On 15 September 2016, the European Court of Human Rights (ECHR) delivered its verdict on Gurkha pensions, shattering the hopes of thousands of ex-Gurkhas for equal pensions. While Gurkhas have earned fame globally as an undefeatable force on the battlefield, they have been consistently defeated in court battles in which they have sought pension equality for those who retired before 1997. Here we examine these court battles and explore why discrimination between Gurkhas and native British people persists.

Britain and India signed a Bipartite Agreement in 1947 in Kathmandu dividing Gurkha Regiments into British Gurkhas and Indian Gorkhas and setting up a pay, pension and welfare system pegged to the Indian Pay Code (IPC). It became the Tripartite Agreement (TPA) when Nepal signed it with conditions insisting that in all matters of promotion, welfare and other facilities, the Gurkha troops be treated on the same footing as other units in the parent army so that the stigma of being mercenary troops may be wiped out. The British representative responded positively to Nepal’s request but added a caveat: “Subject to the limitations of finance and supply”. Since then, British Gurkhas have been subject to discrimination under one pretext or another.

A Gurkha Pension Scheme (GPS), in force since 1949, entitled Gurkhas with 15 years service to an immediate pension. This, however, did not cover thousands of Gurkhas, about 7,000 of whom are still surviving. They were deprived of preserved pensions and other welfare benefits to which their British counterparts were entitled. Our report from the Centre for Nepal Studies UK in 2013 showed that, in 1989, there was a 950 percent difference on average in pensions. While the difference has been narrowing in recent years, the pension gap in 2013 was still as much as 300 percent in some cases.

In March 2007, the UK Government equalised pay, pensions and terms of services of serving personnel and granted equal pensions to those enlisted from 1 October 1993 but about 15,000 pensioners, and 6,000 widow pensioners, did not benefit from this equalisation policy.

Human rights claims disallowed

On 10 June 2011, the British Gurkha Welfare Society (BGWS) lodged a case at the ECHR claiming that Gurkhas have been paid significantly lower pensions than their British counterparts, which was discrimination on the grounds of nationality and/or race, and compared to younger compatriots who joined the British Army after 1997, which was discrimination on age grounds. Their service prior to 1 July 1997 was unfairly valued—not granted year-for-year—when transferring from the GPS to the Armed Forces Pension Scheme (AFPS). The BGWS argued that this discrimination breached Article 14, along with Article 1 of the protocol, of the European Human Rights Charter.

Initially in 2008, the BGWS had fought the case in the British courts on nationality and age grounds, but had eventually lost it. So the ECHR only looked into these issues and refused to take the race argument into consideration because it had not been raised and exhausted in British courts.

In its verdict, the ECHR clarified Article 14 stating, “In order for an issue to arise under Article 14 there had to be a difference in the treatment of persons in analogous, or relevantly similar, situations. Such a difference in treatment was discriminatory if it had no objective and reasonable justification.” While the court agreed that Gurkhas had been treated differently and inferiorly in their entitlement to pensions, it concluded “that any difference in treatment on grounds of nationality had been objectively and reasonably justified.” The age argument was also refused.

The ECHR concurred with the UK government that the cut-off point was ruled not arbitrary because Gurkha service prior 1 July 1997 was different (in being based outside the UK) and that the small pension of ex-Gurkhas is principally designed for Gurkhas to retire in Nepal where the cost of living is relatively low. The UK Government has consistently argued that this constitutes ‘fair treatment’.

Previous legal battles

Ex-Gurkhas had tried to address pension inequalities before. In 1998, Hari Bahadur Thapa lost a case for a full pension at the Tribunal Court in the UK on the grounds that 80 per cent of his service was outside the UK. In 2000, Gyan Raj Rai filed a case at the Supreme Court of Nepal asking for the removal of the discriminatory clause related to the IPC. But it was dismissed as being beyond their constitutional and legal remit. In 2002, the Gurkha Army Ex-Servicemen’s Organisation (GAESO) filed a case for equal pay, pension and welfare at the British High Court. The court acknowledged the existence of unequal treatment, but dismissed the case due to the expectation that Gurkhas would retire in Nepal.

Similarly, a case filed in 2008 by K Shrestha, K Purja and S Gurung in the UK High Court was disallowed. Nonetheless, Gurkhas successfully won other non-pensions cases. GAESO, through P Gurung, G Thapa and H Pun, filed and won a compensation case in 2002 for Japanese Prisoners of War. Likewise, GAESO’s case for Gurkha settlement rights filed in September 2008 was successful. This, along with a high-profile campaign led by celebrity Joanna Lumley, resulted in UK settlement rights for Gurkhas with service of four years or more.

A vital question

What baffles the Gurkhas and other rights-based campaigners is that non-affirmative discrimination can be objectively justified and that the universal right to equality (equal pay for equal work) does not hold true for them. With the ultimate legal avenues having been pursued and apparently exhausted, the puzzled campaigners find themselves back to square one.

The BGWS recently held a meeting in Farnborough with representatives of the CPN Maoist (Centre), the leading party in the current ruling coalition in Nepal, asking for help to put the Gurkhas’ case to the Nepal government for a diplomatic solution. Another group, Gurkha Satyagraha, has been lobbying the Nepal government for the same cause for several months. As 7 November—the date that Gurkha Satyagraha has fixed for a fast-unto-death—approaches, the group desperately wants a favourable diplomatic solution.

However, the Nepal government lacks the necessary institutional mechanisms and knowledge base necessary to deal with and resolve the issue. A vital question remains: can and will the Nepal government, which for the past 60 years has closed its eyes to the Gurkhas’ plight, do anything meaningful now? Whatever the outcome, the Gurkhas’ campaign for equal pensions is likely to continue.

Laksamba is a researcher at CNSUK, a UK-based research organisation; Adhikari is a research fellow at Oxford University and a researcher at CNSUK