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Law in Contemporary Society
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Divine Yet Deprived: An Analysis of the Nepali Supreme Court’s Failure to Protect the Kumari’s Child RightsIn Nepal, girls as young as two become goddesses.(1) As part of a tradition dating back to the 18th century, priests meticulously choose a girl from the Newar community to embody the Hindu goddess Taleju and assume the divine position of the Kumari.(2) 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.(3) 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.(4) In the case Pun Devi Maharjan (August 2008), the Supreme Court of Nepal considered a committee report regarding the conditions of Kumaris and assessed whether the Kumari tradition violated children’s rights under the Constitution of Nepal and international treaties.(5) Ultimately, the Court conceded that the Kumari’s inability to attend school, see her family, leave the palace, and visit doctors respectively infringes upon a child’s rights to education, family life, movement, and medical treatments.(6) However, the Court neither prohibited these customs nor specifically mandated the enforcement of these rights.(7) Rather, the Court prescribed two limited measures: greater financial support for current and former Kumaris and the establishment of a committee to investigate Kumaris’ interests.(8) While the Pun Devi decision is clearly erroneous, Nepal’s political history elucidates the motivations of this holding, and socioeconomic dynamics explain the Court’s willingness to overlook violations of the Kumari’s rights.Nepal’s Political History: Motivations Behind the Pun Devi DecisionFrom 1768 to 2007, the annual Kumari Jatra festival had culminated in the Kumari blessing the king, a ritual crucial for legitimizing his rule in the public’s eyes.(9) For instance, in 2001, King Gyanendra confronted a major decline in popularity since he ascended to the throne after the massacre of the royal family, which the public believed he instigated.(10) Nonetheless, a journalist reported that crowds “heaved a sigh of relief when the Kumari offered her blessing to the King without hesitating, indicating a prosperous future.”(11) Clearly, the Kumari’s blessing is a powerful political tool, bolstering the approval and legitimacy of Nepal’s rulers. Despite the Kumari’s yearly reaffirmation of King Gyanendra, the 1990s-2000s were politically turbulent as Maoist rebels from the countryside launched a violent insurgency to overthrow the monarchy, which had persisted for over 200 years.(12) This unrest ultimately resulted in the 2006 People’s Movement, widespread protests and strikes that ultimately forced King Gyanendra to relinquish power.(13) By May 2008—fewer than three months before the Pun Devi decision—a new assembly officially declared Nepal a democratic republic.(14) Given this political context, the Court likely prioritized promoting stability and reinforcing the authority of this fledgling government when deciding Pun Devi. In fact, the opinion reflects a delicate balance between these goals: On the one hand, the Court allows the Kumari tradition and thereby avoids unrest that would result from abolishing the Kumari, a figure historically crucial for political legitimization.(15) On the other hand, the Court generally holds that the Constitution of Nepal supersedes customs, thus reaffirming the Republic’s authority.(16) Overall, by leaving the Kumari tradition unregulated while reinforcing the Constitution’s supremacy, the Court essentially sacrifices a young girl’s rights to respond to political needs.Socioeconomic Dynamics: Understanding the Court’s Willingness to Leave Kumaris UnprotectedWhy was the Court willing to deprive a young girl of her fundamental rights to promote the abstract goal of political stability? Perhaps, the fact that only a single girl was the victim of the tradition facilitated this outcome. However, Nepal’s socioeconomic dynamics suggest that the Court did not consider Kumaris as genuine victims. Specifically, the court’s decision indicates its agreement with the prevailing societal view: as compared to the general populace, Kumaris enjoy a higher standard of life and elite status and thus are exceptionally privileged.(17) Therefore, the Court likely concluded refraining from extensively protecting the Kumari—who the Court considered to be one of the most privileged individuals in Nepal—was a small sacrifice for maintaining political stability. To understand why the Court perceived the Kumari as so privileged, it’s essential to examine the circumstances of the general populace. In 2007, Nepal was the 12th poorest country in the world and the poorest country in South Asia.(18) Accordingly, advocates of the Kumari tradition often argued that the Kumari’s standard of life is much higher than that of “ordinary” girls.(19) In addition, the Court seems to share this position by comparing Kumaris to Kamlaris—children as young as 5 who are sold as lifelong domestic servants to landlords.(20) The Court concludes that as opposed to Kamlaris, the Kumari does not engage in physical labor and has no “master”, and therefore, the Kumari tradition conforms with prohibitions against child labor.(21) This narrow view of labor reflects the harsh realities of Nepal’s widespread poverty: The Court struggles to view the divine as deprived when children throughout Nepal endure completely dehumanizing conditions. Further contributing to the Court’s perception of Kumaris as privileged, Kumaris benefit from a high social status due to the unparalleled honor and prestige associated with being selected as Kumari.(22) In fact, Pabitra Vajracarya, an activist and Kumari advocate, emphasizes the Kumari’s elite position by analogizing her to Obama and concluding that the Kumari’s “status involves limitations to her life, exactly like a president or queen; she cannot go wherever she wants.”(23) In other words, Vajracarya frames the Kumari’s restrictions as consequences of her esteemed position rather than a deprivation of rights. While the Court does not attribute the Kumari’s conditions solely to her elite status, it recognizes her position brings her immense pride and “high respect” from “all the religious sects and common people.”(24) The very distinguishment between the divine Kumari and “common people” indicates that the Court perceives the Kumari as highly privileged and thus not in need of greater protection, especially not at the expense of political stability.You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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