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'We want to ensure every law is drafted with gender sensitivity'


After a decade-long conflict and turmoil, Nepal is in the process of creating a new constitution. It is only the second among South Asian countries, the other being Bangladesh, to have criminalised marital rape. It is also one of the 23 nations that has reservations for women in parliament. Spearheading both campaigns was Sapana Pradhan Malla, a leading Nepalese lawyer and activist. A key member of Nepal’s new Constituent Assembly, Malla, in Delhi for the launch of a UN report on the status of women, tells TOI-Crest how Nepal, ravaged by caste and gender discrimination, has set itself the task of restructuring its traditional institutions


It's been quite a journey from activism to drafting the country's constitution. Tell us about your latest challenge.

There's a lot of work ahead. Laws must keep evolving. After marital rape became a punishable offence, there were two cases reported in different districts, a first. Right now, marital rape is a bailable offence with six months prison-term. In one of the cases, the man was granted bail, in the other he was about to be given bail. We took both cases to the Supreme Court. The court recognised the increased vulnerability of the women in this scenario. The court said you have to ensure it's a non-bailable offence. The court said 'rape is rape'. And only because the victim is the wife does not mean it's any less serious a crime. Which was forward-looking. So now we're looking at an amendment to increase the quantity of punishment. So, from seeing rape as attacking a person other than the wife, to making the assault on a wife as criminal an act as any other is a good thing. But we have to see it through.

You have said that as in India, castebased discrimination is a worry for Nepal.

Yes, and we're seeing an interesting development in Nepal. We do have a law that outlaws discrimination but it is only focused on the public sphere. Now, until and unless discrimination is outlawed in the 'private sphere' as well, and people made accountable for conduct inside the house, it will be difficult to protect a person from discrimination. To that end, recently, the Nepal parliament has enacted a new inclusion law. This prohibits untouchability as manifested inside the house. You have every right to do what you want inside your house, it's private property. You have a right to say no to anyone. But now we're saying you cannot deny a person anything only on the basis of caste. For instance, you cannot restrict entry into your house or not allow a person to participate in social ceremonies.

After pushing through reservation for women in parliament, which laws have been passed?

The first law we enacted was the Domestic Violence Act. Now we have the bill on inclusion. But more importantly, it isn't one or two laws. Nepal is restructuring its institutions. It is creating a new constitution and enacting a fresh set of laws as it moves into being a democratic republic, a federal system. As we do that, we want to ensure that each and every law is drafted with gender sensitivity. Not only inclusion but even, say, the Investment Board Act, every legislation must have women's participation and ensure gender sensitivity.

You don't believe reservation for women, even at 33 per cent, is enough.

Yes, it is not enough to have reservation. You have to create a gender-sensitive framework. The focus of the assembly is on the constitution. We are in the midst of identifying what election system can help women. It's not only a quota system.
Ensuring candidacy cannot bring equality in result. We want equality in result. So we're now exploring proportional election where 50 per cent candidates are women. We're also thinking direct elections. Last time, we had followed a vote-for-party format and we got 33 per cent, but now we're also saying 'vote for the person'. See, in our region in South Asia, until the law ensures a certain percentage, parties will hardly follow even though there's commitment for equality and inclusion. It's not like say, Switzerland, where party gives 50 per cent candidacy to women as a matter of practice. In our part of the world, until there's a de jure implicit provision, political parties won't respect it. But even without a decision on the election system yet, the language that has already been agreed by political parties for upcoming elections is also a minimum "33 per cent women's participation in result". We're yet to work out the mechanism of how we'll ensure that. Additionally, our focus is not only parliament but other state structures also.

What about reservation in the bureaucracy, police, judiciary?

For bureaucracy, the Inclusion Bill ensures 33 per cent quota in civil administration services but then the bill says only 20 per cent in the security forces. We're unhappy with that. It should be proportional. Why this assumption that women can't fit in, can't be in combat positions? In the judiciary, we have quite a problem. Women are a mere 7 per cent in the bar, only 2 per cent of the judges and 1 per cent in judicial administration, which is really very small. We are confronting on this.

India is still struggling to convince people about the need for women's reservation in parliament. What has been your observation?

The important thing is that all women should have understanding of the necessity of affirmative action. When women are divided it creates a problem. Women within parties can influence their party too. That is crucial. It is the sister organisations within parties that must work towards it. No party can say no to equality in Nepal. You see, when the Maoist insurgency had started, many women joined it because of discrimination and exclusion. Sister organisations within political parties have been an important influencer.

How did the decade-long conflict in Nepal impact the women's movement?

Conflict, for women, is as much a challenge as an opportunity. And we're seeing that. As we draft a new constitution, move towards a democratic republic, we can work on a gender-sensitive framework.

What have been the high points towards women's empowerment?

Land laws have seen positive discrimination. Today, if land or property is registered in a woman's name, you get a tax exemption of 30 per cent. That has really helped. It is economic empowerment of a kind. The challenge is that work participation in Nepal of women is poor. There is little opportunity to improve economic equality, which is the foundation for equality. Unless you are economically empowered, no matter what rights you are given, you cannot realise them. We haven't been able to generate more employment possibilities. That is why women are migrating either to the city or outside the country where their vulnerability actually increases. Women's property ownership has increased but not in employment because there aren't enough opportunities.

What's the one issue that bothers you?

Citizenship rights is a major challenge. That's one area where the patriarchal mindset continues to prevail. You know, a Nepalese woman who marries a foreigner cannot transfer citizenship to her spouse or her children. Her children don't have the rights of a Nepali. It's a question of our identity. Why is this so? This is not the case for Nepalese men if they marry a foreigner. It is unfair and is gender discrimination. Yet, no-one has budged on that issue yet. A foreign male spouse can't get citizenship. The reason is an opaque one, that it is an 'open border'. How does that make a difference? Our point is that even if an Indian son-in-law inherits land, he can't take it away to India! So, that's something we are still working on. It compromises a woman's freedom of choice, her identity.

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