Indian Supreme Court Lawyer K. K. Venugopal on the Draft Constitution of Nepal: “There are glaring errors”

 Concluding Remarks of Dr Bipin Adhikari as Chairperson of the Third Session: Interaction Programme on the Draft Constitution and Constitution Making in Nepal (14:30 – 16:30, August 15, 2015: Tribhuvan University Faculty of Law, Kathmandu)

It is great to hear eminent constitutional lawyer of India, Mr Kottayan Katankot Venugopal on the preliminary draft of the new Nepalese Constitution.

Mr Venugopal is not only a senior advocate in the Supreme Court of India, but also a jurist who has significant contribution in the ever evolving Indian constitutional jurisprudence. He also gave his inputs to the 2008 Bhutanese Constitution when it was being drafted. As somebody who has come from outside, and knowing little about local politics, his comments must be taken as comments of a lawyer based on the his thematic knowledge of the Constitution of India and its implementation for many decades.

As you all understand, Mr Venugopal has given critical remarks on three important aspects of the draft constitution. The first one obviously is his comments on the chapter of fundamental rights. He is very clear on his finding that the rights included here, which though very exhaustive, must be carefully finalized. For example, he said that the guarantee that everyone has the right to human dignity can be a problem. In his opinion, all the various rights that are guaranteed in this chapter deal with human dignity of some sort. What would then be the distinction between this provision and the rest of the provision.

Secondly, Mr Venugopal also emphasized that 14 articles in the fundamental rights deal with economic, social and cultural rights. There are rights that guarantee food, shelter and employment. They are huge commitments for any country. It will take another 30 to 40 years for Nepal at its current pace of development to make these things possible as fundamental rights. How can the Supreme Court in that case enforce these rights in the same depth which these rights have guaranteed. Taking the example of South Africa, he said, it is possible to continue working on such rights based on progressive realization in the context of available resources in the country. If this is so, many of these rights must be moved to the chapter on directive principles, and must be clearly stated in clear words.

Thirdly, Mr Venugopal pointed out that the lists dividing the state power between the national government, provinces and local bodies are also overlapping with each other.This can be fatal. It will require amendment of the constitution immediately because they cannot be reconciled in lighter vain. This inconsistency is also there in the case of impeachment provisions. He also said that such problems are there in many other provisions, and they all must be rectified before the document becomes public.

Our national constitutional expert, Mr Purna Man Shakya has already shared his observation with us.

The draft constitution is the generic draft of politicians. Some experts from the government and Constituent Assembly Secretariat have definitely worked on it within their bureaucratic limitations. But their inputs have not been enough. You can see that the preamble of the constitution looks life the electoral manifesto of the political parties fielding candidates in the upcoming elections. It is difficult to understand what is so fundamental in the rights on the chapter on fundamental rights when much of it is to be further worked by the parliament later. Again, it is not clear how the new Germanic features in the form of government will work in the Nepalese setting. The policy of integrated judiciary in this constitutional draft is quite clear, but there will be much struggle between Supreme Court and Constitutional Court due to overlap in their prospective jurisdiction. There are different thematic commissions dealing with several fundamental rights issues. It is not clear how they will be coordinating with each other. They all clearly show we need to work on these provisions maintaining certain level of clarity.

I thank both the experts, especially Mr K. K. Venugopal, for taking time to fly to Kathmandu and sharing his insights with us this afternoon. I also thank the honourable members of the Constituent Assembly and other distinguished participants for being with us in this special forum. Thank you so much !