Do not attack on judiciary and independent media

The right to free speech does not give license to defame or harm others

Jivesh Jha

(The Annapurna Express) April 29, 2024.

Every right comes with a reasonable restriction. If right goes without restriction, there would be chaos in society. In this context, the right to free speech is considered the mother of all freedoms since it has a special and crucial place in the hierarchy of freedoms. The right to think and speak freely, as well as to receive information and to participate in open discussions without fear of government restriction, could be considered the core of free speech. The freedom to converse on an issue is the opportunity to speak freely.

However, the right to speech does not give license to defame or harm others. Recently, a media outlet got a directive from the Press Council Nepal to remove a piece of fake news claiming the involvement of Justice Anand Mohan Bhattarai, lawyers and media entrepreneurs to dismiss more than 400 corruption cases. Issuing a press statement on April 28, Judges’ Society Nepal demanded stern action against Sidhakura, the show in question, for broadcasting the ‘news’ without checking the facts, thereby attacking not just a judge but the judicial system as a whole. Relevant agencies of the state have initiated legal proceedings against the media.

Against this background, let’s delve into freedom of speech. 

Constitutional scenario

The Constitution of Nepal 2015 prohibits the enactment of any law and order at the cost of fundamental freedoms and constitutional values. Article 1 declares any law, which is inconsistent with the constitution, ‘void’, meaning that the fundamental freedoms, which include freedom of speech and expression, cannot be curtailed in the name of any law.

Article 16 states that every person will have the right to life with dignity. Article 17(1) guarantees the right to freedom, including personal liberty. Article 17(2) guarantees fundamental freedoms, like freedom of opinion and expression; freedom to assemble peacefully; freedom to form political parties; freedom to form unions and associations; freedom to move and reside in any part of the country; and freedom to engage in any occupation.However, these freedoms are not unrestrained. As with every right, the right to speech and expression also come with reasonable restrictions. A citizen cannot exercise his freedom of speech in a way that undermines the nationality and sovereignty or jeopardizes the harmonious relations among the people, incites hatred, defamation, offense or is contrary to decency or morality or public order.

This way, a person can voice his concerns in every way, and the way he wishes to but cannot defame or challenge other’s dignity or the law of the land. Simply put, you can enjoy your rights without violating others’ rights. Article 19 deals with the right to communication. This clause prohibits pre-censorships of publication and broadcast of content or information through any medium. This means broadcasting or press materials cannot be seized at the sweet will of the government.

The constitution disallows untouchability and discrimination and prohibits them under Article 24. This means one is not competent to shape his views discriminating against his fellow citizens or members of the family. Article 27 envisages that every citizen will have the right to information. Right to speak or right to know is considered part and parcel of speech and expression and the same is the case with right to privacy (Article 28), which guarantees a person’s right over personal facts, leaving it up to the individual to decide when and under what circumstances to make them public. 

Remedy

The constitution provides remedy clauses that confer a citizen the right to move the Supreme Court (under Article 133) and High Court (under Article 144) at the instance of violation of his/her fundamental rights.

Judicial interpretation 

The Supreme Court in the case of Advocate Ratna Kumari Shrestha v Sudhir Sharma, editor-in-chief of Kantipur daily and others (2073 BS NKP, Decision Number 10370) held, in the name of the exercise of press freedom, it would not be justified to allow one to affect the dignity, independence and functioning of the courts. Nor, would it be in the interest of a democratic system to regulate press freedom at the cost of contempt of court. Both of these institutions—press and judiciary—should have to stand within their limits. If there is dissemination of information in such a way that it would tend to diminish the authority of the court, judges or cause contempt of court, then it would not be considered an exercise of the freedom of the press, rather it would form a basis for punishing an outlier on the charge of contempt of court. In the name of freedom of speech and expression, a media has no right to arbitrarily criticize the court’s decisions and thereby adversely affect the dignity of the court which would have an impact on the people’s faith in the judiciary. A media will be liable for contempt of court if it disseminates information to downgrade the authority and sanctity of the court and judgeship, the apex court held further.

In Thir Prasad Pokharel v Harihar Birahi, editor of Bimarsha Prakashan Pvt Ltd (2049 BS NKP, Decision Number 4604), the apex court held that Nepal’s constitutional norm and values are clear on a point that there shall be no pre-censorship, neither cancellation of registration of the newspaper, nor shall there be any shutdown or confiscation of printing press.

Global precedents

In India, the preamble of the Indian Constitution at the very outset clarifies that the democratic credentials, like liberty of thought, expression and belief; justice along the social, economic and political; or equality and fraternity, would be secured and promoted by the governments. Article 19(1)(a) guarantees freedom of speech and expression.

The laws in the USA not only recognize the right to fly the national flag but it has gone to the extent of holding flag burning as an expression of free speech and expression of its citizen against the establishment but Indian constitution does not approve the latter part of the right, India’s apex Court ruled in the case of Union of India v Naveen Jindal (2004). 

The First Amendment to the Constitution of the United States provides that the Congress shall create no law abridging the liberty of words or of the press.  In the 19th century, Germany guaranteed freedom of opinion in its Constitution with an express prohibition of press censors.

Interestingly, Sweden became the first country in the world to adopt a provision for the availability of official information for the citizens on their demand. The right to freedom of speech is recognized as a human right under article 19 of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights (ICCPR).

The way forward

The right to freedom of speech and expression is a fundamental right enshrined in the Constitution.  It expressly guarantees the right to voice our concerns through speech, expression or vote. Yet, it does not confer a license to defame others or violate the laws of the land. So, the freedom of speech is neither unrestrained, nor does it allow us to question the sanctity and integrity of others.

Publishing a fake news content to defame persons of high moral character or to post comments on social media to defame others or to speak in a way that tends to undermine the authority and sanctity of judicial institutions cannot be considered part and parcel of freedom of speech. It's high time to protect and promote the constitutional ethos, for Nepal deserves to uphold the press freedom by every possible means and in every given way.

https://theannapurnaexpress.com/story/48609/

Purush Pariksha: A Nepali translation of Vidyapati’s original work

Jivesh Jha (The Annapurna Express)

June 3, 2024, 10 a.m.

‘Purush Pariksha’ (The Test of Man) is an exploration of the great poet Vidyapati’s story collection that has been translated from Sanskrit into Nepali by Dhirendra Premarshi, a renowned writer and committed researcher on the great poet and his cultural ethos.

The book was published by Ambar Publication House, New Delhi. It’s a collection of 44 stories of the poet which provides universality, artistry, intellectual values, and the qualities that a man should have to fight against life’s challenges. Vidyapati’s original work has already been translated into Hindi, English, Bengali, and other languages. The current Nepali translation is a first of its kind by Premarshi. 

Premarshi’s work welcomes readers with a preface written by Prof Dr Laxman Prasad Gautam, a faculty member of Nepali Language and Literature at the Central Department of Nepali, Tribhuvan University, Kathmandu, who takes them through the origins of this translation. 

Prof Gautam argues, “Taking into account the stories written by Vidyapati and their commentaries published in Sanskrit, English and Hindi, the translator, himself, an acclaimed laureate of Maithili and Nepali literature, has succeeded to upkeep the fundamental literary spirits of the great poet’s writings.” He further states that Premarshi’s work is an idealistic translation in recognition of literal and semantic translation of the writings of the great poet, who is often called Kavi Kokil (Poet Cukoo of Mithila).

Purush Pariksha is simple and persuasive, speaking of the translator’s skills, his mastery of language, his devotion towards culture and literature. He makes things easily understandable.

Purush Pariksha would have been authored by Vidyapati during 1412 to 1416 on the direction of Shiv Singh, king of the then Mithila state. King Shiv Singh was Vidyapati’s childhood friend and he was on the throne for four years. This text was firstly translated by Har Prasad Ray in 1815 in Bangla language. It was then translated into English in 1830 by Kali Krishna Bahadur. Chanda Jha took the initiative to translate it into Maithili language in 1885.

The conversation between Subudhi, a monk, and one of the kings named Paravar make up the theme of the book. The literary work provides guidelines for the kings and administrators in their dealing with the officials. For instance, in the fifth chapter, Premarshi provides an instance where Vidyapati had suggested that a king would fail to learn about the overall facts of the incident if he deploys informers who lie. Similarly, if a king favors a wrong person, he would not only commit sins but would also invite troubles for himself.

Vidyapati’s work is not only an exploration of moral lessons but also a political treatise that provides ample practical knowledge about the art of statesmanship. The book can be considered an essential work in propounding the theories of literature, criminal law, administrative law, politics and economics. 

If there is one reason to read Premarshi’s translated and edited work is his endeavor to give conceptual clarity on the writings of the great poet Vidyapati. The book discusses the views, theories and wisdoms propounded by the great poet. His political and administrative theories also find a prominent place in the book. I believe Premarshi’s Nepali translated version of Vidyapati’s Purush Pariksha should be a mandatory reading for sociologists, anthropologists, poets, lawyers, teachers, and students of various subjects, including literature and law.

https://theannapurnaexpress.com/story/49140/#google_vignette 

Letter of Appreciation from SRM University, Sonepat, Haryana, India

 

 

Jivesh Jha’s book, coauthored with a law professor, launched at convocation event of University of Lucknow

 

NL Today - 16 December, 2023

 @NepalLiveToday

Kathmandu: Laws Related to Women and Children, the book authored by Jivesh Jha and Dr Alok Kumar Yadav, was launched in the 66th convocation ceremony of University of Lucknow in India.  The book delves into legal frameworks relating to women and children, covering constitutional, civil (domestic/national) laws and international laws on women and children. The book offers an insight on Indian and international laws in the light of Nepali legal system.

Published by University Book House Jaipur, the book also shows how women in Nepal’s Madhesh and north India go onto rigorous fasting for more than 36 hours during Chhath, abstaining from a single drop of water, to appease Lord Surya and Chhathi Maiya for longevity and well-being of their male family members.

Even while chanting Mantras, or while worshiping, the name of goddess comes first. For instance, Radha-Krishna or Sita-Ram, or Gauri-Shankar. Here, the name of goddess appears first.

Authors argue that Nepal’s Constitution, which is a much progressive and gender friendly document, provides a good deal of provisions to upkeep the concerns of women and children.

Jivesh Jha who is currently a Judicial Officer at Janakpur High Court, Rajbiraj Bench, has been writing and researching about constitutional and legal issues of Nepal and India and beyond.  Prof Dr Alok Kumar Yadav is a faculty of Law at Lucknow University. Jha has an LLB degree from Uttarakhand Technical University Dehradun (with gold medal) and Master’s degree in Constitutional law.

https://www.nepallivetoday.com/2023/12/16/jivesh-jhas-book-coauthored-with-a-law-professor-launched-at-convocation-event-of-university-of-lucknow/

 

Jivesh Jha’s book, coauthored with a law professor, launched at convocation event of University of Lucknow

NL Today - 16 December, 2023

 @NepalLiveToday

• Read Time 1

Kathmandu: Laws Related to Women and Children, the book authored by Jivesh Jha and Dr Alok Kumar Yadav, was launched in the 66th convocation ceremony of University of Lucknow in India.  The book delves into legal frameworks relating to women and children, covering constitutional, civil (domestic/national) laws and international laws on women and children. The book offers an insight on Indian and international laws in the light of Nepali legal system.

Published by University Book House Jaipur, the book also shows how women in Nepal’s Madhesh and north India go onto rigorous fasting for more than 36 hours during Chhath, abstaining from a single drop of water, to appease Lord Surya and Chhathi Maiya for longevity and well-being of their male family members.

Even while chanting Mantras, or while worshiping, the name of goddess comes first. For instance, Radha-Krishna or Sita-Ram, or Gauri-Shankar. Here, the name of goddess appears first.

Authors argue that Nepal’s Constitution, which is a much progressive and gender friendly document, provides a good deal of provisions to upkeep the concerns of women and children.

Jivesh Jha who is currently a Judicial Officer at Janakpur High Court, Rajbiraj Bench, has been writing and researching about constitutional and legal issues of Nepal and India and beyond.  Prof Dr Alok Kumar Yadav is a faculty of Law at Lucknow University. Jha has an LLB degree from Uttarakhand Technical University Dehradun (with gold medal) and Master’s degree in Constitutional law.

https://www.nepallivetoday.com/2023/12/16/jivesh-jhas-book-coauthored-with-a-law-professor-launched-at-convocation-event-of-university-of-lucknow/

छठको स्वागतमा तयार मधेश

जिवेश झा  (बिहीबार, कात्तिक ३०, २०८०, हिमाल खवर पत्रिका)

वातावरणीय संरक्षण, समानता र सामाजिक एकता छठ पर्वका मूल सन्देश हुन्।

जिवेश झा

काँचही बांस के बहिंगीया, बहाँगी लचकत जाय

बाटही पुछ ए बटोहिया, ई भार किनकर जाय

अमरुख छ हि रे बटोहिया ई भार छठी माई के जाय।

दशैं सकिए लगत्तै मधेशका बजारमा यस्ता गीत निकै घन्किरहेछन्। अर्थात्, यो तराई-मधेशको महापर्व छठ नजिकिएको संकेत हो।

भक्तिरसले पूर्ण गीतसंगीत र तिनका शब्दले युवा पुस्तालाई विशेष भावुक बनाइरहेको हुन्छ। खास गरी छठी मातालाई पुकारा गर्ने यी गीत छठ सकिएपछि प्रायः गाइँदैन।

छठ ठ्याक्कै कहिले मनाइन्छ त? यो सूक्ति हेरौं- जितिया दसे दशमी, दशमी पाँचे कोजाग्रत, कोजाग्रत पन्ध्रहे शुकराती (दिवाली), शुकराती छवे छैठ। अर्थात्, जितिया पर्वको १० दिनपछि दशैं, दशैंको पाँच दिनपछि कोजाग्रत पूर्णिमा, कोजाग्रतको १५ दिनपछि दीपावली अनि दीपावलीको ६ दिनपछि छठ।

अर्को सूक्तिले भन्छ- सुख शुकराती दियाबाती तकरे छवे छैठ। अर्थात्, छठ र दीपावलीको बीचमा ६ दिनको अन्तर छ।

समानता र एकताको पर्व

छठको पौराणिकता केलाउँदा यसलाई महाभारतकालमा कुन्तीले सूर्यको आराधनाबाट कर्णलाई जन्माएको घटनासँग जोडिन्छ। वेदमा उल्लेख भए अनुसार छठीदेवी सूर्यदेवकी पत्नी हुन्।

द्वापरयुगमा रामसीता वनवासबाट फर्किएपछि सूर्यदेवको सम्मानमा व्रत बसेको र त्यो वेलादेखि यो पर्व झन् विस्तार भएको मान्यता छ। महाभारतकालमा कर्णले हरेक दिन पानीमा उभिएर सूर्यको पूजापछि दानदातव्य गर्ने गरेको, पाण्डवले कौरवलाई परास्त गर्न यही पूजा गरेको कथा पनि सुन्न पाइन्छ।

पर्वमा भक्तहरू सूर्यप्रति कृतज्ञता व्यक्त गर्दै चार दिनसम्म महत्त्वपूर्ण अनुष्ठान गर्छन्। हुन त मिथिलामा प्रत्येक दिन सूर्यलाई जल चढाइन्छ तर छठमा विशेष पूजा हुन्छ। छठमा नुहाउँदा कुष्ठ र छालाका अन्य रोग निको हुने जनविश्वास छ।

व्रत बस्ने महिलाहरू ‘धनधान्य, पति-पुत्र तथा सुखसमृद्धि’ ले युक्त हुने विश्वास गरिन्छ। तर व्रतालु महिला मात्र हुनुपर्छ भन्ने छैन। पुरुष पनि व्रत बसेर पूजामा संलग्न हुन पाउँछन्। यो पर्व न जातीय छ न त वर्ग केन्द्रित।

छठले जलाशय र घाट सरसफाइलाई प्राथमिकता दिन्छ। त्यसैले दशैं सकिए लगत्तै धर्मावलम्बीहरू नदी, ताल, पोखरी सरसफाइमा खटिन्छन्। यसरी पानीको संरक्षण र संवर्द्धनसँगै प्रदूषण न्यूनीकरणलाई प्राथमिकतामा राखेकाले यो पर्व वातावरणीय दृष्टिकोणले पनि वैज्ञानिक छ। 

छठ पर्व महिलाको त्याग र समर्पणको पर्यायवाची हो। उनीहरू ४० घण्टाभन्दा बढी सकेसम्म पानीसम्म नपिई उपवास गर्छन्। छठीमैयालाई खुशी पार्न घाटमा बसी एकअर्कालाई सिन्दूर लगाइदिई पति र सन्तानको कल्याणको कामना गर्छन्।

यसले देखाउँछ कि महिलाहरू आफ्ना पति, बच्चा र परिवारलाई अन्य कुराभन्दा प्राथमिकता दिन्छन्। पर्वमा सन्तान नभएका दम्पतीले त्यसैको प्राप्तिका लागि सूर्यको उपासना गर्ने प्रचलन पनि छ। यो पर्वमा कुनै पण्डितको आवश्यकता पर्दैन। प्रत्येक धर्मावलम्बी समान हुन्छन्। सबैलाई समान नियम छ। 

नियम र निष्ठा

छठको व्रत बडो नियम र निष्ठाले बसिन्छ। यसमा तीन दिनको कठोर उपवासको विधान छ। पञ्चमीका दिन नून रहित भोजन एक छाक खाई थालिने व्रतमा षष्ठीका दिन पानी पनि पिउन नहुने मान्यता छ। पर्व अवधिभर व्रतालु भुइँमै सुत्नुपर्छ।

‘सूर्यषष्ठी’ का नामले पनि चिनिने यो पर्वमा शक्ति र ब्रह्म दुवैको उपासना गरिने भएकाले फल एकै साथ प्राप्त हुने विश्वास गरिन्छ। 

छठको पहिलो दिन अर्थात् ‘नहाय खाय’ मा पूजामा चढाइने सम्पूर्ण सामग्री तयार पारिन्छ। दोस्रो दिन खरणामा दिनभर उपवास बसिन्छ। राति भगवान्‌लाई भेली, दूध र चामलबाट तयार पारिएको खर चढाई प्रसाद लिइन्छ।

तेस्रो दिन ठकुवा-भुसवा पकाइन्छ। बेलुकी अस्ताउँदो सूर्यलाई अर्घ्य दिइन्छ जसलाई सौझका अर्घ्य भनिन्छ। चौथो दिन उदाउँदो सूर्यलाई अर्घ्य दिएपछि प्रसाद ग्रहण गरी खाना खाइन्छ। यो प्रक्रियालाई पारण भनिन्छ। व्रत सकिएपछि छिमेकी, आफन्त तथा कुटुम्बलाई प्रसाद बाँडिन्छ।

यो चार दिनको पर्वभन्दा अघि ‘मरुवा माछ वारनाई’ पालना गरिन्छ। यो भनेको लसुन, प्याज, माछा-मासु नखाई हामी छठका लागि तयार भयौं भन्ने संकल्प हो। यस अर्थमा छठ पाँच दिने पर्व हो।

छठमा मौसमी फल, केराको घरी, उखु, ठेकुवा, मूला, सुथनी, अखरोट, बदाम, नरिवल, रातो-पहेंलो कपडा, कलश सहित करीब ७० प्रकारका वस्तुको प्रयोग हुन्छ। यीमध्ये कुनै चिज उपलब्ध नहुँदा तराईमा विशेष रूपले उब्जिने गम्हरी चामल राखेर त्यसको क्षतिपूर्ति गरिन्छ।

बाँसको टोकरीमा यी सबै पकवान्न हाली जलाशयको किनारमा राखिन्छ। बाँसकै टोकरी, घैला, माटोको हाती, माटोकै सर्वा लगायत भाँडावर्तनमा प्रसाद राखिन्छन्। बाँसले वंश बढाउने मान्यता रहेकाले सोही कामनाले यसैबाट बनेको टोकरी र सूप प्रयोग गर्ने गरिएको हो।

त्यसपछि महिलापुरुष र बालबच्चा मिलेर सोहर गाउँछन्-

रात छठी मइया गवनै अइली

आज छठिया मइया कहवा बिलम्बली

बिलम्बली बिलम्बली कवन राम के अंगना

जोड़ा कोशियवा भरत रहे जहवां जोड़ा नारियल धइल रहे जहंवा

उंखिया के खम्बवा गड़ल रहे तहवां।

छठी मातालाई कोशी नदी बहुतै प्यारो रहेको वर्णन यो गीतमा छ। छठ पर्वको भक्ति झल्किने गीत अरू पनि छन्। जस्तै-

केरा जे फरे घौद से ओई पर सुगा मँडराय 

मारबौ रे सुगवा धनुष से, सुगा खसे मुरझाय

उ जे खबरी जनइबो अदिक से सुगा देले जुठियाए

उ जे मरबो रे सुगवा धनुक से सुगा गिरे मुरझाय

उ जे सुगनी जे रोवे ले वियोग से आदित होइ ना सहाय।

भूमण्डलीकरणको प्रभाव

छठमा भूमण्डलीकरणको प्रभाव पनि परेको छ। पहिले चिठीपत्रबाट शुभकामना आदानप्रदान हुने गरेकामा अहिले सामाजिक सञ्जालबाट गरिन्छ। यूट्यूबमा छठका भिडिओ प्रशस्तै छन्। यसबाट यो पर्व ‘इन्टरनेट फ्रेन्ड्ली’ बन्न पुगेको छ।

छठको महत्त्वबारे अहिले मधेशी मात्र होइन, तमाम हिन्दू समाज परिचित छ। यो उपलब्धि भूमण्डलीकरणका विभिन्न माध्यमबाटै सम्भव भएको हो। यद्यपि अहिले पर्वमा पटाका पड्काएर वातावरण प्रदूषित पार्ने प्रवृत्ति बढेको छ। यसलाई छठमा भित्रिएको आधुनिकीकरणको प्रतिकूल प्रभाव मान्न सकिन्छ।

कुनै वेला नेपालको मधेश, भारतका बिहार र उत्तरप्रदेशमै सीमित छठ अब काठमाडौं सहित हिमाली भेगमा पनि फैलिएको छ। केही गैरमधेशी समुदायमाझ पनि पुगेको छ। भारतको महाराष्ट्र लगायत प्रदेश तथा अमेरिका, इङ्ल्यान्डमा रहेका हिन्दूले पनि हर्षोल्लासपूर्वक छठ मनाउन थालेका छन्। 

छठ पर्व दशैं-दीपावली आदिभन्दा सस्तो र कम झन्झटिलो हुन्छ। माटाका वर्तन, बाँसका सामान, बारीमा उब्जिने तरकारी, फलफूल प्रयोग हुने भएकाले पैसा धेरै खर्च हुँदैन। यसले नयाँ पुस्तालाई प्राचीन प्रयास र अनुभवको बोध गराउँछ।

यस पर्वले दिने सन्देशलाई हामीले जनजीवनमा किन ढाल्न सकेनौं त? विचार गर्नुपर्ने भएको छ। भाइचारा छठको दिन मात्र राखेर पुग्दैन। त्यसैले वर्षभरि नै मिलेर बसौं। वातावरणीय प्रदूषण विरुद्ध एक हौऔं। वातावरणीय संरक्षण, समानता र सामाजिक एकता नै यो पर्वका मूल सन्देश हुन्।

बिहीबार, कात्तिक ३०, २०८०  हिमाल खवर पत्रिकामा  प्रकाशित

https://www.himalkhabar.com/news/138844

Chhath: Festival Of Cleanliness, Purity And Devotion

 

The Rising Nepal 

 Sat, 18 November 2023

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As a grand event that is largely attended by married women and marks the complete submission of devotees before the Chhathi Maiya, the Chhath festival – which is linked to faith, purity, and devotion to the sun god – has evolved into a Mahaparva.  The festival is observed on the sixth day of the month of Kartik. Nonetheless, the term ‘Chhath’ originally meant "sixth" in ancient Prakrit, as the festival is observed twice a year on the sixth lunar day of the Hindu calendar months of Kartik and Chaitra. Typically, the Chhath celebration starts six days following the festival of lights, Dipawali.

Hindu Scriptures  

The Vedas refer to Usha as Chhathi Maiya, the wife of the sun god. Though Chhath is a solar festival, it has historically and socially been associated with women since Chhathi Mai is believed to be the goddess of children's protection, assuring them longevity and good health. The Mahabharata and the Ramayana are particularly relevant here.  After their 14-year exile, Lord Rama and Mata Janaki (Sita) kept a fast in praise of the sun god, Surya Dev, and only broke it at first light the next day. Karna, the son of Surya Dev and Kunti, is described in the Mahabharata as offering prayers while standing in water and giving Prasad to devotees, Rishis, and other people. Another myth is about how Draupadi and the Pandavas worshipped in a similar way to overthrow the Kauravas.

Rituals 

For four days, the devotees carry out significant rites and offer their heartfelt thanks to Lord Surya.  The celebration encourages community members to be clean, egalitarian, socialist, and brotherly.  At the start of the Chhath Puja, called “Nahay Khay”, devotees take a pledge to abstain from onion, garlic, hotel-prepared meals, and other non-vegetarian items until the end of the celebration in order to maintain their purity and sublimeness. This vow is called a declaration of “Machh-maruwa Barnai”.  In general, it is believed that the puja starts from “Nahay Khay”. But, it’s only partially true. The Puja commences from “Machh-maruwa Barnai, i.e., a day before “Nahay Khay”. On this day, the devotees take food prepared in their own kitchen after taking bath and offering prayers to sun god. 

The Kharna is the second day. The devotees take fast till the conclusion of Kharna in the evening. Kheer made up of rice, milk and Gund (Jaggery) and Puri are offered to the god and distributed among the family members later in evening (after sunset).  The third day is called Saunjh ka Arghya (evening offering), often called Pahila Arghya.  We are celebrating the first offering on November 19 this year. This day is considered to be the toughest day for the devotees, who are mostly women. They observe a rigid fast where they neither take water nor any food item. They take dips in the waters, mostly neighbourhood ponds or rivers, in the evening and it goes till the sunset. They offer prayers to sun god with all the fruits and Prasad prepared in their own but separate kitchen, like Thakuwa, Bhuswa, Khaja, Mithae and other fruits, including grapefruit, sugarcane and banana.  

The offerings, which consist of coconuts, turmeric roots, and green veggies like carrots, sweet potatoes, and radishes that are cultivated in the ground, are preserved in a bamboo stick-made "Sup" (winnow).  Furthermore, the offerings are also stored in earthenware vessels. At the ghat (bank of rivers or streams), ladies smear vermillion on the forehead of another woman. It’s considered to be auspicious to do so.  It is a widely held notion that women paint long yellow vermillion from their heads to their noses in an attempt to impress Chhathi Maiya and ask for her blessings for her children’s and husband's long life and the wealth of her entire family. On the Bhor ka Arghya (morning offering), the fourth and final day, devotees break their fast after offering prayers to the rising sun. They take dip in waters and offer every Prasad to the god again. This way, the devotees take fast without consuming a single drop of water, or other foods for more than 36 hours (beginning from Saunjh ka Arghya to the Bhor Ka Arghya). 

Festival of submission, equality 

The celebration is associated with the devotion and sacrifice of female devotees. The rigorous fasting demonstrates how women prioritise their husbands, kids, and families above everything else in our part of the world.  Offering 70 varieties of handmade dishes and fruits has been in practise. It does, however, have a few exceptions. A devotee must provide "Gamhari" rice, which is only grown in the Terai, if they are unable to present all 70 different kinds of food.  This celebration calls for clean, green waters free of pollutants, aiming to bring people together in the battle against environmental hazards.  

The festival serves to strengthen the ties of equality, fraternity, togetherness, and integrity. Every devotee, regardless of class, colour, or economic status, makes nearly identical Prasad and other offerings for the almighty, and all assemble at the ghat to offer prayers. In this regard, the celebration encourages brotherhood and equality. Maybe this is only festival that goes without necessity of male priests and utterance of Sanskrit mantras. However, on the final day, Bhorka Arghya, a woman devotee at the ghat recites a story of how Chhatha puja began and became a part of festivity among its devotees.  It’s high time for us to acknowledge the messages of Chhath and stand against pollution and other acts that tend to frustrate equality, fraternity and purity.

https://risingnepaldaily.com/news/35100

(Jha is currently a Judicial Officer, at Supreme Court . jhajivesh@gmail.com)  

Defending federal democracy

• From ensuring federalism to rule of law, to good governance and inclusivity, the latest constitution has everything progressive for the people. The only thing we need is to implement the constitution in a true and material sense

Jivesh Jha

Dec. 4, 2023, The Annapurna Express 

The constitution of Nepal guarantees equitable participation of different communities in state mechanisms. Its preamble envisages an equitable society based on proportional, inclusive, and participatory values in order to combat prejudice, and to advance social justice, equality, and diversity.

The federal system of governance, pluralism, egalitarianism, rule of law, inclusivity, and good governance are the basic tenets of the 2015 constitution. The goal is to establish “sustainable peace, good governance, development, and prosperity through the federal democratic republican system of governance,” as stated in the final section of the preamble.

The federal structure was adopted to ensure that the provinces, while remaining independent in their jurisdictions, combine themselves for the national purpose. The administrative powers are divided between the center and province; and both are supreme in their respective areas. In a federal democracy, there appears to be “effective innovation within the system both at the federal and state level” argues John Warhurst, professor of political science at Australian National University.

 In a paper presented at International Conference on Federalism, Devolution of Power and Inclusive Democracy in Nepal and Asia organized by Kathmandu University School of Law in Kathmandu on Nov 22-23, Prof Warhurst argues, “The federal system has survived wars, pandemics and natural disasters with mixed success. Its operations have evolved to meet new circumstances and the aspirations of different political leaders and political movements and parties.” 

He is of the view that the benefits of federalism could be seen in its flexibility to deal with regional differences, including economic and financial disparities and to respond to local cultural differences and varying needs. In Nepal’s case, Madhesh is considered as the flagbearer of federalism, as the people and the Madhes-based parties have been the most vocal advocates for the strengthening of the provincial system. 

The Madhesi community, one of the underprivileged groups, believed that federalism could be the best alternative to achieve self- rule at the province and shared rule at the center. The federal practices could be meaningful in many respects. It could help us to champion the regional or local expectations and aspirations. We should enact laws and policies in furtherance of the local demands and culture. The center should coordinate and cooperate with the provinces as our constitution has been modeled on the principle of cooperation, coexistence and coordination, as enunciated under Article 232. 

Federal features

Article 56 of the constitution envisages that the federation, provinces, and local governments are the political entities that exercise the sovereign power. The charter has empowered all the three tiers of the government to legislate in line with the matters enumerated under the Schedules. Our constitution provisions that the laws enacted within the jurisdiction of Federal List would prevail over the laws framed under concurrent or Provincial List. And, the laws of Concurrent List would prevail over the Provincial List. At this juncture, the constitutional mandates of India and Nepal stand on the same page.

The supremacy of the constitution is yet another essential element of federalism. Article 1 declares the charter as the fundamental law of the land which itself has a rationale that the constitution is supreme in the state. Laws that are inconsistent with the constitution shall, to the extent of such inconsistency, be void. The independence of judiciary and bicameralism further supplement the notion of federalism. In the federal system of governance, the power is divided between the national government and provincial governments. 

The federal system of the United States has not been fully adopted even in India because the American model may not have suited India. Further, India had followed a more or less Canadian system rather than the United States of America’s system of federation. In the United States, the residuary powers are reserved to the states by the constitution. While in India, the residuary powers are given to the center under Article 248 because India has followed here the Canadian system, vesting the residuary powers in the union. Much like India, the residual power rests with the federation in Nepal (Article 58, Constitution of Nepal).

Blame game

Some argue that federalism has become a costly affair. Some say corruption is at its zenith due to federal structure. In fact, none of the systems of governance could give you a magic stick to give solutions to every problem. A system of governance could work as a lamppost showing vivid paths. 

In Nepal’s case, there has been a trend of blaming the constitution to cover up all the mistakes committed by the political actors, and as a result of which, we are witnessing the seventh constitution in hand. As a matter of fact, no self-respecting nation should allow its fundamental law of the land to be used like a playing card at the behest of certain political actors. Our constitution guarantees the right to employment as a matter of fundamental rights, but the state has failed to stabilize and stop the outflow of migrant workers.

Remittances are the foundation of Nepal’s economy, constituting about one-third of the GDP, sustaining the national economy as well as adding to the household income. In contrast, right to education and healthcare are also acclaimed as the fundamental rights, but the government-aided educational institutions and hospitals have measurably and miserably failed to stand up to the peoples’ expectation. Resultantly, there appears to be privatization in the education and health sectors. Can we blame the constitution for all these problems?

Way forward

If every political party had their own interpretation of the constitution, in such a case, the premier book would be rendered meaningless. In Nepal’s case, the political leaderships had never adhered wholeheartedly to any constitution. The reason is that they always wanted to stick to the chair and milk money; and to that end, they used various players and shaped the constitution to suit their needs.

To tell you the truth, Nepali federalism has been designed on the basis of working of federalism in US, Canada, Australia, India, and others. Yet, it deviates from those federalism in many respects as it establishes its own distinctive features suiting its national interest. The center’s strong influence could favor centralizing tendencies but cannot subvert federal fabrics. Nepal’s constitution provides ample opportunities for the provincial and local governments to recognize and address the local concerns. As Prof Warhurst argues that federalism favors local and regional concerns, the legislation could be enacted by the provincial and local governments to address the regional and local needs and aspirations.

From ensuring federalism to rule of law, to good governance and inclusivity, the latest constitution has everything progressive for the people. The only thing we need is to implement the constitution in a true and material sense. After all, our federal democracy deserves to be nationally integrated, politically and economically coordinated and intellectually uplifted. And, for that to happen, this current constitution needs to be upheld.

jhajivesh@gmail.com

https://theannapurnaexpress.com/story/46783/

Assessing clemency laws

Jivesh Jha

Nov. 9, 2023 The Annapurna Express 

There is no evidence to support that rigorous jail sentences reduce the number of hardcore criminals or violent acts perpetrated in a society. Correspondingly, there is no research which suggests that the convicts given a premature release through pardon have reformed themselves and rehabilitated in society.

When you read news stories that reveal that pardoned persons got arrested in connection with a crime, then you start believing that convicts cannot change. If convicts cannot change, then we are fooling ourselves by setting them free to walk under open sky.  

Recently, Lok Bahadur BK, one of the 670 convicts, who walked free on the basis of a presidential pardon granted on the Constitution Day (Sept 19) on the government’s recommendations for “exhibiting good conduct”, was again arrested for allegedly murdering Bhawana BK of Rukum district. Murder convict Yograj Dhakal Regal, doing a 20-year term, also got freed for a brief period, only to be arrested after a Supreme Court order.  

Pardoning hardcore criminals is nothing new in Nepal. Former lawmaker and Maoist leader Balkrishna Dhungel, awarded life term in 2004 for masterminding the murder of Ujjan Kumar Shrestha of Okhaldhunga during the Maoist insurgency in 1998 along with the confiscation of his property, had received a pardon in 2018 along with around 800 convicts. But the Supreme Court had issued an order against the government vis-a-vis the pardon granted to Dhungel.

Legal recognition

Article 276 of the Constitution of Nepal 2015 provides that the President of Nepal “may grant pardons to persons convicted, and suspend, commute, or reduce any sentence imposed by any court, judicial or quasi-judicial bodies or administrative officer or authority.” But this provision is not absolute in nature, as the prevailing criminal law of the land has put certain restrictions on the exercise of this power. 

Section 159(4) of the National Criminal Procedure Code, 2017 prohibits pardoning of people convicted of corruption charges; rape; genocide; human trafficking; money laundering; abduction or enforced-disappearance; (possession of) explosives; murder in a cruel and inhumane way; and narcotic drugs trafficking or transaction punishable by a sentence of imprisonment for a term exceeding three years.

The pardoning could help the convict walk free before the completion of the sentence so inflicted, but it does not necessarily mean they are innocent. In other words, pardoning could ensure a premature release but cannot eliminate the stigma or guilt.

Global precedent

The constitutional power to pardon is not a unique concept in Nepal. It was derived from the Royal Prerogative of Mercy. This power is delegated to the Lord Chancellor in England whereas in the United States (US), it’s secured under the constitutional scheme.

Article II, Section 2 of the US Constitution envisages that the President “shall have the Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.”

The Constitution of India also recognizes presidential power of pardoning under Article 72, which confers on the head of the state the power to grant pardons, reprieve, respite, and commute or reduce the sentence of any person convicted of any offense.

Unlike in the US, the president of India or Nepal does not act in person but on the aid and advice of the Council of Ministers headed by the Prime Minister.

Is it an absolute power?  

The Supreme Court of Nepal on November 2 in the case of Bharati Sherpa v the Office of the President, Kathmandu and Others observed that the remission, respite, reprieve, remission or commutation of the sentence should be based on public interest, prevailing laws and the rulings of the Supreme Court.

The presidential clemency for the sake of political adjustment or political bargaining shall amount to violation of the constitution and established legal norms, the Supreme Court of Nepal held in the case of Resham Lal Chaudhary and Others v Government of Nepal (2023). 

The author holds a degree in Constitutional Law

This is part 1 of a two-part series

https://theannapurnaexpress.com/story/46578/