Question 1
What is the issue, and why does it matter?
Inclusion here means two things: who has a voice where public decisions are made (legislatures, executives, the civil service), and who has a fair chance at the opportunities the State controls, such as public jobs. Nepal's Constitution answers both mainly through proportional representation, reserved seats and reserved posts for groups it names, plus constitutional commissions to watch over the results.
Nepal is highly diverse. The 2021 census recorded 142 castes or ethnic groups and 124 mother tongues among 29,164,578 people. No caste or ethnic group made up more than 16.45 per cent of the population.12
The Constitution makes inclusion a founding principle. Its Preamble resolves to end discrimination based on class, caste, region, language, religion and gender and all forms of caste-based untouchability, and to build an egalitarian society based on proportional inclusive and participatory principles. Article 18 allows special provisions by law for socially or culturally backward groups it lists, and Article 24 makes untouchability and caste-based discrimination punishable.3
Representation has grown but is uneven. According to the 16th Plan, women held 33.6 per cent of seats in the Federal Parliament, 34.5 per cent in provincial assemblies and 40.9 per cent in local governments in 2079/80, but only 29.5 per cent of public service positions and 13.7 per cent of policy-making positions in the public service.4
Reserved recruitment is now a large route into the civil service. In 2081/82 the Public Service Commission recommended 2,592 people for permanent appointment; 1,056 of them (40.74 per cent) came through advertisements reserved for inclusive groups, and 902 (34.79 per cent) of all those recommended were women. Over the 18 years since reserved recruitment began, 26,274 people have been recommended through reserved groups.5
Question 2
What do current law and policy say?
Constitution, rights: women (Article 38(4)) and Dalit (Article 40(1)) have the right to participate in all bodies of the State on the principle of proportional inclusion, and special provision is to be made by law for Dalit representation in public services and other employment. Article 42(1) gives the same right to economically, socially or educationally backward women, Dalit, indigenous nationalities (Aadibasi Janajati), Madhesi, Tharu, Muslims, backward classes, minorities, marginalized communities, persons with disabilities, gender and sexual minorities, farmers, labourers, oppressed or citizens of backward regions, and indigent Khas Arya. Article 40(7) says Dalit facilities must be distributed so that Dalit women, men and Dalit in all communities obtain them proportionately.36
Constitution, state policies: the political objective includes proportional inclusion, participation and social justice (Article 50(1)). Article 51(j) directs the State to let indigenous nationalities participate in decisions concerning their community, to make special provisions for minority communities, to make special provisions for the Madhesi community, Muslims and backward class including opportunities for indigent citizens within those communities, and to give priority to indigent persons within all sexes, regions and communities while providing social security and social justice. Article 55 makes these policies non-justiciable.36
Constitution, legislatures: the House of Representatives has 165 members elected by first-past-the-post and 110 by proportional representation (Article 84(1)). Parties' closed lists for proportional seats must ensure representation of women, Dalit, indigenous nationalities (Aadibasi Janajati), Khas Arya, Madhesi, Tharu, Muslims and backward regions on the basis of population, with regard to geography and regional balance, and must include persons with disabilities (Article 84(2)–(3)). At least one third of each party's members in the Federal Parliament must be women (Article 84(8)). Provincial assemblies are 60 per cent first-past-the-post and 40 per cent proportional, with similar list rules and the same one-third rule (Article 176). The Speaker and Deputy Speaker must include one woman (Article 91(2)), and the President and Vice-President must be of different sex or community (Article 70).76
House of Representatives Member Election Act, 2074 (as amended in 2083): a party's closed list must name candidates for at least 10 per cent of proportional seats, at least half of all listed candidates must be women, and the list must follow the population percentages in Schedule 1 while also representing backward regions and persons with disabilities (section 28). After seats are allocated, the Election Commission tells each party how many women it must elect for women to make up 33 per cent of its members in the Federal Parliament, and parties submit names following Schedule 1 'as far as possible' (section 60(4)–(6)). Schedule 1 now reads: Dalit 13.44, indigenous nationalities (Aadibasi Janajati) 28.72, Khas Arya 30.28, Madhesi 16.15, Tharu 6.52 and Muslim 4.89 per cent. It was replaced by an ordinance gazetted on 2082/09/04 and by the First Amendment Act authenticated on 2083/02/17.89
National Assembly: 56 of its 59 members are elected, eight from each province, of whom at least three are women, one is Dalit and one is a person with disabilities or from a minority community; the President nominates three, at least one a woman (Constitution Article 86(2); National Assembly Member Election Act, 2075, section 3(1)).710
Local government: each rural municipal executive includes four women and two members from Dalit or minority communities elected by the assembly, and each municipal executive five women and three Dalit or minority members (Articles 215(4), 216(4)). Each ward committee has two women members, one of whom must be a Dalit woman (Local Level Election Act, 2073, section 6(2)). Parties fielding candidates for chair and vice-chair, mayor and deputy mayor, and district coordination committee chief and deputy must make half of them women, unless they field only one candidate (section 17(4)).711
Civil service: federal civil service posts are to be filled by competitive examinations on the basis of open and proportional inclusive principles (Constitution Article 285(2)). The Civil Service Act, 2049 sets aside 45 per cent of open-competition posts and divides them as: women 33, Adivasi/Janajati 27, Madhesi 22, Dalit 9, persons with disabilities 5 and backward region 4 per cent (section 7(7)). For the first four groups the Act means those who are economically and socially backward, and 'backward region' means nine named districts. Unfilled reserved posts carry forward before reverting to open competition (section 7(10)), and the percentages must be reviewed every ten years (section 7(11)).1213
Pending bill: the Federal Civil Service Bill, 2083 was registered in the House of Representatives on 2083-06-15 and has not been enacted; the House's bill page records distribution to members on 2083-06-16 and no later stage. The bill proposes reserving 49 per cent of open-competition posts. Half would be competed for by women only, divided among Khas Arya 27.7, indigenous nationalities (Aadibasi Janajati) 25.7, Madhesi 15.3, Dalit 12.7, Tharu 6.6, Muslim 4, backward region 4 and women with disabilities 4 per cent. The other half would be divided among indigenous nationalities 32.5, Madhesi 19, Dalit 15.5, indigent Khas Arya 10, Tharu 9, Muslim 5, backward region 5 and persons with disabilities 4 per cent (section 11(1)–(3)). The bill defines 'indigent Khas Arya' as a person of the Khas Arya community who holds a poverty identity card under prevailing law or, until such cards are available, whose annual income is below the level set by the Government of Nepal, as recommended by the local level; 'backward region' means local levels as prescribed. One person could use the benefit of section 11 once at non-gazetted and once at gazetted level (section 11(10)), and applicants would submit prescribed documents proving that they belong to the group (section 11(11)). The bill's note on delegated legislation gives the expected effect of the rules under section 11 as ensuring that only the targeted classes and communities obtain reserved posts.1415
Constitutional commissions: Part 27 establishes the National Women Commission, National Dalit Commission, National Inclusion Commission, Indigenous Nationalities Commission, Madhesi Commission, Tharu Commission and Muslim Commission (Articles 252–264). The functions of the first three are set in the Constitution; those of the other four are left to federal law. The Federal Parliament is to review these commissions ten years after the Constitution's commencement (Article 265). Separately, the Government must appraise the implementation and impact of the special rights of women and Dalit on the basis of the human development index alongside each ten-yearly census (Article 281).126
16th Plan (2081/82–2085/86), chapter 8: the Plan commits to set criteria and indicators for identifying target groups and to build an integrated information system with disaggregated data; to resource the constitutional commissions for research; to adopt positive discrimination giving priority in reservation for public services and employment to castes, classes and communities that are weak in population share and in economic, social and human development; and to amend laws that contain contradictions on political representation.4