Nepal navigates familiar disorder

At the core of its crisis is a deficit of constitutional morality. India’s institutional resilience offers a contrast.

Constitutions are more than mere legal texts. While constitutions are often understood as documents that restrain the power of government, they are less a parchment and more a commitment.

They embody a set of political, social, and economic expectations. Constitutionalism becomes a form of collective sentiment, where the state is restrained, leaders are accountable, and institutions develop habits of deference and responsibility. Where constitutional morality is ingrained in society and the State, constitutions survive their framers and provide stability amidst crisis.

Where this does not occur, constitutions become episodic, subject to political negotiation and reinvention at the convenience of expediency. Nepal’s trajectory since the mid-20th century highlights the latter pattern with remarkable clarity. The frequent political and constitutional crises in Nepal are reminders of what happens when constitutions are treated as disposable garments, discarded when they become inconvenient.

Since the late 1940s, Nepal has adopted a succession of charters, each assumed to be the final constitutional solution to its precarious political, social, and economic conditions. However, each has proved temporary. The Rana regime’s constitution of 1948 did little to bring meaningful change in governance. The 1951 Interim Constitution, despite its democratic promise, preserved monarchical supremacy.

The 1959 experiment with parliamentary democracy ended within a year at the hands of King Mahendra. In 1962, Nepal adopted the Panchayat Constitution, which institutionalised royal absolutism under the garb of consultative democracy. The celebrated 1990 charter, too, became a victim of insurgency and palace intrigue. Even the relatively peaceful order after the adoption of the 2015 Constitution now seems to be standing on unstable ground. While each constitution promised stability, few generated the constitutional fidelity necessary to transform text into practice.

Nepal’s youth today protest not merely against internet shutdowns and restrictions on social media, but against fractured governance, persistent corruption, and the exclusion of marginalised communities. Yet again, constitutional morality and the stability of constitutional order have been pushed to the margins.

Nepal’s predicament is not a symptom of textual deficit but of an underdeveloped culture of constitutionalism and constitutional morality. In the absence of stable constitutional expectations, politics devolves into elite negotiation rather than public trust, causing rupture in the constitutional order.

Against this backdrop, the Indian constitutional trajectory provides an instructive contrast. India’s Constitution has endured. Though stretched, distorted, violated, and amended over a hundred times in the 75 years since its adoption, it has never been abandoned. Its endurance is owed to institutional resilience and responses in moments of political crisis.

In Kesavananda Bharati v. State of Kerala (1973), the Supreme Court safeguarded the constitutional core by forging the basic structure doctrine, placing substantive limits on Parliament’s amending power. Even during the Emergency of 1975, when executive authority reached its authoritarian peak, opposition leaders were jailed, and fundamental liberties were suspended, the Constitution withstood the ordeal. The constitutional order resumed.

Keeping the faith

In the past, Nepal has tended towards a replacement of the Constitution in the face of political rupture. Comparative constitutional scholarship underscores that endurance depends not on the elegance of drafting or profound promises and obligations in the Constitution, but on the cultivation of democratic values among the citizens and the State.

The need for this was realised by the framers of the Indian Constitution at the time of drafting. B R Ambedkar remarked about Indian democracy as “top dressing on Indian soil, which is essentially undemocratic” and that people are yet to learn constitutional morality. But with iterative practices during political turmoil, the Indian people and constitutional practices navigated the crisis, legitimising the supremacy of constitutional values and commitments.

For Nepal, its relation with its Constitution has rarely been one of commitment. The 2015 Constitution, praised for being forward-thinking in terms of incorporating federalism, secularism, and inclusivity, must become more than a political truce. The constitutional framework must absorb the impact of the rupture and create deference for constitutional methods for political resolutions, among political leaders, institutions, and citizens alike.

India’s experience shows that adherence to constitutional methods and institutional resilience at a time of political crisis can build constitutional faith and a culture of deference in the polity. Nepal stands at a crossroads, not unknown to its past. The choice before the country is difficult, yet clear. History may repeat with the creation and adoption of a new constitutional order, or it may develop habits of restraint and endurance. The latter will not create a novel constitution, but constitutionalism.

(The writer is an assistant professor at the Alliance School of Law, Alliance
University, and teaches constitutional law and human rights)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.