Citizens’ rights to equality, justice and non- discrimination are ingrained principles that reaffirm the idea of inclusion in Nepal’s 2015 Constitution, which in some areas has carried over relevant provisions from the Interim Constitution. For instance, the new constitution guarantees 33 per cent representation for women in the House of Representatives, the lower chamber of Parliament, and also in provincial legislatures. It also provides for ‘proportionate inclusion’ in government service (Article 285), which, in principle, would mean that the government would begin to reflect the country’s social diversity.
However, the new constitution also dilutes important commitments to greater inclusion by increasing the number of groups qualifying for reservations, and by using vague language that can be interpreted in different ways. Some marginalised communities have been pushing for revisions that can better uphold their interests. But the provision on the ‘Right to Social Justice’ in the new constitution identifies many more ‘clusters’ for reservation, a significant proportion of which are poorly defined, while the incorporation of the Khas Arya (a historically advantaged, ‘upper caste’ group) among the new groups qualifying for reservations adds a more specific complication.
Initially, a total of 17 groups were mentioned in the new constitution as deserving special attention: ‘Women, Dalit, indigenous people, Adivasi Janajati, Madhesi, Tharu, minorities, persons with disabilities, marginalised communities, Muslims, backward classes, gender and sexual minorities, youth, farmers, labourers, oppressed or citizens of backward regions, and indigent Khas Arya shall have the right to participate in state bodies on the basis of principles of inclusion’ (Article 42).
Heeding the demands of Madhesis and Janajatis, the first amendment of the constitution in January 2016 changed ‘principles of inclusion’ to ‘principles of proportional inclusion’. Previously, ‘proportionate inclusion’ had been guaranteed only to women (Article 38) and Dalits (Article 40). The amendment also removed ‘youth’ and the superfluous ‘indigenous people’ (already covered by Adivasi Janajati), and re-ordered the groups as: ‘Women, Dalit, Adivasi Janajati, Madhesi, Tharu, Muslims, backward classes, minorities, marginalised communities, persons with disabilities, gender and sexual minorities, farmers, labourers, oppressed or citizens of backward regions, and indigent Khas Arya’. Article 42 also includes the qualifier ‘who are economically, socially or educationally backward’ for the above groups, although it is not clear to which groups such a description applies or if it meant for all.
Besides cluttering the list with undefined groups such as ‘backward classes’, ‘minorities’ and ‘marginalised communities’, all of which terms are also applicable to the historically marginalised, Article 20 shows how the 2015 Constitution has also provided reservations to the already dominant Khas Arya, a group that is overwhelmingly represented in all state structures. The addition of the Khas Arya stands against the principle of proportional inclusion and implies a potential reduction of positions reserved for marginalised communities as well as for women. Further, none of the communities other than the Khas Arya has been defined under the Constitution of 2015 (Article 176.6), effectively giving constitutional validity to the four groups described as belonging to this category while denying such validity to the more than a hundred that belong to the marginalised. This was a blatant instance of the Khas Arya, who were in leading positions in all the major parties represented in the Constituent Assembly, misusing their power to fulfil their own needs.
Hence, under the new constitution, the Khas Arya community can lay claim to the reservation facility under five of the 15 eligible categories – as women, as labourers, as farmers, as belonging to backward regions, and as ‘indigent’ Khas Arya (as well as disabled people and gender and sexual minorities). It is true that poverty affects all communities, including the Khas Arya, but rather than address this through a programme aimed at poverty reduction, the 2015 Constitution has instead envisaged the reservation policy as a means towards that end, instead of recognising reservations as being aimed at empowering marginalised communities.
The 2015 Constitution has also provided for a National Inclusion Commission whose ‘functions, duties and powers’ state that it is to engage in various activities for the welfare of ‘the Khas Arya, backward classes, persons with disabilities, senior citizens, labourers, farmers, minorities and marginalised communities, people from Karnali and the poor’. Once again, the Khas Arya have been clearly identified whereas more excluded groups have been lost in a long list of undefined categories of people.