An Analysis of Constitutional Contradiction of Right to Equality
A constitution is the fundamental law of a nation, establishing the framework for its government and defining the relationship between the state and its citizens. It sets out the principles, structures, and powers of the government's branches executive, legislative and judiciary and typically outlines the rights and duties of the people. Constitutions can be either written in a single document, like the U.S. Constitution, or unwritten, consisting of various laws, conventions and customs, like the British constitution. Essentially, a constitution is the supreme legal authority from which all other laws derive their legitimacy.
It serves as a social contract, providing stability and predictability in governance by limiting the power of those in authority and protecting individual liberties. This foundational document ensures that a government operates within a predefined legal and ethical boundary, preventing tyranny and arbitrary rule. Constitutions are often difficult to amend, reflecting their role as a stable and enduring guide for a society. They represent the collective will and values of a nation, acting as a blueprint for its future development and a safeguard against political instability.
The guarantee of equality is the bedrock upon which modern constitutional democracies are built. The right to equality stands as one of the most sacred and foundational pillars of modern constitutional democracy. Enshrined in bills of rights and declarations worldwide, it represents a profound break from hierarchical pasts, promising every individual equal protection and status before the law. This guarantee is the bedrock upon which societies build their aspirations for justice, dignity and fair opportunity for all citizens, irrespective of their birth, identity, or beliefs. It is a triumphant rejection of feudal hierarchies and oppressive regimes, promising a new social contract where every individual stands equal before the law. From the Fourteenth Amendment of the U.S. Constitution1 to Article 15 of India’s founding document, this right is proclaimed in soaring, universal language, offering a vision of a blindfolded justice system that metes out fairness without regard to a person’s status, identity or creed. It is, in essence, a promise of universal and identical treatment, a shield against arbitrary state power.
Analysis
a) Right to equality (Article 18)
Equality Before Law and Equal Protection
The principle that all individuals are equal before the law and entitled to equal protection without discrimination is the main theme of Nepalese constitution and is enshrined in numerous international instruments, most notably Article 7 of the Universal Declaration of Human Rights (UDHR)2 and Article 26 of the International Covenant on Civil and Political Rights (ICCPR).3 These principles have been upheld globally, including in the South African Constitutional Court’s decision in Minister of Finance v Van Heerden (2004),4 where it was affirmed that equality includes both formal and substantive components. Consistent with this, the prohibition of discrimination in the application of general laws on the grounds of race, sex, religion, language, or other status is reflected in Article 2 of the ICCPR and Article 14 of the European Convention on Human Rights (ECHR). In the Indian case of Navtej Singh Johar v. Union of India (2018),5 the Supreme Court struck down discriminatory colonial-era laws, reinforcing that equal application of law cannot exclude marginalized groups, including sexual minorities.
State Non-Discrimination and Affirmative Action
Furthermore, international law permits positive or affirmative measures to address historical or structural inequalities. Article 1(4) and Article 2(2) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)6 explicitly allow such actions. This principle has been upheld in United States constitutional jurisprudence, such as Regents of the University of California v. Bakke (1978)7 and Grutter v. Bollinger (2003)8, where affirmative action in education was upheld as a means of promoting diversity and redressing past discrimination. Similarly, India’s Constitution (Articles 15(4) and 15(5)) and South Africa’s Employment Equity Act permit special provisions for disadvantaged communities without violating the right to equality.
Equal Remuneration and Social Security
Gender equality in remuneration is a cornerstone of international labor rights. The Equal Remuneration Convention, 1951 (ILO Convention No. 100),9 ratified by over 170 countries, obliges states to ensure equal pay for work of equal value. In the UK case of Bridgeman and Others v. Manchester City Council (1981),10 the court upheld the principle that gender-based pay differences for the same work are unlawful. Similarly, the European Court of Justice’s decision in Defrenne v. Sabena (1976)11 reinforced the enforceability of equal pay guarantees under EU law.
Equal Rights to Ancestral Property
Inheritance equality is also increasingly recognized as a fundamental right. Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)12 requires states to eliminate discrimination against women in matters relating to property and inheritance. In Kenya, the case of Rono v. Rono (2005)13 before the Court of Appeal, applied CEDAW principles to affirm daughters’ equal inheritance rights. Likewise, the Nepal Supreme Court in Mira Dhungana v. Ministry of Law (2004)14 held that gender-based inheritance laws violated constitutional equality provisions and international obligations under CEDAW.15
There is no internal contradiction among these sub-articles of article 18 of Constitution of Nepal. Instead, they are complementary and they also compliance with international law and principles.
b) Right against untouchability and discrimination ( Article 24)
Prohibition of Discrimination in Public and Private Spheres
This constitution establishes the foundational principle that no person shall be subjected to untouchability or discrimination in public or private spaces on grounds such as origin, caste, tribe, profession or physical condition. It embodies the spirit of equality and dignity, echoing international human rights standards such as Article 1 of the Universal Declaration of Human Rights (1948), which proclaims that all human beings are “born free and equal in dignity and rights.” The Indian Supreme Court in State of Karnataka v. Appa Balu Ingale (1993)16 emphasized that untouchability in any form is a gross violation of constitutional morality and cannot be justified by tradition. Similarly, scholars such as Marc Galanter in Competing Equalities: Law and the Backward Classes in India17 note that caste-based exclusion undermines the very principle of citizenship. Hence, this article lays down a universal ban, ensuring that dignity cannot be denied in either private or public life.
Equal Access to Goods, Services, and Facilities
This provision focuses specifically on economic and social access. It prevents exclusion from goods, services, and facilities based on caste or tribe, ensuring substantive equality in daily life. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, 1965) obliges states to eliminate barriers to public services and economic participation on discriminatory grounds, which parallels this section. In People’s Union for Democratic Rights v. Union of India (1982),18 the Indian Supreme Court observed that access to employment and services cannot be restricted by caste or origin. Sociological studies show that social exclusion often manifests in economic denial, such as preventing certain groups from entering shops, using water sources or accessing markets. By targeting these practices, this sub article ensures that equality is not merely symbolic but also material and practical.
Prohibition of Propaganda of Caste Superiority or Hatred
This article goes beyond acts of discrimination to prohibit the ideological justification of untouchability and caste-based superiority. It resonates with Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR, 1966), which requires states to prohibit any advocacy of national, racial, or religious hatred that incites discrimination. In Pravasi Bhalai Sangathan v. Union of India (2014),19 the Indian Supreme Court held that hate speech, even if indirect, threatens equality and fraternity in society. This provision reflects the understanding that social hierarchies are sustained not only by acts but also by ideologies, rituals, and symbols that normalize inequality. By banning such justifications, the law strikes at the root of casteism and untouchability, ensuring that such practices cannot be legitimized under the guise of culture or tradition.
Workplace Equality Beyond Untouchability
This sub-article addresses discrimination in employment, clarifying that unequal treatment is prohibited even when it does not amount to untouchability. This is significant because caste discrimination often operates through subtle practices like unequal pay, promotions, or workplace segregation. The International Labour Organization (ILO) Convention No. 111 (1958) on Discrimination in Employment and Occupation obliges states to eliminate discrimination based on social origin and other grounds. In Air India v. Nergesh Meerza (1981),20 the Indian Supreme Court emphasized workplace equality, though in a gender context; similar principles apply to caste. The Thorat & Newman’s Blocked by Caste: Economic Discrimination in Modern India21 provide evidence of persistent caste bias in modern professions and corporate hiring. Therefore, ensures that equality is realized in the economic domain, beyond mere symbolic gestures.
Punishment and Remedies for Violations
The final sub-article provides enforceability, declaring that acts of untouchability and caste-based discrimination constitute severe social offences punishable by law, while also granting victims the right to compensation. This aligns with the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation (2005), which require states to ensure both accountability and reparation for victims of human rights violations. In State of Uttar Pradesh v. Rajesh Gautam (2003),22 the Indian courts reiterated that laws protecting marginalized communities must be strictly enforced to have real meaning. By recognizing caste discrimination as not merely a private wrong but a social crime, this section places it in the category of offences against public order and morality. The availability of compensation reflects restorative justice, ensuring victims are not only protected but also empowered.
Contradictory Interpretation
In constitutional law, contradictions within a constitution are generally not “acceptable” in the sense of being desirable, but they do occur in many countries’ constitutions. When they happen, courts, legislatures, or constitutional scholars usually have to resolve them through interpretation. Generally, these sub-article are not contradicting each other. The sub-article 1 and 4 contradict each other. There is provision in sub-article one that there should be absence of untouchability and discrimination in any public and private place. It prohibits untouchability and discrimination everywhere, whether public or private. But it is made specific in Sub-article 2 that no person shall be discriminated against at workplace and this provision contradicts with the general principle of equality and Sub-article 1 of this article.
The interpretation may differ but the word of Sub-article 4 clearly states that the discrimination and untouchability on the ground of caste can be done in other places and it is prohibited only at the work place. This is the contradiction that generally reflects the negligence of the drafter of the constitution. Being the Supreme Law of the nation, the word of constitution should not contradict with each other. If interpreted that Sub-article 1 is general law and Sub-article 4 is special law then the word “also” should be mentioned before the word “workplace” since the word also is not used the author thinks that the interpretation of general and special law is not valid.
Non-Contradictory Interpretation
The Sub-article 1 is general rule and Sub-article 4 is special law rules. No contradiction exists. Sub-article (1) is a broad umbrella rule, while sub-article (4) is a specific safeguard for employment contexts. In legal drafting, this is common: the general rule is laid down first, then specific settings (like workplace, education, property) are clarified to avoid ambiguity.
c) Right to social justice (Article 42)
Inclusive Participation in State Bodies
This article guarantees that socially and economically marginalized groups, including women, Dalits, indigenous peoples, Madhesis, Tharus, Muslims, persons with disabilities, gender and sexual minorities, and others, shall have the right to participate in state bodies on the basis of the inclusive principle. This is a form of affirmative action or positive discrimination. It aligns with Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966), which requires states to take steps to ensure rights without discrimination, as well as Article 1(4) of ICERD (1965), which permits “special measures” to advance disadvantaged groups. The Indian Supreme Court, in Indra Sawhney v. Union of India (1992 Supp (3) SCC 217),23 upheld reservation policies as constitutional tools for inclusion. Scholars like Amartya Sen (Development as Freedom, 1999)24 argue that real equality requires substantive participation, not just formal recognition. Thus, this section ensures that representation in state institutions reflects the diversity of society.
Special Opportunities for Indigent and Endangered Communities
This provision guarantees special opportunities and benefits in education, health, housing, employment, food, and social security for indigent citizens and communities on the verge of extinction. This reflects the principle of positive obligations of the State, where protection extends beyond non-discrimination to active measures of support. The UN Declaration on the Rights of Indigenous Peoples (2007) emphasizes the need for states to safeguard indigenous peoples’ existence, development, and well-being. Similarly, in Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1,25 the Indian Supreme Court observed that affirmative action is necessary to balance inequalities created by history. This section ensures that vulnerable and endangered groups are not left behind in national development.
Dignity and Equal Access for Persons with Disabilities
This clause recognizes that persons with disabilities have the right to live with dignity and honour, with recognition of their diversity, and equal access to public services and facilities. It echoes the UN Convention on the Rights of Persons with Disabilities (CRPD, 2006), particularly Articles 1 and 3, which emphasize respect for dignity, individual autonomy, and full participation in society. In Jeeja Ghosh v. Union of India (2016) 7 SCC 761,26 the Indian Supreme Court reinforced the principle that dignity is intrinsic to disability rights, holding that discriminatory treatment of a disabled passenger violated her fundamental rights. By affirming identity and equal access, this section moves beyond a welfare approach to a rights-based approach to disability.
Rights of Farmers to Land, Seeds, and Agro Diversity
This section grants farmers the right to access land for agriculture, and to select and protect local seeds and species traditionally used, in accordance with law. This reflects the principle of food sovereignty and protection of traditional agricultural knowledge. The International Treaty on Plant Genetic Resources for Food and Agriculture (FAO, 2001) and UN Declaration on the Rights of Peasants and Other People Working in Rural Areas (2018) both recognize farmers’ rights to seeds, biodiversity, and sustainable livelihoods. The Indian Supreme Court in Narmada Bachao Andolan v. Union of India (2000) 10 SCC 66427 emphasized that the right to livelihood includes access to land and resources. Academic works such as Vandana Shiva’s Staying Alive (1989)28 highlight the importance of protecting traditional seeds for ecological and social justice. This provision therefore safeguards farmers’ autonomy and cultural heritage in agriculture.
This clause gives prioritized opportunities in education, health, employment, housing, and social security to the families of martyrs, disappeared persons, injured individuals, conflict victims, and others who sacrificed in popular movements or revolutions. It is recognition of transitional justice, the duty of states to honour those who fought for democracy and to rehabilitate victims of conflict. This resonates with the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation (2005), which guarantee restitution, compensation, and rehabilitation to victims of gross human rights violations. In Masalti v. State of Uttar Pradesh (1964) 8 SCR 133,29 the Indian judiciary recognized the need for special protection in extraordinary circumstances, though in a criminal context; similar reasoning applies to political conflict. By explicitly including conflict victims and martyrs, this section ensures that sacrifice for democratic change is acknowledged through tangible social justice measures.
d) Other right relating to right to equality
The constitutional provisions concerning the Dalit (Article 40) community embody a comprehensive framework aimed at addressing historical marginalization and ensuring substantive equality. By mandating proportional inclusion in state institutions and guaranteeing representation in public services and employment, the constitution aligns with the principle of affirmative action, which seeks to correct systemic exclusion through targeted measures.30 The emphasis on free education with scholarships, alongside preferential access to technical and vocational training, highlights education as a central tool of empowerment, consistent with Sen’s capability approach, which views education as essential for expanding freedoms and opportunities.31 Equally significant are the commitments to health care, social security, and the preservation and modernization of traditional occupations, which collectively reinforce both cultural identity and economic sustainability, reflecting Fraser’s (1995)32 call for both redistribution and recognition in achieving social justice. Land distribution to landless Dalits and housing arrangements for the homeless address structural inequities rooted in caste-based exclusion, while the directive for equitable distribution among Dalit men, women, and sub-communities acknowledges the intersectionality of caste, class, and gender.33 Taken together, these measures reflect a constitutional vision that moves beyond formal equality to embrace transformative inclusion, thereby seeking to create the conditions for genuine social justice and democratic participation for one of the most disadvantaged groups in society. The article 43 guarantees social security as a right for vulnerable groups in society who are unable to fully support themselves. It specifically includes poor and indigent citizens, people with disabilities, helpless individuals such as single women without support, children, those who cannot care for themselves, and members of tribes facing extinction. The state has a responsibility to ensure that these groups receive protection and assistance through laws and programs designed to safeguard their welfare and dignity.
Conclusion
Generally it is assumed that the provisions of the constitution do contradict each other. But when it contradicts it is resolved by amendment. In general sense, the words and sub articles of the constitution of Nepal do not contradict but if we see narrowly we can see some contradiction in provision and words of the constitution. The contradiction in right to equality is seen in Article 24: sub-section 1 and 4 if we interpret it literally. Thus, different principles and international law have enshrined the right to equality. Therefore, the constitution is the Supreme law of every democratic nation, so contradiction in it is not acceptable. And the right to equality is one of the important human rights and fundamental rights of everyone and to enshrine it in Supreme law is important without any negligence and contradiction in the words.
References
About the Authors

Roshan Auji
Undergraduate law student at Nepal Law Campus with a keen interest in constitutional and criminal law and justice. Passionate about legal research in civil and political rights of citizens.
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