Fundamental rights are the specific privileges granted by a nation to its people. It’s a guarantee to the citizen of the country by the constitution of a particular Country. They are referred to as basic rights because they are established in the fundamental or supreme law of the state, which is held to the highest standards of morality above all other laws of the land.
A group of rights known as fundamental rights has been identified by the Constitution as needing a high level of protection from interference by the government and has received extensive protection from violations. These rights have either been determined via the application of proper legal process or are stated explicitly in a constitution.
Fundamental rights have legal validity and may be challenged in court in the event of a violation.
History of Fundamental Rights in Nepal
The first constitution of Nepal, the Government of Nepal Act 1948 secured some of the fundamental rights in its part II, article 4. It only mentioned that “this Constitution guarantees to the citizens of Nepal freedom of personal liberty, freedom of speech, freedom of the press, freedom of assembly and organization, freedom of religion, complete equality before the law, affordable and speedy justice, universal free compulsory elementary education, universal and equal suffrage for all adults, security of private property as defined by the prevailing laws and laws and Rules to be made hereunder.”
The second constitution, Nepal Interim Government Act 1951 did not mention the word “Fundamental Rights” but it mentioned freedom of speech and expression, assembling peaceably and without arms, forming associations and unions, moving freely throughout the territory of Nepal, residing and settling in any part of Nepal, acquire, hold, and dispose of property, practice any profession or to carry on any occupation, trade, or business.
The Constitution of the Kingdom of Nepal, 1959, mentioned 7 fundamental rights from articles 3 to 9, which were Personal Liberty, Equality, Religion, Property, Public Good, and the Right to Constitutional Remedies.
The Constitution of Nepal 1962 talked briefly about Fundamental Duties and Rights. Article 9 mentioned the Fundamental Duties of the Citizen which stated:
- Devotion to the Nation and loyalty to the State are the fundamental duties of every citizen.
- Exercising one’s rights with due regard to the law and without infringing upon the rights of others is also the fundamental duty of every citizen.
There were 8 Fundamental rights including which rights against Exile and the right against Exploitation were added which were not mentioned in previous ones. But there was article 17 that restricted the citizen from performing human rights which were called “Restrictions on the Exercise of Fundamental rights for Public Good”. The mention of these points restricted the citizen to perform their fundamental rights easily.
The Constitution of the Kingdom of Nepal, 1990 was the outcome of the first Jana Andolan in 1990, bringing multi-party democracy back to the country. It mentioned the 13 fundamental rights in part 3 from articles 11 to 23.
Nepal Interim Constitution, 2007 Covered very much of the fundamental rights. It mentioned that “Expressing our full commitment to democratic values and norms including the competitive multi-party democratic system of governance, civil liberties, fundamental rights, human rights, adult franchise, periodic elections, complete freedom of the press, independent judiciary and concepts of the rule of law”. In Part 3, articles 12 to 32 covered 21 fundamental rights.
Constitution of Nepal and Fundamental Rights
This latest Constitution is “BEING COMMITTED to socialism based on democratic norms and values including the people’s competitive multiparty democratic system of governance, civil liberties, fundamental rights, human rights, adult franchise, periodic elections, full freedom of the press, and independent, impartial and competent judiciary and concept of the rule of law in order to build a prosperous nation”.
Part 3 from Articles 16 to 46 insure the 31 Fundamental Rights, article 47 states the Implementation of Fundamental Rights and article 48 is about the Duties of Citizens.
Right to Live with Dignity: Article 16
Everyone has the right to live with dignity. No law can be made providing for the death penalty to anyone.
Right to Freedom: Article 17
No person will be deprived of his/her personal liberty except in accordance with the law.
Every citizen has the following freedoms: –
- Freedom of opinion and expression;
- Freedom to assemble peaceably and without arms;
- Freedom to form political parties;
- Freedom to form unions and associations;
- Freedom to move and reside in any part of Nepal;
- Freedom to practice any profession, carry on any occupation and establish and operate any industry, trade, and business in any part of Nepal.
Right to Equality: Article 18
- No one can discriminate in the application of general laws on grounds of origin, religion, race, caste, tribe, sex, physical condition, disability, condition of health, marital status, pregnancy, economic condition, language or region, ideological conviction, or on similar other grounds.
- The State can not discriminate among citizens on grounds of origin, religion, race, caste, tribe, sex, economic condition, language, region, ideological conviction, or on similar other grounds.
Right to Communication: Article 19
- Publication and broadcasting or dissemination or printing of any news item, editorial, feature article, or other reading, audio, and audio-visual material through any means whatsoever including electronic publication, broadcasting and printing will not be censored.
- But they can not undermine the sovereignty, territorial integrity, nationality of Nepal or the harmonious relations between the Federal Units or the harmonious relations between various castes, tribes, religions, or communities, or on any act of sedition, defamation, or contempt of court or incitement to an offense, or on any act which may be contrary to public decency or morality, on any act of hatred to labor and on any act of incitement to caste-based untouchability as well as gender discrimination.
Rights relating to Justice: Article 20
- No one shall be detained in custody without informing him/her of the ground for his/her arrest.
- The arrested person shall have the right to consult a legal practitioner of his/her choice from the time of such arrest and to be defended by a such legal practitioner. Any consultation made by such person with, and advice given by, his/her legal practitioner shall be confidential.
- Arrested persons have to be produced before the adjudicating authority within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to such authority, and such person should not be detained in custody except on the order of such authority.
- Every person accused of an offense shall be presumed innocent until proven guilty of the offense.
- No person shall be tried and punished for the same offense in a court of law more than once.
- No person accused of an offense shall be compelled to testify against himself/herself.
- Every person shall have the right to be informed of any proceedings taken against him/her.
- Every person shall have the right to a fair trial by an independent, impartial and competent court or judicial body.
- Any indigent party shall have the right to free legal aid in accordance with the law.
- These will not t apply to a citizen of an enemy State.
Right of Victim of Crime: Article 21
- A victim of a crime shall have the right to get information about the investigation and proceedings of a case in which he/she is the victim.
- A victim of a crime shall have the right to justice along with social rehabilitation and compensation in accordance with the law.
Right against Torture: Article 22
- No person who is arrested or detained shall be subjected to physical or mental torture or to cruel, inhuman, or degrading treatment.
- Any act referred to the 1st clause shall be punishable by law, and any person who is a victim of such treatment shall have the right to obtain compensation in accordance with the law.
Right against Preventive Detention: Article 23
- No person shall be held under preventive detention unless there is sufficient ground for the existence of an immediate threat to the sovereignty, territorial integrity, or public law and order of Nepal.
- Information about the situation of a person who is held under preventive detention pursuant to the 1st clause shall be given immediately to his or her family members or relatives. Provided that this clause shall not apply to a citizen of an enemy State.
- In case the authority having the power to hold a person under preventive detention holds any person under preventive detention contrary to law or in bad faith, such person shall have the right to obtain compensation in accordance with the law.
Right against Untouchability and Discrimination: Article 24
- No person shall be subjected to any form of untouchability or discrimination in any private and public place on grounds of his/her origin, caste, tribe, community, profession, occupation, or physical condition.
- In producing or distributing any goods, services, or facilities, no person belonging to any particular caste or tribe shall be prevented from purchasing or acquiring such goods, services, or facilities nor shall such goods, services, or facilities be sold, distributed, or provided only to the persons belonging to any particular caste or tribe.
- No act purporting to demonstrate any person or community as superior or inferior on grounds of origin, caste, tribe, or physical condition or justifying social discrimination on grounds of caste, tribe, or untouchability or propagating ideology based on untouchability and caste-based superiority or hatred or encouraging caste-based discrimination in any manner whatsoever shall be allowed.
- No discrimination in any form shall be allowed at a workplace with or without making untouchability on the ground of caste.
- All types of acts of untouchability and discrimination committed in contravention of this Article shall be punishable by law as a severe social offense, and the victim of such act shall have the right to obtain compensation in accordance with the law.
A right relating to Property: Article 25
- Every citizen shall, subject to law, have the right to acquire, own, sell, dispose of, acquire business profits from, and otherwise deal with, property. Provided that the State may levy tax on the property of a person and tax on the income of a person in accordance with the concept of progressive taxation. Explanation: For the purposes of this Article, “property” means any form of property including movable and immovable property and the word includes intellectual property right as well.
- The State shall not, except for public interest, requisition, acquire, or otherwise create any encumbrance on, the property of a person. Provided that this clause shall not apply to any property acquired by any person illicitly.
- The basis of compensation to be provided and procedures to be followed in the requisition by the State of property of any person for public interest pursuant to the 2nd clause shall be as provided for in the Act.
- The provisions of clauses (2) and (3) shall not prevent the State from making land reforms, management, and regulation in accordance with law for the purposes of enhancement of product and productivity of land, modernization and commercialization of agriculture, environment protection, and planned housing and urban development.
- In case the State has requisitioned property of any person for public interest pursuant to clause (3), nothing shall prevent the State from using the such property for any other public interest instead of such public interest.
Right to Freedom of Religion: Article 26
- Every person who has faith in religion shall have the freedom to profess, practice, and protect his or her religion in accordance with his or her conviction.
- Every religious denomination shall have the right to operate and protect its religious sites and religious Guthi (trusts). Provided that nothing shall be deemed to prevent the regulation, by making law, of the operation and protection of religious sites and religious trusts and management of trust properties and land.
- No person shall, in the exercise of the right conferred by this Article, do, or cause to be done, any act which may be contrary to public health, decency, and morality or breach of the public peace, or convert another person from one religion to another or any act or conduct that may jeopardize other’s religion and such act shall be punishable by law.
Right to Information: Article 27
Every citizen shall have the right to demand and receive information on any matter of his/her interest or of public interest. Provided that no one shall be compelled to provide information on any matter which must be maintained confidentially in accordance with the law.
Right to Privacy: Article 28
The privacy of any person, his/her residence, property, document, data, correspondence, and matters relating to his or her character shall, except in accordance with the law, be inviolable.
Right against Exploitation: Article 29
- Every person shall have the right to exploitation.
- No person shall be exploited in any manner on the grounds of religion, custom, tradition, usage, practice, or on any other grounds.
- No one shall be subjected to trafficking nor shall one be held in slavery or servitude.
- No one shall be forced to work against his or her will. Provided that nothing shall be deemed to prevent the making of law by the State requiring citizens to perform compulsory service for public purposes.
- An act contrary to clauses (3) and (4) shall be punishable by law and the victim shall have the right to obtain compensation from the perpetrator in accordance with the law.
Right to Clean Environment: Article 30
- Every citizen shall have the right to live in a clean and healthy environment.
- The victim shall have the right to obtain compensation, in accordance with the law, for any damage caused by environmental pollution or degradation.
- This Article shall not be deemed to prevent the making of necessary legal provisions for a proper balance between environment and development in the development works of the nation.
A right relating to Education: Article 31
- Every citizen shall have the right access to basic education.
- Every citizen shall have the right to get compulsory and free education up to the basic level and free education up to the secondary level from the State.
- The citizens with disabilities and the indigent citizens shall have the right to get free higher education in accordance with the law.
- The visually impaired citizens shall have the right to get free education through brail script and the citizens with hearing or speaking impairment, to get free education through sign language, in accordance with the law.
- Every Nepali community residing in Nepal shall have the right to get an education in its own mother tongue and, for that purpose, to open and operate schools and educational institutes, in accordance with the law.
Right to Language and Culture: Article 32
- Every person and community shall have the right to use their own languages.
- Every person and community shall have the right to participate in the cultural life of his/her/its community.
- Every Nepali community residing in Nepal shall have the right to preserve and promote its language, script, culture, cultural civilization, and heritage.
Right to Employment: Article 33
- Every citizen shall have the right to employment. The terms and conditions of employment and unemployment benefits shall be as provided for in federal law.
- Every citizen shall have the right to choose employment.
Right to Labour: Article 34
- Every labourer shall have the right to fair labour practice. (Explanation: For the purposes of this Article, “labourer” means a labourer or worker who does physical or intellectual work for an employer in consideration of remuneration.)
- Every labourer shall have the right to appropriate remuneration, facilities, and contributory social security.
- Every labourer shall have the right to form and join trade unions and to engage in collective bargaining, in accordance with the law.
A Right relating to Health: Article 35
- Every citizen shall have the right to free basic health services from the State, and no one shall be deprived of emergency health services.
- Every person shall have the right to get information about his/her medical treatment.
- Every citizen shall have equal access to health services.
- Every citizen shall have the right access to clean drinking water and sanitation.
A Right relating to Food: Article 36
- Every citizen shall have the right relating to food.
- Every citizen shall have the right to be safe from the state of being in danger of life from the scarcity of food.
- Every citizen shall have the right to food sovereignty in accordance with the law.
Right to Housing: Article 37
- Every citizen shall have the right to appropriate housing.
- No citizen shall be evicted from the residence owned by him/her nor shall his/her residence be infringed except in accordance with the law.
Rights of Women: Article 38
- Every woman shall have equal lineage right without gender-based discrimination.
- Every woman shall have the right to safe motherhood and reproductive health.
- No woman shall be subjected to physical, mental, sexual, psychological, or another form of violence or exploitation on grounds of religion, social, cultural tradition, practice, or on any other grounds. Such acts shall be punishable by law, and the victim shall have the right to obtain compensation in accordance with the law.
- Women shall have the right to participate in all bodies of the State on the basis of the principle of proportional inclusion.
- Women shall have the right to obtain special opportunities in education, health, employment, and social security, on the basis of positive discrimination.
- The husband and wife shall have the equal right to property and family affairs.
Rights of Child: Article 39
- Every child shall have the right to name and birth registration along with his/her identity.
- Every child shall have the right to education, health, maintenance, proper care, sports, entertainment, and overall personality development from the families and the State.
- Every child shall have the right to elementary child development and child participation.
- No child shall be engaged in any factory, mine, or similar other hazardous work.
- No child shall be subjected to child marriage, transported illegally and kidnapped, or taken hostage.
- No child shall be recruited or used in the army, police, or any armed group, or be subjected, in the name of cultural or religious traditions, to abuse, exclusion, or physical, mental, sexual, or another form of exploitation or improper use by any means or in any manner.
- No child shall be subjected to physical, mental, or any other form of torture in the home, school, or other place and condition whatsoever.
- Every child shall have the right to child-friendly justice.
- The child who is helpless, orphan, with disabilities, conflict victim, displaced, or vulnerable shall have the right to special protection and facilities from the State.
- Any act contrary to clauses (4), (5), (6), and (7) shall be punishable by law, and a child who is the victim of such act shall have the right to obtain compensation from the perpetrator, in accordance with the law.
Rights of Dalit: Article 40
- The Dalit shall have the right to participate in all bodies of the State on the basis of the principle of proportional inclusion. Special provisions shall be made by law for the empowerment, representation, and participation of the Dalit community in public services as well as other sectors of employment.
- Provision of free education with scholarship, from primary to higher education, shall be made by law for Dalit students. Special provisions shall be made by law for the Dalit in technical and vocational education.
- Special provisions shall be made by law in order to provide health and social security to the Dalit community.
- The Dalit community shall have the right to use, protect and develop their traditional occupation, knowledge, skill, and technology. The State shall accord priority to the Dalit community in modern business related to their traditional occupation and provide skills and resources required therefor.
- The State shall provide land to the landless Dalit for one time in accordance with the law.
- The State shall, in accordance with the law, make provisions of settlement for the Dalit who do not have housing.
- The facilities conferred by this Article to the Dalit community shall be distributed in a just manner so that the Dalit women, men, and Dalits in all communities may obtain such facilities proportionately.
Rights of Senior Citizens: Article 41
Senior citizens shall have the right to special protection and social security from the State.
Right to Social Justice: Article 42
- The economically, socially, or educationally backward women, Dalit, indigenous nationalities (Aadibasi Janajati), Madhesi, Tharu, Muslims, backward classes, minorities, marginalized communities, persons with disabilities, gender and sexual minorities, farmers, labourers, oppressed or citizens of backward regions and indigent Khas Arya shall have the right to participate in the bodies of the State on the basis of the principle of proportional inclusion.
- The indigent citizens and citizens of the communities on the verge of extinction shall have the right to get special opportunities and benefits in education, as Amended by the First Amendment, health, housing, employment, food, and social security for their protection, upliftment, empowerment, and development.
- Citizens with disabilities shall have the right to live with dignity and honour, with the identity of their diversity, and have equal access to public services and facilities.
- Every farmer shall, in accordance with the law, have the right to have access to land for agro activities, and select and protect local seeds and agro species which have been used and pursued traditionally.
- The families of the martyrs who have sacrificed their lives, and of the disappeared persons and those who became disabled and injured in all people’s movements, armed conflicts, and revolutions that have been carried out for progressive democratic changes in Nepal, democracy fighters, conflict victims and displaced ones, persons with disabilities, the injured and victims shall have the right to get a prioritized opportunity, with justice and due respect, in education, health, employment, housing, and social security, in accordance with the law.
Right to Social Security: Article 43
The indigent citizens, incapacitated and helpless citizens, helpless single women, citizens with disabilities, children, citizens who cannot take care of themselves, and citizens belonging to the tribes on the verge of extinction shall have the right to social security, in accordance with the law.
Rights of Consumer: Article 44
- Every consumer shall have the right to obtain quality goods and services.
- A person who has suffered damage from any substandard goods or services shall have the right to obtain compensation in accordance with the law.
Right against Exile: Article 45
No citizen shall be exiled.
Right to Constitutional Remedies: Article 46
There shall be a right to obtain constitutional remedies in the manner set forth in Article 133 or 144 for the enforcement of the rights conferred by this Part.
Implementation of Fundamental Rights: Article 47
The State shall, as required, make legal provisions for the implementation of the rights conferred by this Part, within three years of the commencement of this Constitution.
Duties of Citizens: Article 48
Every citizen shall have the following duties:-
- To safeguard the nationality, sovereignty, and integrity of Nepal, while being loyal to the nation;
- To abide by the Constitution and law;
- To render compulsory service as and when the State so requires;
- To protect and preserve public property
Fundamental Rights and Human Rights
Human rights are necessary for the existence of a fundamental right. Although fundamental rights and human rights are equivalent, there is a very slight distinction between the two. All fundamental rights are human rights but all human rights are not fundamental rights. Fundamental rights are the human rights which are placed in a written constitution. Thus we can say that human rights are the whole and fundamental rights are a part.
Compared to human rights and constitutional rights, fundamental rights are more defined and enforceable for a country.
The Universal Declaration of Human Rights is a key document in the development of human rights. United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A) is the common standard of achievements for all peoples and all nations. It has been translated into more than 500 languages and for the first time puts clear the need for all people to have access to basic human rights protections. The Convention was ratified by the State of Nepal in 1991. The United Nations’ Sustainable Development Goal 16, which was adopted in 2015, emphasizes the connection between maintaining peace and advancing human rights.
National Human Right Commission (NHRC)
The National Human Rights Commission (NHRC) is in charge of ensuring the respect, protection, and promotion of human rights and their proper implementation.
The National Human Right Commission Nepal (NHRCN) was created in response to the 1991 UN-sponsored meeting of the representatives of national institutions held in Paris. NHRC was established as an independent statutory body in 2056 BS (2000 AD) under the Human Rights Commission Act 1997 (2053 BS). It has now been elevated to a powerful constitutional body with a commensurate mandate, competence, and independence.
The NHRCN was elevated to a constitutional body by Article 131 of the Interim Constitution of Nepal, 2007 AD, and by Article 248 of the present Constitution of Nepal (2015 AD).
According to the National Human Rights Commission Act of 2012, the NHRC is empowered to protect and advance human rights through inquiries and investigations that are based on complaints made to the commission by victims or anyone acting on their behalf, on information obtained from any source, or on the NHRC’s own initiative.