A Study of Human Trafficking Under the Garb of Foreign Employment in the Nepalese Context

Image by: The Sociable


1. Introduction

Human trafficking or trafficking in persons refers to an ignoble form of modern-day slavery involving illegal transport of individuals by force, deception, or enticement for the purpose of labour, sexual exploitation, organ harvesting, or other malign activities which benefit the perpetrators financially. It is a problem affecting people of all ages, nationalities and communities; but women, girls and indigent populations constitute a disproportionate majority of the victims in almost every jurisdiction.

Trafficking of human beings has reached an alarming proposition. Long back, it was ranked as the third largest criminal industry in the world, right behind arms trafficking and drug trafficking. According to a 2002 Report, anywhere from 700,000 to 4 million persons worldwide had been trafficked across or within national borders every year. Human trafficking was (and still is) considered as the fastest growing global criminal industry, with high profits, low risks, minimal capital investment, and a “commodity” that can be used over and over again.[1] According to a 2014 Report by the International Labour Organization, human trafficking generated roughly USD 150 billion in profits, which was 3 times more than the prior estimates. While it is important to note that the Report has collectively considered the profits in the greater subset of “forced labour”, it cannot be denied that the institution of human trafficking is growing by leaps and bounds and is also emerging in different form factors.

Human trafficking and slavery can be traced back to the prehistoric times. Wars, conflicts, and financial greed perpetuated slavery and human trafficking as an evil institution. A perfect example in this regard could be that of the Roman Gladiators. In the 19th-20th century, the institution saw more growth due to the African slave trade, colonization and numerous wars. Nepal is also plagued with the problem of human trafficking and transportation, serving more as a country of origin and less as a transit. This article deals with the present form of trafficking practices and laws in Nepal, along with some theories to determine the cause and effect.

1.1 Act, Means and Purpose

According to Article 3 of the UN Trafficking in Persons Protocol (Palermo Protocol)-for human trafficking to take place, it must accomplish the elements of act, means, and purpose”. Under the requirement of “act”, the trafficker must commit the act of transport, recruitment, harbour, receipt or transfer of a human being. Elements of “means” entail coercion, deception, violence or threat of violence, abduction, receipt of payment/benefit, fraud, or abuse of power. The “purpose” of conducting such an “act” through those “means” should be for exploitation which includes, inter alia, sexual exploitation (not limited to prostitution), forced labour or servitude, removal of organs, or slavery (including practices similar to slavery). 

Following a partly similar pattern as that of the Protocol, Section 4(1) of the Human Trafficking and Transportation (Control) Act (HTTCA), 2007 stipulates that “human trafficking” includes the acts of  selling or purchasing of a person for any purpose; or using someone for prostitution, with or without any benefit; or extracting human organ except otherwise determined by law; or to solicit prostitution. Section 4(1)(d) (i.e. soliciting prostitution) criminalises prostitution, paying for sexual services, and living off of the earnings of prostitution by including it in the definition of human trafficking. As decided by the Supreme Court of Nepal, the consent obtained from the poor and unemployed victims for getting involved in prostitution is irrelevant in dealing with the offence of human trafficking and transportation.

Further, the apex court has also clarified that for an offence under Section 4(2)(b) to occur, there is no requirement for the act of transportation to have been completed or for the act of selling of the person to have actually taken place. This offence can occur even before the victim could be whisked to the desired destination. Similarly, it can be observed in the case of Krishna Pd. Pudasaini v. HMG, as decided by the Supreme Court that the offence of trans-boundary human trafficking shall arise if (a) migration is proven and (b) if it is proved that motive behind the migration was for the purpose of human trafficking outside of the country.

Likewise, Section 4(2) of the Act, defines “human transportation” as taking a person out of the country for the purpose of buying and selling them or taking of a person from their home, residence or from a person by using means of enticement, inducement, misinformation, forgery, tricks, coercion, abduction, hostage, etc., on the person or their guardian or custodian and keeping them into one’s custody, or to take to any place within or outside Nepal, or handing over them to someone else, all for the purpose of prostitution or  exploitation. Now, Section 2(1)(e) of the Act defines “exploitation” as “an act of keeping human being as a slave and bonded and this word also includes removing human organ(s) except otherwise provided by the prevailing law.”  While the concepts human trafficking and human transportation may seem to be similar at the first eye, there is an underlying difference between the two offences. As can be observed from Section 4(1) of the Act, human trafficking includes all the elements of act, means and purpose. The final objective of extracting organs, prostitution or selling/purchasing should already have taken place. In Section 4(2), however, only the act and the means may be observed but the final purpose of prostitution or exploitation have not yet taken place. It is for this reason that a disparity in punishment between “human trafficking” and “human transportation” may be observed in Section 15 of the Act.

1.2 Labour Migration and Human Trafficking Nexus

Labour migration that transpires for foreign employment is often a medium for human trafficking. This is observed in both formal and informal economies. The willingness of the victims to depart from their home country for employment and to endure risks in the migration process is driven for the most part by poverty, insufficient education, and lack of domestic employment opportunities. High rates of such emigration is expected to increase the risk of human trafficking as (i) traffickers benefit from lower recruitment costs and free-riding opportunities there and/or (ii) those departing from high-migration areas can be more easily deceived and trapped. Simply, one can put this as, “traffickers fish in the stream of migration”- more people departing means more people at risk, and the traffickers’ coffers swelling. Friebel and Guriev model the market of debt-financed migration with debt/labour contracts where they ascertain how criminal intermediaries and smugglers offer loans to potential migrants who cannot afford the employment expenses in advance and coerce them into the possible risk of exploitation and human trafficking. Nepal’s remittance to GDP ratio (among the highest in the world) shows how foreign employment lures its majority population, thus making people more prone to human trafficking.

2. Maslow’s Hierarchy of Needs Theory: A Model to Study Human Trafficking

Insofar as the theoretical model for defining the incidence of human trafficking is concerned, in my view, the Maslow’s hierarchy of needs theory fits the bill. In a 1943 paper titled “A Theory of Human Motivation,” American psychologist Abraham Maslow theorized that human decision-making is undergirded by a hierarchy of psychological needs. In his initial paper and a subsequent 1954 book titled Motivation and Personality, Maslow proposed that five core needs form the basis for human behavioural motivation. They include the physiological needs (food and clothing), safety needs (job or income security), love and belonging needs (friendship and affection), esteem needs, and self-actualisation needs, arranged in a low to high order in the necessity pyramid. Needs that are lower down in the hierarchy should be fulfilled first before individuals can move higher up in the strata of needs. However, this does not entail an “all or none” phenomenon. It is false to assume that a “stratum” must be completely fulfilled before moving upwards in the “stratum”.

In case of subjects of human trafficking originating from Nepal, many people at the bottom or the lower end of socio-economic strata have only their first hierarchy of needs met, i.e. the basic necessities of food and clothing. Many are still half-way into satisfying this elemental need. However, the second category of safety needs is still not realised fully and reliably by a vast chunk of the population. These disadvantaged people at the lower rung of socio-economic spectrum eventually become soft targets of human trafficking racket owing to their vulnerability towards fake assurances of a secured life abroad and prospects of prosperity back at home. They are ready to shoulder the risks for moving out of the debt trap and perpetual poverty and thus easily buy into the trafficker’s narrative.

The rapid surge in rural to urban migration has made living a rural and agrarian life less glamorous for many village dwellers. Lack of organized markets and accessible agro-infrastructure (i.e. irrigation, fertilizers, technical knowhow and soft loans) have made agriculture a less attractive profession of late, in terms of financial returns. This has spawned the displacement of a huge majority of workforce from the traditional agricultural sector over to other gainful sources of employment. However, the service and industry sectors, which would have absorbed the redundant manpower from the agricultural field, have not gained resilience yet.

The picture is further bleak due to the ongoing COVID-19 pandemic that has put all sectors of economy in dire straits for the past one and a half year. Thus, with agriculture failing day by day and other alternative sectors of economy still in shambles, reeling from the fallout of the pandemic and other adversities, foreign employment remains the last hope to earn a quick buck, even if it is orchestrated underground with an eye on human trafficking. Not only the low income peasants, even working professionals drawing a median salary and having decent academic qualifications are falling into this lure, in hope of swiftly turning their economic and social fortunes. So, Maslow’s hypothesis seems to be playing out vividly, here and now. This also calls for the need to provide generous opportunities of self-employment and entrepreneurship by the state before we can pull a plug on foreign employment, either in its legal or illegal iteration, and replace this trend with domestic initiative and local opportunities. The internal production system should meet with local skill building and capital creation.

3. Human Trafficking in Nepal

There are primarily three routes of human trafficking active in Nepal at the present. Firstly, the smuggling of gullible, indigent women and girls from remote villages to the urban centres of country including Kathmandu valley, Pokhara, Butwal, Birtamode and Nepalgunj for illicit activities including flesh trade. The biggest consumer of this inland trafficking victims is the adult entertainment sector (AES). Trafficking of destitute, less educated women and girls from interiors of Nepal to the brothels of India and bars or restaurants of Tibet may also be witnessed. Further, spiriting men, women and girls overseas by using India, Bangladesh, Myanmar, Sri Lanka, Thailand or the United Arab Emirates as transit points, especially to destination countries in Africa, Gulf, Europe, and the United States, has also been noticed.

3.1 Historical Background

Officially, the history of foreign employment reflects that opting for foreign employment began with the establishment of First Gorkha Regiment by the British East India Company during the early 1800s. Even before this, Nepalese have fled excessive taxation, coerced labour, and indifference of the state. Coupled with the advent of globalization and liberalisation of the political system and economy in Nepal, a huge number of Nepalese youths and families began to scour overseas in search of better opportunities to support themselves and their families. Likewise, the climax of post industrialisation in America and Europe and excessive financial reserves in the Middle East spurred by the petroleum boom, opened up new vistas of opportunities to the low income youths of Nepal in the form of foreign employment. The signing of the Indo-Nepal Treaty of Peace and Friendship (1950) between Nepal and India, which established an open border and free movement between permitted Nepalese nationals to work without a visa or passport in India marks the formal genesis of foreign employment in Nepal.[2]

After the outbreak of civil war in 1996, triggering a massive rural to urban migration, human trafficking gained momentum in Nepal. As people began to be harassed by both the Maoist belligerents and the state security forces, they fled to cities and towns in pursuit of safety. As the urban centres could not provide sufficient employment and income opportunities to the huge swath of internally displaced persons (IDPs), they became easy targets for the human smugglers. This trend has only ripened with time, even after the Maoists dropped their arms and joined the mainstream politics in 2006. This period marks the commencement of human trafficking under the guise of foreign employment.

3.2 The Status Quo

Currently, 172 countries are open for foreign employment purposes to the Nepalese nationals. The government has opened 110 countries for migrant workers through institutional channels.[3] However, data from 2018/19 reveal that there is high concentration of Nepali migrant workers mainly in Qatar (31.8%), Saudi Arabia (19.5%), and UAE (26.5%) and in Malaysia (4.2%). This high concentration is much pronounced in the case of male migrant workers. However, as for female migrant workers, the destination countries are relatively diverse.

The government currently operates a recruitment agency licensing system, and fraudulent and abusive recruitment practices have been criminalised under the Foreign Employment Act (FEA), 2007, including operating without a license, charging excessive fees, sending children abroad for work, or the use of coercion and deception in foreign recruitment. However, the implementation of this law has been partial and lackadaisical, with only a few manpower agencies being prosecuted each year for offences under this Act, and only handful of them being ultimately convicted. This disparity stands in stark contrast with the overwhelming number of complaints filed by returnee migrants against the erring manpower agencies. However, incidents of some crooked migrant workers filing fake complaints against upright recruitment agencies upon their return home to cover their own failures or infractions abroad are also not uncommon. Nonetheless, there have been a few instances of positive steps taken with regard to this Act. For example, removing sub-agents from the foreign employment business has led to a drop in instances of fraud in foreign employment business.

With an average of 1,400 Nepalese migrant workers leaving Nepal every day for foreign employment, during the fiscal year of 2018/19, international labour migration forms an important part of the lives of Nepalese citizens.. Poor, uneducated and rural people being the most vulnerable implies that the local levels should be the ones that Nepal should keep the most focus on, as they have become a breeding ground for potential victims. The recent setbacks faced by the nation such as the disastrous earthquake of 2015, the Indian blockade of 2015-16 and the raging outbreak of COVID-19 all have colluded to further exacerbate the vulnerability of the population at risk, as their regular means of income and livelihood have been severely compromised. This further highlights the nexus between Maslow’s theory and human trafficking in Nepal.

4. Incentives of Human Trafficking

Human trafficking patterns are state-specific in nature which are often influenced by the economic, social, and cultural factors. In the context of foreign employment, search for better quality of life than that available in domestic setup, pushes people to migrate and fall into the cesspool of human trafficking. Traffickers prey on unfortunate circumstances, weaknesses, unfamiliarity and inexperience of victims which is furthermore aggravated by the following incentives:

4.1 Open Border

The open and porous border has become an indirect enabler of human trafficking into and via India and has made anti-trafficking efforts elusive for the public and private agencies to implement. This nearly 1850 km long border has unfortunately developed into one of the busiest locations for the trafficking of humans. Sex industry of India is fed also by the women and girls trafficked from Nepal. Although traditionally, Nepal to India shipment was the most prevalent form of human smuggling, today the pattern has shifted to third country trafficking with Indian cities like Delhi, Mumbai and Kolkata being utilized as the launch pads or transit hubs.

4.2 Illegal Migration

Nepalese migrants today may be found in several outlier countries with which Nepal is not historically connected by trade or diplomacy – like Malawi, Madagascar, Nigeria, Togo and Senegal – which is a testament to the prolificacy of underground human smuggling, under the skin of foreign employment.

4.3 Fraudulent Consultancies, Adoptions and Marriages

Many educational consultancies are ominously engaged in the functions of manpower companies or foreign recruitment agencies, a duty that they are not legally allowed to discharge. Trafficking is further done under the guise of adoption of minors from the unregulated children’s homes and orphanages. Women are also siphoned to South Korea and other countries by dubiously marrying them off to foreign nationals.

4.4 Feminization of Poverty

Women are among the groups most vulnerable to human trafficking. Nepal continues to bar women from taking housemaid jobs in the Gulf countries. Upon the instructions of members of the parliamentary International Relations and Labour Committee, who had made a 10-day visit to the Gulf countries in April 2017 to take stock of the working conditions and other aspects, the ban was introduced. However, studies commissioned afterwards have suggested the ban has resulted in more bad than good for women migrants. Further, the age-based ban has not discouraged younger women from migrating; it has no to little effect on the treatment of women workers by their employers; it may have increased irregular migration and a risk of trafficking. The age ban also has resulted in undermining the economic and social opportunities for women. Similarly, the ban has been criticised as it is likely to render women more vulnerable and drive female migration further underground. Such bans may lead to financial restraints thus promoting trafficking to India for the purpose of prostitution.

5. Performance of the Legal Mechanisms

The Constitution of Nepal ensures a right against exploitation under Article 29 as a fundamental right under which no one shall be subjected to trafficking, slavery and servitude. The National Human Right Commission Act, 2012 contains complaint procedures for human rights violation entailed by human trafficking as well. Nepal has ratified several international instruments including the UN Convention against Transnational Organised Crime, ILO Convention No. 29 (Forced Labour Convention) to combat trafficking and forced labour. However, the adoption of these international obligations is still not matched with effective enforcement.

The Palermo Protocol was ratified in 2020 by Nepal. Thus, in compliance with the Protocol, there is a need to broaden the definition of human trafficking. For instance, the Palermo Protocol includes forced labour within the ambit of human trafficking. However, the current Nepalese law does not. Further, the HTTCA does not treat Nepal as a destination country or as a country of transit. However, evidence suggests that Nepal has been used as a country of transit as well. Further, Nepal fails to comply with the Protocol in its immigration policies. The HTTCA lacks features of restorative justice and thus, many victims are found to file cases under the FEA, 2007 as they would receive more compensation in comparison to the HTTCA. The HTTCA is still archaic, includes the crimes that need not fall under trafficking (such as seeking and offering voluntary prostitution services), but fails to criminalise some forms of sex trafficking and labour trafficking. The Act has been criticized for confusing sex work with sex trafficking, as may be observed even in the judgements passed by the Supreme Court. Additionally, the extra-territorial jurisdiction of the Act is still not fully implemented.

The FEA, 2007 is also not streamlined either. The time has now come to address Nepal to India trafficking, under the veneer of foreign employment in this Act, as the Indian cities are increasingly being used as hotbeds for third country trafficking. Although Section 22(2) and (3) of the FEA requires obtaining pre-approval from the Department of Foreign Employment before someone moves to a third country via foreign airport for seeking foreign employment, it is not put into rigorous practice. The nexus between crooked foreign employment agents and corrupt immigration officials at the international airport has only complicated matters further.

The government has adopted a policy of permitting overseas labour migration only through the companies licensed for foreign employment (Section 5(1) of the FEA) or at the initiative of the concerned individual itself under Section 21. However, the traffickers evade this guardrail by sending the migrants in visit visas or by acquiring individual labour permits in their names.

A majority of such people end up being cheated or defrauded. Many of them would not draw the salary or benefits of which they were promised and others would be subject to appalling labour conditions amounting to bondage labour. They have little to no social safety nets, Medicare, insurance and recourse to legal avenues. Due to the lack of valid paperwork, even rescuing them invites significant official hurdles. The women migrants are even forced to offer sexual favours for their masters. Adding to the agony, almost all of the government and non-governmental plans, programs and investments have been overwhelmingly centred on the plight of female victims of trafficking, thereby leaving the equally unfortunate male migrants ruthlessly deprived from serious protection efforts.

Due to obscurity over the actual purpose and coverage of the HTTCA 2007 and FEA 2007, many crimes under foreign employment are over-prosecuted as trafficking offences and alternately, many trafficking offences are under-prosecuted as foreign employment crimes. The relative power relation between the victims and perpetrators also plays a part in the selection of laws while pursuing a criminal case.

6. Control Measures

A dedicated and specialized Anti-Human Trafficking Bureau has been created under the Nepal Police in 2019 which investigates cases of organized human smuggling, previously done by other police offices and the Central Investigation Bureau. However, there is a still a need to have the allegations of official complicity in trafficking crimes to be rigorously investigated. It has to be ensured that none of the perpetrators are let off the hook. The existing HTTCA, 2007 should be so amended as to criminalize all forms of sex trafficking and labour trafficking in consonance with the Palermo Protocol.

The FEA, 2007 also needs to be revised for reining in the illegal Nepal to India migration, permeating under a grander scheme of human smuggling. The front-line responders should be suitably trained and equipped for precisely identifying, and referring the survivors of human trafficking that had fell for the lure of foreign employment, towards legal redress and rehabilitation services. Impetus should also fall on the capacity building of offices and professionals engaged in anti-trafficking duties through better budget and logistics allocations, sounder interagency rapport and coordination, provision of timely trainings and multiagency workshops. The standard operating procedures (SOPs) for law enforcement should be put into place to investigate and prosecute human smuggling cases in a more synchronized fashion.

The government agencies have to be nudged to more rigorously implement the provisions of victim and witness protection/relief under the HTTCA, 2007 and FEA, 2007 so that better cooperation may be expected of them in bringing the wrongdoers to book. Any future amendments should lend a veritable conceptual clarity to the offences falling under the FEA, 2007 and under the HTTCA, 2007; thereby reducing the chances of mismatched prosecution in cases that fall in the borderline between the two, which may possibly result in higher conviction rates at the courts. The policy framers should be better assured to lift current bans on adult female migration and engage the governments of destination governments to create rights-based, enforceable agreements that safeguard Nepali migrant workers from human trafficking and unethical working conditions.

In addition, the regional cooperation mechanisms to tackle migrant smuggling and smugglers operating across borders should be bolstered through effective enforcement of existing SAARC mechanisms, and creating joint task forces on curbing the illegal traffic of migrants. International bilateral cooperation between countries of origin, transit and destination should be galvanized for better information sharing on trafficking of migrants and for the due protection of rights of migrants within foreign territories. The protection of smuggled migrants and trafficked victims has to be attached top priority among the Nepalese diplomatic missions in transit and destination countries. The access services and consular assistance need to be better streamlined, ensuring that diplomatic missions are sufficiently staffed and trained to handle all issues faced by this category of victims.

Further, the body of evidence-based knowledge should be enhanced to better inform policy-making, create and share information on the modus operandi, routes and economics of migrant smuggling networks. The capacity of law enforcement to efficiently investigate and prosecute smuggling networks, seize and confiscate their assets also has to be reinforced. Holistic and overarching approaches should be adopted to generate public awareness on migrant smuggling and its ill effects at the proper smuggling hotspots so that the people and communities will be empowered enough to make wise and informed decisions on their own. The role of community-level migrant networks must be strengthened and protected from being misused by exploitative employers and traffickers.

Finally, the malaise of human smuggling through foreign employment has become so chronic and entrenched that sole efforts of a single state level do not suffice to stem the tide. Accordingly, the centre, the provinces and local levels should forge an alliance and work in tandem by adopting common approaches and redresses. The support and expertise of community based organizations, civil society and mass media also have to be roped in to this end.

*The author is an advocate, author and a legal researcher. He is a lecturer of law at National Law College, Lalitpur. He has been assisted by Apekshya Pandey for the purpose of this article.

(This article has been prepared for informational purposes only and does not constitute legal advice. The information contained is not intended to create a lawyer-client relationship. The views expressed in the article does not reflect the the official position of the institutions to which the authors are affiliated. Readers should not act upon this without seeking advice from professional advisers.)

[1] Krishna Jeevi Ghimire and Narayan Prasad Sharma, ‘Human Trafficking Crimes: Status, Court Perspective and Control Measures’ (2017) 11 (1) NJA Law Journal 116

[2] Bandita Sijapati and Amrita Limbu, Governing Labour Migration in Nepal: An Analysis of Existing Policies and Institutional Mechanism (2nd edn, Centre for the Study of Labour and Mobility 2017)

[3] Keshav Bashyal and Binita Subedi, ‘Labour Diplomacy and Migration Governance in Nepal’ (2021) 1 (1) Journal of Foreign Affairs 107

Asking the Woman Question: Should the “Tampon Tax” be Exempted?

Image by: The Kathmandu Post


1. Introduction

Nepal currently levies 13% Value Added Tax (VAT) on sanitary napkins and other similar feminine articles (collectively called “tampon tax”) under the category of luxury goods.1 There exists a 15% import duty on sanitary napkins, while the import duty on essential raw materials for production of sanitary napkins like cotton and pinewood pulp aerate is at 5% for domestic producers of sanitary napkins.2 The result of higher import duties and VAT is an increase in the market price of menstrual products and thus, affordability becomes a bigger issue than availability. It has been observed that due to such affordability-availability issues, a large percentage of menstruating Nepalese women use unhygienic alternatives to sanitary napkins,3 which adds to the unhygienic menstrual practices (taboos) in Nepal. Additionally, the unjustified tampon tax adds to the legal, social, and economic inferiority of women in the country.4

Period poverty is an important area of concern in the Nepalese context. Be it the affordability of sanitary products at the individual and family level, or the accessibility to sanitary products, toilets, hand washing facilities along with menstrual hygiene education at home, schools, or workplaces, women during their menstrual days face great challenges. Further, menstrual issues have been one of the main reasons for school absenteeism among female students in Nepal.5 There have been many efforts by various organisations to address this issue of “period poverty” and school absenteeism by ensuring free accessibility to sanitary napkins. The government allocated NPR 1.8 Billion (approximately USD 16 Million) in FY 2076-2077, for the free distribution of sanitary napkins in government-aided schools6 but, there were a lot of shortcomings in its application.7 Therefore, a potential solution that the government has largely ignored, could be a simple change in the legislation by removing such sanitary napkins from the category of luxury goods, which, however slightly, would lessen the burden on the consumers.

2. Asking the Woman Question

Questioning is a means to “valid knowing”.8 However, historically, feminist questions on taxation had largely remained ignored.9 Women’s historic absence from legislative bodies has paved the way to the gender-biased tax system that we see today.10 While most of the taxation laws are gender-neutral, what can be seen is the presence of “gender blindness” because the reality that is present is that, when it comes to tax exemptions in necessary goods, gender has a centre-stage but has been ignored.11 For example, in some states of the US, one can observe that tax exemption was provided on non-essential goods but not on menstrual goods.12 Such “red tax” has been read with a much broader concept of “pink tax”, where it has been observed that feminine products were taxed more than their male equivalents.13 Only by asking the woman question can justifications and rationalisation be demanded and the discrimination and disabilities caused by such taxation, be removed.14 The woman question(s) while addressing the issue of suffrage were; why women should not vote and why should women vote.15 On similar lines, the questions this article addresses are; is tampon tax discriminatory, thus violating the constitution and, if there is any justification for such discriminatory tampon tax in Nepal. The objective of asking the woman question is to identify the gender implication of the laws that apparently seem gender-neutral or objective. In the legal field, asking the woman question means to examine how the law fails to take into account the experiences and values that are more typical of women than of men.16 Similarly, there also exists the critical tax theory, which asks why tax laws are the way they are and their impact on divisions of society like race, colour, sex, gender, etc.,17 which has been addressed below.

3. Fundamental Right and Human Right Violation

3.1. Violation of International Human Rights

The tax hurdle on the path to menstrual hygiene violates the AAAQ framework i.e. availability, accessibility, acceptability, and quality framework of the International Convention on Economic, Social and Cultural Rights (ICESCR).18 Furthermore, such discriminatory taxation violates Article 12 and Article 14 (2) (h) of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).19 While Nepal has ratified these international conventions, it has largely failed in its application.20 Tampon taxation is another such instance of violation of the aforementioned international conventions.

3.2. Is the Tampon Tax Discriminatory?

(While the tampon tax might violate many provisions of the constitution, the article is only concerned with such taxation being discriminatory.)

The European Court of Human Rights (ECtHR) has recognised discriminatory tax treatment on the basis of sex. For instance, in the case of Van Raatle v. the Netherlands,21 the ECtHR found it to be discriminatory to exempt unmarried and childless women above 45 years of age from taxation (as under the General Childcare Benefits Act) without such exemption being provided to men who fulfil the same criteria. Similarly, the court has found it discriminatory to provide Widow’s Bereavement Allowance (tax benefit) to widows but not to widowers, as such tax benefit lacked a legitimate aim.22 Similarly, in lack of legitimate justification and objective, the court found a tax regime to be discriminatory in another case as well, wherein, the widow would have been provided with the tax benefit, had she been in the same circumstances as the widower. However, the widower was not provided with such tax benefit.23 (Lack of legitimate justification and objective of tampon tax in case of Nepal has been discussed below in 3.2.1.)

However, in regard to the violation of the right to equality, the first question that arises is; is the tampon tax discriminatory? For instance, as a critique of feminist jurisprudence, there arose an argument that there cannot arise discrimination on the grounds of pregnancy simply because a man cannot get pregnant but a woman can.24 A similar reasoning can be seen in the case of Geduldig v. Aiello.25 So, is a similar argument applicable here? Can it be argued that there cannot arise tax discrimination simply because menstruation is a natural phenomenon only seen in females, and not in males? This can be answered by looking into the case of Bray v. Alexandria Women’s Health Clinic wherein it was decided that “a tax on wearing yarmulkes is a tax on Jews”.26 On this basis, it has been argued that taxing sanitary napkins as luxury goods is analogous to taxing yarmulkes as luxury goods, and thus is discriminatory.27 The question is not to be answered on the grounds of biological differences between the sexes but on the fact that one’s essential commodity is taxed more in comparison to the others’ essential commodity. For instance, authors have taken the example of spermicidal contraceptives and erectile-dysfunction medicines being tax-free, as a ground to justify why women’s menstrual products should also be tax-free.28 Further, it has been rightly argued that Gedulgid (a decision which has been largely criticised) while poses a challenge to the argument that tampon tax should be considered as a sex-based discrimination, cannot be implemented in case of discriminatory tampon taxation. Observing the Indian Case of Nargesh Meerza,29 wherein it was decided that penalising pregnancy amounts to sex-based discrimination even if a man cannot get pregnant, it can be concluded that biological differences in sex do not prevent discrimination from being established. A sex-based tax is discriminatory even if members of the other sex occasionally are the purchasers of the product.30 Therefore, it is on these grounds that tampon taxation violates the right to equality.31

3.2.1. Is there any Justification for the Discrimination?

There are tax differences between the two sexes that are not discriminatory because of the presence of a legitimate objective that the law aims to achieve. For example, the difference in taxation between the two sexes in the case of land registration.32 However, is there any similar justification for the presence of tampon tax in Nepal?

It has been argued that one of the reasons to keep the tampon tax is that it contributes to the state’s budget.33 However, given that a very less portion of women use sanitary napkins, the argument fails in the Nepalese context. Further, the argument fails because, given the practice of welfare state, the government instead is spending money to make the products available for free of costs. Therefore, revenue does not seem to be the reason to keep the tampon tax. Further, even if it did contribute substantially to the state’s budget, it cannot justify the discriminatory measure.34 Next, economists argue that inelastic goods need to be taxed for revenue generation. However, this argument is defeated by the reasons provided above against the budget contribution argument. Further, given the presence of alternative products (although unhygienic) in Nepal, sanitary napkins are somewhat elastic products, even if they might be inelastic in developed nations.35 Case Where Sanitary Napkins is Produced by Domestic Manufacturers.

The next argument on why the tampon tax should exist, can be understood by taking a recent example from India. Finance Minister of India, Nirmala Sitharaman, while dealing with Integrated Goods and Services Tax (IGST) on COVID-19 relief materials and services, stated that a tax exemption would increase the manufacturing costs, as the tax credit obtained upon purchase of input goods cannot be deducted against the final output GST liability. The input tax credit gets blocked and thus, the price will be raised by the producers bringing back the situation that existed while the tax was imposed.36 Now, this argument that price will increase in case of exemption assumes that the role of the state is absent. The solution to this input tax blockage (in case of tax exemption) is that the state can bear the cost of the blocked input tax credit. The state can also put a cap on the increase in price (profiteering) that can be done by the producers. For instance, the Black Marketing Act, 2032 (1975) puts a cap of 20% on profiteering.37 It is within this 20% that the producers can increase their profit margin to recover the blocked input tax.

Now, the reasonable solution, instead of VAT exemption, is to classify sanitary napkins as zero-rated goods.38 (Further discussed below). Adding sanitary napkins to zero-rated goods as listed under Schedule-II of the Value Added Tax Act, 2052 (1996) should be done. When it comes to zero-rated goods, there can be no tax on input supplies or the input tax can be credited, despite the final product not being taxed. However, in context of Nepal, firstly, there is no system for exemption on input tax in as under the “zero-rated classification”. Thus, the only option is that the input tax is credited despite the output not being taxed, thus refunding the input tax.39 While zero-rated goods are mostly in regard to exports, there is a need to recognise sanitary napkins (along with other necessary goods) as zero-rated goods despite them not being exported.

VAT exemption may instead be detrimental to the aim of removing period poverty, and enlisting sanitary napkins as a zero-rated good seems to be the way forward. An observation made in the case of India, observed that the price increases due to exemption.40 (See the figure below). Now, while the government can take the burden of removing input tax blockage (in case of exemptions), it can also lessen the price burden by lessening the import duty on the materials required for production in the first place.

Therefore, it can be concluded (from 3.2.1 and that there does not appear to be any reasonable justification to the discriminatory tampon tax in Nepal and, thus, it should be removed with the product being enlisted as a zero-rated good, while also decreasing the import duties.

Figure 1: Impact of GST Exemption on Sanitary Napkins.
Source: Saral Designs.

(However, while classifying necessary goods as zero-rated goods is more efficient, it should be noted that, generally, in practice, exemption is provided on necessary goods instead of enlisting them as a zero-rated good. A plain reading of Schedule-II of the VAT Act concludes that only those goods and services that are exported outside of Nepal are provided with “zero-rated privilege”. Therefore, in practice, sanitary napkins made for domestic consumption will not fall under Schedule-II. Next, while exemption can be useful, as the final 13% of tax is not applied, but it does not ensure that selling price will decrease, as the producers can increase the price of the product since their input tax is not being credited.) In case of Import of Sanitary Napkins

Tax exemption might be effective only in case where the sanitary napkins are being imported. Currently, there is no exemption on sanitary napkins. Thus, upon import, custom duty, excise duty, and VAT are applicable, which raises the price. Finally, again, output tax is applicable along with a profit margin which again adds to the price.

Once exemption as under Schedule-I of the VAT Act is provided, there is no presence VAT or “input tax” upon import (unlike that in the case of manufacturing). Thus, there is no issue of blockage of input tax due to exemption (since input tax does not exist). Thus, a VAT exemption on the output tax can be effective here in case of imports, due to the absence of input tax blockage. However, what should be understood is that, while there is no issue of input tax blockage, the initial cost (cost of production or rather, cost of import) itself is very high (due to high custom duty and excise) in case of import as compared to the case of manufacturers, and thus, the selling price is still high as was in the case of manufacturers being provided with exemption.

In the case of Nepal, sanitary napkins are largely imported and an alternative to make such products more accessible with the government’s involvement would be to make the nation self-sufficient in regard to such products. Thus, manufacturing such products is important. However, as already noted, in the case of manufacture, tax exemption is not effective. Thus, it can be concluded that tax exemption in the case of manufacturing and tax exemption in the case of import, both are ineffective as price would still be high. Thus, the reasonable solution is to make the nation self-sufficient with enough manufacturers and enlisting the product as zero-rated good.

4. Conclusion

The concept of human flourishing is important to be understood. The theory provides that necessities like food, shelter, etc., including necessities like education, medical supplies, etc. should be accessible without any taxation.41 The income tax of Nepal follows progressive taxation, while indirect tax, although equal for all, is regressive in nature because the lower-income class spend more percentage of their income on indirect tax than those belonging to the high-income class. Tampon tax adds to such regressive nature of indirect taxation, disproportionately affecting females.42 It is to prevent such regressive taxation that countries provide exemption (or enlist them as a zero-rated good) when it comes to essential goods. We can thus conclude that zero-rated products benefit the lower-income consumers,43 which should be the aim of a welfare state. However, such practice has not been observed when it comes to sanitary napkins.

One can observe that courts (in the US) have interpreted menstrual products to fall within the definition of “medical necessities” to provide such articles with a tax exemption.44 However, the position was not so in the past. It was only achieved after the “woman question” was asked and addressed. The reasonable solution lies on the individual states; their legislature and the courts to address the problem.45 A writ has been filed before the Supreme Court for removal of such taxation. Therefore, the court should recognise these grounds and direct removal of luxury tax from products that fall within the classification of medical necessity. It is true that “exemption” or “zero-rated classification” of sanitary napkins might not affect the issue of period poverty substantially. Rather than taxation, the issue with affordability is due to poverty and price itself, of which, the tampon tax forms a lesser percentage. However, the court should be more concerned with what is wrong and what is right rather than the degree of influence of the removal of such taxation, and establish that the tampon tax is discriminatory.

(The article attempts to highlight why VAT exemption might not be as effective as intended. It might help to reduce the price but it might not achieve this end. What is more effective is enlisting the good as a zero rated good, which absolutely helps in reducing the price for the consumers by removing the VAT.)

(Further, although the article uses the term “sanitary napkins”, the arguments and suggestions can be used in regard to other sanitary products as well.)

*Sharad Prasad Koirala is a Founding Partner at Learned and Lawyers, Kathmandu. He specialises in Nepalese Taxation Law. He has been assisted by Sankalpa Koirala for the purpose of this article.

(The editorial board is thankful towards CA Durga Prasad Gnawali, Partner at NBSM, for his advice.)

(This article has been prepared for informational purposes only and does not constitute legal advice. The information contained is not intended to create a lawyer-client relationship. The views expressed in the article does not reflect the the official position of the institutions to which the authors are affiliated. Readers should not act upon this without seeking advice from professional advisers.)

1 Value Added Tax Act 1996, s 7.

2 Shuvangi Khadka, ‘Making sanitary pads cheaper or free?’ (Econ-ity, 15 April 2021) <https://econitynepal.com/making-sanitary-pads-cheaper-or-free/ > accessed 14 August 2021

3 Samantha Friborg, ‘How 1 Education Focused Program Tackles Period Poverty in Nepal’ Brogen Magazine (Seattle, 4 October 2020) <https://www.borgenmagazine.com/period-poverty-in-nepal/ > accessed 14 August 2021

4 United States v. Virginia, 518 U.S. 515, 516 (1996)

5 Niroj Bhattarai, Alexandra Bernasek and Anita Alves Pena, ‘Factors Affecting School Attendance and Implications for Student Achievement by Gender in Nepal’ (2020) Review of Political Economy < https://www.tandfonline.com/doi/abs/10.1080/09538259.2020.1769296?journalCode=crpe20 > accessed 14 August 2021; Bridget J. Crawford, ‘Tampon Taxes, Discrimination and Human Rights’ (2017) Wisconsin Law Review 491<https://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=2068&context=lawfaculty > accessed 12 August 2021

6 Editorial, ‘1.3 million girls in Nepal to receive free menstrual supplies’ (Reliefweb, 3 September 2020) <https://reliefweb.int/report/nepal/13-million-girls-nepal-receive-free-menstrual-supplies > accessed 13 August 2021

7 Editorial, ‘Sanitary pad: Ahile nisulka, pachi k hola’ BBC News Nepali (Kathmandu, 15 February 2020) <https://www.bbc.com/nepali/news-51030781> accessed 13 August 2021

8 Cochac Elkayam-Levy, ‘A Path to Transformation: Asking “the Woman Question” in International Law’ (2021) 42 (3) Michigan Journal of International Law 429 < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3543189> accessed 13 August 2021

9 Lawrence Zelenak, ‘Taking Critical Tax Theory Seriously’ (1998) 76 North Carolina Law Review 1521 <https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1535&context=faculty_scholarship > accessed 12 August 2021

10 Maya Rhoden, ‘President Obama Doesn’t Understand the ‘Tampon Tax’ Either’ TIME (15 January 2016) <http://time.com/4183108/obama-tampon-tax-sanitary/&gt; accessed 14 August 2021

11 Hailaire Barnett, Introduction to Feminist Jurisprudence (Cavendish Publishing 1998) 22

12 Bridget J. Crawford and Emily Gold Waldman, ‘The Unconstitutional Tampon Tax’ (2018) 53 University of Richmond Law Review 439 <https://lawreview.richmond.edu/files/2019/02/CrawfordWaldman-532.pdf> accessed 14 August 2021

13 Suzanne Herman, ‘A Blood-Red-Herring: Why Revenue Concerns Are Overestimated in the Fight to End the “Tampon Tax”‘ (2021) 48 Fordham Urb LJ 595 < https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2835&context=ulj > accessed 14 August 2021

14 Hailaire Barnett (n 11).

15 Carolyn Hardesty, ‘The Woman Question Today’ (1987) 272 (3) The North American Review 89 < https://www.jstor.org/stable/25124890 > accessed 14 August 2021

16 Katherine T. Barlett, ‘Feminist Legal Methods’ (1990) 103 Harvard Law Review 829 <https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1119&context=faculty_scholarship> accessed 14 August 2021

17 Anthony C. Infanti and Bridget J. Crawford, Critical Tax Theory: An Introduction (Cambridge University Press 2009) 11

18 International Convention on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3 (ICESCR) art 12; Office of the High Commissioner for Human Rights, ‘CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health’ (Art. 12)’ (E/C.12/2000/4)

19 International Convention on Economic, Social and Cultural Rights, arts 12 and 14 (2) (h).; Bridget Crawford ‘Tampon Tax be Gone: What the US Can Learn from India’s #LahuKaLagaan Repeal (Part II/II)’ (National Law School of India Review, 25 December 2018) <https://nlsir.com/tampon-tax-be-gone-what-the-us-can-learn-from-indias-lahukalagaan-repeal-part-ii-ii/ > accessed 12 August 2021

20 Dagan Omwesiga, ‘Tax Regime in Nepal – Implications on Human Rights’ (2018) 6 Kathmandu Sch L Rev 68 < https://kslreview.org/index.php/kslr/article/view/949> accessed 12 August 2021

21 Van Raalte v Netherlands App no 20060/92 (ECtHR, 1997)

22 Hobbs v United Kingdom App no 29750/09 (ECtHR, 2007)

23 Willis v United Kingdom App no 36042/97 (ECtHR, 2002)

24 Katherine T. Barlett, ‘Feminist Legal Methods’ (n 16) 841-842.

25 Geduldig v. Aiello, 417 U.S. 484 (1974)

26 Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (1993)

27 İlayda Eskitaşçıoğlu, ‘Access to Menstrual Products is a Constitutional Right. Period.’ (Verfassungsblog, 5 December 2019) <https://verfassungsblog.de/access-to-menstrual-products-is-a-constitutional-right-period/&gt; accessed 14 August 2021

28 Bridget J. Crawford and Emily Gold Waldman, ‘The Unconstitutional Tampon Tax’ (n 12) 439.

29 Air India v. Nargesh Meerza, 1981 AIR 1829

30 Victoria Hartman, ‘End the Bloody Taxation: Seeing Red on the Unconstitutional Tax on Tampons’ (2017) 112 Nw U L Rev 313 < https://scholarlycommons.law.northwestern.edu/nulr/vol112/iss2/4/ > accessed 14 August 2021

31 Constitution of Nepal 2015, art 18.

32 Dagan Omwesiga, ‘Tax Regime in Nepal – Implications on Human Rights’ (n 20).

33 Suzanne Herman, ‘A Blood-Red-Herring: Why Revenue Concerns Are Overestimated in the Fight to End the “Tampon Tax”‘(n 13) 620.

34 Christopher Cotropia and Kyle Rozema, ‘Who Benefits from Repealing Tampon Taxes: Empirical Evidence from New Jersey’ (2018) 15 J Empirical Legal Stud 620 <https://scholarship.richmond.edu/law-faculty-publications/1503/&gt; accessed 14 August 2021

35 ibid 627.

36 Deepak Joshi, ‘India’s Taxation Policy is Behind the COVID Curve’ The WIRE (New Delhi, 19 May 2021) <https://thewire.in/government/india-gst-covid-19-relief-materials-solutions > accessed 14 August 2021

37 Black Marketing Act 1975, s 3.

38 Deepak Joshi, ‘India’s Taxation Policy is Behind the COVID Curve’ (n 36).

39 Seena Twayana, ‘What is the difference between NO VAT and ZERO VAT’ Kaagmandu Magazine (Kathmandu, 3 September 2019) <https://www.kmagz.com/what-is-the-difference-between-no-vat-and-zero-vat/ > accessed 14 August 2021

40 Editorial, ‘1 year later: Impact of GST exemption on Sanitary Napkins’ (Saral Designs) <https://saraldesigns.in/1-year-later-impact-of-gst-exemption-on-sanitary-napkins/> accessed 14 August 2021

41 Tsilly Dagan, ‘The Currency of Taxation’ (2016) 84 Fordham L Rev 2537 < https://ir.lawnet.fordham.edu/flr/vol84/iss6/7/> accessed 14 August 2021

42 Jorene Ooi, ‘Bleeding Women Dry: Tampon Taxes and Menstrual Inequity’ (2018) 113 Nw U L Rev 109 < https://scholarlycommons.law.northwestern.edu/nulr/vol113/iss1/3/ > accessed 14 August 2021

43 Suzanne Herman, ‘A Blood-Red-Herring: Why Revenue Concerns Are Overestimated in the Fight to End the “Tampon Tax”‘(n 13).

44 Bridget J. Crawford, ‘Tampon Taxes, Discrimination and Human Rights’ (n 5) 531-534.

45 ibid 512-513.

Preserving Indigenous Knowledge: A Study of the Sithi Nakha Festival of the Newar Community


1. Introduction to the Festival

Sithi Nakha festival exhibits a religious and eco-friendly celebration in the Newar community.[1] During the festival, the Newar community honour Lord Kumar (Sithi Dyo) on his birthday.[2] According to Mr. Tejeshwor Babu Gongah, a cultural anthropologist, “Sithi Nakha” is derived from two words: Sithi (derived from the Sanskrit word “shashthi”), meaning “sixth”, and Nakha (a Newari word), meaning “festival”.[3] Sithi Nakha is, thus, a festival of the Newars, celebrated on the sixth day of the waxing moon, in the month of Jestha of the Nepal Sambat calendar.[4] The festival is also known as “Kumar Shasthi”.[5]

The festival reminds the community of their family deity as they make offerings to their ancestral gods (kul devtas). At the same time, the Newar community participates in cleaning wells, spouts, pati and pauwa, and their periphery to invite good luck for the upcoming monsoon.[6] They believe that rulers of water sources, Nagas (a kind of snake like serpent) will leave the water sources[7] in search of places with abundant water.[8] The Newars strongly believe that the absence of Naga Devata makes it apt to clean water sources around the surrounding.[9] The festival represents religious, environmental, pedagogical, and socio-anthropological significances.[10] Eight-petal design (pikha lakhu)[11] which represents Lord Kumar is carved on a stone and is dwelled at the main entrance of the Newar community’s houses in Bhaktapur. It is regarded to be a place for Kumar.[12] (It has also been said to represent Goddess Prthivi.)[13] 

Human societies across all communities have developed rich sets of skills, values and experiences relating to the environment they live in. The mentioned knowledge systems are today often referred to as traditional ecological knowledge, or indigenous, or local knowledge.[14]  (Further explained below). Aforementioned forms of knowledge have since long assisted humans by offering numerous interactions with nature, via sanitizing the environment, saving environment, and allocate the economic use of resources through religious practices[15], and also aid farmers in planning and preparing for the forthcoming agricultural season.[16] Activities performed in the Sithi Nakha festival have sustainable and protective effect on environmental components like water, plants and animals. While in the Taleju Mandir, they make offerings to Lord Kumar by making a pikha lakhu,[17] thus signifying religious and environmental importance of the festival. Prior to 1950, water taps in Kathmandu valley were maintained by such festivals.[18] Since the festival ensures cleanliness of water and water-tap-architectures, the festival holds practical significance as well.[19] Festivals like Sithi Nakha which protects the tangible aspect of architectures, also preserves the intangible aspects like aesthetic beauty of a place.[20] Further it is indicated that there are two functions of the festival; latent and manifest functions. Latent function is to provide solidarity to patrilineal group and offer re-union its members. The manifest function is to get blessing from Kumar and Dewali pujas among endogamous group.[21]

2. Pikha Lakhu

According to Mr. Gongah, “pikha” means “outside” and “lakhu” means “the rivers nearby”.[22] “Lakhu” also means “path” or “road”.[23] Pikha lakhu is a Mandap that has been skillfully drawn, having eight petal figures dwelling at the entrance of the doors, outside of each Newari house. The Newar community believe that the Mandap is a symbolic icon to represent Kumar.[24] Furthermore, it is a reminder of the birthday of Lord Kumar.

Realizing from above context, Sithi Nakha is one of the main festivals celebrated in the Newar community. It has its own distinctive features: the time of celebration, ritual phenomenon, socio-cultural and environmental significances, and so on.

[The author requested a pandit, Mr. Prakash Raj Upadhaya, for clarity regarding the structure of the Mandap. On her request, he drew the art of the Mandap which is shown in Figure-1]

Mandap as shown in Figure-1 consists of:

  • Swastika (wisdom);
  • Asta patra / Padma puspa (particularly lotus petals);
  • Swadasha patra (more petals);
  • Samundra (ocean);
  • Diyo– (fire)
Figure-1: Mandap (Pikha lakhu)

The figure indicates that Mandap has integrated form of substantial fact of life values. Through worship of Kumar on the Mandap, religious and social facts are correlated with Sithi Nakha festival, representing own kind of indigenousness. It is symbolic art which relates the sacred physical things to spiritual belief through ritual act.[25] Sacred physical things refer to objects like materials and Mandap, whereas spiritual belief includes harmonious relationships among members, belief toward God, mutual relationships, etc.

3. Festivals as Social Facts

Festivals can be celebration of the sacred, the dead, ancestors, and of seasonal changes. They have existed among all societies across time, and are thus, social facts.[26] For Emile Durkheim, there are two kinds of mental representation in an individual: individual and collective representations. Collective representations can be seen during the creation of festivals, wherein fusion of individual representations through “collective effervescence” takes place. Such collective representation has larger coercive or constraining power than individual representations. This explains the coercive or constraining power of social facts.[27]  Social facts, according to Durkheim, comes from the social community and socializes its members.[28] Newars celebrate their festivals due to natural forces, which are external to their control, which again supports the fact that such acts are “social facts”. Durkheim defines social fact as “every way of acting, fixed or not, capable of exercising on the individual an external constraint; or again, every way of acting which is general throughout a given society, while at the same time existing in its own right independent of its individual manifestations.”[29]

However, despite such festivals being a social fact, knowledge and practices attributed to the festival are slowly disappearing due to modernization of society and culture.[30] Decline in such practices can also be attributed to the declining importance of the ancient water resources like wells, stone spouts, etc.[31] The practice exists largely where the residents are local,[32] and therefore, urbanization and globalization have been a threat to such festivals.

4. Indigenous Knowledge and its ways of Transmission

Indigenous knowledge exists in local context and is attributed to a particular community in a particular time in a particular geographical location.[33] It has been viewed that indigenous knowledge is categorized into individual knowledge, distributed knowledge, and communal knowledge.[34] Firstly, individual knowledge is within the individual inside family without any connection, communication and sharing with the community. Secondly, distributed knowledge is with some members of a group but not among all the members of the group. Thirdly, communal knowledge means that knowledge available to virtually all members of a group.[35]Another scholar, Marglin defined knowledge in terms of four characteristics; epistemology, transmission, innovation and power.[36] Sithi Nakha festival is specific to Newar Community which might have evolved since prehistoric times. Social facts like festivals are created from “collective effervescence”. Later it is gradually learnt by generation and generation, passing informally through experience.

The Sithi Nakha festival carries scientific significance. The Mandap as well, is constructed based on the science composing of five-matter. This composition signifies the composition of the whole universe. There are symbols of power, wisdom, and spirituality from where we can draw educational implication.  Pedagogically, we can teach the mathematical contents out of this Mandap. The shapes are similar to the geometrical shapes that are taught in schools. If we could link those shapes and sizes to mathematical education, we could have simultaneous contribution on the indigenous knowledge preservation pragmatically.  As outlined by sociological and anthropological theories, Sithi Nakha has also envisaged the practices of power relations, ethno-science, and environment conservation practices.  As per educational theories’ suggestions, pedagogic contextualization of the Mandap has the potential of harnessing mathematical, scientific, as well as literature related contents that can be extracted and applied into the classroom. Ethnographic theories of sociology also urge that we need to be attached with the community in the same way.[37]  Sociology of education theory also sets such premises. If new generations can recognize and draw the pedagogical matters from the society, it has the better result in terms of achieving and preserving indigenous knowledge. Since festivals and indigenous knowledge have various environmental importance,[38] it becomes even more important to perverse such knowledge.[39] However, such indigenous practices and knowledge have been neglected by the government.[40] Since such knowledge is not codified, and since collection of such knowledge itself is laborious[41]  and time consuming; they are largely neglected. Therefore, transferring knowledge among generations becomes important.[42] Preserving knowledge through education can be an effective measure.[43] Incorporating such knowledge and practice into curriculum in early school levels can be even more effective.[44] Symbolic and decorative means of communications are used for transmission of indigenous knowledge.[45] Therefore, using the symbolic representations found in pikha lakhu in textbooks of early childhood education, can be an effective way to preserve such knowledge.

According to Micheal Polanty, there are two types of knowledge: implicit (or tacit) and explicit. Implicit and explicit have been largely understood as ones that cannot be articulated, and ones that can be articulated, respectively.[46] Emerging knowledge in society makes it mandatory for society to manage both explicit and implicit knowledge. Due to cultural imperialism, encroachment from modern culture and short-comings in oral transmission of knowledge, it creates an implicit danger of extinction of indigenous knowledge. At the same time, there exists caste hierarchical system. There are large numbers of complex form of caste, sub-caste and sub-groups structure. They are associated with superiority and inferiority perceptions. This again creates a danger of extinction of knowledge that the lower castes might have. Therefore, the solution is effective transmission of knowledge expressed in festivals and customs, whether explicit or implicit.

5. Conclusion

The Sithi Nakha festival keeps all family members, including married sisters and daughters,[47] bound together in a social thread.[48] It indicates that the customs (Sithi Nakha) brings solidarity among Newar families through religious paths. However, currently, it has been overshadowed by individual-level of celebration[49] while the ritual act, in fact, is a collective way of participating in puja towards Kumar, kul devta, and spiritual realities. Therefore, the lack in “collective effervescence” might also indicate why such indigenous knowledge behind festivals have been declining, since this negatively impacts communal knowledge.

Newars have own kind of indigenous knowledge, skill, art, and ritual practices. Newar community inhabit their own kind of distinct society, bearing ancient epistemology, wisdom, knowledge, skills, endogenous or cosmological belief, folklore, customs, oral tradition associated with nature and valuable sources for foods, ritual, intrinsic, spiritual, customs, religious, and cultural significance of society. Their customs hold unique indigenous knowledge, and to protect such knowledge from extinction, it is important to implant such knowledge into young mind through formal education, be it though symbols, language, geometry, etc. The symbolic representations made in pikha lakhu, can be made a part of geometry studies in schools. Nepali festivals and celebrations largely include symbolic representations. Inclusion of such symbols into curriculums of arts and mathematics at the school-level can largely help in transmission of indigenous knowledge through effective communication, which helps in preservation of such knowledge. Therefore, such methods of making the new generation aware, directly or indirectly, of existing indigenous knowledge holds large importance.

[For the purpose of the article, the author has undertaken primary research as well. The views expressed in this article are personal.]

*The Guest Author is an MPhil graduate from Tribhuvan University, Nepal. She has been assisted by Sankalpa Koirala for the purpose of this article.

[1] Rastriya Samachar Samiti, ‘Newars celebrate Sikhi Nakha festival’ The Kathmandu Post (Kathmandu, 10 June 2016) <https://thehimalayantimes.com/kathmandu/newars-celebrate-sithi-nakha-festival> accessed 6 May 2021

[2] Editorial, ‘Newar people observing Sikhi Nakha festival today’ Imagekhabar.com (6 April 2021) < https://www.imagekhabar.com/news/16743/ > accessed 6 May 2021

[3] Asmita Manandar, ‘Sithi Nakha: The Newar Environment festival’ (NGO forum for Urban Water & Sanitation, 3 June 2011) < http://www.ngoforum.net/index.php?option=com_content&task=view&id=11305 > accessed 6 May 2021

[4] Republica, ‘Sithi Nakha: More than tradition’ myRepublica (Kathmandu, 2 June 2017) < https://myrepublica.nagariknetwork.com/mycity/news/sithi-nakha-more-than-tradition > accessed 6 May 2021

[5] ‘Sithi Nakha’ (Vishram Society) < http://vishramsociety.org.np/sithi-nakha/ > accessed 6 May 2021

[6] Mira Tripathi, ‘A Comparative Evaluation of Stone Spout Management Systems in Heritage and non-Heritage Areas of Kathmandu Valley, Nepal’ (PhD thesis, Lincoln University 2016); Prachanda Pradhan and Upendra Gautam (eds), Farmer Managed Irrigation Systems and Governance  Alternatives (Farmer Managed Irrigation System Promotion Trust, 2005)

[7] Mira Tripathi, ‘A Comparative Evaluation of Stone Spout Management Systems in Heritage and non-Heritage Areas of Kathmandu Valley, Nepal’ (n 6) 92.

[8] Ranjan Prakash Shrestha and Keshav Lall Maharjan, ‘Climatic Change and Indigenous Knowledge and Practices with Reference to Traditional Water Resource Management in the Kathmandu Valley, Nepal’ (2018) 24 (1- 2) Journal of International Development and Cooperation < https://ir.lib.hiroshima-u.ac.jp/files/public/4/45249/20180316092155767368/JIDC_24-1_17.pdf > accessed 6 May 2021

[9]‘Sithi Nakha: A Traditional Cultural Festival for Environmental Conservation’ (Tunza Eco Generation, 18 June 2016) <https://tunza.eco-generation.org/ambassadorReportView.jsp?viewID=9823 > accessed 6 May 2021

[10] Asmita Manandar, ‘Sithi Nakha: The Newar Environment festival’ (n 3).

[11] Siddhi B. Rajnitkar, ‘Sithi Nakha’ (Kathmandu metro, 16 June 2013) < http://www.kathmandumetro.com/culture/sithi-nakha-1 > accessed 6 May 2021

[12] Asmita Manandar, ‘Sithi Nakha: The Newar Environment festival’ (n 3).

[13] Robert I. Levy, ‘Mesocosm: Hinduism and the Organisation of a Traditional Newari City in Nepal’ (University of California Press 1991) ch 15, 512  

[14] Douglas Nakashima, Lyndel Prott and Peter Bridgewater, ‘Tapping into the World’ Wisdom’, (UNESCO Sources, 2000) < https://unesdoc.unesco.org/ark:/48223/pf0000120209 > accessed 6 May 2021

[15] Ranjan Prakash Shrestha and Keshav Lall Maharjan, ‘Climatic Change and Indigenous Knowledge and Practices with Reference to Traditional Water Resource Management in the Kathmandu Valley, Nepal’ (n 8) 18.

[16] Rishikesh Pandey, ‘Religion, Rainfall and Rice: Social-Ecological Interpretation of Festivals in Kathmandu Valley, Nepal’ (2018) 3 Studies on Religion and Culture in Asia < https://www.semanticscholar.org/paper/Religion%2C-Rainfall-and-Rice%3A-Social-ecological-of-Pandey/04469eae329b42aa61ebcfb228895322c377db18 > accessed 7 May 2021

[17] Robert I. Levy, ‘Mesocosm: Hinduism and the Organisation of a Traditional Newari City in Nepal’ (n 13).

[18] Ranjan Prakash Shrestha and Keshav Lall Maharjan, ‘Climatic Change and Indigenous Knowledge and Practices with Reference to Traditional Water Resource Management in the Kathmandu Valley, Nepal’ (n 8) 18.

[19] Bhandari, Roshan Bhakta, Norio Okada, and J. David Knottnerus, ‘Urban Ritual Events and Coping with Disaster Risk: A Case Study of Lalitpur, Nepal’ (2011) 5 (2) Journal of Applied SocialScience <www.jstor.org/stable/23548972> accessed 7 May 2021

[20] Upendra Sapkota, ‘Culture and City Planning in the Era of Globalization and Modernity’ (2013) 1 Reflections on the Built Environment and Associated Practices: Essays in honor of Professor Sudarshan Rai Tiwari < https://www.researchgate.net/publication/339472175 > accessed May 7, 2021

[21] Gopal Singh Nepali ‘The Newars of Nepal’ (PhD thesis, University of Bombay 1959)

[22] Asmita Manandar, ‘Sithi Nakha: The Newar Environment festival’ (n 3).

[23] Robert I. Levy, ‘Mesocosm: Hinduism and the Organisation of a Traditional Newari City in Nepal’ (n 13) 262.

[24] Bhagwan Ratna Tuladar, ‘Pikha Lakhu: A forgotten Newar Heritage’ (Spaces Nepal, December 3 2016) < http://spacesnepal.net/2016/12/03/pikha-lakhu-a-forgotten-newar-heritage/ > accessed 7 May 2021

[25] ibid.

[26] Laurent Sébastien Fournier, ‘Traditional Festivals From European Ethnology to Festive Studies’ (2019) 1 (1) Journal of Festive Studies <https://hal.archives-ouvertes.fr/hal-02463860/document> accessed 7 May 2021

[27] Warren Schamaus, ‘Durkheim and Methods of Scientific Sociology’ in Lee McIntyre and Alex Rosenberg (eds), The Routledge Companion to Philosophy of Social Science (Routledge 2016) 20-21

[28] Patricia Snell Herzog, ‘Social Fact’ The Blackwell Encyclopedia of Sociology (20 December 2018) 1 <https://doi.org/10.1002/9781405165518.wbeoss151.pub2> accessed 7 May 2021

[29] ibid.

[30] Ranjan Prakash Shrestha and Keshav Lall Maharjan, ‘Climatic Change and Indigenous Knowledge and Practices with Reference to Traditional Water Resource Management in the Kathmandu Valley, Nepal’ (n 8) 21.

[31] Mira Tripathi, ‘A Comparative Evaluation of Stone Spout Management Systems in Heritage and non-Heritage Areas of Kathmandu Valley, Nepal’ (n 6) 98.

[32] ibid 10.

[33] Louis Granier, Working with Indigenous Knowledge, a Guide for Researchers (International Development Research Center 1998) 1

[34] Kamal Maden, Ramjee Kongren and Tanka Maya Limbu, ‘Documentation of Indigenous Knowledge, Skill and Practices of Kirata Nationalities with Special Focus on Biological Resources’  < http://himalaya.socanth.cam.ac.uk/collections/rarebooks/downloads/Maden_Indigenous_Knowledge.pdf > accessed 7 May 2021

[35] ibid 3.

[36] Stephen A. Marglin, ‘Towards the Decolonization of the Mind’ in Frédérique Apffel, and Stephen A. Marglin (eds) Dominating Knowledge: Development, Culture, and Resistance (Oxford University Press 1990) 24

[37] Hayley Yvonne Price, ‘Analyzing Ethnographic Research in Indigenous Knowledges in Development Studies: An Anti-Colonial Inquiry’ (Master’s Thesis, University of Toronto 2011)

[38] Bhandari, Roshan Bhakta, Norio Okada, and J. David Knottnerus, ‘Urban Ritual Events and Coping with Disaster Risk: A Case Study of Lalitpur, Nepal’  (2011) 5 (2) Journal of Applied Social Science <http://www.jstor.org/stable/23548972> accessed 7 May 2021.

[39] Ministry of Science Technology and Environment, Indigenous and Local Knowledge and Practices for Climate Resilience in Nepal: Mainstreaming Climate Change Risk Management in Development (ADB TA-7984 NEP: Indigenous Research (44168-012), 2015)

[40] Subodh Sharma, Roshan Bajracharya and Bishal Sitaula, ‘Indigenous Technology Knowledge in Nepal- A review’ (2009) 8 (4) Indian Journal of Traditional Knowledge < http://nopr.niscair.res.in/bitstream/123456789/6260/1/IJTK%208%284%29%20569-576.pdf > accessed 7 May 2021

[41] Patrick Ngulube, ‘Managing and Preserving Indigenous Knowledge in the Knowledge Management Era: challenges and opportunities for information professionals’ (2002) 18 (2) < https://journals.sagepub.com/doi/abs/10.1177/026666602400842486  > accessed 7 May 2021

[42] ECOSOC ‘Indigenous People’s Traditional Knowledge Must be Preserved, Valued Globally, Speakers Stress as Permanent Forum Opens Annual Session’ (22 April 2019) Meetings Coverage and Press Releases HR/5431

[43] Wahab Ali, ‘An Indigenous Academic Prospective to Preserving and Promoting Ingenious Knowledge and Traditions: A Fiji Case Study’ (2016) 46 (1) Australian Journal of Indigenous Education <https://www.researchgate.net/publication/310781453 > accessed 7 May 2021

[44] Alicia Ranck Soudée, ‘Incorporating Indigenous Knowledge and Practice into ECCE: A Comparison of Programs in The Gambia, Senegal and Mali’ (2009) 11 Current Issues in Comparative Education  <https://files.eric.ed.gov/fulltext/EJ847156.pdf> accessed 7 May 2021; Jessica Ball and Maureen Simpkins, ‘The Community within the Child: Integration of Indigenous Knowledge into First Nations Childcare Process and Practice’ (2004) 28 (3/4) American Indian Quarterly <http://www.jstor.org/stable/4138928> accessed 7 May 2021; Elisabeth Hangartner, ‘Integrating Indigenous Knowledge in Education and Healthcare in Northern Malawi: Pregnancy through Toddlerhood’ (2013) <https://corescholar.libraries.wright.edu/cgi/viewcontent.cgi?article=1000&context=cehs_student> accessed 7 May 2021

[45] Margeret Bruchac, ‘Indigenous Knowledge and Traditional Knowledge’ (2014) < https://repository.upenn.edu/cgi/viewcontent.cgi?article=1172&context=anthro_papers > accessed 7 May 2021

[46] Eric M. Straw, ‘Knowledge Management and Polanyi’ < http://polanyisociety.org/Nashotah%20House/Papers/Straw-original-pdf-KnowlMgmnt%20&Polanyi-5-23-16.pdf > accessed 7 May 2021

[47] Siddhi B. Ranjitkar, ‘Sithi Nakha’ (n 11).

[48] Ron McGiven ‘Religion’ in William Little (eds), Introduction to Sociology- 1st Canadian Edition (2015)

[49] Prachanda Pradhan and Upendra Gautam (eds), Farmer Managed Irrigation Systems and Governance Alternatives (n 6).