Social Justice, Inclusion, and Reservation: Absolute Necessity or Necessary Evil?

Constitution Study #10: Analysis of the Fundamental Rights and Policies on Social Justice and Inclusion

Months before the promulgation of the Constitution on Ashwin 3, 2072 (September 20, 2015) debates on social justice, inclusion, and reservation had pervaded the Constituent Assembly and the streets. At Tri-Chandra Multiple Campus, where I was doing my bachelor’s at that time, there would be heated debates between friends. Some were favour of the policies, some against, and still some demanding a nuanced and balanced approach. Although the policies are etched in the Constitution through the Preamble, Fundamental Rights, and State Policy, the following questions are still relevant:

1. Is social justice necessary in Nepal?

2. Has inclusion changed anything?

3. Can we afford the current model of reservation?

This article, a continuation of the Constitution Study series, gets into the constitutional promises, actual practice, and way forward in the matters of social justice, inclusion, and reservation.

How Did Social Justice, Inclusion, and Reservation Find their Way into the Constitution?

1. Initiation in the Democratic Era (2007-2017)

Democracy is often thought of as an idea that automatically includes everyone in the state structure and governance. The truth is: it is not enough. Nepal’s democratic movements in 2007 B.S. (1951) barely scratched the Rana oligarchy and gave power to another group of elites.

2. Reversal in the Panchayat Era

The Panchayat era (2017-2046) stripped even the right to voting. It created a monolinguist, monocultural, and monoreligious nationalism in a country with diverse languages, cultures, and religions. On the surface, Nepal was united by a single language, culture, and religion, but underneath the seed of conflict was brewing.

3. Resurgence during Civil War

The Jana Aandolan of 2046 brought on the surface some issues related to women and Dalits, but it still could not accept the diversity as the national characteristic. While the Maoist movement did not begin with the issues of social justice and inclusion, it picked the idea to mobilize and motive more people into the war against the government. The narrative of historical injustice struck the chord of the marginalized, and they went wholeheartedly into the war.

4. Outcry during the Constituent Assembly Era

Issues of social justice, inclusion, and reservation found their way into the mainstream after the 2062/63 Jana Aandolan II. The Madhesh Aandolan of 2063 and 2064 aggressively demanded federalism and correction of historical injustices. Movements of Aadivasi Janajatis (indigenous groups), women, Dalits, and others before the promulgation of the Constitution institutionalized the issue.

5. Constitutional Implementation Era

There are still some debates regarding social justice, inclusion, and reservation despite constitutional promises. Complaints about elite capture have raised concerns on the fair and just implementation of those provisions and if it is necessary to amend the Constitution and other laws.

6. Nepal’s Global Commitments

Apart from the above domestic movements, Nepal’s ratification of different international human rights laws also gave way to social justice, inclusion, and reservations for the marginalized, such as:

• CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women)
• CRC (Convention on the Rights of the Child)
• ICCPR (International Covenant on Civil and Political Rights)
• ICESCR (International Covenant on Economic, Social and Cultural Rights)
• UNCRPD (Convention on the Rights of Persons with Disabilities)

The Constitution’s Bold Promise and Its Global Roots

Article 18 of the Constitution enshrines Equality before Law, guaranteeing non-discrimination based on origin, religion, race, caste, tribe, sex, physical condition, condition of health, marital status, pregnancy, economic condition, language, region, ideology or any other status. It also introduces affirmative action, mandating the state to enact special laws and policies for the protection, empowerment, and representation of marginalized communities, including women, Dalits, indigenous groups, Madhesis, Tharus, Muslims, people with disabilities, and backward regions.

Similarly, Article 24 prohibits untouchability and caste-based discrimination in any form. Article 42 guarantees the Right to Social Justice, enabling marginalized groups to participate in state bodies on the basis of proportional inclusion.

State Policies (Article 51(j)) also include the matters of social justice and inclusion. It guides the State to work towards building an environment to allow the participation of diverse groups in governance, and ensuring their political, social, cultural, and economic protection.

But do these lofty provisions translate into meaningful transformation?

Positive Outcomes

Data from the Economic Survey 2081/82 shows that social indicators such as education and health have improved overall, but gaps persist:

• The Human Development Index is 0.622, which is still low compared to regional peers.
• Education statistics reveal glaring disparities. Community schools with predominantly marginalized students consistently perform worse than institutional schools. SEE results show deep inequalities in quality and accessEconomic Survey 2081-82.
• In social security, over 3.5 million people benefit from allowance schemes (elderly, disabled, widows), but reports of exclusion and misuse remain frequent.

Nepal’s 16th Five-Year Plan also highlights the goal of creating a just and equitable society, explicitly targeting:

• Increased participation of women, Dalits, Madhesis, and other marginalized groups in decision-making.
• Reduction in multidimensional poverty.
• Inclusive economic growth through social protection and targeted investments.

However, the same plan admits to persistent inequality, elite capture, and weak implementation mechanisms, especially at the local level.

Persisting Challenges

Lack of civic awareness and knowledge (sometimes even denial) on historical inequalities, and attitude of the rulers and the ruled keep bringing up problems in effectively implementing the constitutional provisions of social justice and inclusion. These problems can be summarized as:

• Implementation Gap: Laws exist, but mechanisms are weak, underfunded, or politicized.
• Elite Capture: Affirmative action benefits the dominant voices within marginalized categories, while the poorest remain excluded.
• Data Deficiency: Many groups are invisible in national surveys and policy planning, making targeted interventions difficult.
• Social Attitudes: Deep-rooted biases in bureaucracy, politics, and society obstruct real transformation.

Even programs meant to uplift the marginalized are often politicized, leaving the truly marginalized behind.

We must confront the bitter truth: A policy that looks fair on paper can still feel unjust in practice.

The Way Forward

If we want real change, we must ask tough questions and act boldly:

1. Is inclusion reaching the poorest within marginalized groups?
   If not, we need audits and reforms to prevent elite capture. We may even have to limit the number and period of reservations an individual can get.
2. Are our education and healthcare systems inclusive by design?
   
3. Can we make inclusion part of everyday governance?
   
4. Are we prudent enough to let the Constitution and laws guide us?

We are not doing favour by implementing social justice and inclusivity. They are not gifts. They are orientation towards basic human rights. And the longer we delay its full realization, the more fragile our democracy becomes.