Jasmin Parajuli

33, ‘A’
7th sem, BA.LLB
Gender and Inclusive Justice

National Legal Framework for Inclusive Justice

Inclusive Justice

The concept “Inclusive Justice” characterizes the concept of accessibility of justice from the
position of non-discrimination and equal opportunities for all, without excluding people in the
means and means of judicial protection of their rights.

Obstacles, barriers and difficulties inclusion need to be overcome by offering solutions that are
necessary for one and at the same time for all.

Marginalized groups

Marginalized groups are groups of individuals that experience inequality or barriers to accessing
rights, opportunities, protection, and services fundamental to participation in social, economic
and political life on an equal level with other members of society.

Women, Dalit, Indigenous Peoples, bonded laborers, Sexual and Gender minorities, Persons with
Disability, Religious minorities are some examples of marginalized groups.

 Women
 Dalit
 Indigenous Peoples
 Differently abled persons

Constitutional Provisions

18. Right to equality: (1) All citizens shall be equal before law. No person shall be denied the
equal protection of law.
 (2) No discrimination shall be made in the application of general laws on grounds of origin,
religion, race, caste, tribe, sex, physical condition, condition of health, marital status, pregnancy,
economic condition, language or region, ideology or on similar other grounds.

(3) The State shall not discriminate citizens on grounds of origin, religion, race, caste, tribe, sex,
economic condition, language, region, ideology or on similar other grounds.

Provided that nothing shall be deemed to prevent the making of special provisions by law for the
protection, empowerment or development of the citizens including the socially or culturally
backward women, Dalit, indigenous people, indigenous nationalities, Madhesi, Tharu,
Muslim, oppressed class, Pichhada class, minorities, the marginalized, farmers, labors, youths,
children, senior citizens, gender and sexual minorities, persons with disabilities, persons in
pregnancy, incapacitated or helpless, backward region and indigent Khas Arya.

24. Right against untouchability and discrimination: (1) No person shall be subjected to any
form of untouchability or discrimination in any private and public places on grounds of his or her
origin, caste, tribe, community, profession, occupation or physical condition.

(5) Any act of untouchability and discrimination in any form committed in contravention of this
Article shall be punishable by law as a severe social offence, and the victim of such act shall
have the right to obtain compensation in accordance with law.

42. Right to social justice: (1) The socially backward women, Dalit, indigenous people,
indigenous nationalities, Madhesi, Tharu, minorities, persons with disabilities, marginalized
communities, Muslims, backward classes, gender and sexual minorities, youths, farmers,
labourers, oppressed or citizens of backward regions and indigent Khas Arya shall have the right
to participate in the State bodies on the basis of inclusive principle.

3) The citizens with disabilities shall have the right to live with dignity and honour, with the
identity of their diversity, and have equal access to public services and facilities.

43. Right to social security: The indigent citizens, incapacitated and helpless citizens, helpless
single women, citizens with disabilities, children, citizens who cannot take care themselves and
citizens belonging to the tribes on the verge of extinction shall have the right to social security, in
accordance with law.
50. Directive principles: (1) The political objective of the State shall be to establish a public
welfare system of governance, by establishing a just system in all aspects of the national life
through the rule of law, values and norms of fundamental rights and human rights, gender
equality, proportional inclusion, participation and social justice, while at the same time
protecting the life, property, equality and liberties of the people…….

84. Composition of House of Representatives:

(2) The Federal law shall provide that, in fielding candidacy by political parties for the election
to the House of Representatives under the proportional electoral system, representation shall be
ensured on the basis of a closed list also from women, Dalit, indigenous peoples, Khas Arya,
Madhesi, Tharu, Muslims and backward regions, on the basis of population. In so fielding
candidacy, regard shall also be had to geography and territorial balance.

(3) In fielding candidacy under clause (2), political parties shall provide for representation of
the persons with disabilities as well.

Civil Service Act, 2049 (1993)

 Article 7: Fulfilment of vacancy in civil service:

Article 7: (7) Notwithstanding anything contained in Sub-section (1), in order to make
inclusive the civil service, forty-five percent posts of the posts to be fulfilled by open
competition shall be set aside and be filled up by having separate competition between
the following candidates only, by considering the percentage into cent percent:
(a) Women -Thirty Three Percent
(b) Adiwasi/Janjati -Twenty Seven Percent
(c) Madhesi -Twenty Two Percent
(d) Dalit - Nine Percent
(e) Disabled (differently able)- Five Percent
(f) Backward Area - Four Percent

Women

Art.38. Rights of women: (1) Every woman shall have equal lineage right without gender-based
discrimination.
(2) Every woman shall have the right to safe motherhood and reproductive health.

(3) No woman shall be subjected to physical, mental, sexual, psychological or other form of
violence or exploitation on grounds of religion, social, cultural tradition, practice or on any other
grounds. Such act shall be punishable by law, and the victim shall have the right to obtain
compensation in accordance with law.

(4) Women shall have the right to participate in all bodies of the State on the basis of the
principle of proportional inclusion.

(5) Women shall have the right to obtain special opportunity in education, health, employment
and social security, on the basis of positive discrimination.

(6) The spouse shall have the equal right to property and family affairs.

Art. 252. National Women Commission: (1) There shall be a National Women Commission of
Nepal, consisting of a Chairperson and four other members.

Art. 253. Functions, duties and powers of National Women Commission:

 to formulate policies and programs concerning the rights and interests of the women
 to monitor as to whether laws concerning the rights and interests of the women and
obligations under the international treaties to which Nepal is a party have been
implemented
 to carry out study and research work on the legal provisions relating to gender equality,
empowerment of women and women,
 if it is necessary to file cases against any persons or bodies on matters of violence against
women or being subjected to social ill practices or infringement of or deprivation of
enjoyment of women’s rights, to make recommendations to the concerned bodies to file
such cases in courts in accordance with the law.

National Women Commission Act, 2074 (2017)- An Act Made to Amend and Consolidate
Laws Relating to the Functions, Duties and Powers of the Women Commission.

Dalits
Dalits are those communities that have been oppressed and marginalized in the worst forms for
millenniums and eras in the name of caste, the major practice of social stratification in the Hindu
society in South Asia.

Art. 40. Rights of Dalit: (1) The Dalit shall have the right to participate in all bodies of the State
on the basis of the principle of proportional inclusion. Special provision shall be made by law for
the empowerment, representation and participation of the Dalit community in public services as
well as other sectors of employment.

(2) Provision of free education with scholarship, from primary to higher education, shall be made
by law for the Dalit students. Special provision shall be made by law for the Dalit in technical
and vocational education.

(3) Special provision shall be made by law in order to provide health and social security to the
Dalit community.

(4) The Dalit community shall have the right to use, protect and develop their traditional
occupation, knowledge, skill and technology. The State shall accord priority to the Dalit
community in modern business related with their traditional occupation and provide skills and
resources required therefor.

(5) The State shall once provide land to the landless Dalit in accordance with law.

(6) The State shall, in accordance with law, arrange settlement for the Dalit who do not have
housing.

(7) The facilities conferred by this Article to the Dalit community must be distributed in a just
manner so that the Dalit women, men and Dalit in all communities can obtain such facilities
proportionately.

Art. 255. National Dalit Commission: (1) There shall be a National Dalit Commission of
Nepal, consisting of a Chairperson and four other members.

Art.256. Functions, duties and powers of National Dalit Commission:

 to conduct study and exploration as to the overall situation of the Dalit community,
  to formulate national policies and programs concerning the interests of the Dalit for the
upliftment and development of the Dalit,
 to monitor as to whether laws concerning the interests of the Dalit, including the special
provisions made for the upliftment and interests of the Dalit community have been
effectively implemented,
 to have the Dalit community included in the mainstream of national development and
ensure proportional participation in all organs of the State,

National Dalit Commission Act, 2074 (2017)- An Act Made to make arrangements relating to
National Dalit Commission

The Caste-Based Discrimination and Untouchability (Offence and

Punishment) Act, 2068 (2011)

2A. Right against untouchability and discrimination

3. Prohibition on untouchability and discrimination

4. To be deemed to have committed cast-based discrimination and untouchability

7. Punishment

Indigenous nationalities

Indigenous means a particular ethnic group is originally from the place where they currently live
or at least have been there for very long time and before other groups arrived from elsewhere.

Art. 261. Indigenous Nationalities Commission:

(1) There shall be an Indigenous Nationalities Commission of Nepal, consisting of a Chairperson

and a maximum of four other members.

National Indigenous Nationalities Commission Act, 2074 (2017)- An Act made to make
arrangements relating to National Indigenous Nationalities Commission

Sec. 7. Power, Functions and Duties of the Commission:

 to conduct study on the overall situation of the indigenous nationalities community

  to formulate national policy and programs for the promotion and protection of the rights
and interests of the indigenous nationalities community and the empowerment of such
community
 to review, monitor and evaluate the implementation of the policy and programs related to
indigenous nationalities community
 to undertake studies and research into the language, script, culture, history, tradition,
literature, art within the indigenous nationalities’ communities,

National Federation for the Development of Indigenous People (NFDIN)

The main objective of the NFDIN is to ensure the overall welfare of the different indigenous
nationalities who lives across the country.

Differently abled persons

Differently Abled is often described in terms of lack of normal functioning of physical, mental or
psychological processes. It is also defined as learning difficulties or difficulties in adjusting
socially, which interfaces with a person's normal growth and development.

The Act Relating to Rights of Persons with Disabilities, 2074 (2017)

4. Provisions relating to disability identity card

7. Entitlement to enjoy rights under the prevailing law

8. Right against discrimination

9. Right to community life

10. Right of protection

11. Right of political participation

12. Right of participation in policy making

13. Right to form unions

14. Right to participate in the cultural life

15. Right of access to services, facilities and justice

16. Right to social security

17. Right to Information

18. Right to movement

Furthermore, additional rights are given to Women and Children with Disabilities, as well as the
right to free education, free health services and more is given to differently abled persons.

Muluki criminal code, 2074

Chpater-10

Offences Relating to Discrimination and Other Degrading Treatment

160. Prohibition of making discriminatory treatment: (1) Except as otherwise provided by

laws, no authority who exercises power under law shall, in the exercise of such power or a
general law, intentionally make a discriminatory treatment against any citizen on grounds of
origin, religion, color, caste, race, sex, physical condition, disability, condition of health, marital
status, pregnancy, economic condition, language or region, ideology or on similar other grounds.

(2) A person who commits, or causes to be committed, the offence referred to in sub-section (1)
shall be liable to a sentence of imprisonment for a term not exceeding three years or a fine not
exceeding thirty thousand rupees or both the sentences.

166. Prohibition of untouchability or discriminatory treatment on ground of caste: (1) No

person shall subject any one to untouchability or any other kind of discrimination, or prevent
anyone from appearing in any public place or entering into any religious place of public nature,
or deprive any one of using water or water pond in public use or of the use of things of any other
private or public utility or convenience, on the grounds of custom, tradition, religion, culture,
rites or rituals, caste, race, community, profession, occupation, physical condition or origin of
social community.

(2) A person who commits, or causes to be committed, the offence referred to in sub-section (1)
shall be liable to a sentence of imprisonment for a term not exceeding three years or a fine not
exceeding thirty thousand rupees or both the sentences, and if a public servant commits the
offence referred to in this Section, he or she shall be liable to an additional sentence of
imprisonment for a term not exceeding three months.

Other provisions

Art. 258. National Inclusion Commission: (1) There shall be a National Inclusion Commission
of Nepal, consisting of a Chairperson and four other members.

National Inclusion Commission Act, 2074 (2017)

Art. 262. Madhesi Commission: (1) There shall be a Madhesi Commission of Nepal, consisting
of a Chairperson and a maximum of four other members.

National Madhesi Commission Act, 2074 (2017)

Art. 263. Tharu Commission: (1) There shall be a Tharu Commission of Nepal, consisting of a
Chairperson and a maximum of four other members.

National Tharu Commission Act, 2074 (2017)

Art. 264. Muslim Commission: (1) There shall be a Muslim Commission of Nepal, consisting
of a Chairperson and a maximum of four other members.

National Muslim Commission Act, 2074 (2017)

Overall, inclusive justice mechanism is an effective instrument for the settlement of conflict of
interest, which objective is to provide compensatory justice for all groups of society in state’s
political, social, economic, cultural mainstream of society. So, it is necessary for the state to
formulate proper legal mechanisms.