Constitutional Law Developments in South Asia in 2019

Radhika Agarwal

Melbourne Law School

There has been a series of interesting constitutional law developments across South Asia this year. Key highlights include petitions challenging the ban on entry of women in places of religious worship in India, and challenges to the constitutional validity of the Presidential pardon granted to persons on death row in Sri Lanka. Following is a snapshot of some of these developments:

India

In September last year, the Indian Supreme Court had given a landmark ruling that the ban on entry of women of menstruating age in the Sabarimala Temple is unconstitutional and violative of their right to equality under Article 15 of the Constitution of India; since then, the entry of women in the temple has been anything but uncontroversial. Subsequently, in February 2019, the Supreme Court reserved its judgment on the review petitions filed against its ruling. Since then, a petition has been filed in the Supreme Court praying that Muslim women be given equal rights as men to pray in mosques. A similar petition was also filed in the Delhi High Court for the right of menstruating women to enter the Fire Temple (a privately-funded temple in Delhi whose beneficiaries are only Parsi Zoroastrians). The latest development on this issue occurred very recently with the proposed introduction in June 2019 of a private member’s bill ‘Sabarimala Sreedharma Sastha Temple (Special Provisions) Bill, 2019’  aimed at restoring the Sabarimala Temple’s earlier ban on entry of women. The courts are yet to rule on these issues of gender-based discrimination in places of religious worship in India. However, religion being a very sensitive area, it would be interesting to see the extent to which the Indian judiciary would be willing to intervene in such matters. This conflict between the right to gender equality and the right to religious freedom will inevitably have far-reaching impact on the rights of women in India.

There has been another interesting development particularly regarding rights of Muslim women in India. Following Narendra Modi’s sweeping victory in the 2019 general elections earlier this year, the first bill to be tabled in the Parliament by the Modi Government was the Muslim Women (Protection of Rights on Marriage) Bill, 2019. The bill seeks to make the practice of triple talaq (allowing a man to divorce his wife if he states the word ‘talaq’ three times) a criminal offence punishable with a 3-year term of imprisonment for Muslim men. While the bill has faced a lot of criticism from the opposition, it will be interesting to see how it is debated in the Parliament.

Sri Lanka

Sri Lanka’s President Maithripala Sirisena has come under fire for his decision to grant pardon to Gnanasara Thero (a Buddhist monk who was convicted for contempt of court) in May this year. Gnanasara has also been accused of inciting violence against Muslims in the past. Following the 19th Amendment to the Constitution of Sri Lanka in 2015, the Presidential power to pardon offenders is now subject to judicial review under Article 35 of the Constitution. The decision to pardon Gnanasara has been vehemently criticised as violating the independence of the judiciary and the rule of law in Sri Lanka. The decision raises concern especially in view of the violence against Sri Lankan Muslims by Buddhist mobs post the horrific Easter bombings in Sri Lanka.

Nepal

The Federal Parliament of Nepal was criticised for having failed to meet its constitutional deadline in March for the amendment of all laws inconsistent with its Constitution. Article 304 of the Constitution of Nepal (2015) states that a law inconsistent with the Constitution would “ipso facto be invalid to the extent of such inconsistency, after one year of the date on which the first session of the Federal Parliament set forth in this Constitution is held.”

Bangladesh

Earlier this year, the United Nations called for an independent probe into the general elections which were held in Bangladesh in December last year. While Prime Minister Sheikh Hasina (of the Awami League party) was elected for a third term in a row, accusations were made regarding the use of threats and violence against the opposition, rigging of votes, and the misuse of laws to restrict free speech. The elections were reportedly condemned as being “farcical” with demands for fresh elections being made. The apparent lack of transparency and fairness in the election procedure raises concerns regarding the democratic nature of Bangladesh’s new government.

Maldives

The 2019 Maldivian parliamentary elections, held in April, saw President Ibrahim Mohamed Solih’s Maldivian Democratic Party gain a landslide victory.  Subsequently, President Solih’s government repealed legislation which permitted foreigners to own land in the Maldives. Earlier, in January 2019, President Solih had also stated that an amendment to the Constitution was required to clarify whether the existing governmental framework in Maldives was a parliamentary or presidential system. It remains to be seen whether, and if so when, and in what form amendments will ultimately be introduced.

Radhika Agarwal is a PhD candidate at Melbourne Law School.

Suggested citation: Radhika Agarwal, ‘Constitutional Law Developments in South Asia in 2019’ IACL-AIDC Blog (3 July 2019) https://blog-iacl-aidc.org/2019globrev/2019/7/1/constitutional-law-developments-in-south-asia-in-2019