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Law in Contemporary Society
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Divine Yet Deprived: The Nepali Supreme Court’s Failure to Protect the Kumari’s Child Rights-- By BrennaDugel - 17 Apr 2024 When I was 11, I met a living, breathing goddess. She was younger than I and draped in thick, red garments, despite the stifling heat of summer in Kathmandu. As my grandma and I bowed before her, she seemed disinterested, perched on her throne. She was the Kumari, a young girl from the Newar community, meticulously chosen by priests to embody the Hindu goddess Taleju—a tradition that has endured for centuries.(1) Worshipped yet isolated, the Kumari’s freedom is heavily restricted: tradition mandates that she leave her family and reside in the Kumari palace, where her contact with the outside world is extremely limited.(2) However, upon her first period, the Kumari’s divine tenure abruptly terminates, forcing her to vacate the palace and reintegrate into society as a mortal while a new Kumari is chosen.(3) In the 2008 case Pun Devi Maharjan, the Supreme Court of Nepal assessed whether the Kumari tradition violated children’s rights under the Constitution of Nepal and international treaties and ultimately recommended limited improvements to this tradition.(4) The Court failed to protect the rights of Kumaris by neglecting to consider a child’s rights to her identity, inadequately addressing the concern of child labor, and refraining from outlawing customs that it recognized as child rights violations.The Overlooked Right to IdentityWhile the Court considers whether the Kumari tradition violates numerous children’s rights under Nepali law and international conventions, it overlooks a child’s right to her own identity, a right explicitly protected by the Nepali Constitution.(5) This right is particularly implicated because the Kumari tradition imposes a predefined divine identity on girls as young as three who lack the mental development to understand and consent.(6) For example, as a divine being, the Kumari must maintain a composed and tranquil demeanor in public, exemplifying how the tradition enforces an identity as a goddess rather than fostering the girl’s individual identity.(7) Moreover, once a Kumari begins menstruating, she abruptly transitions from goddess to mortal. This shift often results in identity crises, as former Kumaris have struggled with disorientation, the loss of public adoration, and uncertainty about their role in society. (8) Thus, the Kumari tradition potentially violates a girl’s right to identity at both the beginning of her tenure, when a divine identity is imposed upon her, and at the end of her service, when she must suddenly adopt the identity of a mortal.An Inconsistent Analysis of Child LaborThe Court addresses and ultimately rejects the notion that the Kumari tradition qualifies as child labor and thus a rights violation; however, this analysis relies upon two inconsistencies. First, the Court acknowledges that child labor includes not only “physical exploitation of the minor, but also mental exploitation” yet holds that the Kumari tradition does not constitute child labor because Kumaris do not “work by investing their physical labor.”(9) The Court fails to provide any rationale for disregarding the possibility that the Kumari tradition qualifies as mental exploitation and thus child labor. Nonetheless, if the Court had considered this possibility, there is substantial evidence indicating mental exploitation: the Kumari is only allowed to go outside to participate in religious ceremonies (about 13 times a year), and her interactions with people, including her family, are extremely limited to preserve her purity and divine status.(10) Second, the Court also argues that Kumaris are not engaged in child labor since they do not perform tasks for any specific person or body.(11) Yet, the opinion later asserts that the State should appreciate the Kumari’s contribution to the “social, cultural and religious life of the nation” and thus provide Kumaris with financial support.(12) This assertion not only frames the Kumari’s role as providing valuable services to the state but also suggests that such services warrant compensation, effectively characterizing her as a worker for the State. Overall, by overlooking the possibility of mental exploitation in the Kumari tradition and the Kumari’s employment-like relationship with the State, the Court fails to protect Kumaris from child labor.Acknowledgement Without Action: Limited Redress for Rights ViolationsAlthough the Court concedes that the Kumari’s inability to attend school, go home to visit family, leave the palace, and visit a doctor respectively infringes upon a child’s rights to education, family life, movement, and medical treatments; the Court refrains from affirmatively outlawing these customs.(13) Instead, the Court generally holds that the Constitution supersedes customs and acknowledges that both it and the State have the power to outlaw practices that conflict with legally endowed rights.(14) The only tangible measures mandated is that the State compensate ex-Kumaris who were deprived of an education, increase financial support of current Kumaris, and establish a committee to investigate the promotion of the Kumari’s interests.(15) Therefore, despite recognizing the violation of fundamental rights, the Kumari remains vulnerable since the Court neither prohibits these customs nor specifically orders the enforcement of these rights.ConclusionAll in all, the Pun Devi Maharjan decision renders the Kumari susceptible to child rights violations as the Court fails to address the right to identity, erroneously analyzes the issue of child labor, and fails to implement robust protective measures against recognized rights infringements. This analysis is critical because it demonstrates that the Nepali legal system provides valid grounds to reform or even abolish the Kumari tradition. On the other hand, this case exemplifies the limitations of law; specifically, without enforcement, the existence of legally guaranteed rights fail to serve their protective function. Hence, for the Kumari, ensuring that divine tradition conforms with child rights requires more than legal recognition—it demands tangible enforcement and action.I'm not sure why it takes extended exegesis to establish that the court decision is erroneous. The more important question perhaps is why the rationalizations seem so inadequate, yet sufficient to convince the court of its own rightness. What contribution is made by the weight of tradition, the burden of "modernizing"? Like the ones who do not walk away from Omelas, in Ursula LeGuin's famous story, perhaps the fact that only one child at a time is sacrificed makes the sacrifice acceptable? 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