The Constitution of Nepal, which was promulgated on Asoj 3, 2072, has completed 10 years. On the basis of the ‘Gen-G’ movement of 23 and 24 Bhadra, new elections were held on 21 Falgun, and the people have expressed a new mandate. From this election, the National Independent Party (NIP) has become the first party with 182 MPs, winning close to two-thirds of the votes in the House of Representatives, i.e. 125 seats through direct and 57 seats through proportional representation. With the mandate of the NIP to form a strong government, the agenda of amending the constitution has also come under discussion. Is amending the constitution an easy matter? What are its complications? And how far can the impact be if the NIP takes the step of amending? We have tried to answer these questions in five questions and answers.

What is constitutional amendment?

The issue of amendment had been raised since the constitution was promulgated on Asoj 3, 2072. At that time, Madhesh-centric parties opposed it, claiming that the constitution was incomplete. After that, the agenda of amendment was also under discussion within the parties. On 17 Ashad 2081, when the two major parties of the then House of Representatives, Nepali Congress and CPN-UML, agreed to form the government, one point was the amendment of the constitution. This was the seed of the amendment. After the Gen-G movement, they shrank, but the Rashtriya Swayamsevak Sangh (RSS) emerged as the first party. Now the responsibility of advancing the agenda of constitutional amendment has fallen on its shoulders.

Has the constitution of Nepal been amended before?

So far, the constitution of Nepal has been amended twice. The first amendment was made on 15 Falgun 2072. Although fundamental rights are a matter within the basic structure of the constitution, our first amendment became a fundamental right. The first amendment was related to Articles 42 and 286.

Article 42 contains a provision that citizens of socially backward castes, classes, communities and regions and economically disadvantaged Khas-Aryas ‘shall have the right to participate in state bodies on the basis of inclusive principles’, and through the amendment, a provision was added that ‘women, Dalits, indigenous peoples, nationalities, marginalized people, farmers, workers and economically disadvantaged groups who are economically, socially and educationally backward shall have the right to participate in state bodies’.

Similarly, a provision was added that ‘the Constituency Delimitation Commission shall establish one constituency in each district, considering population as the main basis and geography as the secondary basis’.

After the amendment, while determining the constituency in clause (5) of Article 286, there is a provision that while determining the constituency, the population and geography shall be taken as the basis of representation and the ratio between the geography, population and number of members of such a constituency shall be determined as equal as possible, and provision was made to determine the remaining constituencies so that at least one constituency is established in each of the currently existing districts.

Similarly, the second amendment was related to incorporating the new map issued by the Government of Nepal into the national seal. The Constitution Amendment Bill was unanimously passed by the House of Representatives on 31 Jestha and the National Assembly on 4 Ashad 2077.

The Constitution is a dynamic document that is constantly being refined through amendments and interpretations by the courts in accordance with the needs and expectations of society. Therefore, it is believed that the Constitution may not be a complete document in itself forever. The Indian Constitution, promulgated in 1949, has been amended more than a hundred times so far.

What is the process of amending the Constitution?

There are many models regarding the method of amending the Constitution and who should initiate it. The process of amending the Constitution is mentioned in Article 274 of the Constitution of Nepal.

To amend the Constitution, an amendment bill must first be registered in any house of the federal parliament (House of Representatives or National Assembly). The registered bill is discussed in the relevant house. After the discussion, a decision is made whether to give in-principle consent to the bill.

The bill that receives in-principle consent is sent to the relevant parliamentary committee for clause-wise discussion. The committee submits a report with necessary amendments and suggestions to the house. The report received from the committee is voted on in the house after discussion in the house.

A two-thirds majority of both houses is required to amend some parts of the constitution. However, the consent of the relevant provincial assembly is also mandatory for issues such as delimitation of provinces or changing their names. An amendment bill passed by a two-thirds majority from both houses becomes part of the constitution after the President verifies it.

This process of amending the constitution is complex in itself. Consensus and cooperation between political parties are required to secure a two-thirds majority.

Constitutional experts have suggested adopting three stages in amending. In the first stage, the entire constitution should be reviewed, for which there is an argument that an expert group should be formed that is independent of the influence of political parties. According to constitutional scholar Bipin Adhikari, a study task force should be formed by including constitutional scholars, political scientists and other academics.

In the second stage, a constitution reform committee or commission should be formed including political parties and academics. Finally, constitutional scholar Tikram Bhattarai argues that it should be discussed at the public level and introduced in parliament.

This three-stage exercise confirms the acceptability, necessity and justification of the amendment.

What is constitutional review or rewriting?

There are two streams in constitutional amendment. First—only reviewing the constitution, i.e. amending the articles that are problematic. Second—rewriting the constitution itself.

For example, Article 265 of the Constitution provides for a review by the Federal Parliament after 10 years from the date of commencement of the Constitution regarding the continuity of the commissions formed under Part 27. Part 27 includes Muslim, Tharu, Madhesi, Indigenous Peoples, National Inclusive, Dalit and Women Commissions. This period specified by the Constitution has already passed.

Constitutional scholar Chandrakant Gyawali is in favor of reviewing the constitution rather than rewriting it. He argues that it should be refined based on the problems seen during the implementation of the constitution and the decisions of the Supreme Court.

Constitutional scholars argue that moving towards rewriting the constitution could lead to additional problems. It could also cause complications due to Nepal's geopolitical risks.

Can the Rashtriya Swayamsevak Sangh (RSS) alone amend the constitution?

The RSSS has mentioned constitutional amendment in its election manifesto. Point number 10 of the pledge states, ‘We will prepare a discussion paper on the proposals for constitutional amendment within three months of assuming power in order to establish a national consensus.’

Similarly, the issues to be submitted for initial discussion by the Rashtriya Swayamsevak Sangh (RSS) include a directly elected executive, a fully proportional parliament, a system where MPs do not have to be ministers, non-partisan local government, and a reformed provincial structure.

A two-thirds majority of the federal parliament is required to amend the constitution. Article 274 of the constitution contains a provision in this regard. Clause (1) states that no amendment can be made that is detrimental to sovereignty, geographical integrity, independence, and the sovereignty vested in the people. Clause (8) states that it must be passed by at least a two-thirds majority of the total number of members currently in both houses of the federal parliament.