Constitutional Law · Chapter 4
Study notes aligned to the official NEB syllabus.
A right (अधिकार) is a claim that the law recognises and protects. Other people must respect this claim. The state must respect it too. If a person has a legal right, someone else has a matching obligation. The law stands ready to protect the claim.
Fundamental rights (मौलिक हक) are the basic human rights that a constitution picks out for special protection. The constitution guarantees them to the people. It also makes them enforceable in court. This means an ordinary law of the legislature cannot take them away. An ordinary law cannot cut them down either. These rights exist to protect human dignity, liberty and equality. They protect people against abuse by a powerful state.
A duty (कर्तव्य) is the matching obligation. It means you must do something. Sometimes it means you must not do something. Rights and duties are two sides of the same coin. One person's right always means another person's duty to respect it.
Here is a simple example. Suppose a citizen has the right to freedom of movement. Then the state has a duty not to block that movement unlawfully. Every other person has the same duty. The right would be empty if nobody had the matching duty.
The Constitution of Nepal 2015 shows this link clearly. It lists many fundamental rights in Part 3. Beside them it lists fundamental duties of citizens. Two examples are loyalty to the nation and the duty to protect public property. A constitutional order survives only when rights and duties are honoured together.
Part 3 of the Constitution of Nepal 2015 guarantees many fundamental rights. Here is the list in plain words.
The Constitution also guarantees an unusually wide set of social rights. These are the rights to education, health, employment, food, housing and social security. It also gives special rights to certain groups. These groups are women, children, Dalits, senior citizens, consumers and the socially backward.
One right is very important. It is the right to constitutional remedy. This right makes all the other rights real. It lets a wronged person go to court. The court can then enforce the right.
Here is a concrete example. Suppose an official order shuts down a newspaper. The only reason is that the paper criticised the government. The editor can use two rights together. The first is the right to freedom of expression. This gives the editor the claim. The second is the right to constitutional remedy. This gives the editor a route to a court. The court can then cancel the order.
The Constitution also sets down fundamental duties of citizens beside these rights. So a citizen both holds rights and carries duties.
Fundamental rights are not absolute. This means they are not unlimited.
A state of emergency (संकटकाल) can be declared in a grave crisis. The crisis may be a threat to the sovereignty of Nepal. It may be a threat to its territorial integrity or its security. The threat may come from war or external aggression. It may come from armed rebellion. It may also come from extreme economic disarray. During the emergency the state may suspend some fundamental rights. It may also limit them. This suspension is called derogation.
The idea is simple. In a real crisis the state needs wider powers. It needs them to protect the nation itself. Without the nation, nobody could enjoy any rights at all.
The Constitution does not leave this power unchecked. It protects some rights even during an emergency. These rights can never be suspended. Three examples are the right against torture and the remedy of habeas corpus. The third is the right against retrospective punishment. Habeas corpus lets a detained person ask a court to test whether the detention is lawful.
Rights are not unlimited outside emergencies either. The Constitution itself allows reasonable restrictions by law. The law may impose them in the interest of public order. It may impose them for decency and morality. It may impose them for the sovereignty and integrity of the nation. It may also impose them to protect the rights and reputation of others.
Here is an example. The right to assembly can be reasonably restricted. A procession that would block a hospital's emergency entrance can be stopped. But the right cannot be abolished altogether.
An emergency is limited in time. It must also be approved by the Federal Parliament. This is a vital safeguard. It keeps even crisis powers under the control of the elected representatives of the people. The executive cannot act alone.
A right is of little value without a remedy. A remedy is a way to get the right enforced.
The Constitution of Nepal 2015 therefore guarantees the right to constitutional remedy. Any person whose fundamental right is violated may go to the courts. The person asks the court to enforce the right. The Supreme Court and the High Courts can issue suitable orders for this purpose. These orders include writs. A writ is a formal written order from a court.
The chief writs are these.
Here are two examples. First, suppose the police detain a person without lawful authority. Suppose they also keep the person longer than the law allows. A relative can file a petition for habeas corpus. If the court finds the detention unlawful, it orders the person's release.
Second, suppose a citizen meets every legal requirement for a licence. Suppose the office simply refuses to issue it. Mandamus can force the office to act.
This power of the courts to enforce rights is very important. It turns the guaranteed rights from promises on paper into real protection.
Directive principles of the state (राज्यका निर्देशक सिद्धान्त) are found in Part 4 of the Constitution. Part 4 also covers the policies and obligations of the state. The directive principles are guidelines. They direct the state toward a just, egalitarian and prosperous society. They cover political, economic, social, cultural and environmental goals. Examples are social justice and inclusion. Others are public welfare and protection of the environment. Another is balanced development across the country.
Directive principles are different from fundamental rights. They are generally not directly enforceable in court. A citizen cannot ordinarily sue the government because a directive principle has not yet been achieved. They are moral and political directions. They guide how laws and policies are made.
Their practical weight is still real. Here is an example. The state may frame a scholarship scheme for children of poor families. It may start a programme to extend health posts into remote hill districts. In both cases it gives effect to the directive principles. No court forced it to do so.
The Constitution adds more support. It requires the government to report regularly on how it is carrying out these principles. This keeps them on the political agenda. The legislature and the public can then hold the government to account. They can ask whether the state is going in the right direction.