Fundamental Rights, Directive Principles, and State Policies
Concept
The concept of fundamental rights was first enshrined in the U.S. Constitution through the First Amendment in 1791. Since then, most constitutions worldwide have recognized fundamental rights as an integral part. These rights, rooted in John Locke's philosophy, relate to an individual's life, liberty, and property. In Nepal, provisions for fundamental rights have been included since the 2004 BS (1947 CE) constitution. Fundamental rights encompass both human rights and freedoms, including individual, collective, positive, and negative rights. To protect citizens from potential overreach by the executive, the Supreme Court safeguards these rights, while national institutions like the Human Rights Commission, formed under the Paris Principles, monitor and promote human rights, recommending actions to the state. The legislature oversees the executive, issues directives, and ensures transparency in judicial and commission appointments, based on the principles of separation of powers, checks, and balances.
Introduction to Fundamental Rights
Fundamental rights are those enshrined in the constitution, with legal remedies specified for their violation. These rights are essential for an individual's holistic development and are protected by the Supreme Court. They include not only civil and political rights but also economic, social, and cultural rights in modern constitutions. These rights are considered the soul of a written constitution, listed in a separate part, and are non-transferable and non-surrenderable. They are based on equality, nondiscrimination, freedom, and justice. The Constitution of Nepal (2072 BS) lists 31 fundamental rights under Part 3, Articles 16 to 46, compared to 21 in the Interim Constitution of 2063 BS.
Citizen Duties
Citizen duties are responsibilities citizens owe to their nation, society, and constitution, balancing the rights they receive. These duties foster national unity, social harmony, and the rule of law. Under Article 48 of Nepal’s Constitution, duties include protecting national interests, adhering to the constitution and laws, serving the state when required, and safeguarding public property. Additional duties involve promoting social harmony, paying taxes, protecting the environment, respecting peaceful coexistence, participating in development, exercising voting rights, and upholding state policies and values.
Newly Added Fundamental Rights
- Right to Live with Dignity (Article 16)
- Rights of Crime Victims (Article 21)
- Right to Food (Article 36)
- Right to Housing (Article 37)
- Rights of Dalits (Article 40)
- Rights of Senior Citizens (Article 41)
- Rights of Consumers (Article 44)
Amended/Expanded Rights
- Right to Language and Culture (Article 32)
- Right to Health (Article 35)
- Right to Social Security (Article 43)
Key Fundamental Rights
Right to Live with Dignity (Article 16)
Every person has the right to live with dignity, and no law shall provide for the death penalty.
Right to Freedom (Article 17)
No person shall be deprived of personal liberty except in accordance with the law. Citizens have freedoms including:
- Freedom of opinion and expression
- Freedom to assemble peacefully 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 engage in any occupation, trade, or business
Restrictive Clauses: Laws may restrict these freedoms if they undermine Nepal’s sovereignty, territorial integrity, nationality, public order, inter-community relations, or promote caste discrimination, untouchability, or actions against public health, morality, or national security.
Right to Equality (Article 18)
All citizens are equal before the law, with equal protection. No discrimination shall occur based on origin, religion, race, caste, tribe, sex, or economic condition. Equal pay for equal work and equal inheritance rights are ensured. Special provisions may be made for socially or economically disadvantaged groups.
Right to Communication (Article 19)
No prior censorship shall be imposed on publications or broadcasts, and media outlets shall not be closed, seized, or deregistered for their content. Restrictions may apply to actions undermining sovereignty, public order, or morality.
Right to Justice (Article 20)
No person shall be detained without being informed of the reason, and they have the right to consult a legal practitioner. Detainees must be presented before a judicial authority within 24 hours (excluding travel time) unless otherwise ordered.
Directive Principles, Policies, and Obligations of the State (Part 4)
These principles guide state governance but are not enforceable by courts. They include:
- Political Objectives: Protect Nepal’s sovereignty, ensure equality, and establish a welfare state.
- Social and Cultural Objectives: End discrimination and promote cultural diversity and social harmony.
- Economic Objectives: Achieve sustainable economic growth through public, private, and cooperative sectors.
- International Relations: Promote Nepal’s interests based on equality and international law.
The state mobilizes resources to implement these principles, with annual progress reports submitted to the President and Parliament.
Relationship and Differences Between Fundamental Rights and Directive Principles
Relationship: Both are integral to the constitution, aiming to ensure citizen welfare and state accountability. Fundamental rights provide immediate enforceable protections, while directive principles create a framework for long-term social, economic, and cultural progress, complementing these rights.
Differences:
- State Role: Negative (non-interference) for fundamental rights; positive (facilitation) for directive principles.
- Enforceability: Fundamental rights are justiciable; directive principles are not.
- Impact: Fundamental rights have direct effects; directive principles have indirect effects.
- Nature: Fundamental rights are constitutional and immediate; directive principles are political and resource-dependent.
- Focus: Fundamental rights emphasize civil and political rights; directive principles focus on economic, social, and cultural welfare.
Implementation Status in Nepal
While Nepal’s Constitution guarantees 31 fundamental rights, their implementation faces challenges:
- Legal Framework: 28 laws related to fundamental rights have been enacted, but gaps in regulations hinder full implementation.
- Rights Awareness: Public awareness of rights, like the right to information, has increased.
- Education, Health, Employment: Quality education and health services remain limited in remote areas, and unemployment drives youth to foreign jobs.
- Social Justice: Discrimination against marginalized groups persists despite constitutional provisions.
- Justice Access: The justice system remains inaccessible to the poor and marginalized due to delays and lack of legal aid.
Effective implementation requires stronger legal, administrative, and financial mechanisms.
Practice Questions
- Discuss the relationship and differences between fundamental rights and directive principles of state policy. (10 marks)
- What is meant by the right to freedom? What provisions does the current constitution make regarding this right? Why does the constitution allow restrictions on this right? Present your views. (10 marks)
- What are fundamental rights? In what situations can restrictions be imposed on them? Discuss the constitutional provisions for their enforcement. (10 marks)
- Justify the statement that fundamental rights and citizen duties are two sides of the same coin, and present your views on the pros and cons of fundamental rights in the current constitution. (10 marks)
- Directive principles are not enforceable by courts, yet their inclusion in the constitution is justified. Discuss their importance and methods of implementation in modern constitutions. (10 marks)