Originally report to the annual meeting of the German-Nepal Friendship Association, 1994. English translation for: Men and Environment, vol. 3. Kathmandu: Ratna Pustak Bhandar (in print??).
The diversity of the Nepalese communities and the history of their immigration into the territory that is now called the modern state of Nepal may give an idea of what were the problems the Gorkhali had to face about 200 years ago when they started to unify the territories previously conquered by military force into a single united state. Prithvinarayan Shah's absolutely negative comparison with a "garden of all sorts of people" obviously reflected reality more than his dream of the creation of a Hindu state.
Owing to the political fragmentation of pre-Gorkhali Nepal the new state was faced with great a variety of regionalized, customary law. Each of the numerous small principalities that were conquered by the Gorkhali in the 18th century had evolved its own laws and customs according to the character of its population. Those mini-states had been geographically and economically secluded, self-sufficient agrarian societies, "in which different ethnic groups had developed social structures that satisfied the religious, cultural, social, economic and legal needs that they experienced."
Among the principalities of pre-Ghorkali Nepal there had been quite a number, in which immigrated Rajputs from the Indian plains had seized the authority of the state already previously. In time they had pushed through in their principalities the legal system they were well acquainted with from their Indian country of origin, i. e. the Hindu law. One of these states was the kingdom of Gorkha, whose emperors in the early 19th century began to unify the territories conquered before also in administrative and legal respects by transferring their Hindu laws upon the new united state.
The introduction of the Hindu ideal corresponded to the nature of the Gorkhali state. Gorkha herself was a Hindu state with a Hindu monarch as head of state. The source of royal power and the king's prerogatives were derived from the ideal of dharma. According to Hindu law the dharma is the fundamental basis of society and authority. Consequently the state had to function according to the ideal of dharma or at least had to try to do so. So after their military conquest the Gorkhali took it for granted to introduce this ideal in areas where it had been completely unknown up to that time, and to press for a correcter application of the dharma ideal in areas where it was already known before.
But besides this Nepal's geopolitical situation urged the king and his administration to pay greater attention to the local customs and traditions, to accept them, and in part even to respect customs that stood in contradiction to the socio-religious ideals of the state. Peace had precedence over conformity. But finally the social pressure for greater conformity with the Hindu ideal favoured the political, social and economic position of the higher and "cleaner" castes.
During the years after the Anglo-Gorkha war of 1814-16 there started a dialogue between the central power of state and the various population groups of the conquered territories. A result of this dialogue was the fixing of legal rights of different classes of people to follow their traditional practices irrespective of what their neighbours might be thinking about these practices. This development was supported by the endeavour of the central government to control the local administration. The permanence of the thus founded legal structure depended upon the correspondence of the people with the central government, the detailed description of the local practices and their permission by the government under carefully defined conditions. But the tolerance of different practices and behaviours did not mean their recognition. The people asking for an allowance of their traditions and practices were given a lower social status than those who accepted the orthodox Hindu laws, and so they were discriminated against in many respects. This meant that equality of all Nepali people before the law was out of the question.
Prithvinarayan Shah had already seen the importance of a unique legal code for the unity of the country. Since the legal dialogue of those years after the Anglo-Gorkha war was a precondition for the first Nepalese code of 1854 it must also be regarded as a first step towards the unity of the country. The written definition of the laws in the first Nepalese code, the muluki ain of 6 January 1854, which irrespective of some amendments serves as civil code for Nepal until today, was a novelty in Nepal's legal history since for the first time the different criteria of the application of the Hindu law in the Nepalese society were regulated definitely.
The muluki ain of 1854 in great detail dealt with the caste system. About one third of the code concerned diet and connubial regulations as well as sexual relations. In this context the muluki ain of 1854 stratified the Nepalese society according to a Hindu caste system, which was a little bit different from that one of the Indian plains, and into which also the numerous ethnic groups of Nepal were incorporated. The classification of the different ethnic groups depended upon their acceptance of Hindu values and practices, in other words upon their conformity with the Hindu way of life and their corresponding revaluation within the Hindu caste system, i. e. their degree of Sanskritization. But the ethnic groups were always put into a category below the high Hindu castes of the Bahun, Thakuri and Chetri and they were legally treated different from these privileged groups of society.
It is to stress that this is the social system of the politically dominating high Hindu castes. It is not accepted by the numerous ethnic groups as basis of their social contacts, especially not in their traditional areas of living, but it nevertheless is the foundation of the laws and politics of the country until today. On balance one must say that the Nepalese caste system as it is grounded in the muluki ain provides clear advantages for the higher castes and strong discriminations against the lower castes and numerous ethnic groups of the country. So the legal establishment of the Hindu social order in the muluki ain of 1854 must be regarded as one of the main reasons for the current inequality of the different Nepalese groups of population in politics, economy and society.
A fundamental revision of this for Nepal's ethnic groups so discriminating law only took place in 1963, i. e. more than one decade after the removal of the Rana oligarchy, whose brain child the muluki ain of 1854 had been. But at the time of the revision of the muluki ain the idea of the Hindu state had already been made the foundation of the new Panchayat constitution of 1962, and thus the discrimination against the numerous non-Hindu or in the course of time only shallowly Hinduized ethnic groups of Nepal had been established on the highest constitutional level. According to this the Panchayat politics of national integration denied the cultural plurality of the country and propagated an equalizing Nepalism. The politics of language followed by the Panchayat system may be regarded as a symbol. While the number of ethnic languages and especially also the number of people who spoke these languages as mother tongues steadily declined in the published results of the national censuses that took place every 10 years, the Nepali language as the mother tongue of the leading sections of society was given a one-sided revaluation. It may be seen as a proof of the falsification of the censuses during Panchayat times, that the census of 1991, the first one after the democracy movement, brought a decrease of 5.2 % in the number of people speaking Nepali as their mother tongue.
The ethnic groups placed great hopes on the new constitution, that was elaborated by the representatives of the political parties after the abrogation of the Panchayat system in 1990. Article 4 (1) of the new constitution of November 1990 defines the kingdom of Nepal as follows: "Nepal is a multiethnic, multilingual, democratic, independent, indivisible, sovereign Hindu and Constitutional Monarchical Kingdom." The most striking fact is the clinging to the definition of Nepal as a Hindu kingdom, which was only introduced by the constitution of 1962, even though it had been heatedly discussed during the time of the elaboration of the new constitution. Not only the representatives of the leading parties and the extreme left groups at that time had clearly voted against the Hindu state, but especially those groups always discriminated against by the Hindu state, like the various ethnic groups, the women and the people declared as "untouchables" by the high Hindu castes, had come forward and had called for the introduction of a secular state.
Let us again have a look at the number of people speaking Nepali as their mother tongue (53.2 % according to the census of 1991). If we take into consideration that Nepali is also the mother tongue of the so-called "untouchables" and that many people belonging to ethnic groups today prefer to speak Nepali or at least declare Nepali to be their mother tongue, only to have any chance at all in the current Nepalese state, then it becomes clear that the high Hindu castes dominating politics, economy, administration, education system and security forces constitute not more than 30% of the total population of the country. So one must ask where the representatives of this minority as creators of the constitution of 1990 saw the legitimacy or, according to their own declarations, the urgent necessity to hold on the definition of Nepal now declared to be a democracy as a Hindu state, if not for the protection of their own interests.
But in spite of these deficits the new Nepalese constitution provides a number of starting-points for an improvement of the position of the ethnic groups. The constitution commission finally could not make up its mind to turn away from the Hindu state, but it wrote into the constitution that Nepal is a multiethnic and multilingual state. According to the directive principles of state policies of the constitution the Nepalese government is required to safeguard and promote the numerous cultures and languages of the country. This regulation is a deviation from the theory of the culturally united state that had still been striven for during Panchayat times. It has brought freedom for the development of a greater political consciousness of the various ethnic groups. A number of ethnic organizations had already been founded during the eighties (only a few ethnic organizations had been founded before 1979) but after the people's movement of spring 1990 such organizations sprang up like mushrooms.
This movement is supported by the steadily growing self-consciousness of the various ethnic groups. They remember their own cultural values, even though these may be interpreted by the current ethnic elites in a way different from the traditional one. The growing politization of the ethnic organizations is conspicuous, even though their leaders always emphasize their mere cultural intentions. In this context it is striking that the ethnic organizations call their groups nations. Some organizations even go as far as demanding a more or less territorial independence from the Nepalese state, mostly in connection with the call for a federal state. These demands are still forwarded with little militancy, but the articulation is getting more and more aggressive.
Today there are three different types of national integration under discussion in Nepal:
Under these circumstances the ethnic organizations have to fend for themselves. To reach their goals in the near future a closer cooperation among themselves is of great importance. That is why 19 such national ethnic organizations joined together under some kind of umbrella organization called Nepal Janajati Mahasangh in July 1990. The word janajati often criticized by some other organizations is translated as nationalities by the member organizations of the Mahasangh. They stand for the recollection of the traditional cultures and values of their ethnic groups and they reject the influence of the Hinduization lasting for centuries. The Mahasangh is open to all ethnic groups and organizations but not to the Hindu castes including the so-called "untouchables" (even though the latter are discriminated against in a similar way). Christian and Muslim organizations are also excluded. It is the avowed aim of the Nepal Janajati Mahasangh "...to encourage different cultures to flower since diversity, not unity, is a global fact and [thus] to make a single sovereign state of nations."
Besides these organizations which fight for the rights of their ethnic groups in a moderate way there are a number of other organizations which show greater militancy. Organizations like Limbuwan Mukti Morcha, Khambuwan Mukti Morcha (a Rai-organization) und Tamang Saling Mukti Morcha already use the word mukti (liberation) in their names and thus signal their readiness to more aggressive methods. Their avowed goal is the creation of autonomous regions along the boundaries of the traditional areas of their ethnic groups.
Other organizations trying to represent various ethnic groups like the Mongol National Organization of Gopal Gurung head in the same direction. The latter sees his organization as a political party that has not been recognized by the Election Commission in the run-up to the general elections of 1991 under the pretension of communal orientation. Referring to this a complaint about infringement of the constitution is still pending and did not get beyond some hearings. Gopal Gurung has a critical attitude towards the Nepal Janajati Mahasangh. He criticizes the word janajati, which he translates as indigenous people and which he wants to have applied to some small animistic tribes of Nepal only. He calls the leaders of the ethnic organizations of the Mahasangh left-wing extremists who stand close to the NCP-Masal, an accusation I must strongly contradict. But as regards content the statements of Gopal Gurung and those of the leaders of the Mahasangh are very close, if we leave the demand for autonomous regions out of consideration.
On balance we can say that the people's movement of 1990 and the constitutional changes caused by it have brought greater rights and freedom to the people. Thus the foundation for a humane future has been laid. But we still cannot talk about real democracy in Nepal. Democracy means that the power lies in the hands of the whole people. In Nepal it is still in the hands of a minority of about 30% high caste Hindus and Newars; only individuals have been exchanged after the abolishment of the Panchayat system. But the majority of the Nepalese people does not belong to the high Hindu castes who alone make profit from a Hindu state. If the human rights guaranteed by the constitution shall be implemented for all groups and levels of the Nepalese population, then will it be necessary to delete the word Hindu state from the constitution. But the change to a secular state will only be possible by heavy pressure from the groups most discriminated against. The demands of the ethnic organizations are forwarded more loudly. There is a great danger for the Nepalese state that some of the ethnic leaders link their justified demands with the idea of autonomous regions. Nepal must preserve her unity in diversity. The ruling elites as well as the ethnic groups must declare their support for the multiethnic state. The statement of article 4 of the constitution, that Nepal is a multiethnic and Hindu kingdom, is wrong; the various ethnic groups of Nepal are not Hindus and their mother tongue is not the Nepali language. It is only if the constitution and the subordinate laws really treat all people of the country as equal, that the state can try to implement these rights in society, and it is only then that an improvement of the economic situation of the ethnic groups is possible.
Copyright © 1998, Karl-Heinz Kraemer