Designing case explainers
#DesignTheLawNepal features illustrated case explainers of two landmark decisions by the Supreme Court of Nepal on SRHR. The first case is the decision handed down by the Supreme Court in 2008 in Prakash Mani Sharma [PDF decision linked], a PIL case involving the issue of uterus prolapse.[1] The Supreme Court rendered the first comprehensive and ground-breaking decision on the remit of these newly constitutionalised SRHR. The Court placed a positive obligation on the Nepali government to realise SRHR and issued an order of mandamus to the government to secure medical treatment for women affected by uterus prolapse. The Supreme Court based its decision on domestic constitutional rights provisions and read them in conjunction with Nepal’s international obligations by drawing on an array of comparative constitutional material. Significantly, the Court construed reproductive and health rights to encompass women’s decisions regarding reproduction, abortion, voluntary marriage, child rearing, and freedom from sexual violence.
The second is the case of Lakshmi [PDF decision linked] (surname omitted for privacy reasons), a constitutional case on abortion decided in 2010.[2] The Supreme Court issued a landmark judgment: abortion rights were placed at the centre of SRHR and were deemed integral to the right against discrimination and the right to equality. The facts of the case are as follows. Lakshmi, a poor woman from rural Far Western Nepal, had become pregnant for the sixth time. In agreement with her husband, she decided to terminate her pregnancy due to poor health and financial constraints. She then approached a public hospital to obtain an abortion but could not afford the fee of NPR 1,130 (roughly USD 14.5) for the procedure. As a result, Lakshmi was forced to continue her unwanted pregnancy. In 2007, a coalition of activist lawyers including FWLD and the Centre for Reproductive Rights (CRR) filed a PIL petition on her behalf in the Supreme Court. Three years later, the Court rendered one of the world’s most comprehensive, thoughtful, and ground-breaking judgments on SRHR and abortion.
Building on the explicit recognition of SRHR in the 2007 interim constitution, the Supreme Court interpreted these provisions broadly and placed a direct obligation on the state to provide access to safe and free abortion services. It held that abortion equates to the right to self-determination for women and as such it holds a special place within SRHR. It clearly stated that a woman is the master of her own body and must have the final word in deciding whether to have sexual relations, when to give birth to a child, and how to use her body. In obiter, the Court also held that the criminalisation of abortion disproportionately impacts women, and that abortion should be entirely decriminalised. More specifically, it held that it was inappropriate to criminalise abortion, and especially to do so under the Muluki Ain’s Chapter on Crimes against Human Life since under Nepali law the foetus is not classified as human life. Thus, the foetus cannot be granted more importance than the protection of the physical and mental health of the mother. The Court concluded that a forced pregnancy and a forced continuation of pregnancy constitute violence against women. The Court also held that a constitutional right or a benefit provided by law must not be limited to a certain group of people or a particular class.
What’s their purpose?
We wanted these explainers to be able to show to everyone in an immediately accessible way what rights they confer. As an ideal, the law should be readily accessible and easily understandable by all citizens, but this is certainly not the case in most jurisdictions. These two Supreme Court cases on reproductive rights have made history for Nepal, and yet few of its citizens will know anything about them. We wanted to bring alive the judgment so that anyone could grasp what happened and why they are of such significance.
In terms of case law alone, there can be various barriers: the way judgments are written, the language used, the individual’s legal competency, their educational background, and their digital literacy. The media can also be influential: are leading cases discussed (and important points summarised) in the newspapers or on community websites? We felt that these very modern and world-leading constitutional decisions, and the pivotal rights which they convey, should be seen and understood by all Nepali citizens. The purpose of our explainers is therefore to tell the story of each case.
[1] Prakash Mani Sharma v Office of the Prime Minister (Writ N. 064-WS-0230 of year 2064). Decided in 2066 BS (2009).
[2] Lakshmi v Office of the Prime Minister, 2067, 52(9) NKP 1551 (2010).
Uterine Prolapse - An illustrated case explainer
We storyboarded the Prakash Mani Sharma case and then asked illustrator Kripa Joshi to create a comic strip from our scribblings. Petitioners to this case sought mandamus to enforce obligations of women’s health rights under Article 20(2) of the Interim Constitution and international human rights treaties. The State was accused of doing nothing to address the problem of uterine prolapse (either providing education or surgery), despite allocating funding to this in its budget.
