1960s as a response to
civil rights movements, but it has become an essential part of judicial systems around
the world. The concept was initially applied in environmental and civil rights cases,
where individuals or groups could not afford litigation costs or lacked standing to sue.
In the landmark case of Brown v. Board of Education, (1954)3029, the U.S. Supreme
Court held that racial segregation in public schools was unconstitutional. Although
this case was not strictly a PIL case, it marked the beginning of using the judiciary to
address larger societal issues, which laid the foundation for the PIL system.
India is one of the first countries to formally institutionalize PIL, particularly under
the leadership of Justice P.N. Bhagwati in the 1980s. The Indian Supreme Court
liberalized the standing rules of traditional litigation, allowing not only affected
parties but also any public-spirited citizen or organization to approach the court for
the enforcement of rights. In Vishaka v. State of Rajasthan (1997) 30, the Court issued
landmark guidelines to protect women from sexual harassment at the workplace, even
in the absence of specific statutory law at the time.
In the United Kingdom, PIL is not as institutionalized due to the absence of a written
constitution. However, the courts have allowed individuals to challenge
administrative decisions that affect public rights. The R (on the application of Daly) v.
Secretary of State for the Home Department [2001] 2 AC 532 case is one example,
where the UK House of Lords ruled that prison authorities had violated the human
rights of prisoners, despite the general rule that prisoners do not enjoy the same rights
as free citizens. Globally, PIL continues to evolve, particularly with the rise of social
media and activism, as seen in cases of environmental protection, gender rights, and
political corruption. Countries such as South Africa, Canada, and New Zealand have
adopted PIL practices, with varying degrees of success in promoting social justice and
accountability.
In Nepal, the concept of PIL has developed relatively recently compared to other
countries. Although the judicial review and the protection of fundamental rights were
incorporated into the Constitution of Nepal in 1990, it was only after the promulgation
of the Interim Constitution of Nepal in 2007 that the scope for PIL became more
pronounced. The provision for PIL was made clear under the Interim Constitution,

29
Supra at 2.
30
Vishaka v. State of Rajasthan, 6 SCC 241 (1997).

22
allowing individuals or organizations to file petitions for the protection of rights in
cases of public interest, irrespective of whether the petitioner had direct personal
injury.
The case of Bishwokarma v. HMG (2005) is one of the first notable examples of PIL
in Nepal, where the petitioner, representing the Dalit community, challenged caste-
based discrimination. The Supreme Court issued an order to the government to take
measures against untouchability, signaling the beginning of PIL as a tool to address
issues of inequality and discrimination in Nepal.
The practice of PIL in Nepal gained significant momentum after the promulgation of
the Constitution of Nepal in 2015, which enshrined the right to equality (Article 18),
ensuring that all citizens, regardless of gender, caste, ethnicity, or religion, are entitled
to the same rights and protection under the law. The Constitution also includes
specific provisions for the protection of women, children, and marginalized groups.
Consequently, PIL became an effective tool to challenge laws, government actions,
and social practices that violated these constitutional rights.
One of the most significant PIL cases in Nepal was Keshav Raj Acharya v.
Government of Nepal (2017), where the petitioner challenged the government's
inaction on providing compensation to the victims of caste-based violence,
particularly for the Dalit community. The Supreme Court of Nepal ordered the
government to provide compensation and take measures to ensure that the victims'
rights were protected, marking a crucial step in recognizing the role of PIL in
ensuring equality for marginalized communities.
Another important case was Chandra Kanta Gyawali v. Cabinet Secretariat (2020), in
which the petitioner argued that the government's policy of assigning a certain
category of prisoners as "privileged" (ka shreni) and others as "underprivileged" (kha
shreni) was discriminatory. The Supreme Court, in this case, ruled that such
differentiation violated the right to equality and ordered the government to amend the
policy to provide equal treatment to all prisoners.
PIL has become a vital tool in ensuring the protection of fundamental rights and
promoting equality, particularly in cases where individuals or groups may otherwise
be unable to access justice. By broadening the standing rules, PIL empowers citizens
to bring public issues to court, ensuring that the government and public institutions
uphold their constitutional obligations.

23
In Nepal, PIL has been instrumental in challenging discriminatory practices, such as
caste-based untouchability, gender inequality, and the violation of the rights of
marginalized communities. Through PIL, the Supreme Court of Nepal has been able
to safeguard the right to equality and ensure that laws and government policies do not
violate the fundamental rights guaranteed under the Constitution.
For example, PIL has played a critical role in addressing gender discrimination. In
Bimala Gurung v. Nepal Government (2019), the petitioner challenged the unequal
inheritance laws that discriminated against women, arguing that such laws violated
the right to equality under Article 18 of the Constitution. The Supreme Court directed
the government to amend the laws to ensure gender equality in inheritance
rights.Moreover, PIL has been used to address issues of environmental justice,
particularly when communities affected by environmental degradation seek relief. In
Pinky Gurung v.
Government of Nepal (2023), the petitioners sought judicial intervention to prevent
the construction of a large hydroelectric project that threatened local ecosystems and
violated the rights of indigenous communities. The Court directed the government to
conduct a comprehensive environmental impact assessment before proceeding with
the project.
The role of PIL in ensuring access to justice for marginalized groups cannot be
overstated. Through PIL, courts can intervene when the legislative or executive
branches fail to act, or when they enact laws that are unconstitutional or harmful to
the public. In cases like Sharmila Malla v. HMG31, PIL has been crucial in protecting
the rights of individuals and groups who are otherwise unable to voice their
grievances.
Public Interest Litigation has become an essential tool in the judicial systems of both
developing and developed countries. In Nepal, PIL has significantly contributed to the
protection and promotion of the right to equality, providing a legal avenue for citizens
to challenge unconstitutional laws and government actions. Its evolution in Nepal
mirrors global trends, with courts progressively embracing PIL as a mechanism to
advance social justice, protect fundamental rights, and promote equality. Moving
forward, PIL will continue to play a crucial role in ensuring that the rights of all
citizens, particularly marginalized groups, are upheld.

31
Sharmila Malla v. HMG (2016)

24
 CHAPTER THREE
THE RIGHT TO EQUALITY IN THE NEPALESE
CONSTITUTION
3.1 Concept and Meaning of Equality
Concept of Equality
Jean-Jacques Rousseau 32 argued that the concepts of equality and freedom are
meaningless unless they are actively realized and experienced in everyday life.
According to him, these principles should not merely exist as theoretical ideals or be
enshrined in legal documents without being implemented in practice. Rousseau
further emphasized that genuine freedom and equality cannot coexist in a society
where there is significant disparity in wealth or an unequal distribution of property.
He believed that extreme inequality undermines the very essence of these principles,
rendering them superficial and deceptive. For Rousseau, a just and equitable society
must address these disparities to ensure that equality and freedom are tangible realities
rather than hollow promises.
Immanuel Kant held the philosophical view that all human beings possess an inherent
equality by virtue of their shared humanity. 33 This equality is rooted in the moral
dignity and rational capacities that define human nature. However, Kant also made a
significant distinction when it came to moral character. While all individuals are
fundamentally equal in their rights and intrinsic value as human beings, he believed
that those who demonstrate moral excellence and adhere to ethical principles possess
an elevated inner worth.
For Kant, moral goodness was not simply a matter of external behavior but a
reflection of a person's commitment to act out of duty and according to universal
moral laws. This inner worth, according to him, is not something that diminishes the
equality of others but highlights the moral achievements of those who strive to live
virtuously. Thus, Kant's perspective emphasizes a universal baseline of equality
among humans while acknowledging that the moral integrity of an individual can set
them apart, making their character particularly admirable. This distinction underlines

32
ALFRED TUTTLE WILLIAMS, THE CONCEPT OF EQUALITY IN THE WRITINGS OF ROUSSEAU,
BENTHAM AND KANT, New York, Teachers College Series, 1907.
33
Id.

25
his belief in the importance of cultivating moral virtues as a pathway to human
flourishing and ethical superiority.
Equality is a foundational concept in jurisprudence and modern legal systems,
promoting the idea that all individuals deserve fair treatment under the law. As Hersch
Lauterpacht observed, "the claim to equality before the law is in a substantial sense
the most fundamental of the rights of man.34 It is enshrined in various constitutions
worldwide, recognized as a pillar of justice, and reflected in the universal legal maxim
"equal protection under the law."
The notion of equality aims to ensure that the state does not unfairly discriminate
between citizens and provides equitable opportunities for all, acknowledging
historical and social disparities. This concept is critical not only to justice but also to
maintaining social harmony and human dignity.35

Types of Equality
Equality is categorized into multiple forms, each addressing different aspects of social
and legal disparities. The primary types are:
1. Formal Equality
Formal equality, or legal equality, refers to the uniform application of the law to all
individuals, regardless of their personal characteristics.36 Formal equality emphasizes
"equal treatment" rather than equal outcomes, providing identical opportunities and
legal protection to everyone. In the landmark case Brown v. Board of Education,37 the
U.S. Supreme Court declared that racial segregation in public schools violated the
Equal Protection Clause, thereby reinforcing the principle of formal equality in the
educational system. The decision underscored that formal equality alone could not
address the deep-seated inequalities faced by marginalized groups.
Formal equality is a belief that, for fairness, people must be consistently or equally
treated at all times. Formal equality appears as a written set of laws and rules in legal
instruments. Formal equality operates on the idea that all people should be treated as
the same. It applies equally to all human beings without due regard to practical
exigencies. Therefore, its practical application has probability of yielding unequal

34
HERSCH LAUTERPACHT, AN INTERNATIONAL BILL OF THE RIGHTS OF MAN 32 (1945).
35
Will Kymlicka,Multiculturalism and Minority Rights: West and East, 3 J. OF ETHNIC &
MIGRATIONSTUDIES 7, 10 (2000).
36
Leslie Green, The Concept of Law Revisited 94 MICH. L. REV. 1687 (1996).
37
Brown v. Bd, of Educ., 347 U.S. 483 (1954)

26
results among unequal. One example happens when positions open to all (qualified)
candidates available for hire. This means any person with a fair application has a
chance of getting the job.

2. Substantive Equality
Substantive equality, in contrast, recognizes that different groups may require
different treatment to achieve real equality. It goes beyond mere formal equality by
seeking to redress systemic inequalities and by accommodating the specific needs of
disadvantaged groups.
In Indra Sawhney v. Union of India, the Indian Supreme Court acknowledged the
importance of substantive equality, upholding affirmative action policies that reserved
jobs for lower-easte communities. The court noted that the Equal Protection Clause
under the Indian Constitution does not prevent positive discrimination, thus
permitting special provisions for historically marginalized groups.38
It requires that laws themselves take account of meaningful differences between
persons: who in fact are equal be treated equally, but that unequal circumstances be
treated differently. Substantive equality goes beyond the basics of recognizing the
equality of everyone and identifies differences among groups of people with the long-
term goal of greater understanding. This version of equality itself possesses differing
not embodying substantive values but merely requiring non-reasonable
differentiations between persons; egalitarian conception of society and accordingly
demanding redistribution in order to ensure true equality; or a somewhat meaning, as
requiring that persons be treated with equal respect.39

3. Equality of Opportunity
Equality of opportunity focuses on ensuring that all individuals have the same starting
point, regardless of socio-economic background, gender, or race. This type of equality
aims to level the playing field by removing barriers to participation, particularly in
education, employment, and political representation.

38
Indra Sawhney v. Union of India, A.I.R. 1993 S.C. 477 (India).
39
Manaj jyawkho, Nepal law Review, Right To Equality, vol.

27
The International Covenant on Economic, Social and Cultural Rights (ICESCR)
endorses equality of opportunity in Article 6, which guarantees the right to work,
including technical and vocational guidance, training programs, and policies to
achieve economic advancement without discrimination.40

4. Social Equality
Social equality addresses the equal treatment of individuals in social life, including
access to resources, status, and services. It is often supported by laws that prevent
discrimination based on race, gender, religion, or other social identifiers, aiming to
reduce societal stratification.
The case of Loving v. Virginia41, where the U.S. Supreme Court struck down laws
prohibiting interracial marriage, exemplifies a significant step toward social equality.
This decision affirmed that marriage laws cannot discriminate based on race, thus
reinforcing social equality by challenging societal prejudices.

5. Economic Equality
Economic equality seeks to reduce disparities in wealth and income. Policies that
promote economic equality may include progressive taxation, social welfare
programs,and minimum wage laws. Economic equality is instrumental in achieving
social justice, as it aims to bridge the income gap and reduce poverty.
In Nepal, policies of economic equality are evident in provisions like Article 18 of the
Constitution, which allows for affirmative action to uplift marginalized communities
through employment and educational opportunities.42 Economic equality supports the
creation of a fairer society by addressing the wealth disparities that underlie social
inequities.
Equality serves as a foundational principle in various human rights treaties and
constitutional provisions worldwide. It is explicitly recognized in the Universal
Declaration of Human Rights (UDHR) and the International Covenant on Civil and

40
International Covenant on Economic, Social and Cultural Rights art. 6, Dec. 16, 1966, 993 U.N.T.S. 3.
41
Loving v. Virginia, 388 U.S. 1 (1967).
42
CONST. OF NEPAL(2015) art. 18.

28
Political Rights (ICCPR), both of which declare that all people are entitled to equal
protection under the law.43
Equality's importance extends to the development of just and inclusive societies. It
ensures that legal systems are not merely formal structures but responsive institutions
that reflect the realities of the diverse populations they serve. Equality is not a one-
dimensional concept but rather a complex, multifaceted principle encompassing
various forms of legal, social, and economic equity. While formal equality aims for
equal treatment, substantive equality seeks actual equity by accounting for historical
and social disadvantages. Equality of opportunity promotes accessible pathways to
success, and social and economic equality ensure broader equity across societal
spheres. Together, these dimensions of equality contribute to a more comprehensive
understanding of justice, which modern democracies continue to evolve through legal
reforms, landmark judgments, and human rights conventions.

Meaning of Equality
Equality is a fundamental principle enshrined in democratic systems and international
human rights law. At its core, equality refers to the state of being treated with fairness
and having access to the same rights, opportunities, and protections, regardless of
differences in race, gender, religion, or other characteristics. It has a broad
philosophical and legal meaning, which varies depending on the context in which it is
applied. In legal terms, equality typically refers to the equal protection of laws, which
ensures that individuals are not discriminated against based on characteristics
irrelevant to their ability to engage with society or its institutions.
The concept of equality has evolved over time. Historically, equality was often
limited to specific groups, such as property-owning males. However, modern
interpretations have broadened the scope to include gender, race, disability, and other
protected categories, affirming the idea that all individuals deserve equal treatment
and opportunities under the law. For instance, Article 1 of the Universal Declaration
of Human Rights (UDHR) asserts, "All human beings are born free and equal in
dignity and rights," setting a universal standard for the equality of all people.44

43
International Covenant on Civil and Political Rights art. 26, Dec. 16, 1966, 999 U.N.T.S.171
44
Universal Declaration of Human Rights, art. 1, G.A. Res. 217 A(III), U.N. Doc. A/810 (Dec. 10, 1948).

29
Philosophically, the meaning of equality can be understood from several perspectives.
John Rawls, in his seminal work A Theory of Justice, contends that the principle of
justice should focus on ensuring fair opportunities for all individuals, with special
consideration for the least advantaged members of society. Rawls's "difference
principle" suggests that inequalities are acceptable only if they benefit the most
disadvantaged in society.45 This emphasizes that equality should not only be seen in
terms of formal equality but also in substantive terms, which address the conditions
under which individuals live and interact within society.
Equality, as defined in legal frameworks, means that all persons must be treated with
the same respect and dignity by the law. It is often represented by the principle of
"equal protection under the law," which prevents the government and other actors
from making distinctions between people without justifiable reasons. This legal
interpretation is found in the constitutions of numerous democratic nations, including
the Constitution of the United States, which guarantees "equal protection of the laws"
under the Fourteenth Amendment.
The scope of equality extends beyond simple non-discrimination. It involves both
formal and substantive aspects, reflecting different methods for achieving equal
treatment in various contexts. The scope of equality is not limited to the prohibition of
discrimination but also encompasses measures that ensure substantive equality,
meaning that individuals must be provided with the tools and resources necessary to
compete on an equal footing.
Formal equality is the principle that all individuals are to be treated equally before the
law. In its most basic form, this means that laws should apply uniformly to everyone,
without arbitrary distinctions. However, formal equality does not account for pre-
existing social, economic, or cultural inequalities. Therefore, substantive equality has
emerged as an important concept in contemporary legal systems, which focuses on the
actual effects of laws and policies on disadvantaged groups.
One prominent example of this is the concept of affirmative action or positive
discrimination, which aims to correct historical and social inequalities by giving
special consideration to certain groups, such as women or ethnic minorities. The
scope of equality, in this case, requires not only that the law prohibits discrimination
but also that measures be taken to promote opportunities for disadvantaged groups. In

45
John Rawls, A Theory of Justice (Harvard University Press, 1971).

30
India, for instance, affirmative action policies have been implemented for Scheduled
Castes, Scheduled Tribes, and Other Backward Classes to address systemic historical
discrimination and inequality.
The Supreme Court of India, in the landmark case of State of Punjab v. Surjit Singh46,
emphasized the need for equality not only in terms of legal protection but also in
terms of substantive outcomes, reflecting the broader scope of equality beyond legal
formalities.
The Court acknowledged that "equality must be read into all aspects of social life"
and stressed that equal opportunities must be provided to the underprivileged groups
in society.
Internationally, the scope of equality has been addressed in various legal instruments,
such as the International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social, and Cultural Rights (ICESCR). These
documents establish a broader vision of equality, one that includes not only political
rights but also social and economic rights. In Owen v. West47, the European Court of
Human Rights ruled that equality should not only protect individuals from
discrimination but also ensure that they are given the necessary means to live a
dignified life, addressing both the legal and socio-economic barriers that exist in
society.
Moreover, the scope of equality is often discussed in the context of intersectionality, a
concept introduced by Kimberlé Crenshaw. Intersectionality argues that individuals
may experience multiple forms of discrimination simultaneously due to overlapping
social identities, such as race, gender, and class. This perspective broadens the scope
of equality by acknowledging that individuals' experiences of inequality cannot be
understood solely through the lens of one identity but must account for the
intersections of multiple forms of oppression.48
The modern understanding of the scope of equality requires a dynamic approach,
encompassing legal protections as well as affirmative measures that consider the
broader social, economic, and historical contexts. As the global community continues

46
State of Punjab v. Surjit Singh, (India), 1981 S.C. 234.
47
Owen v. West, 29 E.H.R.R. 447 (European Court of Human Rights, 2001).
48
Dorian R. Woods, Yvonne Benschop, Marieke Van Den Beink, What is intersectional equality? A definition and
goals of equality. Wiley, 10.1111/gwao.12760(2021)(Visited at 19.11.2024)

31
to evolve, the scope of equality will likely expand, addressing new challenges and
disparities in diverse contexts.

3.2 Legal provisions of Right to Equality

The present Nepalese constitution establishes the Right to Equality as a fundamental
right, emphasizing non-discrimination and equal treatment for all citizens. This article
details several principles that aim to ensure justice and fairness, both in the
application of laws and in opportunities for disadvantaged groups.

3.2.1 Right to Equality:49

(1) All citizens shall be equal before law. No person shall be denied the equal
protection of law. Equality before the Law and Equal Protection: This clause
establishes that all citizens are equal before the law, ensuring that no one is denied
equal protection under it. This principle, inspired by English and American legal
traditions, aims to guarantee formal justice by affirming that laws apply equally to
everyone.

(2) No discrimination shall be made in the application of general laws

On grounds of origin, religion, race, caste, tribe, sex, physical condition, condition of
health, marital status, pregnancy, economic condition, language or region, ideology or
on similar other grounds.
Prohibition of Discrimination: This clause specifies that general laws must
notdiscriminate against individuals based on origin, religion, race, caste, tribe, sex,
physical or health condition, marital status, pregnancy, economic status, language,
region, ideology, or similar grounds. This provision safeguards against biased
applications of the
law, affirming that all citizens should have an equal experience of justice under
general laws.
(3) The State shall not discriminate citizens : On grounds of origin, religion, race,
caste, tribe, sex, economic condition, language, region, ideology or on similar other
grounds. Provided that nothing shall be deemed to prevent the making of special
provisions by law for the protection, empowerment or development of the citizens

49
CONST. OF NEPAL (2015) art. 18.

32
including the socially or culturally backward women, Dalit, indigenous people,
indigenous nationalities, Madhesi, Tharu, Muslim, oppressed class, Pichhada class,
minorities, the marginalized, farmers, labours, youths, children, senior citizens,
gender and sexual minorities, persons with disabilities, persons in pregnancy,
incapacitated or helpless, backward region and indigent Khas Arya.
State's Non-Discrimination Obligation and Positive Discrimination: Here, the
constitution prohibits the state from discriminating against citizens based on origin,
religion, race, caste, sex, and other similar grounds. However, this clause also
includes an important provision allowing the state to make "special provisions" for
groups that have historically been marginalized or disadvantaged. This positive
discrimination or affirmative action aims to protect and uplift individuals and
communities who face structural inequalities, including women, Dalits, indigenous
people, Madhesis, Tharus, Muslims, oppressed classes, marginalized groups, and
others who may require legal or social protection. This clause recognizes that formal
equality alone is insufficient to ensure actual equality for disadvantaged groups, and it
authorizes policies that promote their empowerment and development.
Explanation: For the purposes of this Part and Part 4, "indigent" means a person who
earns income less than that specified by the Federal law. An "indigent" is defined as
someone whose income falls below a specific threshold set by federal law. This
definition provides clarity for implementing provisions related to socio-economic
support and protections for economically disadvantaged individuals.
(4) No discrimination shall be made on the ground of gender with regard to
remuneration and social security for the same work.
Equal Pay and Social Security: This clause mandates that there should be no gender-
based discrimination in pay or social security for the same work. It emphasizes fair
remuneration practices, ensuring that women and men receive equal pay for equal
work. This is a step toward addressing economic inequality and ensuring economic
justice and security for all genders.43(5) All offspring shall have the equal right to the
ancestral property without discrimination on the ground of gender.
Equal Right to Ancestral Property: This clause grants equal rights to ancestral
property for all offspring, regardless of gender. This is particularly important for
promoting gender equality, as it ensures that daughters and sons have the same
inheritance rights. This provision aims to challenge patriarchal property laws and

33
practices, moving toward gender equity in inheritance rights.This provision of right to
equality as a fundamental right reflects a dual commitment to both "equality before
the law," a principle rooted in English legal tradition, and "equal protection of the
laws," a concept established in the United States with the Fourteenth Amendment. By
incorporating both of these foundational concepts, the constitution seeks to ensure
justice in both a formal and substantive sense. Formal justice, or equality before the
law, guarantees that every individual is treated the same under the law, without
arbitrary discrimination. However, recognizing that true equality requires more than
formal fairness, the constitution also embraces substantive or actual justice, as
encapsulated in the principle of equal protection. This approach goes beyond mere
equal treatment, striving to balance disparities and address historical disadvantages
within society.
To further this aim, the constitution incorporates the principle of positive
discrimination, which seeks to provide support, benefits, and empowerment
opportunities to marginalized, underrepresented, and economically disadvantaged
groups. This approach acknowledges the structural barriers that prevent certain
communities from fully enjoying their rights, offering targeted measures to level the
playing field. While previous constitutions from 1990 and 2007 had already
established the foundations for positive discrimination, the current constitution
expands on these provisions with even greater specificity and clarity. By explicitly
detailing affirmative measures, the constitution demonstrates a stronger commitment
to addressing systemic inequality, enhancing social equity, and supporting those who
have historically been marginalized. This development reflects an evolving approach
that aligns with international standards of human rights and justice, moving the nation
closer to a comprehensive realization of equality for all citizens.
(5) All offspring shall have the equal right to the ancestral property without
discrimination on the ground of gender. Equal Right to Ancestral Property: This
clause grants equal rights to ancestral property for all offspring, regardless of gender.
This is particularly important for promoting gender equality, as it ensures that
daughters and sons have the same inheritance rights. This provision aims to challenge
patriarchal property laws and practices, moving toward gender equity in inheritance
rights.

34
This provision of right to equality as a fundamental right reflects a dual commitment
to both "equality before the law," a principle rooted in English legal tradition, and
"equal protection of the laws," a concept established in the United States with the
Fourteenth Amendment. By incorporating both of these foundational concepts, the
constitution seeks to ensure justice in both a formal and substantive sense. Formal
justice, or equality before the law, guarantees that every individual is treated the same
under the law, without arbitrary discrimination. However, recognizing that true
equality requires more than formal fairness, the constitution also embraces substantive
or actual justice, as encapsulated in the principle of equal protection. This approach
goes beyond mere equal treatment, striving to balance disparities and address
historical disadvantages within society.
To further this aim, the constitution incorporates the principle of positive
discrimination, which seeks to provide support, benefits, and empowerment
opportunities to marginalized, underrepresented, and economically disadvantaged
groups. This approach acknowledges the structural barriers that prevent certain
communities from fully enjoying their rights, offering targeted measures to level the
playing field. While previous constitutions from 1990 and 2007 had already
established the foundations for positive discrimination, the current constitution
expands on these provisions with even greater specificity and clarity. By explicitly
detailing affirmative measures, the constitution demonstrates a stronger commitment
to addressing systemic inequality, enhancing social equity, and supporting those who
have historically been marginalized. This development reflects an evolving approach
that aligns with international standards of human rights and justice, moving the nation
closer to a comprehensive realization of equality for all citizens.
Hence, Article 18 combines both formal equality (equal treatment before the law) and
substantive equality (positive discrimination for marginalized groups) to promote a
more inclusive, equitable society. It aims to eliminate discrimination across various
grounds while allowing affirmative action to support disadvantaged communities.
This article reflects a commitment to both universal principles of equality and the
specific socio-cultural context of Nepal, recognizing that true equality requires
targeted support for historically marginalized groups.

35
3.2.2 Right against Untouchability and Discrimination50
This article specifically addresses the issue of caste-based discrimination and
untouchability, declaring it a punishable offense. It provides that no one shall be
subjected to discrimination based on caste, and any acts that reinforce untouchability
in public or private spaces are prohibited. The article also mandates punishment for
any act of discrimination or untouchability and provides for compensation to victims.

3.2.3 Right against Exploitation51

This article protects individuals from all forms of exploitation, including forced labor,
slavery, and trafficking. It is relevant to equality as it aims to protect marginalized and
vulnerable groups who are often victims of such exploitation.

3.2.4 Rights of Women52

This article promotes gender equality by affirming the rights of women to participate
in all spheres of life on an equal basis with men. It includes provisions for the right to
reproductive health, equal participation in state bodies, and protection against
violence and exploitation. It also specifically prohibits any form of discrimination or
violence against women, ensuring their equal status and opportunities in society.

3.2.5 Rights of Dalits53

This article guarantees special rights for Dalits, acknowledging their historical
marginalization. It mandates reservations in education, employment, and political
representation for Dalits to promote their social inclusion and empowerment. It also
ensures that Dalits have equal access to public services and facilities and prohibits
discrimination based on caste.

50
CONST. OF NEPAL (2015)ART. 24.
51
CONST. OF NEPAL (2015)ART. 29.
52
CONST. OF NEPAL (2015) ART. 38.
53
CONST. OF NEPAL (2015) ART. 40.

36
3.2.6 Right to Social Justice54
This article aims to ensure social justice by providing marginalized communities and
individuals with rights to participate in various state mechanisms. It guarantees
representation for women, Dalits, indigenous groups, Madhesis, Tharus, Muslims,
people with disabilities, marginalized communities, and economically disadvantaged
groups. It ensures that these groups have proportional representation in state
institutions, promoting equal opportunities for participation and advancement.

3.2.7 Right to Social Security55

This article ensures social security for vulnerable populations, including senior
citizens, persons with disabilities, and marginalized communities. It reinforces the
state's duty to provide protection and support to individuals who may face
disadvantages due to their social or economic status.These articles collectively ensure
a comprehensive approach to equality, addressing both formal equality before the law
and substantive equality through positive discrimination and social justice measures.
The Constitution of Nepal emphasizes inclusivity and seeks to uplift marginalized
groups by guaranteeing protections, social rights, and representation in state
mechanisms.

3.2.8 Institutional Mechanisms

The Right to Equality is a cornerstone of any democratic society, ensuring that all
individuals, regardless of their gender, caste, ethnicity, religion, or social standing, are
treated with fairness and justice. In Nepal, the Right to Equality is enshrined in the
Constitution and is supported by various institutional mechanisms aimed at ensuring
its effective implementation. These mechanisms are critical in addressing historical
injustices, promoting social inclusion, and ensuring the equal protection of the laws
for all citizens.
Nepal, like many countries, has a history of caste-based discrimination, ethnic
marginalization, and gender inequality. For centuries, the caste system in Nepal was a
deeply entrenched social institution that severely limited the opportunities of
individuals, particularly from the Dalit, indigenous, and marginalized communities.
54
CONST. OF NEPAL ART. 42.
55
CONST.OF NE PAL ART 43

37
The Hindu caste system, combined with the geographical remoteness of various
ethnic groups, exacerbated the division within society.
The institutionalized exclusion of women, Dalits, and other marginalized
communities was legalized in the past through discriminatory laws and practices,
including the Hindu Code of Conduct and the Muluki Ain (National Civil Code),
which perpetuated unequal treatment based on caste, gender, and social status. These
historical injustices contributed to widespread social and economic inequalities, which
continued to persist even after the establishment of the modern Nepali state.

Constitutional Bodies for the Protection of Equality.

The institutional framework to support the Right to Equality in Nepal includes several
constitutional bodies and mechanisms designed to promote and protect the rights of
citizens. These institutions have been empowered by the Constitution to implement
the principles of equality and take corrective actions where necessary.

1. The Supreme Court of Nepal

The Supreme Court is the highest judicial authority in Nepal and plays a vital role in
the interpretation and enforcement of constitutional rights, including the Right to
Equality. It is the interpretator of the constitution. The Court has been instrumental in
expanding the understanding of equality, including issuing landmark rulings that have
advanced the rights of marginalized groups. In various cases, the Supreme Court has
ruled on issues of gender discrimination, caste-based exclusion, and the rights of
indigenous people, providing judicial remedies and directions for state action.
One notable example is the Iman Singh Gurung v. Government of Nepal case, in
which the Court declared provisions of the Military Act of 2016 that restricted access
to justice to military personnel as inconsistent with the Constitution's guarantee of
equality before the law. This case affirmed that all citizens, regardless of their status,
have the right to seek legal remedy through ordinary courts, reinforcing the notion
that equality before the law must apply uniformly.
The preamble of the Constitution implicates the independent, impartial and competent
judiciary and concept of the rule of law in order to build a prosperous nation, The

38
Supreme Court have extraordinary Jurisdiction to protect the fundamental rights of
people which are regarded as constitutional remedies.
The State's political goal is to establish a system of governance focused on public
welfare, creating a just framework for all aspects of national life through the rule of
law, fundamental rights, human rights, gender equality, proportional inclusion,
participation, and social justice. At the same time, it aims to safeguard people's lives,
property, equality, and freedoms, while upholding the core values of freedom,
sovereignty, territorial integrity, and independence of Nepal.56

2. The National Human Rights Commission (NHRC)

The NHRC is an autonomous body established to promote and protect human rights
in Nepal. The Commission plays a crucial role in ensuring the Right to Equality by
investigating human rights violations, including discrimination based on caste,
gender, ethnicity, or religion. The NHRC also recommends legal and policy reforms
to address systemic inequality and works to raise public awareness about human
rights and equality issues.
The NHRC has contributed significantly to the formulation of policies aimed at
promoting equality, especially through its advocacy for the rights of marginalized
groups. Its efforts have been vital in encouraging the government to adopt policies
that specifically address the needs of Dalits, women, and indigenous peoples.

3. The National Dalit Commission (NDC)

The NDC is a government body tasked with addressing issues of caste-based
discrimination and promoting the rights 57 of Dalits. The Commission works to
eliminate untouchability and discrimination faced by Dalits in various spheres of life,
including education, employment, and access to public services.
The NDC also advises the government on legislative and policy reforms that would
promote the social, economic, and political inclusion of Dalits in Nepal.

56
Directives principles of the state. Constitution of Nepal, Art. 50.
57
Bashyal, Prof. Dr. Binod, (2021). Constitutional Law. Modern Books.

39
The establishment of the NDC has been a critical step in implementing the
constitutional guarantee of equality, as it provides a focused institutional mechanism
to address caste-based discrimination and promote the welfare of Dalits.

4. The Women's Commission

The Women's Commission is another important institution created to ensure gender
equality in Nepal. The Commission works to protect women's rights, including their
right to equal pay, access to education, participation in politics,58 and protection from
violence and discrimination. It also advises the government on gender-sensitive
policies and programs that can advance the status of women in Nepalese society. The
Women's Commission has been a key player in pushing for reforms in family law,
inheritance rights, and laws related to domestic violence, all of which directly impact
the realization of gender equality in Nepal.

5. The Indigenous Nationalities Commission (INC)

The INC is tasked with protecting the rights of indigenous peoples and ensuring their
social, cultural, and economic integration into society. Indigenous communities in
Nepal have historically faced discrimination, marginalization, and limited access to
resources. The INC works to eliminate these disparities by advocating for the rights of
indigenous 59 peoples to preserve their culture, language, and traditional knowledge
while also ensuring their full participation in the nation's economic and political life.
The Commission has worked to ensure that the policies and laws of Nepal are
inclusive of the needs and rights of indigenous groups, helping to create a more equal
society for all.

6. National Inclusive Commission

Report of the National Inclusive Commission on Ending Reservation in Nepal.
Nepal is a nation characterized by its diversity, both ethnically and culturally.
Historically, however, certain groups such as women, Dalits, indigenous peoples, and
the marginalized communities in the Terai region have faced systemic exclusion and

58
Lawoti, M. (2005). Towards a democratic Nepal:
59
Dahal, K. R. (1992). Sambhaidhanik Kanoon (Constitutional Law).

40
discrimination. To address these inequalities, Nepal has implemented affirmative
action measures, including reservations (quota systems) in employment, education,
and political representation. These measures aim to provide these disadvantaged
groups with a fair opportunity to access resources and services.
In recent years, however, there has been significant debate surrounding the
continuation of reservation policies. This debate is especially poignant with respect to
the concerns raised about whether such reservations continue to serve their intended
purpose, whether they have been effective in promoting true social equality, and
whether they should be phased out as Nepal progresses towards a more inclusive
society.
The National Inclusive Commission (NIC), a constitutional body established in Nepal,
plays a critical role in the formulation and evaluation of policies concerning inclusion
and social justice. The NIC has undertaken the task of assessing the current
reservation policies and examining the potential for ending them. The following paper
examines the NIC's report on ending reservation in Nepal, analyzing the rationale
behind it, the findings, and the broader implications for Nepal's social justice
landscape.

Historical Context of Reservation in Nepal

In the context of Nepal, reservations (or affirmative action) were introduced as a
means to address the systemic inequalities faced by marginalized groups. These
measures were intended to combat the historical oppression faced by Dalits, women,
indigenous groups, and people from underdeveloped regions such as the Terai.
The Constitution of Nepal, 2015, which replaced the previous 1990 constitution,
guarantees fundamental rights, including the right to equality, and allows the
government to adopt affirmative action policies to promote social inclusion. Article
18 of the Constitution provides a strong framework for equality, ensuring that the
State does not discriminate against any individual on the grounds of caste, race,
gender, ethnicity, or religion. The Constitution also gives the government the
authority to establish reservations and quotas to address historical disadvantages.

41
However, the application of reservation policies has been contentious. While
reservations were initially seen as a necessary mechanism to address inequality, critics
have questioned whether they perpetuate social divisions and whether the benefits are
being cornered by the more dominant groups within marginalized communities, often
referred to as the "creamy layer." Furthermore, some argue that such measures might
be counterproductive in the long term, as they might not address the root causes of
inequality, such as lack of access to education, healthcare, and economic
opportunities.

The Role of the National Inclusive Commission

The National Inclusive Commission (NIC) was established as an independent body to
promote social justice, inclusion, and equality for marginalized communities in Nepal.
The Commission plays a central role in advising the government on policies related to
inclusion and reservation, and its functions include:

1. Assessing the Impact of Reservation Policies: The NIC is responsible for

evaluating the effectiveness of reservation policies in terms of providing access to
education, employment, and political representation for marginalized groups.

2. Identifying Barriers to Social Inclusion: The Commission works to identify the

social, cultural, and economic barriers that prevent marginalized groups from fully
participating in the development of the country.

3. Promoting Policy Reform: Based on its research and consultations, the NIC
provides recommendations to the government for reforming or improving affirmative
action policies and other measures aimed at achieving social inclusion.
In its 2023 report", the NIC analyzed the impact of reservation policies in Nepal and
discussed the need for reform. It highlighted concerns about the persistence of
inequality despite reservation policies and considered whether these policies should
59
continue in their current form or be phased out altogether. National Inclusive
Commission. (2023). Annual report on inclusive policies and practices. National
Inclusive Commission.

42
The NIC's report on ending reservation in Nepal covers several important areas,
including the effectiveness of reservation policies, the challenges faced by
marginalized communities, and the potential implications of ending reservations. The
key findings can be summarized as follows:

1. Limited Effectiveness of Reservation Policies The report noted that, while

reservation policies have succeeded in providing certain benefits to marginalized
communities, their overall impact in promoting social and economic equality has been
limited. The reservation system has resulted in increased representation in
government jobs and education, but it has not significantly alleviated the socio-
economic disparities that these communities face.
The NIC identified that many of the benefits of reservation policies have been
concentrated among the more privileged sections within marginalized groups often
those with better access to education and resources. This has led to the argument that
the reservation system has failed to reach the most disadvantaged and has, in some
cases, created a new class of elites within marginalized communities.

2. The "Creamy Layer" Problem A critical issue raised in the NIC's report is the
concept of the "creamy layer" within the marginalized communities. This term refers
to the relatively better-off individuals who benefit disproportionately from reservation
policies. In many cases, the NIC found that individuals from the economically
privileged sections of Dalit, indigenous, or Madhesi communities were the primary
beneficiaries of the reservation system. These individuals, often possessing better
educational backgrounds and financial resources, were more likely to secure positions
reserved for their communities, while the most vulnerable members of these groups
continued to face exclusion.
The NIC's report recommended that the government take steps to ensure that the
benefits of reservation policies reach the most disadvantaged within these groups,
possibly through stricter criteria for eligibility or more targeted affirmative action
measures.

43
3. Perpetuation of Social Divisions Another concern raised in the report is that
reservation policies may inadvertently perpetuate caste-based divisions and social
inequalities. Although the aim of reservations was to reduce social disparities, critics
argue that they have instead reinforced caste identities and divisions in society,
fostering a sense of group-based competition rather than promoting unity.
The NIC acknowledged that while reservation has brought about positive changes in
representation, it has also led to tensions between different caste and ethnic groups,
some of whom feel that they have been left out of the benefits of affirmative action.
This has led to demands for the end of reservation policies from certain sections of the
population, who argue that such policies have become outdated and
counterproductive.

4. Lack of Access to Education and Economic Opportunities The NIC's report

highlighted that reservation policies, while beneficial in some areas, have not been
enough to address the root causes of inequality, such as limited access to quality
education, healthcare, and economic opportunities. Many marginalized communities
continue to face barriers in accessing education, which limits their ability to benefit
from reservations in employment or political representation.
To effectively address inequality, the NIC recommended that the government focus
on improving the socio-economic conditions of marginalized groups by providing
better access to education, healthcare, and vocational training, as well as by
promoting economic empowerment.

5. Calls for Reform and Phasing Out of Reservations The NIC's report concludes
that while reservation policies have played an important role in promoting social
inclusion, they must be re-evaluated and reformed to ensure
that they do not perpetuate new forms of inequality. The Commission suggests a
gradual phasing out of reservations, especially for those groups that have made
significant progress in terms of social and economic development.
Instead of blanket reservations, the NIC proposes that the government adopt more
targeted and needs-based affirmative action policies that focus on the most
disadvantaged individuals within marginalized groups. This would involve a shift

44
from group-based quotas to individual-based criteria, ensuring that resources are
allocated where they are most needed.
The recommendations made in the NIC's report to end or reform reservation policies
have significant implications for Nepal's social justice framework. If implemented,
these reforms could lead to a more meritocratic system where individuals are chosen
based on their needs rather than their caste or ethnicity. However, it could also lead to
resistance from those who continue to face systemic discrimination and exclusion.
The report calls for a broader approach to social justice that goes beyond reservations.
It emphasizes the importance of ensuring access to education, economic opportunities,
and healthcare for all, regardless of their social background. This holistic approach
may be the key to achieving long-term equality in Nepal.
The report of the National Inclusive Commission on ending reservation in Nepal
presents a critical examination of the effectiveness of reservation policies. While
recognizing the importance of these policies in addressing historical injustice, the NIC
has raised important questions about their current relevance and impact. The
recommendations for reform, including focusing on the most disadvantaged
individuals within marginalized groups and shifting toward needs-based affirmative
action, have the potential to reshape Nepal's approach to social justice and equality.
However, the challenge lies in ensuring that such reforms do not lead to new forms of
exclusion and that the root causes of inequality are adequately addressed.
As Nepal continues to evolve, the country must balance the need for affirmative
action with the goal of building a more inclusive and equitable society. The ongoing
debate surrounding the reservation system is an essential part of this process, and the
NIC's report provides a valuable foundation for future discussions on the path toward
social justice.
Government Policies and Programs to Promote Equality
In addition to constitutional and statutory provisions, the government of Nepal has
implemented several policies and programs aimed at reducing inequality and
promoting social inclusion. These include:
1. Affirmative Action and Reservation Policies
As part of its commitment to social justice and equality, Nepal has adopted
affirmative action measures, including reservation policies in education, employment,

45
and political representation. These policies ensure that historically marginalized
communities, such as Dalits, indigenous peoples, women, and Madhesi populations,
have a fair opportunity to access public services and resources.
2. Gender Equality and Empowerment Programs
The government has introduced various programs aimed at promoting gender
equality, including the establishment of women's shelters, the promotion of women's
education, and campaigns to end gender-based violence. The Constitution's provision
for gender equality has been reinforced through these programs, which strive to
eliminate the socio-cultural barriers that prevent women from achieving equality in all
spheres of life.

3. The Social Security Act

The Social Security Act of Nepal provides social protection to vulnerable groups,
including the elderly, disabled persons, and single women. The government has
expanded social security programs to ensure that these marginalized populations
receive support, thereby addressing economic inequality and fostering social
inclusion.
In conclusion, Nepal has made significant strides in enshrining the Right to Equality
in its Constitution, supported by various institutional mechanisms designed to
promote social inclusion and eliminate discrimination. The Supreme Court, the
NHRC, the Women's Commission, and other commissions for Dalits and indigenous
peoples play critical roles in ensuring the effective implementation of equality
provisions. Moreover, affirmative action policies and government programs aim to
empower marginalized communities and ensure their full participation in society.
While challenges remain in realizing true equality for all, Nepal's institutional
framework provides a strong foundation for the continued promotion of equality,
social justice, and human rights. The success of these mechanisms will depend on the
effective implementation of laws, continued advocacy, and public awareness of the
importance of equality in the country's democratic development.

46
 CHAPTER FOUR
JUDICIAL INTERPRETATIONS OF THE RIGHT TO
EQUALITY
4.1 Key Judicial Decisions of Supreme Court of Nepal Interpreting
Equality Rights
1. In the case of Iman Singh Gurung v. Government of Nepal 60. The Supreme
Court of Nepal addressed an important issue concerning the right to equality and
access to justice. The case challenged Section 1(3)(D) of the Military Act, 2016 B.S.
(1959 A.D.), which placed restrictions on certain military personnel, including Iman
Singh Gurung, from accessing the regular court system for legal remedies. According
to this section of the Military Act, members of the armed forces could only seek
justice within the military court system, effectively barring them from approaching
civilian courts to contest grievances or claim their rights. This provision was argued to
be inconsistent with the fundamental right to equality as guaranteed by Article 11(1)
of the Constitution of the Kingdom of Nepal, 2047 B.S. (1990 A.D.).
The Supreme Court examined whether restricting military personnel from accessing
ordinary courts violated the principle of equality before the law. Article 11(1) of the
1990 Constitution emphasized that all citizens are equal before the law and are
entitled to the equal protection of the law. The court found that the Military Act's
provision created a separate system of justice for military personnel, limiting their
rights compared to other citizens. This restriction not only infringed on the equal
protection clause but also undermined the universal applicability of the judicial
system to all citizens regardless of their profession or status. The court ruled that such
discrimination was not justified and declared the specific section of the Military Act
void.
The decision established an essential precedent in Nepalese constitutional law,
reinforcing that every citizen, regardless of their occupation or rank, has the right to
seek justice through the regular court system. The judgment underscored the Supreme
Court's commitment to uphold fundamental rights and safeguard the equality of all
citizens before the law. By affirming that military personnel were entitled to the same

60
NKP 2049, Decision Number 4597, Vol. 7 at 1.

47
legal protections and avenues for justice as civilians, the ruling further strengthened
Nepal's legal system's dedication to ensuring equal access to judicial remedies across
the society.
This case highlighted the judiciary's role in reviewing legislation for compatibility
with constitutional rights, especially concerning equality and access to justice. The
Supreme Court's decision sent a clear message about the universality of legal rights,
emphasizing that the state must ensure that no citizen is denied their fundamental
right to equality before the law due to their occupation or association with specific
institutions. This landmark ruling reinforced the principle that legal remedy through
the ordinary courts is a right afforded to all citizens, regardless of rank or status, and
contributed significantly to shaping the legal landscape of Nepal in alignment with
constitutional protections.
2. In Man Bahadur BK v. Government of Nepal et al 61, The Supreme Court of
Nepal reviewed the constitutional validity of No. 10(A) of the Chapter on
Miscellaneous of the Muluki Ain, 2020 B.S. (1963 A.D.). This provision allowed for
discriminatory practices based on caste, particularly impacting marginalized
communities, such as Dalits. Man Bahadur BK, a member of a historically
disadvantaged group, challenged the provision, arguing that it conflicted with the
right to equality as guaranteed by the Constitution of the Kingdom of Nepal, 2047
B.S. (1990 A.D.). The Supreme Court found No. 10(A) to be incompatible with the
Constitution's provisions on equality and non-discrimination. The court ruled that the
law was unconstitutional, as it contradicted the fundamental right to equality, which
protects all citizens from discrimination based on caste, origin, or social status.
Consequently, the provision was declared void.
This decision marked a significant step in Nepal's judicial efforts to eliminate caste-
based discrimination and reinforce the constitutional commitment to equality for all
citizens, irrespective of caste or social background. The ruling underscored the
Supreme Court's role in dismantling discriminatory laws and supporting an inclusive
legal framework in Nepal.
3. In the landmark case of Meera Dhungana v. Ministry of Law, Justice &
.
Parliamentary System et al62 The Supreme Cou Court of Nepal addressed the issue

61
ST NKP 2049. Vol. 1 at 110. D.N.1011.
62
NKP 2052. Decision No. 6013. vol. at 462.

48
of gender discrimination in inheritance laws. The petitioner, Meera Dhungana, argued
that No. 16 of the Chapter on Partition in the Muluki Ain (Civil Code) was
discriminatory, as it denied daughters equal rights to their parents' ancestral property.
This provision limited daughters' inheritance rights, granting sons full rights to
ancestral property while denying daughters the same legal standing, thereby violating
the constitutional right to equality.The Supreme Court recognized this discrepancy as
unconstitutional and inconsistent with the principle of gender equality guaranteed by
the Constitution of the Kingdom of Nepal, 2047 B.S. (1990 A.D.). Art. 88(1). As a
result, the court issued a directive order to the government, mandating that it enact
new legislation within one year to ensure that daughters receive equal rights to
ancestral property. The court also emphasized the importance of consulting with
relevant stakeholders and organizations to ensure that the law would be
comprehensive and fair.
This ruling was pivotal in advancing women's rights in Nepal, highlighting the
judiciary's role in promoting legal reforms to eliminate gender-based discrimination.
The decision not only reinforced the constitutional commitment to equality but also
set a precedent for legislative action in addressing gender injustice in property and
inheritance laws.

4. In the case of Reena Bajracharya Supreme Court of Nepal reviewed Rule

16(1) (3) of the Royal Nepal Airlines v. Nepal Airlines Corporation et al. 63, The
Corporation Service Regulation, 2031 B.S. (1974 A.D.), which imposed
discriminatory employment conditions based on gender. Reena Bajracharya
challenged this rule, arguing that it violated her right to equality by setting different
standards and restrictions specifically for female employees.
The Supreme Court found that Rule 16(1)(3) was inconsistent with the
constitutionally guaranteed right to equality, as it created unjustified discrimination
against women. The court declared the provision void ab initio (from the beginning),
stating that such discriminatory rules had no place in Nepal's legal framework. This
decision reinforced the principle of equality in employment and marked a significant
step toward eliminating gender-based discrimination in workplace regulations.

63
NKP 2051, vol. at 376.

49
5. In Baburam Paudel v. Government of Nepal et al.,64 The Supreme Court of
Nepal examined the misuse of discretionary power by government authorities. The
petitioner argued that such power was being exercised arbitrarily, leading to unfair
treatment and inconsistency with the constitutional right to equality. The Supreme
Court emphasized that while discretionary power is sometimes necessary, it must be
exercised within legal limits and should not be applied based on personal whims or
biases.
The Court held that discretionary power must be used rationally and consistently to
ensure fair treatment, especially for individuals in similar circumstances. The ruling
reinforced that "equals should be treated equally," underscoring the principle that
arbitrary or capricious decisions by authorities violate the right to equality. This
interpretation provided a critical guideline for the fair use of discretion, aiming to
prevent discrimination and uphold the rule of law in Nepal.
6. In the landmark case of Meera Dhungana v. Ministry of Law, Justice &
Parliamentary System et al., 65 The Supreme Court of Nepal addressed a critical
issue concerning marital rape, thereby advancing the nation's commitment to human
rights and gender equality. Advocate Meera Dhungana challenged the then existing
legal provision of Chapter on Rape of Muluki Criminal Code 2020 that failed to
recognize and criminalize rape within marriage, arguing that such omissions
perpetuated gender-based violence and violated the constitutional right to equality and
personal liberty.
Prior to this case, marital rape was not criminalized under Nepalese law, allowing
perpetrators within a marital relationship to evade legal repercussions. Advocate
Dhungana contended that the absence of specific legislation against marital rape was
inconsistent with CEDAW and Nepal's constitutional guarantees, particularly the
Right to Equality and the Right to Personal Liberty enshrined in the Constitution. The
Petitioner asserted that sexual violence within marriage should be treated with the
same severity as rape committed by non-relatives, emphasizing that the relationship
between spouses does not exempt one party from accountability for such heinous acts.
The Supreme Court, upon reviewing the case, recognized the profound implications
of neglecting marital rape within the legal framework. The Court held that the failure

64
NKP2049Vol.1at.143
65
NKP 2058, Writ No. 55, Decision Date 2059.01.19.

50
to criminalize marital rape constituted a form of discrimination against women,
reinforcing patriarchal norms that undermine women's autonomy and safety. In its
judgment, the Court declared that marital rape is a violation of human rights and must
be treated equally under criminal law, irrespective of the relationship between the
perpetrator and the victim.
Consequently, the Supreme Court directed the Ministry of Law, Justice &
Parliamentary System to enact legislation criminalizing marital rape within one year.
The Court emphasized that whether the rapist is an intruder or a kin, the law must
ensure equal protection and justice for all victims of sexual violence. This directive
aligned Nepal with the global trend of recognizing and addressing marital rape as a
serious human rights violation, promoting gender equality and the protection of
women's rights within the marital institution.
This case is a significant milestone in Nepalese jurisprudence, as it not only
criminalizes marital rape but also reinforces the principle that the law must evolve to
protect all individuals from sexual violence, regardless of their relationship with the
perpetrator. This decision underscores the judiciary's role in advancing humanrights
and ensuring that legal protections are comprehensive and inclusive, thereby fostering
a more equitable and just society.
7. In Case of Surendra Bahadur Rawal et.al. v P.M., Office of P.M. et al 66. It
cannot be understood that provisions made within the limits of the Constitution and
laws, designed for an inclusive state structure through special arrangements, are
contrary to the principle of equality. Special provisions introduced for inclusivity
should be viewed not as adverse to the rights and interests of any particular class or
individual. but rather as temporary measures aimed at bridging gaps created by social
or geographical factors, such as gender, caste, language, religion, or region, to build a
balanced society.
The Court held that Article 18 of the Constitution provides for the right to equality as
a fundamental right, and the restrictive clause in Article 18(3) allows for ensuring
inclusivity of classes excluded by law. In alignment with this constitutional provision,
it is evident that Kathmandu Valley Water Supply Limited can, through the ninth
amendment to its Employee Administration Regulations, ensure proportional
inclusivity of citizens from certain classes and groups.

66
NK.P 2080, Vol.11 at 65. Decision No. 11199.

51
Article 281 of the Constitution of Nepal provides that the Government of Nepal will,
alongside each decennial national census, review and reassess the implementation and
impact of special rights provisions for women and the Dalit community based on
human development indicators. Temporary special measures enacted through law to
achieve the goal of equality cannot be deemed discriminatory against any particular
group. Equality is not merely a legal concept (de jure) but a substantive right (de
facto) that must be realized in practice. Temporary special measures serve as
strategies or mechanisms to achieve this right and are only intended to remain in place
until specific indicators of equality have been reached. Therefore, the arrangement
made to allow women, indigenous groups, ethnic communities, Madhesis, Dalits,
persons with disabilities, and employees permanently residing in disadvantaged
regions, who have been left behind due to social or geographical remoteness, to be
eligible for promotion should not be misconstrued as repeated favoritism
8. In Case of Niraj Kumar Sah et al v Prime Minister, Office of P.M. et.al. 67 .The
Supreme Court Issued directive order to the respondents responsible for student
admissions to ensure proportional inclusion of Nepali students from all classes and
groups in the academic institutions, campuses, and educational programs under those
universities. The order directs the creation and implementation of laws to ensure this
inclusion. Court held that In order to bring those groups who have been excluded
from the mainstream of the state, lacking representation in the resources, means, and
access provided by the state, into the mainstream, it is essential to ensure their access
and representation in these resources, means, and opportunities. To achieve this,
different measures should be adopted for specific groups or communities, ensuring
fair representation in opportunities such as education, healthcare, and employment.
Education is the gateway to ensuring participation in every structure of the state. To
build a prosperous Nepal, the state has the responsibility to provide special
opportunities in education, offering special provisions to socially and economically
disadvantaged groups, thereby fostering personal development.To ensure access to
higher education for all, it is essential not only to guarantee inclusion in financial
support but also to ensure inclusion in the admission policies themselves. Otherwise,
education or higher education, as well as technical education, may remain limited to
individuals or groups who are economically and socially privileged. Addressing

67
NKP 2075, Vol.1. Decision No. 9942.

52
diversity in admission policies is essential in a plural society like ours. This becomes
especially crucial where certain groups have been left behind due to social, economic,
or geographical reasons. However, ensuring diversity does not mean compromising
on merit. It involves adopting specific measures to foster competition among different
groups while enhancing their capacities. Today, ensuring inclusion with diversity
through competition among the unequal is more important than having a competition
between equals. For those groups or communities that have been excluded from the
mainstream of the state, diversity in admission is an immediate measure required to
ensure their access. This will not be a permanent arrangement but rather a temporary
one until the goals of equality and inclusion are achieved.

9. In one of the Landmark Case of Binay Kumar Panjiyar v Medical Eduation

Commission et. al68. In Nepal Regarding Right to equality the Nepalese Supreme
Court have laid down various principles such as principle of exclusion of creamy
layer in reservation system for the first time and also comparatively analyzed the
reservation or quota system in major legal systems of the world thus quashing the writ
petition.
In this case The Supreme Court of Nepal elaborated on the principles of equality and
non-discrimination in relation to educational access and affirmative action policies.
This case involved the interpretation of the Right to Equality under the Nepalese
Constitution, specifically within the context of admissions and affirmative measures
in the field of medical education. The case set a precedent for addressing issues of
equity in higher education and delineated the responsibilities of state institutions in
ensuring equal opportunities for marginalized communities.
Constitutional Basis of Equality in Nepal
Nepal's Constitution enshrines the Right to Equality as a fundamental right under
Article 18. This provision guarantees equality before the law and the equal protection
of the law, prohibits discrimination based on various grounds, and allows for
affirmative measures to uplift disadvantaged groups. Article 18(3) explicitly provides
for positive discrimination, permitting the State to enact laws to protect, empower, or
develop marginalized groups.

68
NKP 2078, Vol.10, Decision No. 10756, (2078).

53
The Binay Kumar Panjiyar case centered on the constitutional commitment to
equality and the extent to which the State, through its policies, could facilitate access
to education for underrepresented groups.

Key Principles Established in the Case

1. Substantive Equality over Formal Equality
In Binay Kumar Panjiyar, the Court emphasized the distinction between formal and
substantive equality. Formal equality refers to the identical treatment of all individuals
under the law, while substantive equality recognizes that different groups may need
different treatment to achieve fairness. Formal equality assumes a level playing field,
which often ignores structural inequalities, while substantive equality aims to level
this field by recognizing disparities and implementing measures to correct them.
The Court noted that formal equality does not necessarily lead to justice, especially in
a society where historic discrimination and systemic disadvantages persist. Instead,
substantive equality, which seeks to equalize opportunities through special measures,
was seen as necessary for achieving true fairness. Thus, the Court ruled that
affirmative action in educational institutions was not only constitutionally valid but
essential to achieving the goal of substantive equality.
2. Justifiability of Affirmative Action as a Temporary Measure.
The Court upheld the view that affirmative action policies in education, such as
reserved seats for certain communities, are justifiable as a temporary measure
designed to correct past inequalities. Affirmative action should not be viewed as
permanent or preferential treatment but as a temporary and strategic intervention
aimed at integrating historically marginalized groups into the mainstream.
The Court's ruling followed the principle that such measures are justified so long as
they are necessary to bridge gaps and achieve meaningful representation for
marginalized communities. The judgment argued that affirmative action should be
understood as a step towards a balanced and inclusive society, where all groups can
participate equally. However, it also emphasized that these measures should be
periodically reviewed and adapted to the evolving social landscape.

54
3. Balancing Merit with Equity
A significant aspect of the case was the perceived conflict between merit-based
admissions and affirmative action policies. The petitioners argued that affirmative
measures compromised the merit of candidates, potentially affecting the quality of the
medical profession. In response, the Court clarified that merit and equity need not be
mutually exclusive.
The Court explained that while academic achievement is important, social equity is
also a critical consideration in education policy. It emphasized that a strictly merit-
based system, devoid of any measures for equity, would perpetuate social hierarchies
and privilege those who already have access to resources and opportunities. The Court
thus endorsed a balanced approach, where merit is acknowledged, but equity is
incorporated to ensure that all individuals, regardless of their social or economic
background, have a fair chance at success.
4. Inclusive Representation as a Constitutional Mandate
The Court emphasized that inclusive representation is not merely a matter of social
policy but a constitutional mandate. In Binay Kumar Panjiyar, the Court reiterated
that the inclusion of marginalized communities in education, employment, and other
state institutions aligns with the principles enshrined in the Constitution.
The decision underscored the need for educational institutions to adopt policies that
facilitate inclusion, thereby promoting social cohesion and equal access to public
resources. The Court recognized that diversity within educational spaces enriches the
learning environment and fosters an understanding of different social backgrounds.
Furthermore, the decision called on state agencies, including the Medical Education
Commission, to actively pursue inclusive policies that ensure fair representation of all
communities.
5. Review and Adaptation of Affirmative Policies
While upholding affirmative action, the Court highlighted the importance of periodic
review and adaptation of these policies to ensure their effectiveness and relevance.
The Court pointed out that affirmative action should not be rigid or stagnant; rather, it
should evolve with societal changes and respond to emerging challenges.The Court
suggested that affirmative policies be revisited regularly, considering shifts in the
socio-economic status of target groups and the overall impact of these measures. This

55
principle aims to prevent over-reliance on affirmative action and encourages the
gradual phasing out of such policies as equality becomes more embedded in society.

6. Implications of the Decision

The Binay Kumar Panjiyar decision has far-reaching implications for Nepal's
approach to equality in higher education and beyond. The judgment reinforces the
legitimacy of affirmative action as a means to address deep-rooted social inequalities
and signals a commitment to upholding inclusive practices in public institutions.
7. Educational Access and Social Equity
The ruling highlights that affirmative action is vital to ensuring that disadvantaged
groups have equitable access to education. It establishes a strong legal basis for
educational institutions to adopt policies that promote inclusivity and diversity, which
are essential for achieving social equity. This decision supports Nepal's progress
towards a more inclusive education system and encourages policymakers to develop
measures that bridge educational gaps.

10. Judicial Oversight of Equality Measures

The judgment in Binay Kumar Panjiyar also establishes a precedent for judicial
oversight in cases concerning affirmative action and equality. By upholding
affirmative action policies while recommending periodic review, the Court has
positioned itself as a guardian of constitutional principles that protect marginalized
communities. This oversight role ensures that equality measures are implemented
fairly, transparently, and without compromising other fundamental rights.

11. Influence on Future Policies

This decision is likely to influence future equality policies in Nepal, particularly in
areas beyond education, such as employment and public services. The principles
outlined in the judgment could serve as guiding standards for developing and
implementing affirmative action measures in various sectors.
The Court's emphasis on inclusivity, representation, and balanced equity suggests that
future policies should prioritize not only equal access but also fair outcomes.

56
Hence this case serves as a pivotal ruling that clarifies the scope and intent of the
Right to Equality in Nepal. By endorsing affirmative action as a tool for achieving
substantive equality, the Supreme Court of Nepal has reinforced the notion that
equality is not merely about identical treatment but requires special measures to level
the playing field. The principles of substantive equality, justifiable affirmative action,
merit balanced with equity, inclusive representation, and periodic review established
in this case are foundational for understanding Nepal's constitutional approach to
equality. This judgment underscores the responsibility of state institutions to uphold
inclusivity and fairness, fostering a more equitable society that respects the rights and
dignity of all its citizens.

12. The special bench of Supreme Court in case of salikram Bhattarai vs. office
of president et al 69 , stated that "Article 13 of the Constitution expresses a
commitment that no one shall be deprived of equal protection of the law. This article
seems to be related to the concept that all citizens are equal in the eyes of the law. In
general terms, equality means not discriminating between individuals on any grounds,
such as religion, race, gender, caste, or ethnicity. In the context of fundamental rights,
the principle of equality is associated with state actions. If any act by a government
body results in discrimination between individuals who are otherwise equal, it violates
this right. The purpose of equality is to ensure that individuals or groups are treated
equally in the application or practice of law. Therefore, bringing individuals in
different situations to a similar state or seeking equality in outcomes is also
considered an aspect of equality. Treating everyone the same under the law is
procedural equality, whereas achieving equality in outcomes is substantive equality.
The essence of equality lies in treating equals equally and unequals unequally." "This
principle of equality, by emphasizing procedure over outcome and recognizing
everyone as equal before the law, is also known in constitutional jurisprudence as the
principle of formal equality."In the application of general law or in other practices, the
state must not discriminate among its citizens on any grounds, such as caste, ethnicity,
region, language, religion, race, gender, sexual or gender identity, or social origin.
This principle upholds the idea that all are equal before the law, that no one shall
receive special privileges or exemptions, and that everyone is equal in the application
of general law. It limits the government's discretion in applying the law. Since this

69
NKP 2070, vol. 5, Decision no. 9155, certiorari/Mandamus.

57
type of equality imposes a positive duty on the state, it is also known as the positive
notion of equality. The core basis of this principle is equal treatment for equals and
differential treatment for unequals. Expecting unequal treatment in an equal manner is
neither feasible nor desirable. The principle of equality, as a key element of justice,
also emphasizes the concept of formal equality, which ensures that everyone has an
impartial opportunity to participate in public services and positions. From a
constitutional jurisprudential perspective, such an arrangement of equality is
established to make the state more accountable under its welfare obligations. In the
context of the present dispute, upon analyzing this constitutional arrangement,
although there is a claim by the petitioners that they were discriminated against in
matters of special promotion, there is no indication that the repealed provision of the
Civil Service Act shows any bias or unequal treatment towards the petitioners.

13. The special bench of Supreme Court in case of Bharat Kumar Prasai vs.
Prime Minister and Office of Prime Minister et70
Al quashed the writ petition on the ground that "It cannot be claimed that unequal
treatment has occurred solely on the grounds that a legal provision, equally applicable
to all working at the same level, has affected a specific individual. It would not be
appropriate, from an interpretive perspective, to link a legal provision not specifically
targeting any individual with the right to equality based on baseless suspicion. If a
condition or qualification is set with the intent to exclude only a particular person,
then such a condition or qualification may be questioned. However, a condition set to
apply equally to all in the same situation cannot be deemed otherwise. If a condition is
set in a way that harms a particular individual or benefits a specific person without
justifiable reason, then the judiciary may intervene. But if the judiciary intervenes
solely because a condition set to apply equally to all has affected someone
immediately, this could lead to further complexities. Such a principle has already been
established. In this context, the petitioners' claim of unequal treatment contrary to the
constitutionally granted right to equality does not appear to be supported by this stated
principle.

70
NKP 2067, Baisakh, D.N. 8291

58
14. In case of Sunil Babu Panta, Executive Director of Blue Diamond Society and
others v GoN, Ministry of Law Justice and Parliamentary Affairs et. al.71
The Supreme Court of Nepal made a landmark decision in December 2007 which
fundamentally altered the legal and social landscape for the rights of LGBTI (Lesbian,
Gay, Bisexual, Transgender, and Intersex) individuals in the country. This progressive
judgment was hailed as a major step toward equality and human rights, not only in
Nepal but also globally. The petition was filed by Sunil Babu Pant, a prominent
LGBTQ+ activist and the founder of the Blue Diamond Society, along with other
activists and organizations working for sexual and gender minorities. The petitioners
sought legal recognition and protection for individuals with diverse sexual
orientations and gender identities. They argued that the lack of recognition and
discrimination against LGBTI individuals violated their fundamental rights, including
the right to equality, dignity, and personal freedom, as guaranteed by the Constitution
of Nepal. This case laid down the ground for same-sex marriage in Nepal which was
officially registered in Nepal from 24 April, 2024. In this case the SC recognized the
rights of LGBTI stating "The Constitution guarantees various fundamental rights to
citizens, but many individuals and groups in Nepalese society, especially those from
different classes, communities, and castes, are not well-educated or aware of these
rights. Due to the lack of proper attention from the state, along with widespread
illiteracy, insufficient knowledge, social values, traditional practices, customs, and
economic disadvantages, people from these groups have been subjected to
exploitation and oppression. They are often unaware of their rights and lack the
necessary knowledge to assert or protect their infringed rights. As a result, they
continue to remain disadvantaged as a class."
The Key Issue raised by the petitioner were Recognition of LGBTI Rights: The
petitioners demanded legal recognition of sexual and gender minorities and their right
to live with dignity. Decriminalization of Same-Sex Relationships: Although Nepal
had no specific laws criminalizing homosexuality, the lack of explicit legal
recognition perpetuated stigma and discrimination. Prohibition of Discrimination:
They called for measures to prevent discrimination based on sexual orientation and
gender identity in both public and private spheres. Legal Gender Recognition: The
petitioners sought recognition for gender identities beyond the binary framework of

71
NKP 2064, Writ No. 914.

59
male and female. This decision of Supreme Court addressed several aspects of LGBTI
individuals such as;) Recognition of Third Gender:
a) legal category for individuals who do not identify strictly as male or female. It
ordered the inclusion of a "third gender" option in official documents such as
citizenship certificates, passports, and voter identification cards, ensuring that
individuals could self-identify their gender.
b) Equal Rights and Non-Discrimination: The court affirmed that all individuals,
regardless of their sexual orientation or gender identity, were entitled to equal
protection under the law. It emphasized that any form of discrimination against
LGBTI individuals was unconstitutional.
c) Legislation for Same-Sex Marriage: The court instructed the government to study
international practices and draft legislation to ensure marriage equality for same-sex
couples, though this directive has yet to be fully implemented.
d) Formation of a Committee: The decision also called for the establishment of a
government committee to study and recommend measures for the protection and
promotion of LGBTI rights, aiming to address systemic discrimination and
marginalization.
This judgment of SC was transformative in several ways:
Social Impact: The ruling marked the beginning of increased visibility and acceptance
of LGBTI individuals in Nepalese society. It empowered activists and organizations
to advocate for greater inclusion and awareness.
Legal Reforms: Following the decision, Nepal became one of the first countries in
South Asia to legally recognize the third gender. Official documents such as
citizenship certificates began including a "third gender" category, setting a precedent
for other countries.
Constitutional Recognition: The principles established in the 2007 judgment were
later enshrined in Nepal's 2015 Constitution, which explicitly prohibits discrimination
on the grounds of sexual orientation and gender identity.
In February 2015, the committee as per this judgement presented a report to the
government suggesting the legalization of same-sex marriage. However, the national
Civil Code, enacted in (2074 B.S) 2017, continued to define marriage as a union
between a man and a woman.

60
On June 28, 2023, the Supreme Court of Nepal issued an interim order in the case of
Pinky Gurung vs. Government of Nepal, 72 directing the government to implement
temporary measures for registering marriages of same-sex couples, as well as
individuals with "other" gender markers. This lawsuit was filed challenging the
constitutionality of the marriage definition in the Nepalese Civil Code, arguing that it
violated the right to equality, as gender and sexual minorities are explicitly recognized
as a disadvantaged group under Article 18 of the Constitution of Nepal.
The interim order in this case instructed the government to take steps to create a
separate marriage register for temporarily recording marriages of sexual minorities
and "non-traditional" couples".

15. In the case of Bal Krishna Neupane v. Parliament Secretariat and Others
100, the Supreme Court of Nepal addressed an important issue related to the principle
of equal protection under the law as outlined in Article 11 of the Constitution of
Nepal.
The Court ruled that the principle of equality is not merely about treating all
individuals the same, but rather it emphasizes fairness and just treatment. The Court
held that the notion of equal protection of the law cannot be applied to unequal
persons in the same manner, meaning that individuals or groups who are not in
comparable circumstances should not be treated identically, as this would violate the
constitutional guarantee of equality.
The case revolved around Section 4(1) of the Labour Act, 2048 (1991), which
allowed for the recruitment of foreign workers to fill positions in Nepal. The
petitioner argued that the provision of the law, which permitted foreign nationals to
compete with Nepali citizens for employment, violated the principle of equal
treatment under the law. The Supreme Court agreed with this argument, stating that
equal treatment among unequal individuals is inherently unjust and unconstitutional.
The Court observed that there is a reasonable distinction between nationals and non-
nationals in terms of legal rights, which is explicitly recognized in the Constitution. In
this light, allowing foreign nationals to compete for jobs alongside Nepali citizens
was seen as an act of treating unequal persons equally, which is inconsistent with the
constitutional guarantee of equality.

72
WritNo.079-WO-1382.NotPublishedonNKP,2023A.D.2024),
https://www.ilgaasia.org/news/NepalSeminalCourtRulingPR2024. Court Rulings.(July 1, D.N. 1051)

61
The Court further declared Section 4(1) of the Labour Act as ultra vires, meaning it
was beyond the powers granted by the Constitution. The ruling clarified that while the
Constitution allows for reasonable distinctions between nationals and non-nationals,
this distinction must be respected, particularly when it comes to employment and
other rights. The law, as it stood, failed to consider the fundamental difference
between citizens and foreigners, which is why the provision was deemed
unconstitutional.
This Supreme Court's decision in this case reinforced the importance of differentiating
between equals and unequals in the application of constitutional equality. It
highlighted that the equal protection of the law is not about treating everyone the
same but about ensuring that laws are applied in a way that is just and fair, taking into
account the differences between individuals or groups. This ruling has significant
implications for future legal interpretations of equality, particularly in the context of
labor rights, citizenship, and the treatment of foreign nationals in Nepal. The
judgment firmly established that any legal provision that undermines the
constitutionally recognized distinction between nationals and non-nationals

62
 CHAPTER FIVE
FINDINGS, CONCLUSIONS AND SUGGESTIONS
5.1 Summary of Findings
The Present Federal Democratic Republican Nepalese Constitution as a social
document envisions a conversion of Nepalese society from medieval hierarchical
caste based clogged society into modern, secular and democratic society through the
extension of the improved amenities to the oppressed in order to enable them for
achieving upward mobility by acquiring social, economic, educational and political
authority. The constitutional policy of compensatory discrimination was formulated
and implemented to facilitate the lower status castes to change their social and
economic position. The framers of the Constitution appropriately articulated in its
Preamble the core principles, including the ideals of justice: social, economic, and
political and the commitment to fostering liberty in areas such as thought, expression,
belief, faith, and worship. They also emphasized the importance of ensuring equality
in status and opportunity while striving to promote fraternity, unity, and the integrity
of the nation among its people.
The Constitution emphasizes the protection and promotion of social and cultural
solidarity, fostering tolerance, harmony, and unity within the framework of diversity.
It recognizes the country's multi-ethnic, multi-lingual, multi-religious, multi-cultural,
and regionally diverse characteristics, underscoring the commitment to building an
egalitarian society based on principles of proportional inclusion and active
participation. This vision seeks to ensure economic equality, prosperity, and social
justice by addressing and eliminating all forms of discrimination rooted in class, caste,
region, language, religion, and gender, as well as eradicating caste-based
untouchability. Furthermore, it demonstrates a resolute commitment to socialism
grounded in democratic norms and values, encompassing a competitive multiparty
democratic system of governance. This commitment extends to safeguarding civil
liberties, fundamental rights, and human rights, alongside ensuring adult suffrage,
periodic elections, and full press freedom. It also highlights the importance of an
independent, impartial, and competent judiciary and upholds the concept of the rule of
law. These principles collectively aim to establish a just society and guide the nation

63
towards prosperity. For achieving these above principles, the framers have
incorporated 31 Fundamental rights and directive principles and policies of the state.
To ensure the broadest scope of protection for fundamental rights, safeguards were
extended against the State, which was defined to encompass the Executive, the
Legislature, the Judiciary, as well as local and other authorities. Any entity exercising
its powers in a manner that infringed upon fundamental rights was subject to judicial
oversight as outlined in the Constitution. The extraordinary jurisdiction is entitled to
protect those rights of people.
The judiciary has done laudable job by pronouncing extraordinarily sound judgments
in relation to problems of preferential and protective discrimination. The Judiciary's
most significant contribution to the resolution of disputes and the enforcement of
Fundamental Rights lies in its adoption of the principle of Judicial Review. This
mechanism allows the courts to assess the constitutionality of legislative and
executive actions, ensuring that they align with the provisions of the Constitution and
do not infringe upon individual rights. Beyond Judicial Review, the Judiciary has
further expanded its role through related principles such as Judicial Activism, Judicial
Legislation, and Judicial Restraint. Judicial Activism empowers the courts to
proactively address gaps in legislation or government inaction, often interpreting laws
in a progressive manner to uphold justice and protect rights. Judicial Legislation,
while controversial, reflects the Judiciary's role in shaping legal norms and
frameworks in areas where explicit statutory provisions are absent or inadequate.
Conversely, Judicial Restraint emphasizes the need for courts to respect the separation
of powers and refrain from overstepping their boundaries into the legislative or
executive domains. Together, these principles have enabled the Judiciary to serve as a
guardian of the Constitution and a vital institution for upholding the rule of law and
safeguarding Fundamental Rights. The case of Meera kumari Dhungana v HMG et
al.73 decided in 2052 BS (1995), is a landmark judgment in the history of Nepal's
jurisprudence regarding gender equality and property rights.
Through the process of Judicial Review this case addressed the discriminatory
provisions in Nepal's legal framework that denied unmarried daughters the right to
inherit property, marking a significant step forward in the fight against gender-based
discrimination.

73
NKP 2052. D.N. 6013,Issue 6. Writ No. 3392.

64
Judiciary has successfully preserved and safeguarded the fundamental rights of the
citizens and helpless groups which were at risk because of the policy of reservation
system executed by the Government from time to time 74 , In reality, it has been
required by the court that reservation policies should be so formulated as to "strike a
reasonable balance" among "several relevant considerations". To interpret the rule of
law in action and to provide justice at the door of poorest of poor, the judiciary has
made an adequate attempt. The judiciary has also been vigilant to create classless
society and gradual abolition of caste consciousness. In case of Binay Kumar Panjiyar
v Medical Education Commission et al.,75 The Supreme Court stated that the principle
of reservations is based on class not ethnicity. The benefits of reservation shouldn't be
reaped repeatedly by same person or family. It further stated that reservation cannot
be continued in perpetuity and the positive discrimination have been kept in the
constitution only as reparations for the historical discrimination or to remove the
prevailing backwardness to create an egalitarian situation.
Caste-based reservation policies, while intended to correct historical inequalities, are
often criticized for unintentionally reinforcing the caste system. The primary concern
is that once reservation policies are implemented, they become difficult to revoke due
to social and political pressures. This entrenchment can perpetuate caste distinctions
rather than eliminate them, as the reservation system continues to highlight caste
identities. Additionally, the benefits of caste-based reservation do not always reach
those in most need. The Indian Supreme Court's ruling in Indra Sawhney v. Union of
India introduced the concept of excluding the "creamy layer" within the backward
castes-those individuals who are economically well-off or more socially advanced-so
that benefits would reach the economically and socially disadvantaged members of
the community. However, in practice, the dominant, more privileged sections within
backward castes often monopolize these benefits, sidelining the weakest among them.
This misuse of reservation benefits creates disparities even within backward
communities, where those who are already somewhat privileged continue to advance,
while the most marginalized members of the group remain neglected. Consequently,
the policy can unintentionally hinder rather than promote social mobility for the truly
disadvantaged.

74
Supra at 2.206 Supra at 56.107 P.P. Rao, Right to Equality and the Reservation Policy, 42 J. Indian L. Inst. 193,
200 (2000).
75
Manaj Jyakhwo, Right to Equality, 28 NEPAL LAW REVIEW, 477 (2019).

65
The principles established in the 2007 judgment of Sunil Babu Panta v Ministry of
Law, Justice and Parliamentary Affairs et al. were later enshrined in Nepal's 2015
Constitution, which explicitly prohibits discrimination on the grounds of sexual
orientation and gender identity. In this case The Supreme Court delivered a historic
verdict, recognizing the rights of LGBTI individuals as fundamental under the
Constitution of Nepal. The judgment addressed several critical aspects such as;
Recognition of Third Gender, Equal Rights and Non-Discrimination to third gender,
Legislation for Same-Sex Marriage and Formation of a Committee to study and
recommend measures for the protection and promotion of LGBTI rights, aiming to
address systemic discrimination and marginalization. This case also highlighted the
importance of PIL by stating a case involving a constitutional or legal issue is referred
to as public interest litigation, wherein matters outlined in Article 107(2) of the
Constitution are addressed. This provision is underpinned by certain principles and
values, allowing any individual to file a petition in this Court on behalf of the victim,
even if the petitioner's own personal rights have not been directly affected.

5.2 Conclusions
Equality serves as the cornerstone of justice within any legal system, embodying a
principle that is crucial to modern democracy and the rule of law. It is widely
recognized as one of the most fundamental principles that supports democratic
governance and justice, forming the basis upon which all other rights and freedoms
are built. Judge Hersch Lauterpacht highlighted this importance, stating that "the
claim to equality before the law is in a substantial sense the most fundamental of the
rights of a man." In this view, equality not only occupies a prominent position in most
constitutions but also provides the foundation for all liberties. However, achieving
true equality goes beyond simply enshrining legal or "dejure" equality in written laws.
To ensure equality is realized in practice ("defacto" equality), there must also be
guarantees for related rights, such as identity rights, property rights, and personal
liberty, which allow individuals to live with dignity and agency. This distinction
between formal and substantive equality is underscored by landmark cases from
various jurisdictions, including the United States, India, and Nepal, where courts have
demonstrated how legal rights can be expanded and adapted to ensure that equality is
meaningful and effective in everyday life. Through these cases, the transformative

66
potential of equality in addressing complex social realities has been repeatedly
affirmed.
The Constitutional framework of Nepal has been grounded in the recognition that
specific social groups, historically marginalized and subject to systemic
discrimination, are inherently positioned at a disadvantage. This understanding has
driven the state to adopt compensatory measures aimed at promoting greater equality.
To address these disparities, the Nepalese Constitution incorporates significant
provisions that offer preferential treatment to certain identified groups. These
measures include the reservation of seats in legislative bodies, opportunities in public
employment, and access to educational institutions for members of these
disadvantaged communities. Through these reserved quotas and supportive measures,
Nepal seeks to redress social and economic imbalances, ensuring that marginalized
groups are provided opportunities to overcome the entrenched inequalities they face.
This policy approach-referred to as the policy of reservation-is central to Nepal's
broader efforts to create a more equitable society by directly targeting and countering
the inequities embedded within its social fabric.
The research findings reveals that techniques such as Judicial Activism and Judicial
Review that have contributed to the development of new Fundamental Rights within
the framework of Constitutional Law over a period of 70 years. The Fundamental
rights have become integral to the country's constitutional system. However, certain
shortcomings persist within the fundamental rights framework, limiting the
effectiveness of these judicial mechanisms in fully safeguarding individual rights.
Consequently, it is recommended that these identified deficiencies be addressed to
enhance the protection and enforcement of fundamental rights.

5.3 Suggestions
The following suggestions may be incorporated for amending the law and policy
relating to reservation in order to create a casteless society as well as to improve the
social, economic and political conditions of the weaker section of the social order:

67
5.3.1 Suggestions to Legislative
A. Elimination of Caste Criteria
In Nepal firm and determined efforts are required to be made for systematic and
fundamental modification of the policy of the reservation due to caste-war like
situation created by the policy of reservation based on caste criterion. The
Government should think seriously in this respect to create an affirmative action
program based on caste neutral measures i.e., on economic basis. In order to stop the
inter-caste conflicts and other caste-wars, caste criteria should be totally eliminated to
be considered while providing the benefits of the policy of the reservation to poorest
segment of the nation.

B. Constitution of Equal Opportunity Commission

It should be adapted to the specific socio-economic, judicial and institutional context
of the country. The identity of the deprived sections is not so much based upon caste
and religion but on their common plight of deprivation and consequent inability to
access equality of opportunity. They are poverty ridden people. They do not belong to
anyone, caste or religion. They largely come from among the Socially or Culturally
Backward Women, Dalits, Indigenous People, Indigenous Nationalities, Oppressed
classes, Marginalized, Pichhada Classes, Backward Regions, Other Backward
Classes, disabled persons, minorities and even from some sections of the majority
communities.
Equality of Opportunity Department should be established in each and every
university and research center across the country to help the Equal Opportunity
Commission in generating, collecting, processing and disseminating various kinds of
data on equal opportunity issues-generic data, reporting data, indices and data from
case studies for creation of level playing field in securing equal opportunities to the
disadvantaged sections of people as this action will prove to be key to the success of
the Equal Opportunity Commission.
C. Implementation of Affirmative Action Policies. Affirmative action policies should
be given the lead. The following affirmative action measures are suggested:
a) Free guidance, extra coaching and training should be provided to the poor
segments of the society irrespective of caste and class for the purpose of
making them equipped for various competitive examinations in order to get
admissions in the technical, medical and all the other professional courses so
68
 that they could compete at par with children belonging to privileged classes or
advanced categories on the foundation of their own efficiency and capability
without using the crutches of reservation.
b) Government should divert maximum of its resources for educational
upliftment of the impoverished segment amongst each and every category and
community of the society to make them capable of enjoying the benefits of
reservation. Educational allowance should be paid to children of economically
backwarded people till they become so efficient and capable to earn
themselves. Providing free education up to graduation level to the people on
the economic lines is required.
c) Free library facilities and free access to computers with internet facilities
should be provided by the Government to the poor irrespective of caste and
religion society in near proximity to their homes. Extra teaching hours for
improving the level of competence viz., training fundamentals on the
subjects/courses, aptitude development, development of communication skills
etc., for the students of poor segments of the society irrespective of caste and
religion should be arranged by the Government in order to bring them at par
with privileged class students.

D. No Reservation in Higher Educational Level

There should also be no reservation in higher educational level particularly in the
institutes for specialization and super-specialization because this would result in the
compromising merit. This policy of reservation is going to loose its relevance due to
globalization, privatization and liberalization. In the era of liberalization, privatization
and globalization, the main feature of the policy of liberalization include reduction of
the Government role in the economic governance, privatization and more dependence
on market forces resulting in depletion in the Government jobs and services. The
policy of reservation kills the initiative power,confidence and morale among its
beneficiaries and thereby reducing their overall efficiency.

E. Reservation on Economic Basis

Reservation in employment should be provided on economic basis. It is hereby
suggested that:

69
a) In Nepal, there is desire necessity to follow and maintain the system under
which no compromise with the efficiency of the candidates will be made in the
name of affirmative action programme.
b) Special opportunities should be provided for "after job training" to the poverty
ridden beneficiaries of whatever caste and religion they belong, for the
purpose of improving their capacity and efficiency.
c) The policy of reservation should not be made applicable at promotion level in
case of job reservation because after appointment every employee including
those belonging to the poorest segment of the society will come at par with the
other employees and so needs to be guaranteed that "among the equals,
provisions should be equal and should be equally administered". And the
discrimination will raise inequality among the equals in the society by giving
excessive weightage to the incompetent employees and thereby engendering
job dissatisfaction among others affecting efficiency in service.
d) The upper limit/extent of reservation should be reviewed timely with respect
to the Constitutional Provisions.
e) Similarly, no reservation should be provided in the top class, Special Class and
purely merit requiring services as far as possible.
f) Proper Guidance to Needy and underprivileged
Poverty ridden sections of society should be provided with the employment or jobs in
the same fields in which they are expert. There is a great need to provide them proper
guidance, financial help and certainly with jobs suited for them instead of making just
promises of giving reservation benefits to their children. These steps, if taken by the
Government will prove a benefit not only for the under privileged and most deserving
people but also for our country which is again being divided on the caste-lines
because of this caste based policy of reservation. Similarly, the small businesses of
people of these sections should be provided with incentives loans and advances at
subsidized rates for the purpose of starting their own business and in addition to that
facility, free training should also be provided to them for helping them in the smooth
functioning of their business.

70
g) Affirmative Action Policy for Women
The affirmative action policies have given stress on improving the status of women.
Women, as they are still socially, economically and educationally backward in India,
should be included in the list of beneficiaries and should specifically be provided its
benefits in political, educational and employment fields.

5.3.2 Suggestion to Executive

A) Strict Implementation of Principle of Exclusion of Creamy-Layer
There should be strict implementation of the concept of exclusion of the creamy-layer
so that the benefits of the policy of the reservation should reach the real and needy
people among them. So that the benefits of policy of the reservation could reach its
really deserving and needy beneficiaries. The question of excluding the creamy-layer
from among the backwarded, marginalized, etc. is also required to be considered and
reviewed by the Apex Court unless and until the Parliament amends the Constitution
to do so. Proper procedure should be formulated for the identification of poor segment
among the people of Nepal so as to exclude the creamy-layer from the beneficiaries of
the reservation policy.
B) Implementation of Affirmative Action Policies
Affirmative action policies should be given the lead. The following affirmative action
measures are suggested:
i) Free guidance, extra coaching and training should be provided to the poor
segments of the society irrespective of caste and class for the purpose of
making them equipped for various competitive examinations in order to get
admissions in the technical, medical and all the other professional courses so
that they could compete at par with children belonging to privileged classes or
advanced categories on the foundation of their own efficiency and capability
without using the crutches of reservation.
ii) Government should divert maximum of its resources for educational
upliftment of the impoverished segment amongst each and every category and
community of the society to make them capable of enjoying the benefits of
reservation. Educational allowance should be paid to children of economically
backwarded people till they become so efficient and capable to earn

71
 themselves. Providing free education up to graduation level to the people on
the economic lines is required.
iii) Free library facilities and free access to computers with internet facilities
should be provided by the Government to the poor irrespective of caste and
religion society in near proximity to their homes. Extra teaching hours for
improving the level of competence viz., training fundamentals on the
subjects/courses, aptitude development, development of communication skills
etc., for the students of poor segments of the society irrespective of caste and
religion should be arranged by the Government in order to bring them at par
with privileged class students.

5.3.3. Suggestions to Judiciary

A. Independent Judiciary
The concept of independence of the judiciary which is the corner stone of the
Nepalese Constitution should be preserved and promoted at all costs so that no
decision of the Court could be adversely affected by the political pressure. Supreme
Court have the power to review the laws and policies to check their validity with the
constitutional provisions safeguarding Fundamental rights.

B. Effective implementation of Constitution Bench

The court, especially the Supreme Court of Nepal, is struggling to manage the
growing workload, due to the large number of cases referred to it by various lower
courts, matters referred to constitutional bench. At present there are around 30,000
caseloads in Supreme Court. To alleviate the burden on the court, it is essential to
distribute the workload among the different divisions of the court, between the
constitutional bench of Supreme Court. Also the full numbers of Justices of Supreme
Court are to be appointed at timely manner per the constitutional provision to reduce
workload. This would make it easier for clients to approach the courts and seek
resolution of their grievances. Additionally, it would allow the courts to focus on
specific subjects and handle cases more efficiently and effectively.

72
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