A constitutional commission formed to make recommendations for the protection of the backward people, the disabled, the elderly, farmers, minorities, marginalised groups, endangered communities and poor people and backward areas has recommended ending reservations for these groups at the earliest, in a move criticised by observers and rights activists.

The National Inclusion Commission, led by Ram Krishna Timalsena, in a report has concluded in a study that reservations in existing government services should be ended.

The report titled “Impact of Reservation on existing government services 2022” was unveiled by President Bidya Devi Bhandari on August 7.

The report was uploaded on the commission’s social media on August 9, the day the International Day of the World Indigenous People was being observed throughout the world and Nepal.

The report has also recommended that the government should end the reservation system in promotions through internal competitions and reservation must not be allowed in any kind of promotion process.

According to the report, the Ministry of Federal Affairs and General Administration and the Ministry of Health and Population should make arrangements for the implementation of these recommendations.

Bishnu Maya Ojha, a member of the inclusion commission, said the commission was studying the effectiveness of the reservation system for the last two years and it was the first of its kind in Nepal.

“The report has found that the existing reservation system should be reviewed because many of the beneficiaries were from the same groups or families,” Ojha told the Post.

Asked whether the report has recommended an end to the existing reservation system, Ojha said the report was prepared by a group of experts and their recommendations were based on research.

However, observers and activists have questioned the intention of the National Inclusion Commission.

Devraj Bishwakarma, chairperson of the National Dalit Commission, said he was not aware of the report prepared by the inclusion commission and that he could comment only after studying the report.

“But how can the reservation system be annulled?” Bishwakarma said. “The reservation system is yet to be implemented in an effective manner.”

Article 18(3) of the constitution states that the state shall not discriminate among citizens on grounds of origin, religion, race, caste, tribe, sex, economic condition, language or geographical region, ideology and such other matters.

“Provided that nothing shall be deemed to bar the making of special provisions by law for the protection, empowerment or advancement of the women lagging behind socially and culturally, Dalits, Adibasi, Madheshi, Tharus, Muslims, oppressed class, backward communities, minorities, marginalized groups, peasants, laborers, youths, children, senior citizens, sexual minorities, persons with disability, pregnant, incapacitated and the helpless persons, and of the citizens who belong to backward regions and financially deprived citizens including the Khas Arya.”

The National Inclusion Commission was envisioned by the constitution and a law for its formation was enacted in October 2017. It started functioning after the government appointed its chair on March 31, 2019.

Rights activists say the commission report is regressive and part of a ploy to deprive the underprivileged and marginalised communities of the opportunities in the state affairs.

“It’s not that the government will implement the recommendation of one commission when there are many other commissions that oppose the idea of ending the reservation policy,” said Ram Bahadur Thapa, chairperson of the Indigenous Nationalities Commission. “Such recommendations could invite conflict as marginalised groups are against them.”

This is not the first time the constitutional and legal rights of the disadvantaged groups are being undermined. There were several such incidents in the past that curtailed the rights of these groups.

Earlier on May 29, 2019, the Public Service Commission published a vacancy announcement notice in a single largest recruitment drive to fill the vacant posts in local governments. The commission had invited applications for 9,161 positions ignoring the principle of inclusion.

As per the Civil Service Act, 70 percent of vacant posts are filled through open competition while 30 percent are filled through promotions in the case of section officers. Of the 70 percent vacancies [which is regarded as 100 percent], 45 percent have been set aside for filling them through a separate competition among different clusters of communities to ensure inclusion.

As per the law, of the 45 percent [which is regarded as 100 percent], 33 percent seats in government jobs should be set aside for women, 27 percent for indigenous nationalities, 22 percent for Madheshis, 9 percent for Dalits, 5 percent for the disabled and 4 percent of the seats should be allocated to backward regions.

The remaining 55 percent seats are filled through open competition.

But the commission said it cannot reserve quotas for all because there is demand for only one or two officials in most of the local governments at once and that there was no way the principle of inclusion could be followed, thus inviting criticism from the rights groups.

However, all the 9,161 positions were filled despite objections from the parliamentary State Affairs and Good Governance Committee.

The government embraced the reservation policy from January 2007 after the country adopted the Interim Constitution so as to accommodate various ethnic groups, caste, class and communities who were deprived of economic development.

Activists say the National Inclusion Commission’s report was not unexpected as the very idea of forming the commission was flawed in the first place.

“Actually I’m not surprised by the report because the commission was formed specifically with such malintent,” said Shankar Limbu, secretary of Lawyers’ Association for Human Rights of Nepalese Indigenous Peoples. “The commission was formed to slash the rights of the disadvantaged groups.”

In Nepal, as per the census 2011, women account for 51 percent, indigenous nationalities around 36 percent and Dalits number 14 percent but despite the mandatory provision of reservation to these groups in the civil service, hill Brahmins continue to disproportionately dominate the service compared to their population.

Hill Brahmins comprise only 12.2 percent of the total population as per the 2011 census but they have dominated the civil service for decades.

As many as 47.83 percent of total candidates recommended by the Public Service Commission based on the results of written tests and interview for recruitment in government service were Hill Brahmins, according to the 62nd Annual Report (2020-21) of the Public Service Commission.

Among the 138 candidates recommended by the commission for recruitment in the civil service, 66 were from the Hill Brahmin category.

Currently, there is 45 percent reservation on government jobs and scholarships for various groups especially determined on the basis of their castes.

The government had earlier appointed former Secretary Shanta Raj Subedi, as the chairperson of the National Inclusion Commission and Bishnu Maya Ojha as its member but after Subedi decided to resign on July 28 last year a few months after his appointment, Ojha took the charge as acting chair of the commission until a new team was appointed by the KP Sharma Oli government by amending the Constitutional Council Act. The amendment made through an ordinance created controversy. A case that challenged the appointments as ‘unconstitutional’ is still sub judice at the Supreme Court.

The inclusion commission’s report on scrapping inclusion comes about a year after the Supreme Court’s recommendation along the same lines.

The Supreme Court’s judgement on December 16, 2020 said that need should be prioritised over class or caste, sparking a debate on the reservation system.

“The expectation of the constitution can be met only if need is prioritised over class or caste for reservation,” reads the 74-page full text of the Supreme Court judgement, whose full text was issued on August 1 last year.

The judgment by a division bench of justices Bishowambhar Prasad Shrestha and Ananda Mohan Bhattarai, issued in response to a petition by a medical student Binay Kumar Panjiyar, says “as some well-to-do groups from the targeted communities have been taking advantage of the reservation provision, this needs to be revisited.”

The National Inclusion Commission’s chair Ram Krishna Timalsena said the policy of the constitutional body was to review the existing reservation policy because the upper crust of society has been enjoying all the benefits as stated by the Supreme Court.

“Within the next 12 years, all government services will have 45 percent representations of the groups other than Khas Arya. So, we want a review of the existing policy of reservation,” Timalsena told the Post. “Since the reservation policy cannot remain for long which kills the merit-based selection, we want the provision to end once the empowerment target is achieved.”

Timalsena said the term ‘reservation should end’ means this cannot be a permanent remedy to empowerment and it should eventually end.

According to a study conducted by the Tribhuvan University’s Department of Sociology in 2014-15, which was cited in ‘Prashasan’ published by the Ministry of Federal Affairs and General Administration last year, Hill Brahmins constituted 39 percent of the total civil servants, followed by 22.3 percent Hill Chhetris.

“It’s interesting to learn that the commission that should be working to promote inclusiveness has recommended scrapping the provision altogether,” Limbu, an indigeneous rights activist, said. “Instead, they should have focused on ensuring social justice in all the state organs.”