RPP’s election mandate and plausibility of its parliamentary position
Upendra Baxi writes, “Constitution-makers everywhere remain concerned with the best constitutional design; however, that ‘best’ consists in ‘shopping’ around available models and adapting these to their needs and aspirations”. Lexical noesis of his notion on constitution-makers and their approach to contextualize their needs and aspirations can rightly be traced in Nepal as a best case-scenario. The stalemate both at the center and around the periphery of the constitution of Nepal-2015 is forced because of the four major parties and their preferences. Upon deductive reasoning the (pre and post)constitution political upshots, we can read in mind that, the debut of federalism as a governing system and inclusion based on reasonable classification was their need of the day. This was because they saw haze over the time-lapse of their till-date politics. The constitution also reflects their aspiration to give continuity to their legacy of nationalism in the form by contextualizing protection of ‘Sanatan Dharma’ and by electoral politics design. The framers rightly implied, ‘Religion is a short-term politics, but politics is a long term religion.’
Even when the needs have not been institutionalized yet, one of the four jumped in to extend its aspirations. By bringing into action the electoral politics design, it is tending to start its polity of religion. A new course of discussion will spark-off on constitutionalism if this happens. A constitution will authorize its constitutional body to work supra-constitutionally. I studied that any constitution has its basic structure, which holds its integrity and protects its authenticity. Change in basic structure increases refusal to acknowledgement of its existence. The article 274(1)’s contravention with integrity and sovereignty vested in people, is an implied limitation in the form of ‘basic structure doctrine’. The Rashtriya Prajatantra Party (RPP) demands reinstatement of Hindu-Monarchical state in the party statute by the Election Commission. It argues that it carries the people's mandate and has responsibility to institutionalize it. If that is to be argued in line with freedom of opinion and expression and right to suffrage, then CK Raut, Panchas, Ranas and others should be allowed to register at the EC with their respective ideology to seek electoral mandate.
The nation has its own justification of leaving behind the Hindu-Monarchical nature of the state. The step-back to reinforce the same will be like backtracking from the justification of the past and genesis of the present. The constitutional body cannot let such a memorandum to pass, which intends to mandate people for the violation of the fundamental norms. Basic structure doctrine ensures the protection of the constitution from the indoctrination of whimsical and radical values in it.
Right to freedom and right to suffrage cannot be the point of departure from the Grundnorm of the constitution. The Grundnorm of the constitution is the struggle of the people for Federal Republic Democratic Nepal. The parliament’s sovereignty to put forward the people’s aspiration can never be denied in a democratic ideology, but the constitution cannot ignore the history of its people for the representative democracy over decades. As Conrad D. writes, “Amending power vested in a legislature, however, cannot be said to be merely another form of constituent power. The reason is that the legislature does not have a special mandate for constitution making.” To allow RPP with such an agenda in elections, would mean allowing the special majority in the parliament to amend the constitution in a way to affect its interests. If RPP somehow manages to hold the special majority, then any amendment as such, will not be simply termed as an amendment, but as a constitution-making. And the prevailing constitution nowhere abbreviates making a new constitution. Else the preamble of the constitution ensures that as a social-welfare state, Nepal will fulfill the aspirations of the people through federal democratic republican system of governance.
Article 4 of the constitution makes the nation as a secular entity. This article self-restrains the constitution of being prejudice to one religion and biased toward the rest. The scenario’s inference suggests RPP stands to amend the constitution against its neutrality. Durga Das Basu in his commentary on Constitution of India wrote, “It should be conceded that if ‘secularism’ be a basic feature of the constitution, it would be impaired if the freedom of religion is subverted to achieve political purposes.” For convincing convenience, it is for sure that the present constitution upholds ‘secularism’ as its basic feature. RPP’s move to link the right to protest with other fundamental rights is merely an attempt to introduce its political purposes. This is not only the question of constitutionality but a periling chance to slide back into the conflict on what has already been framed out.
Bishwanath Upadhyay writes his opinion, “The doctrine of positive amendments explains the doctrine of basic structure of the constitution. This doctrine is conceived to preserve constitutional continuity by making timely adaptations of detail and develop the basic principles of the system to cope up with unforeseen exigencies and disturbances.” Amendments are the progressive realization of what has been a wrong for a long. Attempts of exigencies and disturbances to blemish the constitutions prima facie, will fall upon the basic principles of the system. To amend the constitution, is the constituent power of the parliament, but to amend its essentiality is not a legitimate use of that constituent power. Parliaments do represent the people and their will but it is by no means reasonable to say that whatever parliaments do is usually approved by the people.
A political party in the government, which has taken oath under the prevailing constitution, to abide by its terms, and upholds the responsibility to preserve and promote its ownership, cannot be ethically sound, when it starts to hit the road defying the same constitutional spirit. As a part of the government, it’s the responsibility of RPP to charge itself with constitutional mandates instead of supervening its legality.
(Jha is a student of Law at the Kathmandu University School of Law, Dhulikhel)