Over the last weeks there has been an outcry in relation to the lack of diversity and inclusion among the candidates running for the November 20 polls from the major political parties. Women and members of historically marginalized communities have been, once again, neglected and denied the “tickets” to contest. The vast majority of available places have been taken by males belonging to the Khas community who are already overly represented not only in politics but also in the civil service.
There is nothing surprising about it because it is a stark reality that can only change through a mix of actions in different areas, from policy making with better provisions to guarantee the right to equality and representation to a revision of the current institutions in charge of safeguarding the rights of minorities and disadvantaged groups.
While interventions in the sphere of governance are indispensable even though they can be controversial because they can be potentially considered as “discriminatory” towards the upper class, it is also paramount to have, as I have already written, those historically in a position of privilege, do their due to change the status quo.
I am saying this because top-down actions from the legislature, even if enshrining the core principles of social justice are very well intended, might not be enough to bring about a social change in how the layers of power reflect the diversity and heterogeneity of the nation.
Therefore, in this piece, I reflect first on what policymaking can better do to create a level playing field by focusing first on reservations and secondly on ways that the existing institutions supposedly considered the “guardians” of minorities can do a better job.
For both points, a look at what’s happening outside Nepal is important because understanding the challenges and efforts of other countries to achieve a more just representation can offer a perspective that, often lacking or simply discounted, is important to hold whenever we delve into complicated and sensitive issues like this one. Lastly, the essay will propose some ideas on what those belonging to groups, who are over-represented, could do to enhance levels of inclusion in the country.
Dissecting policy issues
There are currently two major cases related to reservation or affirmative discrimination that we should look at. Close to home in India, recently the Supreme Court endorsed an amendment to the Indian Constitution that allows for a new type of reservation, the so called Economic Weaker Sections (EWS) from upper classes.
I am referring to the 103rd Constitution Amendment Act of the Indian Constitution that was introduced back in 2019 by the Narendra Modi government to address the needs of the poor among the so-called privileged castes. As many commentaries in India have stated there is nothing wrong in providing remedy to citizens who, regardless their background, face socio-economic challenges.
As much as a strong and effective reservation system focused on enhanced representation of the marginalized, people’s attitudes about the issue also matter.
Yet that judgment, formally known as the Janhit Abhiyan vs Union of India (WP 55 of 2019) case, remains controversial because, correctly, the petitioners argued against an amendment that does away with an overarching tenet of reservation, the fact that it is a tool to bring about representation rather than economic upliftment.
As explained by Neera Chandhoke in a piece for The Wire, reservations are not the best forms to take actions to improve the economic status of all who are disadvantaged but rather it is a tool that should be limited to bring better representation of those who have been historically marginalized.
What we need to change are the socio-economic conditions of all those living in poverty, explains the author. We need better redistributive policies, interventions that materialize through a variety of measures, for example, subsidies or cash transfers. The issue with the Supreme Court’s sentence is that now the gates are open to reservation to those who, albeit economically weak, are already overrepresented in public jobs and in higher educational placements.
There have been a lot of reactions on this regard, strong criticisms to the judgment because Scheduled Castes (Dalits) and Scheduled Tribes (members of remote and disadvantaged minority ethnic groups) and Other Background Groups (castes historically disadvantaged but proportionally less than SCs and STs) have been intentionally excluded by the constitutional amendment.
And this was exactly the intention of the government (it is important to note that the Congress Government led by Manamohan Singh had initiated the process which the BJB government finalized), its goal to carve out a new quota category in order to “exclusively” help those in needs from historically privileged groups. It’s clear there is a lot of vote banking implied here with all the major parties supporting a move that obviously would put themselves favorably with the upper classes.
Only the Tamil Nadu Chief Minister MK Stalin and all the party with the exception of the official opposition in Chennai have strongly and unequivocally condemned the ruling.
Another major criticism was that citizens from upper class–who have an annual income up to INR 8,00,000–can qualify as Economic Weaker Sections, the same threshold that is used to define the “creamy layers” of the Other Background Groups, those who have already benefited from reservation and therefore are no more eligible to that. The number of this class is considerably higher than the class with average annual income of around INR 1,50,000. It means that not only those in most need are the only ones who are going to be the beneficiaries but rather a vast group of people, who till 2019, were not benefiting from any type of reservation.
This long parentis on Indian reservation system will now move to the United States of America where is there is a major case at the Supreme Court involving a host of universities like Harvard, University of Michigan and University of North Carolina all fighting to retain their constitutionally sanctioned prerogative to consider race as one of the factors in their admissions.
Note that reservations like that of India are outlawed in the US and the case being debated in the Supreme Court is to ascertain if Asian American students are at disadvantage in their admission because the universities in question might tend to consider afro-American students more favorably.
In this case the universities are striving to demonstrate that race is not the main factor in their decision making process. Both of these cases–in India and the US–show the vast complexity of affirmative legislations and how controversial they can be.
In Nepal, there is a common understanding that reservation policies in the country are among the most advanced in the world, including the provisions to ensure 33 percent of women through proportional vote in the parliament, something that India has not been able to do yet. There have been recent concerns about the lack effectiveness of reservation, including opinions about doing away with it or drastically reforming it.
First has been the Supreme Court of Nepal in 2021 casting doubt on the creamy layers of those benefiting from reservation, something that, in principle, should be taken into consideration but only with the proper perspective especially by taking into account how recently a doctrine of reservation has been enacted in the country. Together with the even more recent recommendations of National Inclusion Commission about doing away with good extents of the current reservation provisions, it seems there is certain “dissatisfaction” from some parts of the society in relation to affirmative legislation.
Unsurprisingly, it is the same “malaise” expressed by some of the justices in the Indian Supreme Court in the EWS amendment of the constitution, some of whom clearly demand a rethinking of the entire policy. In Nepal, there is obviously a strong case to reject such propositions but considering the legal and societal ramifications of any changes in the current framework, only more dialogue and more research can help bring more clarity on the benefits of retaining and possibly even expanding quotas in the country.
The simple fact that political parties are neglecting potential candidates from Dalit and Janajati communities and women in general is just an indicator that the country needs even stronger quota provisions. In principle, those who want to put an “expiry” date on such policies are right in the sense that reservations should not be enabled to remain in place forever but we need time to acknowledge that it takes time to make the state organs at all levels much more representative and inclusive than they are now. For example, despite the Civil Service Act (2007) having affirmative provisions for marginalized groups, Brahmins and Chhetris are still overly represented. The revision is itself complex because there are requests to create even more space for underrepresented sections of the society at the expense of some groups already benefiting from some quotas.
So on the one hand, there are forces pushing back for more affirmative discrimination policies and on others, there are those who legitimately demand for more of them.
So what can we learn from India? Reservation policies should be framed in the perspective of an attentive and careful analysis of who are included and who are excluded from the state bodies. Again, it is important to note that such interventions are not aimed at economically benefiting those citizens being under-represented, though as we know from India’s experience on reservation before 103rd Constitution Amendment Act that economic status has always been only one of the factors to be considered before granting reserved status.
Business leaders, most of whom come from predominant classes, must realize the importance of the cause of social inclusion. Their contributions can make a huge difference.
Yet in the quest for equality based on just representation, reservations cannot do the job alone and that’s why it is important to look at other considerations like an examination of what we call inclusion-focused governance in the country.
Re-booting inclusive institutions
There are currently seven commissions aimed at protecting and guaranteeing the inclusion of the most disadvantaged groups in Nepal. We already have commissions on Madheshis, Dalits, Tharus, Muslim, Women, Indigenous Nationalities and National Inclusion and another, National Foundation of Indigenous Nationalities, according to PM Deuba, is in the pipeline. None of these commissions proved to be effective mostly because of lack of resources. For example, the National Dalit Commission does not even have the tools to investigate alleged cases of discrimination. This should not be the case anymore.
Such commissions should truly be empowered and supported to fulfill their constitutional mandate.
At the same time, the idea of a unified and much stronger commission, despite being almost impossible from the political point of view, could make sense as long as it fully incorporates the mandate of each and single commission now existing and it is equipped with real teeth. A compromised option would see the case for a National Inclusion Council of which formally each commission now in place would become part of. The Council would work as a loose umbrella while ensuring the autonomy of each single commission. It would also guarantee cross-section collaborations and dialogue among them, something that is totally missing as of now. We have a case of Tharu Commission objecting that the Madheshi Commission has included some surnames of Tharu citizens as Madheshis. Such diatribes are ridiculous because the end count is not vote banking and the benefits that politicians derive from it by forming a new commission each time that is politically “convenient” to accommodate the political demands of some leaders of a given community that has been marginalized. What matters is effective institutions not only investigate cases of discrimination but also can produce studies and sociological and legal research that can advance the national debate on social inclusion. For example, the single issue of reservation is as complex as fascinating and we need a real dialogue on it, bringing forward all the points, including those of the members of the so-called privileged classes.
Only an in-depth analysis of the intricate legal aspects coming with affirmative legislation and public debate can enhance a common understanding on why it is necessary not only to maintain but also to enhance reservation in such a way that is neither misunderstood nor detrimental to other members of the society.
Before moving to the third and final part of this essay where I will focus on other measures that can be taken from the “bottom”, let me mention three cases of innovative governance that helps diversity and inclusion.
Some international examples
First, let’s start from South Africa where you can find the Equality Courts that are designed to be “specialized courts designated to hear matters relating to unfair discrimination, hate speech and harassment.” Perhaps when the police is reluctant to file cases of caste discrimination and when the commissions are unable to properly investigate such cases, we need to rethink the way the judiciary adjudicates such cases.
Given the historic discriminations of the Apartheid regime in South Africa, equality and the fight against discriminations are prioritized and it makes total sense creating specifically designed court to tackle discrimination.
The case of Nepal is vastly different from the South Africa and we can hardly draw any comparisons with it but it is true that discrimination has been part of the history of the nation. The second example comes from Canada where the upper chamber, the Senate, is made up by independent citizens who are appointed through an Independent Advisory Board that acts as “an independent and non-partisan body whose mandate is to provide non-binding, merit-based recommendations to the Prime Minister on Senate appointments”. There is a rigorous process for getting selected and nominated but each citizen can apply or nominate someone as long as the requirements–“knowledge requirement” and “personal qualities–are met.
As incredible as it might be, you can even find the vacancies of the seats now open for candidatures.
In relation to Nepal, the National Assembly could be drastically transformed into a much less partisan institution where deserving citizens can have a chance to participate in the legislative process.
The way its members are elected right now is just a copy and paste from the Indian Rajya Sabha. The fact that locally elected officers have a chance to vote for its members is positive in itself but such a process of selecting these candidates is opaque and exclusively driven by the leadership of the political parties. The National Assembly has become a kind of a venue for party leaders to “park” those party members who did not get elected in the House of Representatives.
In the Upper House styled to the Canadian model, there could be space to ensure that a certain number of seats are also reserved for citizens of marginalized groups and women and all of them can apply for the position. The best of them, those with achievements and particular areas of expertise, would be awarded seats in it, all through a transparent selection process out of the purview of political parties.
Imagine professionals with integrity and many young professionals who have innovative ideas and some remarkable experience and want to contribute to policy making. It would be a way to give space to them by awarding their merits and this can be done also inclusively.
The third and last example of innovative governance is what Australia is trying to explore by giving its aboriginal people the so-called Voice to the Parliament. It is not a new idea but the Albanese Administration now in power is pushing forward with a national referendum that might bring to light a third chamber for native aboriginal people.
Even if this new body, to work besides the existing Senate and House of Representatives, will only have “a responsibility and right to advise the Australian Parliament and Government on national matters of significance” to the aboriginal people, it is still going to be significant that the government will have to explain and justify decisions against the opinions of its aboriginal people.
As per South Africa, we can’t properly compare the situation of native indigenous citizens of Australia with the one of Dalits or indigenous people of Nepal.
Yet the point of this “tour of the world” is to bring some new and fresh ideas on the debate about how the discrimination and lack of representation in Nepal can be remedied. After all, each country has its own identity and intrinsic history and peculiarities.
As much as a strong and effective reservation system focused on enhanced representation of marginalized groups and as much as institutions of the state can do a better job at ensuring equality, so much will depend on the people’s attitudes about the issue.
Changing the mindset
Schools can offer a great platform to talk about inclusion even though it is of utmost importance to avoid falling into the cultural wars now so embedded in the public discourse and politics of the United States of America. Focusing on diversity and how diversity can enrich a classroom and by default, a nation, students can learn about different costumes and traditions that exist in the country. In part this is already happening but these efforts could be enriched from an inclusion of a social justice dimension.
It is ok to talk about the fact that certain groups got less opportunities and it is ok to talk about how wrong discrimination is. If schools can do their own part, then a lot can be done by other spheres of the society.
For example, the National Dalit Commission has been unable to prepare a national plan of action as per suggestion of the National Human Rights Commission. A government that is more invested in the issue will certainly be needed to devise and think about such a plan but then, if we really want such a plan to kick off, it is also going to be about other actors of the society to support the process. The same goes for group specific plans like ways to include persons with disabilities or other marginalized groups that are often stigmatized.
In this regard, the private sector can also do much to focus on inclusion and diversity.
For example, the Federation of Nepalese Chamber of Commerce and Industries (FNCCI) has come up with its National Economic Transformation 2030 but how much of this blueprint is devoted to inclusion and diversity within the industries of the country?
There is mounting evidence that more diversity in the work space enhances the bottom line elsewhere but a sincere and consistent effort must be taken in this regard and we need to research and evaluate how more working environments in Nepal can help the overall economy. Ultimately, business leaders, most of whom come from predominant classes, must realize the importance of the cause of social inclusion in the country. Their contributions can make a huge difference.
Discourse is not enough
Talking about reservation is important but it’s not enough. Amid requests to have a stronger reservation policy for women and Dalits in the parliament and provincial assemblies, two points that deserve attention and action–achieving social inclusion by ending discrimination and marginalization–need to receive the whole national efforts.
It is about better provisions, it is about better institutions but it is also about forging a consensus that something must be done and this, necessarily, must come from the elites of those communities that historically have been in a position of privilege and are now much better represented at all the levels of the power.
It is not going to be easy but there is no doubt that Nepal will become a better and more prosperous place when that long journey, that has already been initiated, towards a more inclusive, diverse and just nation, will continue at much faster pace and through real efforts from all sectors.
Views are personal.