KATHMANDU: With the Supreme Court (SC) order ensuring voting rights to jailed Member of the Constituent Assembly (CA) Shyam Sundar Gupta, the political rights of detainees reached new heights. 

Gupta has now been authorised to cast his vote as per his wish in the constitution making process from jail itself, where he has been doing time. His claim of still being a lawmaker has received legitimacy with the SC order.

Justices Tahir Ali Ansari and Girish Chandra Lal granted voting rights to Gupta through an interim order stating that it was necessary to allow him to participate in the process in case of voting regarding the constitution’s bill and noted that making of the constitution is a special and historic task in the present context of Nepal.

Even though the Apex Court decided against his demand to attend the CA meetings to participate in the entire constitution making, the CA must now do the necessary to ensure his voting rights. Gupta was arrested on the charge of abducting businessman Pawan Sanghai and is doing time at Dillibazaar prison as per the order of Kathmandu District Court since January 16.

While this judgment ensures civil and political rights of the detainees, it is equally disheartening that even people who have already been convict-ed or facing criminal charges will be writing the law of the land. UCPN Maoist Leader Balkrishna Dhungel is another lawmaker who has been participating in lawmaking process even after being convicted on a murder charge.

Baban Sigh, Khobhari Raya and many other lawmakers are also facing criminal charges but still participating in the constitution making. Even after being convicted with a 20-year jail term, Dhungel did not surrender before the court and has been attending CA meetings.

In Gupta’s case, the SC took the decision because there was no specific law for explicitly barring a lawmaker who broke the law after winning an election, although they are stripped of their right to candidacy in the future.

As per the national and international laws, including the International Covenant on Civil and Political Rights of 1966, every person, including the detainee has the right to cast votes and choose their leaders, but it is unfortunate that such persons are involved in the constitution making process.

“This reflects a serious flaw in the law because this exposes parliament’s inability to promulgate law in accordance with the demand of society,” Advocate Kishor Khatiwoda told THT Perspectives. “And, this equally exposes the rule of law and credibility of politics in the country,” Khatiwoda added.