Reaffirming affirmative action

Manoj Kumar Mahara grew up in a Dalit settlement near Janakpur in a family that could not even afford to send its children to school. 

Still, he was one of only two students from the community that went to school. But he had to drop out in Grade 10 because his father went overseas to work. His mother worked as a farmhand in a landlord’s field. 

The family borrowed money to pay for Mahara’s high school, and as he prepared for the Public Service Commission exam. Because of the government quota for Madhesis, he got a job in the civil service in 2016.  

Now 32, Mahara is a senior officer at the Land Management and Revenue Office of Siraha district, one of few from his community to have a government job. Because of his earnings, his father no longer has to toil in Saudi Arabia and he has paid off the Rs100,000 loan his family owed to a microfinance company.

“It would have been tough for me to get this job had it not been for the reservation system,” he says. “This government job is not just my livelihood, it also gives my family dignity and respect in the community.” 

Many Nepalis in the Tarai face double the discrimination because of being both Madhesi and Dalit – both the communities have faced historical ostracisation and economic deprivation. 

Even within the Dalit community there are sub-castes: nineteen in the Tarai and seven in the mountains. The discrimination against Dalits in the Madhes is said to be worse.  

Nepal’s civil service reservation policy, introduced after the post-conflict 2007 Interim Constitution, gave Nepalis from excluded and underserved communities an opportunity to participate in the state mechanism, changing its structure in the process. 

In the 17 years since, Dalits and others have had a more proportional representation in the state structure than before, although there is still a long way to go. And even though the laws are there, societal and cultural discrimination is slower to change.  

Discussions about affirmative action to redress discrimination began in fact after the 1990 People’s Movement. Before that, discourse on gender, indigenous rights and exclusion of Dalits were considered ‘development’ issues rather than violations of human rights. 

The 1990 Constitution acknowledged diversity and inclusion for the first time, and while the Constitution Drafting Committee had arranged for a 5% reservation for women and 3% for Dalits, the interim government removed the quota for Dalits before the Constitution was promulgated. 

Under the post-conflict Comprehensive Peace Accord of 2006, the inclusion of Dalits and minorities was explicitly mentioned as a part of the state restructuring process. Article 21 of Nepal’s Interim Constitution 2007 guaranteed social justice, stipulating: ‘Women, Dalits, indigenous ethnic groups, Madhesi communities, oppressed groups, poor farmers and labourers, who are economically, socially or educationally backward, shall have the right to participate in state structure on the basis of principles of proportional inclusion.’

Tula Narayan Shah, chairman of the Nepal Madhesh Foundation, concedes that the reservation policy has brought communities previously excluded from the state mechanism to the mainstream, helping bridge the inequality gap. “Previously, Nepal’s civil service was almost entirely made up of Brahmin and Chhetri men, reservation has ensured the presence of different communities,” Shah told us.

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Hill Dalits have benefited more from reservation, while Madhesi Dalits remain on the sidelines. Indeed, while reservation has played a significant role in ensuring the representation of different communities in government service, the Public Service Commission’s data from the last seven years shows that access to reservation itself has not percolated past those who are on the top of the hierarchy of reserved groups to reach socio-economically marginalised communities. 

For instance, while 97 of Nepal’s caste groups have entered government service, 45 other groups remain excluded. The presence of underserved caste and ethnic groups within the indigenous community is still small, and in many cases disproportionate to the population of those communities. 

“Even within the Dalit community, hill Dalits have benefited more than those from the Madhes,” says Umesh Prasad Mainali of the Public Service Commission. “While reservation has brought positive change, its benefits have fallen to only selected castes within the cluster groups.”  

Meanwhile, the Tarai’s Brahmin community makes up most of the Madhesi category in the civil service, which means Dalits get left out even though they can compete under two cluster groups.

Journalist and human rights activist Bhola Paswan says that the double discrimination, poverty, lack of access to education, and language barriers have contributed to the continued underrepresentation of Madhesi Dalits in Nepal’s civil service. 

“Madhesi Dalits with a literacy rate of 48% can compete within Dalits, but how can they compete with higher caste Madhesis who have a 100% literacy rate?” asks Paswan, who says caste reservation is in urgent need of review.

Other experts say that the 45% civil service seats set aside to ensure inclusion is not effective because even though women are allocated 33% of reservation seats, it has not translated into reality, especially since women make up 51% of Nepal’s population.

There are also complications when an individual is part of more than one group allocated for reservation. For instance, a Dalit woman can apply under the women category, Dalit category, or through open competition. 

“Since the Dalit quota is not categorised by gender, her competition will ultimately be with women and Dalits as a whole,” explains researcher Kailash Rai, who says a separate provision for women under different reserved categories would be more fair. 

Muslims have also been at a disadvantage because they are placed in the Madhesi category for the civil service, although the proportional representation criteria applies for them in politics.

In 2021, the Madheshi Commission included the Tharu and Muslims as part of the Madhesi community, which was widely disputed, since there are separate Tharu and Muslim commissions.

Mohammad Zakir Hussain, former State Minister for Women, Children and Social Welfare, argues that there are also Muslims from Nepal’s mountain districts, and his community cannot compete with Madhesi Brahmins who are better educated and connected. 

In 2020, medical student Binay Kumar Panjiyar sought a Supreme Court intervention to demand a government scholarship for a postgraduate in medicine. The court ruled that reservation should be interpreted as a class issue, which was itself criticised for undermining reservation for representation by gender, caste, ethnic, and geography.  

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Lack of access to education is deemed to be the main reason communities have not been able to benefit from representation quotas. 

“Reservation allocation must look into marginalised groups within underserved communities and take into account education and economic conditions across cluster groups themselves,” says researcher Bhaskar Gautam.

Indeed, Magar, Rai and Gurung communities have not been represented in the civil service in proportion to their population, and Ram Bahadur Thapa Magar, of the Indigenous Nationalities Commission explains the main reasons: “They prefer to join the military, go for foreign employment, and lack access to education.” 

However, anthropologist Mukta Singh Lama blames underrepresentation of these communities to historic state exclusion. “Although they are a large part of Nepal’s population, these communities have been historically oppressed, and have not had access to education and information, which means they have had minimum participation in the state mechanism.”

Lama suggests reducing the quota for caste groups who have already been represented in civil service in proportion to their population and reallocating those seats to other communities.

Devraj Bishwokarma, chair of the National Dalit Commission, agrees seats for those communities under the cluster groups whose reserved quota has been completed, must be reduced so that hitherto excluded communities are represented in civil service in proportion to their population. 

Umesh Prasad Mainali, former chair of the Public Service Commission, says that some of Nepal’s indigenous communities have reached economic, social and educational advancement through reservation so they no longer need to be included. “This problem should be addressed by the upcoming Federal Civil Service Act.” 

Mainali adds,“We might not be able to represent all of Nepal because of the scale of our diversity, but groups with a larger demographic presence must be included.” 

Some activists say the current reservation system has elevated privileged groups and it would be more prudent to set aside quotas on the basis of class rather than on caste or ethnicity. 

“People representing only a select few caste groups have entered civil service,” says Vijay Kumar Datta of the Madheshi Commission. “At this rate it will take another 200 years for less privileged Madhesi communities to be represented in the civil service.”

In a report titled The Impact of Reservation on Existing Government Services published in 2021, the National Inclusion Commission recommended that reservation should be abolished altogether by 2034. ‘The goal of the six allocated groups making up 45% of the civil service seems to be achievable within the next 14 years … it is not desirable to maintain the reservation system beyond that time,’ the report says. 

The report also drew a backlash for not taking into account the benefits of reservation to the target communities — as did the six-member commission that prepared the report, all of whom belonged to privileged caste groups.  

The discussion was reignited earlier this month as commentators drew parallels between Nepal’s reservation system with the Bangladesh student protests against their quota system even though, there, it was anger over the increased job quotas for cadres of the Awami League. 

The debate between affirmative action and meritocracy is a long one, and has been going on in every country. Although Nepal’s inclusion policy aimed to represent historically excluded communities and state bodies, it did not consider the shortcomings.  

Says Bhaskar Gautam: “If the state had properly committed to the policy during the Constitution-making process, reservation quotas could have been allocated to those who have been sidelined even within the marginalised communities.”  

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By the numbers

The Civil Service Reservation Policy was introduced in Nepal through the Second Amendment in 2007 to the 1993 Civil Service Act, which stated that in order to make the civil service inclusive, 45% of the total posts shall be set aside and be filled up by having separate competition between six groups based on gender, ethnic and caste background, as well as geography.

This ‘positive discrimination’ policy allocates 33% of civil service jobs for women, 27% to indigenous groups, 22% to Madhesi people, 9% to Dalits and 5% to people with disabilities, and 4% to people from ‘backward areas’ (which include six districts of Karnali Province and three from Sudurpaschim Province). Nepalis from poorer Brahmin and Chhetri communities are also eligible for reservation. 

Since the introduction of the reservation system 17 years ago, the percentage of Dalits in the civil service has increased from 0.13% to 1.76%, while the percentage of Muslims has gone up from 0.13% to 1.92%. Only 11 caste groups were present in government jobs in 2007, compared to 97 today.

There are currently 85,520 civil service employees, of which 68.6% entered through direct competition, 7.4% of civil service workers are women, 5.4% are from indigenous communities, 4.1% are Madhesi, 1.6% are Dalit, 0.8% are people with disabilities, and 0.7% are from backward areas. 

Meanwhile, the percentage of Khas Arya Nepalis in the civil service has gone down from 80.6% before the implementation of reservation to 70% at present – still the largest share in the civil service. 

According to the National Census, Brahmins, constitute 11.3% of the population but make up 34.18% of the civil service, while Chhetris who make up 16.45% of the population hold 19.15% of government jobs.

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