One step forward, two steps backRecent court ruling to revisit reservation and affirmative actions for those discriminated against by the state is regressive and defeats the purpose, observers say.
When the 1990 constitution was written, following a popular movement, it was dubbed progressive for envisioning affirmative actions for the people from the economically, socially and educationally backward communities. It required the government to prepare laws for the advancement and protection of the interest of such communities.
However, successive governments took no concrete initiatives to implement the constitutional provisions. Results of “affirmative actions” for the people from the communities that faced structural discrimination from the state for centuries had started emerging after the Interim Constitution, promulgated after the second people’s movement in 2006, laid out reservation provisions.
The Constitution of Nepal-2015 then provided a broader definition of positive discrimination, detailing the beneficiary groups. Article 18 (3) states that the state shall not discriminate against citizens on grounds of origin, religion, race, caste, tribe, sex, economic condition, language, region, ideology or on similar other grounds.
“Provided that nothing shall be deemed to prevent the making of special provisions by law for the protection, empowerment or development of the citizens including the socially or culturally backward women, Dalits, indigenous people, indigenous nationalities, Madhesis, Tharus, Muslims, oppressed class, Pichhadaclass [backward classes], minorities, the marginalised, farmers, labourers, youths, children, senior citizens, gender and sexual minorities, persons with disabilities, persons in pregnancy, incapacitated or helpless, backward region and indigent Khas Arya,” it further says.
Currently, there is 45 percent reservation in government jobs and government scholarships for the people from different cluster groups, mainly formed based on castes.
It has just been 15 years since the Interim Constitution and six years since the new Constitution of Nepal, but the concept of reservation and its objectives and the idea of affirmative actions appear to be unravelling.
The full text of a verdict by the Supreme Court, released earlier this week, defeats the whole purpose of the constitutional provisions that aim to provide solace to the people who have faced state discrimination on the basis of caste, their geography and sex for centuries.
“The expectation of the constitution can be met only if need is prioritised over the class or caste for reservation,” reads the 74-page full text issued on Sunday.
The verdict by a division bench of Justices Bishowambhar Prasad Shrestha and Ananda Mohan Bhattarai says as some well-to-do groups in the target communities have been taking advantage of the reservation provision, this needs to be revisited.
“As our constitution has broadened the scope saying who all should get reservations, including the Khas-Arya people if they come from a poor class, we also need to make the reservation provision equitable and focused towards its goal,” reads the verdict.
The verdict came in response to a petition by Binay Kumar Panjiyar, a medical student, originally from Janakpurdham Sub-metropolitan City, Dhanusha.
The court says class and caste shouldn’t be taken as criteria for reservation.
Those who have followed Nepal's political process and reservation issues closely say the court’s verdict fails to embrace the spirit of the constitution and the ground reality.
Sanjeev Uprety, a former professor at the Tribhuvan University and also a civil society member, says “class has been embedded in caste in our context because those from the so-called lower castes were discriminated against by the state.”
“How can the need be defined objectively?” Uprety told the Post. “As ethnicity, gender and geography are the major grounds for discrimination, the same have to be the major criteria for reservation, unlike what the court has said.”
According to Uprety, it is the so-called upper caste that sets the criteria for the ‘need’, as said by the court, this will again create a situation where it will be controlling the reservation process.
Those advocating reservation say the verdict has been guided by sentiments rather than reality, without realising if some clusters of people have already benefitted immensely from the provision introduced in the country with a very short history of reservation.
The division bench has taken examples from different countries, including India, where reservation came into effect decades before Nepal adopted it.
Dipendra Jha, chief attorney of Province 2, said the reservation provision was inducted into the constitution to ensure that the country’s diversity is reflected in the state structure.
“The objective of reservation is to bring the community that is backward socially and economically on an equal footing with the privileged communities,” Jha told the Post. “Has that goal been achieved for the court to suggest a revision in the reservation provision? Has the country already seen a large enough number of well-to-do people from the beneficiary groups in just 15 years as claimed by the court?”
The court hasn’t just suggested revising the basis for reservation, it has gone on to say that affirmative actions are considered temporary special measures in human rights law and the possibility of “reverse discrimination” cannot be ruled out in the country if “positive discrimination” is considered a permanent provision.
“In countries where positive discrimination is made a permanent provision for the people who are socially, economically and educationally marginalised but are in majority, chances of creating a situation for reverse discrimination could be high,” observed the bench.
Rights activists say it is too early for the Supreme Court to reach this conclusion.
“This is an objectionable verdict,” Pradip Pariyar, a rights activist, told the Post. “Had the two justices tried to understand why there is not even a single Dalit justice in the Supreme Court, the verdict might have been different.”
According to Pariyar, a quick look at Dalit’s representation in state organs would make it clear why reservation based on caste is a must, unlike what the court has said.
A study by Samata Foundation, a nonprofit that advocates for social justice, inclusiveness and the rights of marginalised people, shows among 88,579 people in civil service, hardly 2.22 percent, or 1,971, are from the Dalit community. Their share in Nepal Police stands at 9.45 percent, 8.14 percent in the Nepal Army and just 1 percent in the judiciary.
While 18.7 percent of the country’s population is below the poverty line, it is 42 percent for the community. Their life expectancy is 58 years while the country’s life expectancy as a whole stands at 69 years. Over 15.32 percent of Dalit people are landless. The problem is even more serious when it comes to Dalits from the Tarai where around 44 percent of people are landless.
Pariyar says the court has failed to realise that reservation is a preferential treatment given by the state in compensation for the centuries-long structural discrimination it committed against its people from certain communities.
Panjiyar, the petitioner, had sought the court’s intervention in allowing him to study MD [doctor of medicine] under government scholarship.
“But the court took the matter too far, which was not necessary,” he said.
The division bench has said reservation should be for one time which should not be given to a person repeatedly. It says children of the people from the communities listed for reservation in the constitution, who are in high-level government and other positions, too aren’t eligible for reservation.
“It was too early for the court to reach this conclusion. Such decisions cannot be issued without proper research and study,” Raju Prasad Chapagain, chairperson of the Constitutional Lawyers’ Forum, told the Post. “The court seems to have gotten carried away while issuing the verdict.”
He said if the court wanted to know if the people from the same group have enjoyed the benefits of reservation, it could have directed the government or the National Human Rights Commission to carry out an assessment of the effectiveness of the reservation provision, before issuing such a verdict.
Those involved in the constitution drafting process say the provision of reservation was incorporated for different clusters where caste was one of the grounds.
Radheshyam Adhikari, a Nepali Congress member in the National Assembly who was a member of the Constitution Drafting Committee in the second Constituent Assembly, said the country still needs the reservation policy and that it does not need a revision at this point of time.
“While I agree with the ruling that the same person shouldn’t be entitled to repeat reservation benefits,” he said, “I believe the court has gone too far in defining who should or shouldn’t get the reservation.”
Since discrimination in Nepal stems from caste system, as it prevents various communities from access to state mechanism, education and various other sectors, reservation and affirmative actions should not be reviewed yet, say observers and those from the marginalised communities.
Panjiyar, the petitioner, said the court ruling has attempted to end the achievements of the people’s movement, Madhes uprising and the different movements by the indigenous and marginalised communities.
The court has failed to internalise that discrimination has been there in Nepal for centuries, according to him.
“This is a very regressive ruling. It contradicts the very spirit of reservation,” Panjiyar told the Post. “We will move the court demanding a review of the ruling.”