The new statute claims to enshrine secularism but states that it will protect Sanatan religion culture.
By Gyanu Adhikari
The upper-caste leaders crafting Nepal’s constitution – to come into force 5 pm on Sunday – have included provisions on secularism that leave room for future conflicts over religion, lawyers warn. The new constitution says Nepal will be a secular state, but goes on to define secularism as the “protection of Sanatan religion culture, as well as cultural and religious freedom”.
“Sanatan religion, in Nepal’s context, is interpreted as Hinduism, which has influenced Nepali law and governance,” said Sapana Pradhan Malla, a lawyer who has been active in exposing the constitutional provisions that discriminate against women – including a separate unequal provision for men and women on passing citizenship to their children.
Secularism has long been demanded by Nepal’s religious minorities – including Buddhists, Christian, Muslims, and nature worshippers, as well as indigenous groups some of whose cultural traditions have been criminalised by laws based on Hinduism.
An example is the Muluki Ain, the criminal code, which criminalises killing cows.
“The Muluki Ain has a maximum sentence of 12 years for killing a cow, even though cow meat is required for cultural practices of some groups like the Kirats,” said Shankar Limbu, a lawyer. According to research carried out by Limbu’s organisation, the Lawyers’ Association for Human Rights of Nepalese Indigenous Groups, there are more than 150 people currently in prison for killing cows or consuming cow meat.
Just like homicide
“Our laws say we treat cow killing with the same seriousness as homicide,” said Police Inspector Rupak Khadka, speaking from the District Police Office in Sindhupalchowk, a district that has a large number Tamangs, as well as Dalits, who consume cows. The animal also holds an exalted position as the “national animal” in the new constitution.
Nepal has been a Hindu country since Prithvi Narayan Shah conquered dozens of principalities in the rugged mountains to form the modern Nepali state in the 18th century. He expelled Christian missionaries from the country and declared Nepal “a real Hindustan”. The first legal code, the Muluki Ain, was based on Hindu rules of crimes and punishment, and institutionalised discrimination based on caste and ethnicity. Punishment for a crime depended on the offender’s position in the caste hierarchy.
After the Maoist war and indigenous movements in the last decades, Nepal was declared secular in the Interim Constitution of 2007. The first draft of the constitution released last month for public consultation, too, was clear about Nepal’s secular status. However, after protests from Hindu nationalist groups and parties that want to restore Hinduism as the national religion, the upper caste leaders drafting the constitution decided to include the definition of secular that, in effect, contradicts the meaning of secular to mean the protection of Hinduism. The Maoists, who form the third largest party in the Constituent Assembly that will be disbanded with the promulgation of the constitution on September 20, did not oppose the move.
A long history of struggle
For indigenous and religious minority groups, who see secularism as a key foundation for inclusive democracy, the distortion is a nullification of decades of political mobilisation to ensure the Nepali state treats all religions, castes, and ethnicities equally.
“The idea of secularism is meant to separate state from religions, and is meant to protect religious minorities, instead it has been defined to protect the dominant religion,” said Malla. “The state should either be separate from all religions, or treat all religions equally.”
The provisions on secularism are a recipe for future conflict. According to a youth leader and assistant pastor at Ananta Jeevan Protestant Church in Kathmandu, it means that the state is biased toward one religion over the others, which could disrupt religious harmony. Malla shares the view, given that the state has given itself the role of protecting the historically dominant religion ‒ Hinduism ‒ based on which upper caste people have been practicing various forms of discrimination against women, Dalit and indigenous groups.
Malla added that discrimination and exploitation could be justified with the pro-Hindu definition of secularism. For example, according to Hindu tradition married daughters are no longer part of the parent’s family: a sentiment that has seeped into the Inheritance Law, where married women are denied parental property.
Some of the consequences of ambiguity surrounding secularism could be redressed by another article in the constitution, on the Right Against Exploitation, which states exploitation based on caste, religion, ethnicity and tradition is punishable. But which articles and clause will be paramount, and how the contradictory language on secularism is resolved will depend on the Supreme Court, the body ultimately responsible for interpreting the constitution.
However, for those most disadvantaged by the Hindu character of the state, the proviso is a disappointment. According to Anita Pariyar, a Constituent Assembly member and Dalit leader, the way secularism has been defined has satisfied neither the group that wants Hindu hegemony, nor the secularists.
“For Dalits, this is especially ominous,” Pariyay said. “Dalits have been discriminated against for centuries. Dalits are forbidden to enter temples according to Hindu tradition. So in protecting Hindu religion and tradition, discrimination based on Hinduism will continue.”