Salient Features of the Constitutions of Nepal and India:

A Comparative Observation

Dilli Raj Gautam1

Abstract
While comparing the Constitution of Nepal 2015 and the Constitution of India 1950
the paper comparatively analyses the major issues such as citizenship, inclusiveness,
fundamental rights and independence of judiciary. Both constitutions are committed
to socialism based on democratic norms and values, including people’s competitive
multiparty democratic system of governance, civil liberties, fundamental rights, federal
republic, secularism, adult franchise, periodic elections, full freedom of the press, and
independent, impartial, competent and free judiciary and concept of the rule of law.
This qualitative research article observes the salient features of the constitution of
Nepal and India in descriptive and analytical order with comparative methodology.

Keywords: Constitution, Preamble, Provision, Fundamental Rights, Parliamentary,

Sovereignty

Introduction
While observing historical facts, there are deep-rooted cultural linkages between Nepal
and India. Being neighboring countries, they have a long history of common religious,
linguistic and cultural identities. Social and cultural ties have been enhanced by the open
border with no restrictions on the movement of the people on either side. India has long
enjoyed a significant voice in Nepali politics (Kochhar and Jaiswal, 2016,P.15). Nepal
from the despotic Rana Rule and India from the British colony became independent
in the 1950s; Nepal in 1951 and India in 1947. Then only, these countries started
constitution building process.

India completed her campaign within two and half years’ of constituent assembly
and promulgated the new constitution on 26th Jan 1950, and proclaimed her a
sovereign socialist secular democratic republic (Choudhary,Khosla and Mehta
2016, PP. 38-46). Comparatively Nepal’s constitution building process took a long
course. It started in 1948 and accomplished in 2015. The recent Constitution of
Nepal 2015 (2072) is the seventh constitution. This is the first constitution made
1 Mr. Gautam is a lecturer of Political Science at Dhaulagiri Multiple Campus, TU, Baglung.
KMC Journal 53
 and adopted by the Constituent Assembly (CA) which was specifically elected
for this purpose and was proclaimed by the President of Nepal on September 20,
2015 (Asoj 3, 2072) (Bhandari, 2016, P.1). Constitutions of Nepal and India both
are from the same philosophical and social background embracing liberalism and
socialism, even though they have some distinct differences.This article seeks to
reveal the distinct features of similarities and differences of the two constitutions.

Salient Features of the Constitution of India

The constitution of India is the largest written constitution in the world. It provides
a mixture of federalism and Unitarianism, and flexibility and rigidity. Since its
promulgation on 26th January 1950, it has been successfully guiding the path and
progress of India (Kapur and Mishra, 2012, PP. 6-91).

1) Written and Longest Constitution

India’s constitution is a written document incorporating the constitutional law of
the country. It was fully debated and duly enacted in the Constituent Assembly. It
consists of 395 articles divided into 22 parts with 12 schedules and 94 constitutional
amendments. It is a constitution of both the centre and states of Indian union. It is
longest in the world.
2) Enacted Constitution
Indian constitution is made by the people of India through the Constituent
Assembly in December 1946. Its first session was held on 9th December, 1946.
It passed the objective Resolution on 22 January, 1947. Then after it initiated the
process of constitution making in the right earnest and was in a position to finally
pass and adopt the constitution on 26th November 1949. The constitution became
fully operational on 26 January 1950.
3) Preamble of the Constitution
The Preamble to the Constitution of India is a ‘well drafted’ document which
states the philosophy of the constitution. It declares India to be a sovereign
socialist secular democratic republic and a welfare state, committed to secure
justice liberty and equality for promoting fraternity and dignity of the individual
and unity and integrity of the nation (Chakrabarty, 2017: P.86).
4) Declaration of a Democratic Socialist State
Although right from the very beginning, India’s constitution fully reflected the
spirit of democratic socialism, it was only in 1976 that the preamble was amended
54 Salient Features of the Constitutions of Nepal and India: A Comparative Observation
 to include the term socialism (Sharma, 2017, p. 52). It is now regarded as a prime
feature of India. India’s constitution is committed to secure social, economic and
political justice for its entire people by ending all forms of exploitation and by
securing equitable distribution of income, resources and wealth. This is to be
secured by peaceful, constitutional and democratic means (Mellalli, 2015:P.22).

People of India enjoy equal political rights and participate in the political
phenomena. They elect their government. Periodic free and fair elections are
held for electing governments for all its activities, the government of India is
responsible for her people. People remain powerful.

The Constitution of India declared state secular, detaching from religious dogmas
by forty- second amendment further, Indian secularism guarantees equal freedom to
all religions. It grants the right to religious freedom to all the citizens (Ibid: P.23).

5) Republic State
The preamble of the constitution declares India to be a republic. It has an elected
head of the state i.e. president who wields power for a fixed term of five years. After
that, people elect president through Electoral College (Ibid).

6) Union of States
7) Article 1 of the constitution declares that India is a union of states. It includes 28
States and 7 Union Territories (Ibid: P.13).
8) Federal System with Unitary Bias
Indian constitution described India as a union of states (Article 1) of the Constitution
which implies that Indian federation is not the result of any agreement among the units
and the units cannot secede from it. (Choudhry, Khosla, and Meheta,2016: P.540).

9) Rigidity and Flexibility

India’s constitution is both rigid and flexible. Some of its provisions can be amended
in a difficult way while others very easily by passing a simple law. According to
article 368 of the constitution it encompasses partly rigid and partly flexible
provisions (Mellalli, 2015, P.13).

10) Provision of Fundamental Rights and Duties

Under part III Articles 12-35, the constitution of India grants and guarantees
fundamental rights to all its citizens. It is called Indian Bill of Rights. Initially, 7
KMC Journal 55
 fundamental rights were granted but after the deletion of the right to property from
the list of fundamental right (44th amendment act 1979) their number came down
to six, (i) Right to Equality (ii) Right to Freedom , (iii) Right against Exploitation,
(iv) Right to Freedom of Religion , (v) Cultural and Education Right , (vi) Right to
constitutional Remedies (Art.32). Part IV A(article 51A) of the constitution describes
the following fundamental Duties of the citizens, (i) Respect for the constitution, the
national flag and the national anthem (ii) cherish the noble ideals of the freedom
struggle ,(iii) Uphold and protect the sovereignty, unity and integrity of India (iv)
Defend the country and render national services when called, (v) Promote the common
brotherhood of all the people of India and renounce any practice derogatory to the
dignity of the women, (vi) Preserve the rich heritage of the nation’s composite cultures,
(vii) Protect the natural environment and have compassion for living creatures, (viii)
Develop scientific temper, humanism and spirit of inquiry and reform, (ix) Safeguard
public property and adjure violence, (x) strive for excellence in all individuals and
collective activity, and (xi) Duty of the parents to send their children to schools for
getting education (Choudhry, Khosla, and Meheta, 2016, P.699)..

11) Provision of National and State Human rights Commission

With a view to protect human rights of all people the Protection of Human Rights
Act, 1993 was passed by the union parliament in link with Indian constitution.
Under it the National Human Rights Commission was established. It acts as an
independent commission with a status of a civil court for preventing the violation of
human rights of people; such commission can be formed at state levels too.

12) Directive Principles of State Policy

Part IV of the Constitution deals with the Directive principles of state policy and
provides one of the most striking features of the Indian constitution (Article 36-
51). It guides the government while formulating new policy to ensure adequate
means of livelihood, fair distribution of wealth, equal pay for equal work, protection
of children, women, labour and youth old age pension, social security, local self
government, protection of the interests of the weaker sections of society, promotion
of cottage industries, rural development, international peace, friendship and co-
operation with other states etc.

13) Bicameral Legislature

Article 79 of Indian constitution provides a bicameral legislature at centre consisting
of Rajyasabha (Council of States) and Loksabha (house of the people). The LokSabha
56 Salient Features of the Constitutions of Nepal and India: A Comparative Observation
 is the lower, popular, directly elected house of the parliament. Its maximum strength
stands fixed at 550 presently lokSabhahs 545 members. The people of each state elect
representatives in proportion to their population (Kapur and Mishra, 2012, P.313).

14) Parliamentary System of Government

Indian Constitution (Article 74) provides a parliamentary system of government, i.e.
the real executive power rests with the council of minister and the president is only a
nominal ruler for all its policies and decisions the council of minister is collectively
responsible before LokSabha. LokSabha can remove the ministry by passing a vote
of no confidence. The cabinet in fact, the prime minister has the power to get the
LokSabha dissolved by the president. The state parliament also works in the similar
basis (Kapur and Mishra, 2012, P.13).

15) Adult Suffrage

Article 326 of the Constitution provides for universal adult suffrage. All registered
men and women above the age of 18 years have the right to vote in elections
(Mellalli,2015,P.10).

16) Single Citizenship

India is the single independent and sovereign integrated state. Presently it has 28
states and 7 Union Territories. All citizens enjoy a common uniform citizenship.
They are entitled to equal rights and freedoms, and equal protection of the state
(Article 5-11) (Chakrabarty, 2017, P.136).

17) Independent Judiciary

Indian constitution provides an independent judiciary (Article 76) and ensures that
the government is carried on in accordance with the provision of the constitution and
acts as a guardian of the liberties and fundamental rights of the citizens of both the
union and the states. Indian judiciary has an autonomous organization and the states.
It works as an independent and powerful judiciary (Kapur and Mishra, 2012, P.326).

18) Judicial Review

The power of Judicial Review is incorporated in Articles 226 and 227 of the Indian
Constitution  insofar as the High Courts are concerned. In regard to the Supreme
Court Articles 32 and 136 of the Constitution, the judiciary in India has come to
control by judicial review every aspect of governmental and public functions. The
constitution is the supreme law of the land. The Supreme Court acts as the guardian,
KMC Journal 57
 protector and interpreter of the constitution, also the guardian of the fundamental
rights of the people. For this purpose it exercises the power of judicial review. By
it the Supreme Court determines the constitutional validity of all laws made by
the legislatures. It can reject any law which is found to be unconstitutional. Indian
judiciary has been becoming more active towards the performance of its social
obligation through public Interest Litigation system (Ibid).
19) Emergency Provision
The constitution vests extraordinary powers, known as Emergency powers in the
president during emergencies out of armed rebellion or external aggression or due
to failure of constitutional machinery in the state (Article 352-360).
20) Special Provision for Minorities
The constitution makes some special provisions for minorities, schedule castes and
tribes by granting them special rights and provisions. It provides reservation of seats
in the legislatures for the schedule castes and tribes. The reservation is provided in
governmental jobs. The reservation is extended up to 2020.
21) Provision regarding language
The constitution lays down special provisions for defining the language of the union,
regional language and language of the Supreme Court and high courts. It states, the
official language of the union shall be Hindi in Devanagari script. It also provides
the continuance of English language. A state legislature can adopt the language of
the province as its official language. The constitution recognizes 22 modern Indian
languages (Chakrabarty, 2017, P.148).
22) A Consolidation of Several Sources
During the formulation of the constitution of India, the founding fathers used several
sources. Values and ideas of the national movement guided their path. National
movement influenced them to adopt secularism as the ideal. Some provisions of
government of India Act 1935 were used by them and several features of foreign
constitutions influenced them and were adopted.
British Constitutional system influenced parliamentary system and bicameralism. US
constitution influenced them to republicanism, independence of judiciary, judicial
review and bill of rights. Former USSR socialist revolution of 1917 influenced them
to adopt socialism as a goal. Similarly they were influenced by the constitutions of
Canada, Australia Germany and Ireland.

58 Salient Features of the Constitutions of Nepal and India: A Comparative Observation

 Salient Features of the Constitution of Nepal 2015 (2072)
Shifting from centuries old monarchy to federal republic, Nepal has finally succeeded to draft
and promulgate new constitution through the second term of constituent assembly (CA).

The Interim Constitution of Nepal 2007 (2063), designed for the election of a
Constitution Assembly, enabled it to write Nepal’s permanent constitution. The new
constitution was to be promulgated by May 28, 2010. Due to disagreements among
political parties on several issues, the house was not able to do the assigned job. This led
to amendment of the term of the house again and again. On May 25, 2011, eventually
the supreme court of Nepal ruled that the repeated extension of the interim constitution
was not right. It reasoned that an elected house is not supposed to extend its term again
an elected house going beyond the reasonable electoral mandate (Naidu, 2016, 138).

On May 28, 2012 the constituent assembly was dissolved and new elections were held
on November 19, 2013 to elect the constituent assembly II on a special arrangement
agreed by the political parties and approved by the president. The political leaders
then pledged to draft a new constitution within a year. The new assembly expressly
committed that the new constitution would be promulgated on January 22, 2015.
However due to continued differences on key issues including system of governance,
judicial system and federation issues like number, name and areas of the provinces to
be carved, the constitution could not be finalized and promulgated in time. Ultimately
it becomes possible to finalize and adopt the constitution (Naidu, 2016, p.139).

A total of 507 votes were casted in favor of the constitution Bill while 25 votes went
against it. Major three political parties, Nepali congress (NC), CPN UML, and UCPN
(Maoist) and a majority of fringe parties voted in support of the Bill. Those voting against
the Bill were members of Rastriya Prajatantra Party Nepal (RPPN). However, some Terai
based parties boycotted the constitution finalization and adoption process. Of the total 598
CA members 532 were at the meeting. The Bill of the new constitution was also accepted
with more than a two-third majority on September 16, 2015(Adhikari, 2015).

1) Provision of Preamble

The preamble has the following features:

i) The constitution has been adopted and announced in the name of ‘ We the
people for Nepal, in exercise of the sovereign power inherent in us’,

ii) People of Nepal have sovereign power and right to autonomy and self rules

KMC Journal 59
 by maintaining Nepal’ independence, sovereign, geographical integrity,
national unity, freedom and unity ,

iii) It recalls historical Peoples Movements and reminds struggles and the
sacrifice made by people for national interest, democracy and progressive
change.

iv) It has recognized martyrs, disappeared citizens and victims of the continued
struggle.

v) It declares ending all forms of discriminations and oppression created by feudal,

autocratic, centralized and unitary systems of government in the past.

vi) It notes its commitments to Nepal’s multiethnic, multilingual multicultural

and diverse geographical specificities and end of discriminations relating
to class, ethnicity, region, language, religion and gender to protect and
promote unity in diversity, social and cultural solidarity, tolerance and
harmonious attitudes.

vii) It also expresses determination to create an egalitarian society on the

basis of the principle of proportional inclusion and participation to ensure
equitable economy, prosperity and social justice.

viii) Commitment on peoples’ competitive multiparty democratic governance

system, civil liberty, fundamental rights, human rights, adult franchise,
periodic elections, complete press freedom and an independent impartial
and competent judiciary and the concept of rule of law (Naidu,2016: P.139).

2) Written Constitution
Nepali constitution has 35 parts, 308 Articles, 9 Schedules and a preamble. It
has many new and progressive provisions. It has become somehow lengthy
document due to political reason. Due to the distrusts among parties, things have
been unnecessarily elaborated. This constitution is not only the constitution of
the federation, it is also of all provinces and even of municipalities.

3) Constitution as a Fundamental Law of the Nation

Article 1 states that this constitution is the fundamental law of Nepal. All laws
inconsistent with this constitution shall to the extent of such inconstancy be void. The
inconstancy will be declared by the supreme court under article 133. The constitution
also states that it shall be the duty of every person to uphold this constitution.
60 Salient Features of the Constitutions of Nepal and India: A Comparative Observation
4) Nepal as a Secular State
As provision of Article 4 and 26 Nepal is stated as an independent indivisible,
sovereign, secular, inclusive state. Demarcation attached to this provision makes
clear that the word ‘Secular’ as stated above means protection of religion and
culture being practiced since ancient times and religious and cultural freedom.

5) Sovereign and state Power to the people

The system shall be created by people; hence, the sovereignty and state authority
of Nepal are vested in her people. Their exercise shall be as provided in this
constitution. [Article 2]

6) Provision of Single Citizenship

Article 11 deals with major citizenship provisions. Nepal constitution has the
provision of single citizenship unlike the dual citizenship of US constitution i.e.
Federal and state [Article 10 (2)]. In terms of acquisition of citizenship by descent,
one must have a Nepali father or mother at the time of his/her birth. [Clauses
(1), (2) and (3) of Article 11]. Each child has a guardian though mother/father is
unknown. [Clause (5)] If foreign woman married to Nepali citizen and wishes, she
may acquire naturalized citizenship of Nepal as provided in a federal law.

7) Provision of Fundamental Rights

Nepali constitution provides a long list of fundamental rights. [Part III] There
is a provision for affirmative action for historically prejudiced or disadvantaged
communities among others. [Article 18 (3)] The right to inclusion and participation
in the state structure is also there that applies to all communities in the country
[Article 42]. The list of the fundamental rights is available from article 16-48 as:

Rights to live with dignity, (16), Right to freedom (17), Right to equality (18),
Right to communication (19), Right to justice (20), Right of victim of crime (21),
Right against torture (22), Right against preventive detention (23), Right against
untouchability and discrimination (24), Right relating to property (25), Right
to freedom of religion (26), Right to information (27), Right to privacy (28),
Right Against exploration (29) Right to clean environment (30), Right relating
to education (31), Right to language and culture (32), Right to employment (33),
Right to labor (34), Right relating to health (35), Right relating to food (36),
Right of to housing (37), Right of women (38), Rights of the child (39), Right
of Dalit (40), Rights of senior citizens (41), Right to social justice (42), Right to
KMC Journal 61
 social security (43), Right of the consumer (44), Rights against exile (45), Rights
to constitutional remedy (46), implementation of fundamental rights (47) and
Duties of citizens (48) [The constitution of Nepal,( 2016:9-26)].

8) Provision of Specific Independent Constitutional Commissions

Nepali constitution creates specific independent constitutional commission, Dalit
Commission, Janajati Commission, Medhesi Commission, Tharu Commission
and Muslim Commission. They will exist with the national human rights
commission. They are created outside the framework of fundamental rights, in
different chapters, and have a mandate to recommend changes in laws, policies,
and practices of areas for continuing and protection the fundamental rights
(Bhandari, 2016: P.290).

9) Inclusiveness
Nepali constitution expresses determination of the state to build an equitable
society on the basis of the principle of proportional inclusion and participation
by ensuring economic equality, prosperity and social justice. It encompasses
inclusion through the provision of preamble, fundamental rights, directive
principle, political participation power sharing, commissions and political parties
(Ibid, 2016, P.278).

10) Provision of Directive Principles and Polices

The constitution also lays down the directive principles, policies and
responsibilities of the state’s guidelines for governance. While the policies
recommended by the constitutionally stated thematic commissions are based on
modern requirements. Chapter 4 deals with long term principles, policies and
responsibilities. It is the responsibility of the state to mobilize required resources
and means for their implementation [Article 49]. Even though, citizens cannot
claim these principles and policies as a matter of right politically, Article 53
requires the government to produce an annual report regarding its works and
achievements made in the implementation of these principles, policies and
responsibilities.

11) Provision of National Language and Language of the Nation

Nepali language remains as the official language of Nepal [Articles (6) and (7)].
All the mother tongues spoken in Nepal shall be the national languages (Article
71); a province can select one or more national language spoken by majority of
62 Salient Features of the Constitutions of Nepal and India: A Comparative Observation
 the people in that province as the language of official business, as provided by
the provincial law. Other matters concerning language shall be as decided by the
government on the recommendation of the language commission to be established
by the federation government within a year [Article 7]. This commission has
been empowered to determine the basis for a language to acquire status of official
language and forward a recommendation to the government. It is also to forward a
recommendation to the government regarding the measures to be adopted for the
protection, promotion and development of languages [Article 287(6)].

12) Three Layers of Federalism

The constitution restructures Nepal as a federal country with three layers of
federalism [Part 5]. The erstwhile unitary structure of the country has been replaced
by seven federal provincial and local bodies. There is an elaborate federal scheme
in the constitution [Part 5-20]. It provides for separate list of the powers of the
federal layers [schedule 5-9]. Similarly, legislative and financial procedures of
each level have also been elaborated by the constitution [Parts 14-16 and 18-19].
A national natural resources and fiscal commission has been created to determine
extensive grounds and measures, regarding the distribution of revenue from the
federation consolidated fund to the federal, provincial and local level governments
according to the constitution and law [Articles 250-251]. The demarcation of
provincial borders will be finalized by federal commission and provinces will be
named through two-third majority in the provincial parliament [Article 295].

To achieve the federal objectives, part 5 of the constitution sets out some key
principles. At first, the state powers of Nepal shall be used by three main levels
of structure. Federal, provincial and local bodies work in accordance with this
constitution. Secondly, the power of each level of the structure has been set out in
the given schedules and shall be exercised in accordance with this constitution and
the federal law. Then the constitution also sets out concurrent/shared power of the
federations and the province, and federation province and the local level (Ibid: P.310).

13) Parliamentary System of Government

Nepal proceeds a parliamentary system at the federal and provincial levels. Article
74 states that the form of governance of Nepal shall be “multiparty, competitive,
federal democratic republican parliamentary system based on plurality” at the
federal level, it will have a bi-cameral parliamentary form of government with a
president elected through the legislative-parliament and the national assembly as

KMC Journal 63
 well as the provincial legislative body. As provision of Article 105(5) the prime
minister will be elected by the legislative-parliament based on majority. There
are there important departures from the erstwhile Westminster system. First, the
prime minister cannot dissolve the parliament. Second, there can be no notion
for vote and no confidence against the prime minister for two years subsequent to
his/her election. Third, any no confidence motion moved for the removal of the
prime minister in the House of Representative must also come with a proposal
for the new prime minister who will immediately replace him/her: “the name of
the member proposed for prime minister should be mentioned when tabling the
no confidence motion under clause (4)” (Naidu, 2016: P.145).

14) Executive power vested in the Council of Ministers

The executive powers of the country shall vest in the council of ministers while
the president would be constitutional head of the country. Article 66 limits the
power of the president to three important categories: (1) President shall exercise
his/her rights and duties as provided for by this constitution and federal laws, (2)
while exercising rights under clause (1) the president shall perform all the works
with the consent and recommendation of the council of ministers, except in case
where the works have to be performed expressly under the recommendation of
some agency or official. Such consent and recommendation shall be made to
the president through the prime minister and (3) the decision or order made in
the name of the president as provident for by clause (2) and the certification
of credentials in that regard, shall be done as specified by federal law. As an
Institutional head, the president is to “promote national unity of Nepal.” Similarly
the constitution states that’ “Compliance and protection of the constitution shall
be the min duties of the president” (Ibid, 2016: P.146).

15) Independent of Judiciary with the Provision of Constitutional Bench

Nepal’s constitution reflects, through its preamble multiparty democracy,
individual liberty and freedom, fundamental rights, human rights, adult franchise,
periodic election, press freedom, rule of law, fair, independent and capable
judiciary as basic democratic values of the Nepalese society. According to part 11,
the Supreme Court will specialize on constitutional issues by creating provision
for a constitutional bench. Five judges will be assigned to this bench. Further,
constitutional council will nominate the chief justice and head and members of
the constitutional commissions. The judicial council will nominate the judge of
the supreme, high and district courts, the judicial system is an integrated one.
64 Salient Features of the Constitutions of Nepal and India: A Comparative Observation
 Apart from supreme court, Nepal will have high court in each province and
district courts as necessary (Bhandari, 2016, P.278).

16) Mixed System of Election

In terms of the electoral system, a mixed system has been adopted comprising
of the FPTP (First past the Post) and PR (Proportional Representation). The
House of Representatives in the federal parliament will consist of 275 members:
165 elected through FPTP and 110 elected through PR. Similarly, the National
Assembly will consist of 59 members, 56 elected through federal provinces and
3 nominated by the president (on the advice of the government).
In the federal provinces, the legislature will be unicameral. There will be a
total of 550 members in the legislatures of the 7 states 60% of there are elected
through FPTP and 40% are elected by PR. The chief minister of the state will
be elected by the provincial legislature whereas the head of the province will be
appointed by the president.
17) Constitutional Provision of Political Parties
Article 209-72 continues with the provisions on registration and operation of
political parties. They are required to register their names under the Election
Commission in accordance with the law. The constitution and rules of the political
party should be democratic. Political parties should elect the office bearer in the
federal and provincial levels at least once in five years and also there should be
the provision of proportional participation so as to reflect the diversity of Nepal
in the executive committees at various levels of the party.
18) Provision of Emergency Powers
If a grave emergency arises in regard to the sovereign territorial integrity of Nepal
or the security of any part there of war, external aggression, armed rebellion,
extreme economic disarray, natural calamity or epidemic, the president may
declare or order a state of emergency in respect of the whole of Nepal or of any
specified part thereof ( Article 273). In such a case, the concerned province may
request the government of Nepal to declare a state of emergency to be enforced.
While issuing emergency, the president may suspend the fundamental right stated as
part 3. However, some important fundamental rights and the right as constitutional
remedy and right to habeas corpus related to Article 46 shall not be suspended
during the continuation of a proclamation or order pursuant to this article. In case
the petition is filed, the court may arrange the compensation and punish the guilty
KMC Journal 65
 according to federal law. The president may at any time during its continuance
revoke the proclamation or order relating to state of emergency (Kharel, 2016: P.42).
19) Provision of Amendment of the Constitution
Article 274 permits amendment of the constitution except in prejudicial with
the self rule of Nepal, sovereignty, territorial integrity and sovereignty vested in
people. An amendment proposal may be presented to either house of the federal
legislature. The bill so presented shall be published for the perusal of the general
public within 30 days of presentation in either house.
20) Separation of Powers and Rule of Law
System of governance influences through the West ministers model and
governing powers are allocated among the executive, legislative and judiciary.
But the final adjudicating power is entrusted to the judiciary as an apex court
which can interpret the constitution
21) Directive Principle Policies and Obligations of the state
Part 4 Article 49 to 55 includes directive principles policies and obligations of the
state. Article 49 states that the directive principles, policies and obligation set in
this part shall the guiding principles for the governance of the state. The state shall
mobilize or cause to be mobilized, means and resources as required, implementing
the principles policies and obligations set forth in this part. Similarly article 50 is
related with directive principle and article 51with the policies of the state. The sub-
clauses of article 51 include policies relating to: national unity and national security,
political and governance system of state, to social and cultural transformation, to
economy, industry and commerce, agriculture and land reforms, to development.
Article 52 indicates the obligations of the state as it shall be the obligations of the
state to make Nepal a prosperous and affluent country by protecting and promoting
fundamental rights and human rights, pursuing directive principles of the state and
gradually implementing policies of the state. (Bhandari, 2016 ,P.283).
According to Article 53, the government of Nepal shall submit an annual report
containing the steps taken and achievements made in the implementation or the
directive principles, policies and obligations of the state set forth in this part to
the president Article 54. There shall be a committee in the federal parliament
in order to monitor and evaluate whether the directive principles. Article 55
remarks that no question shall be raised in any court as to whether any matter
contained in parts 5 has been implemented or not.

66 Salient Features of the Constitutions of Nepal and India: A Comparative Observation

22) Adult franchise
Article 84(5), 176(5) and 222(5) of the present constitution has guaranteed
the universal franchise system. Aforementioned articles have stated that every
citizen above the age of 18 is eligible to caste vote for the election of federal,
provincial and local level representations.

23) National Flag Anthem and symbol

According to article 8(2), 9(1) and 9(2) of the constitution the national flag,
anthem and national symbol are determined under schedules 1, 2 and 3.

24) Provision of Referendum

Under part 32 Article 275 of the constitution there is a provision of referendum.
Clause (1) of article 275 states that a two-third majority of total number of the
federal parliament can go for a referendum with respect to any matter of national
importance. Under clause (2) it has mentioned about referendum.

Similarities between two Constitutions

Nepal and India have close proximity with open border and freedom of movement
between people. Geographical, historical, economical and socio-cultural factors have
shaped Indo-Nepal political settings (Lama, 2016:82). These countries have framed
their constitutions in the interval of 65 years through the constituent assembly. Both
constitutions encapsulate almost similar basic features. They are committed to socialism
based on democratic principles and values including the people’s right for competitive
multi-party democratic system of governance system, civil liberties, fundamental
rights, federal republic, secularism, adult franchise, periodic election, full freedom of
the press, and independent impartial competent judiciary and concept of rule of law.

Differences between two Constitutions

Despite similarities between the two constitutions, there are some substantial differences
as well which are as follows.

As constitutional features, Nepal is independent, indivisible, sovereign secular,

inclusive, democratic socialism oriented, federal democratic republic state but India
stands for sovereign, and socialist, secular, democratic republic state. All mother
tongues spoken in Nepal are national languages whereas in India no national language,
though official language is Hindi. Single federal citizenship with federal identity is in
Nepal but no specific federal identity in India. Sovereignty is inherent in Nepali people
KMC Journal 67
but in India unclear. Right to recognition in Nepal, explicitly mentioned that women
shall have equal rights in ancestral property, but no such provision in India though
equality in equal circumstances is mentioned in Article 14. Both the proportional
and first past the post system of representation are adopted in Nepal but in India only
first past the post system is followed. Provision of constitutional court, independent
judiciary with a constitutional court for 10 years is in Nepal and Independent judiciary
but not constitutional court in India. Secularism means protection of ‘Sanatana Dharma’
Cow as National Animal in Nepal and Ban on religious conversion but there are three
meanings of Indian Secularism (a) ‘Sarv Dharma Sambhava’ (b) ‘Dharma Nirpekshata’
and (c) ‘Protection of minority rights’.

The substantial similarities and differences between Nepalese and Indian constitution
Contents/
S.N. Similarities Differences
Features
Written, democratic,
Nature of the Indian constitution is the longest in the
1 republic, federal socialist,
constitution world and Nepalese moderate.
secular, rigidity/flexibility.
The form of government in Nepal
Parliamentary is multi-party, competitive, federal
democratic system of democratic, republican, parliamentary
government. Nepal- based on pluralism. Bi-cameral at the
System of
2 Article 74 and 105, center and unicameral at provincial
governance
India- Article 74 and 79. level. In India parliamentary form of
government based on West minister
model. Bi-cameral legislature both at the
center and provincial level.

Fundamental Nepal-Article 16-46. Nepal- property right as a constitutional

3
Rights India-Article 12-35. right whereas in India legal rights.

Directive Nepal-Article 49 states as the guiding

Nepal- Article 49 to 55.
4 principle and principles for the governances. India-adopts
India- Article 36 to 51.
state policies. them as policy blue prints for future.
Nepal- Article 10 to 11.
India- 5 to 11. Both the Single citizenship with federal identity
5 Citizenship countries adopt single in Nepal and in India, every citizen has
federal citizenship equal right wherever he/she may reside.
provision.

68 Salient Features of the Constitutions of Nepal and India: A Comparative Observation

 All mother tongues spoken in Nepal
are National languages but in India no
Nepal- Article 6, 7 and national language. Hindi is mentioned
6 Language
287. India- Article 343. in Article 343 as official language and
English could be used for initial 10
years.
Article 75 of the Nepalese constitution-
Nepal-Article 66 and
Executive the executive power is vested in council
7 75. India- Article 52 and
powers of ministers. Article 53 of the Indian
53.
constitution entrusted to the president.
Independent judiciary with the
constitutional court for 10 years in
Nepal- Article 126 to
Nepal. India-judicial review is part
Independent of 161. India- Article 226,
of fundamental rights. Nepal has a
8 Judiciary and 227 and Supreme Court
provision of judicial council for the
judicial review power Article 32 and
recommendation of the judges of SC.
136.
India-collegiums of judges with no
politics recommend the judges.
Adult Franchise with age
Proportional and single majority system
Election of 18. Nepal- in Article
9 in Nepal but in India first past the post
System 84(5), 176(5), 222(5).
system only.
India- Article 326.
Nepal- Article 269 to Constitution of political parties in Nepal
272. India-based on should be democratic and periodic
10 Political parties
democratic norms and conferences for the approval of leadership.
values. No separate provision in India.
If a grave emergency arises, the president may
Declared by president in declare or order a state of emergency partly or
Emergency both countries. Nepal- wholly. In India constitutionally categorized;
11
powers Article 273. India- national, provincial and financial when the
Article 352 to 365. constitutional mechanism is considered
failed.
The federal parliament with 2/3 majority
Amendment
Nepal- Article 274 and can amend the constitution in Nepal. India
12 of the
India- Article 368. makes amendment with simple majority,
constitution.
special majority.

KMC Journal 69
 Nepal-proportional representation of
women, geography and population in
Inclusiveness Special provision for
all sectors. Right to woman is in wider
13 and minority minorities and schedule
sense, at least 33 percent in all sectors
provision castes, tribes etc
in India narrower sense, no specifically
mentioned.
The federal parliament of Nepal with
Nepal- Article 275
Provision of 2/3 majority can hold a referendum
14 and in India no special
referendum in national issues except sovereignty,
provision.
national integrity and national territory.
Commission for the investigation
of abuse of authority, public service
Nepal- part 21, 22, 23, commission, election commission,
Constitutional 24, 25, 26 and 27. India- national human rights commission,
15
commissions article 315,-323 and national natural resource and fiscal
325-329. commission and other commissions but
in India only public service commission
and election commission.
Nepal and India both
Layers of have three tiers of Nepal with seven states and India with
16
federalism government i.e. federal, twenty-eight states.
provincial and local.
Conclusion
Nepal and India are two neighbors and both countries promulgated their constitutions
through popularly elected bodies i.e. Constituent Assembly. Though they have distinct
socio-economic, cultural and geographical background, the countries adopted almost
similar philosophy while introducing federalism. Nepal introduced parliamentary form
of government and independent judiciary. During the constitutional promulgation, the
majority of the people of Nepal from all segments of the national population celebrated
except some ethnic, Madhesi (plain based) parties with regional roots who were not
satisfied with both the process of finalizing the constitution and its final contents.
The main comments of the Madhesh based parties have been attributed to the issue
of delineation of provinces under the new constitution, the provision on carving out
constituencies on the basis of geography and population, representation of provinces
both in Lower House and Upper House of the federal parliament, the theme of the
proportional representation and certain issues related to new citizenship provisions.

70 Salient Features of the Constitutions of Nepal and India: A Comparative Observation

The awful concern between Madhesh oriented parties created a situation in Nepal.
Ultimately, the Madhesh based political forces came in consensus and local and general
elections were thereafter held in 2017.

Federalism, republicanism, secularism and inclusiveness are the major attributes of

the constitution of Nepal. It stands as the first national constitutional charter in South
Asia to include explicit mandate of one-third representation to women in legislative
apparatus. The charter institutes fair corpus of provision for language as recognizing
all the languages given by the mother to be national languages. The provision related to
fundamental rights embodied under part III (Article 16-48) of the Nepalese Constitution
are progressive in nature. For instance, right to information, right to communication,
right to justice, right to victim of crime, right against torture, right to free legal aid, right
to privacy, right to property, right to clean environment, right to language and culture,
rights to women, rights of Dalits, rights of senior citizens, right to social security
are the progressive provisions in one way. Constituency delineation on the basis of
population and geography and flexible constitution amendment procedure are other
shining dimensions of the Nepalese constitution.

Provision of independent and impartial judiciary, equitable constituency delineations

are the imitating characters of Indian constitution. The strengthening of democratic
credentials, social development, and priority of a country depend upon the consolidation
of complete justice, independent judiciary and rule of law. It can be possible from the
free and fair appointment of the judges of the courts which we can observe in India by
both constitutionally and empirically. Nepal also could adopt collegiums system for the
appointment of the judges of supreme court- just like India- to negate the influence of
the government of the day in judicature.

In conclusion, there seem some more liberal/democratic provisions in Indian

constitution, to recruit Supreme Court judges, whereas, Nepal’s 2015 Constitution has
enormously guaranteed, post modern democratic values: inclusive democracy.

KMC Journal 71
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