Kathmandu: In September, 2020, Binaya Kumar Panjiyar, an MBBS graduate, filed a writ at the Supreme Court making defendants the Medical Education Commission, Office of the Prime Minister and Council of Ministers and Ministry of Health and Population, against the vacancy notice for online entrance examination issued by the Commission for Post Graduate Level in Health Professional Education complaining that the notice did not secure the reservation seats for marginalized communities, thereby flouting the proportional inclusion principle.
In response, the Supreme Court of Nepal on December 16, 2020 issued a verdict suggesting that the reservation system in the health sector might not be desirable in all situations and at all levels of medical education.
After the full text of the verdict became public recently, it has triggered a debate in the public sphere regarding the whole reservation system itself.
What the verdict says
The Supreme Court verdict says that ‘in a sensitive sector such as health, wherefrom the general public is supposed to receive treatment and service from qualified and competent human resources, providing opportunities based on caste, religion, color, geography etc could potentially have an impact on our health service.’
It further says that there are reservation seats in bachelor’s level of medical education. Postgraduate education is a specialized technical subject. To award reservation time and again for the individuals who have once enjoyed reservation will be against the principle of equality and it could also create problems in the qualification system, says the verdict.
It also mentions a few other things about the reservation system. It suggests that the reservation system has to be based on the ‘need’ rather than ‘ethnicity’ to which persons who are its beneficiaries belong.
The verdict states that the reservation system can not be based on ethnicity in a country inhabited by 126 different castes and 123 different languages. “For example, the children of ministers, parliamentarians, constitutional families, professors, industrialists, etc who have reached higher political, social and economic class can be placed in the category of not being entitled to reservation facilities,” the ruling says.
Furthermore, individuals, classes, and groups who were not previously included in the reservation list may have to be provided reservation facilities. Due to factors such as floods, landslides, or any other natural disasters or epidemics, individuals and classes who are entitled to reservation may keep changing, says the verdict. It also states that an eligible individual is allowed to enjoy this privilege only once.
Reservation in Nepal
Nepal has adopted a reservation policy since 2007 to ensure better representation of women and people of excluded communities in the state bodies.
In 2007, the Civil Service Act was amended to ensure reservation. The amended Act said “in order to make inclusive the civil service, 45 percent of the posts to be fulfilled by open competition shall be set aside and be filled up by having separate competition between the following candidates only by considering the percentage into cent percent.” Thirty three percent posts were set aside for women, 27 percent for Adibasi/Janjati, 22 percent for Madheshis, nine percent for Dalits, five percent for differently-abled and four percent for people from backward areas. The Act also defined that “backward area” means Accham, Kalikot, Jajarkot, Jumla, Dolpa, Bajhang, Bajura, Mugu and Humla districts and ‘women, Adiwasi/Janajati, Madhesi, and Dalit’ means women, Adiwasi/Janajati, Madhesi, and Dalit who are backward economically and socially. The Act set a period of review of this provision: The provisions for the fulfillment of posts through the “percent” shall be reviewed every ten years, it said.
Nepal’s constitution promulgated in 2015 has ensured the participation of marginalized people in state bodies. Article 42 of the constitution states: “The socially backward women, Dalit, indigenous people, indigenous nationalities, Madhesi, Tharu, minorities, persons with disabilities, marginalized communities, Muslims, backward classes, gender and sexual minorities, youths, farmers, laborers, oppressed or citizens of backward regions and indigent Khas Aryashall have the right to participate in the State bodies on the basis of inclusive principle.”
In 2018, the Federal Administrative Restructuring Committee recommended that the government should review the existing quota policy. In February, 2019, the government came up with the provisions granting reservation privileges on the basis of economic and social status to candidates belonging to various marginalized communities, in what seemed like an attempt to revise the blanket reservation policy. Against this background, when in May that year the Public Service Commission announced around 10,000 vacancies for local bodies by reducing the reservation seats, it became a subject of criticism from the political parties and ethnic groups.
Acceptance and rejection
The verdict passed by a bench of Supreme Court Justices Bishwambhar Prasad Shrestha and Ananda Mohan Bhattarat on the case of reservation in medical education has been supported and rejected by the stakeholders on various grounds.
While some have welcomed the verdict as a welcome change, others express the concerns that the new verdict might push the people of the excluded communities further toward exclusion in all of the government sectors.
Dinesh Tripathi, Senior Advocate of the Supreme Court believes it is a “wise” and a “scientific” decision as only people with desperate need will be entitled to the facility of reservation system.
“It can get a bit tricky,” he adds. “But if the method of selection is guided by the Human Development Indicators, it will be very scientific and practical.”
On the contrary, for the people belonging to the Dalit community, this has not been good news. Parsuram Ramtel, who was a Constituent Assembly and who is now the Co-ordinator of National Dalit Shramik Morcha, believes that this new verdict will push the Dalit community further into inequality trap. He belives that this decision will only help people of “ruling community” to go further up the opportunity ladder while the people of Dalit community continue to lag behind.
“It is good to give the underprivileged more options, but the opportunities and privileges needed for the Dalit community should not be taken away from them,” he says. He argues that Dalit community needs to be given more special rights and not just reservations and the verdict has hindered this prospect. “We need to discuss more about this need and come to a better conclusion instead of blindly following the court decision,” he says.
Sarita Pariyar, a writer and a social activist, concurs with Ramtel. The verdict will help make the privileged community even more privileged, she commented on her Facebook wall. Reservation for women, Dalits, Tharu, Madheshi, Muslim, Janjati and people belonging to remote areas of the country is a must for Nepal, wrote Mohna Ansari on Twitter. “The state institutions must reform to be inclusive. There is no other way.”
As the debate continues in favor of and against the verdict, Senior Advocate Dinesh Tripathi believes if practiced without bias and by following the HDI to determine the socio-economic status of an individual or a community, the verdict will bring positive outcome as only people in need will be able to apply for reservation quotas.
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