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< | Divine Yet Deprived: The Nepali Supreme Court’s Failure to Protect the Kumari’s Child Rights | | | | |
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< | -- By BrennaDugel - 17 Apr 2024 | >
> | Divine Yet Deprived: An Analysis of the Nepali Supreme Court’s Failure to Protect the Kumari’s Child Rights | | | | |
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< | 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. 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. 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. 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. 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.
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> | In Nepal, girls as young as two become goddesses. 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. 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. 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.
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< | The Overlooked Right to Identity
While 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. 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. 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. 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. 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.
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> | 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. 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. However, the Court neither prohibited these customs nor specifically mandated the enforcement of these rights. 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. 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.
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< | An Inconsistent Analysis of Child Labor | | | | |
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< | The 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.” 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.
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> | Nepal’s Political History: Motivations Behind the Pun Devi Decision
From 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. 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. 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.” Clearly, the Kumari’s blessing is a powerful political tool, bolstering the approval and legitimacy of Nepal’s rulers.
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< | 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. 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. 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.
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> | 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. This unrest ultimately resulted in the 2006 People’s Movement, widespread protests and strikes that ultimately forced King Gyanendra to relinquish power. By May 2008—fewer than three months before the Pun Devi decision—a new assembly officially declared Nepal a democratic republic.
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> | 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. On the other hand, the Court generally holds that the Constitution of Nepal supersedes customs, thus reaffirming the Republic’s authority. 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.
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< | Acknowledgement Without Action: Limited Redress for Rights Violations | | | | |
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< | Although 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. 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. 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. 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.
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> | Socioeconomic Dynamics: Understanding the Court’s Willingness to Leave Kumaris Unprotected | | | | |
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< | Conclusion | >
> | Why 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. 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. Accordingly, advocates of the Kumari tradition often argued that the Kumari’s standard of life is much higher than that of “ordinary” girls. 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. 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. 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. 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.” 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.” 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.
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< | All 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. | | | | |
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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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