Article 11.3 of the 1990 Constitution, on the Right to Equality in the section on Fundamental Rights, recognised the concept of affirmative action. It provided ‘special provisions … for the protection and advancement of … those who belong to a class which is economically, socially or educationally backward’. But the state took no steps towards implementation, and in fact the Supreme Court even repeatedly quashed a number of petitions requiring the government to formulate laws needed to operationalise such provisions.
The Maoist insurgents talked of bringing excluded and marginalised communities into the mainstream, but they went further to try to address the different kinds of exclusion that people faced and to understand the disparate reasons behind their unhappiness. This approach meant that the excluded came to believe that their demands, feelings and sources of dissatisfaction were at one with the party’s own. Large sections of marginalised communities were attracted to the ‘People’s War’, where the desire of the oppressed for emancipation converged with the Maoists’ objective of capturing state power.
The Maoists organised and armed the angry and discontented, including women, Dalits ( ‘low caste’), Janajatis (indigenous groups) and people from ‘backward regions’, reflecting the extent of people’s rage and courage. As the war intensified and the role of the excluded groups in it became increasingly apparent, the government began rethinking its stance, and ultimately those in power were forced to accept that the traditional unitary, centralised and discriminatory system could not last. The next step was to formulate policies that would help address grievances.
On the eve of peace talks with the Maoist rebels in 2003, the government under a newly active monarchy began to open a path towards affirmative action – for example by declaring quotas in government institutions and elsewhere. One example was to set aside a fixed number of places for Dalits, Janajatis, women, and persons with disabilities in medical and engineering education courses. Notwithstanding the fact that the Supreme Court overturned this particular provision (it was reinstated through another court order only recently), it is clear that the Maoist rebellion contributed directly to changes in policy to support affirmative action even as the war continued.
The progress of inclusion accelerated alongside the emergence of the peace process – from the 12-Point Understanding of November 2005 between the Maoists and the state, to the Second People’s Movement of April 2006 and the Comprehensive Peace Accord (CPA) of November that year. Principles of non-discrimination, inclusion and secularism were established through a parliamentary declaration of the House of Representatives – reinstated following the success of the Second People’s Movement. After the CPA, the spirit of affirmative action and inclusion was subsequently reflected in a number of agreements reached between the state and different caste, ethnic, linguistic, religious, gender and regionally based groups and communities, usually following a period of agitation by the respective identity group [see the article on negotiating an inclusive Nepali state, p.13].