Indigenous people of Nepal are recognised as Adivasi Janajati. They represent 40 percent of the total population.
They have faced marginalization during the modern history of Nepal. Like their participation and representation in the state, structures have been far from ruminative of their statistical representation.
In political spheres, many state structures or processes either officially or in practice exclude or marginalize the indigenous people.
The legislation is the law and process of making law. The main objective of the legislation is, empowering people. Empowerment against the vulnerabilities.
Law is there to empower the weaker section of the society. It always aims to empower people and creates stability in society.
The Doctrine of Parent’s Patria is the fundamental doctrine to understand the relation of the state and the people. Here it regards the State as the guardian of every citizen of the nation. It carries one of the fundamental responsibilities to prevent their citizens from anything that would physically or mentally harm its citizen.
In the context of indigenous people from Nepal, they hold their respective languages, beliefs, cultures etc. The people from the indigenous people seem to have engagement in Agriculture and Farming from which their financial expenditure is maintained.
Some of the indigenous people living in Nepal like Chepangs and Raute are at the verge of extension. They are living a miserable life. They must be uplifted.
The Constitution of Nepal 2072, Article 18 (Right to equality) states that everyone is equal before the law. No one shall be denied the equal protection of the law. The Government of Nepal has formally promoted the issue of the Indigenous people since 2002.
In recent years the identification of multi-lingual, multi-religious, multicultural and multi-ethnic of Nepalese societies are increased and also the demand to respect this diversity for social progress and political stability.
Many people of the marginality groups are being targeted of crime. Women of the marginalised community are vulnerable to sexual crimes by the higher class. Their community seems to be highly crushed by the several societal problems like domestic violence, hierarchical Intra caste discrimination and highly influenced by the stereotypes thoughts.
The harm principle is an important principle to defend those indigenous against these several problems. This carries the notion to protect the citizen through the proper legislation. So going with the same principle those indigenous people should also be protected by law.
Women, being under the more vulnerable minorities suffer a lot from such problems like social discrimination related to education, employment, payment modality etc. States must provide education to each one without seeing their gender.
The state is obliged to facilitate its citizens. Citizens should not be deprived of their rights. Their rights must be protected by the Constitution, followed by other several laws and policies.
Though, there are equal rights and provisions given to the marginalized groups they cannot enjoy or utilize it properly. Thus, law must provide special reservation, education and many more rights to the marginalized groups to uplift and empower them.
Reservation must be improved, there are also Dalit and other marginal groups. But, only elite high caste among them only utilise or enjoy the rights. Thus, priority must be provided to those Dalit and other marginalised groups who are poor, needy and at the verge of extinction.
Right to equality, right to life, right to privacy, etc. are for equality but as much as the elite Brahmin utilise the rights, the Dalit or marginalised groups cannot utilize such rights properly. Whereas the rights of Dalit, right to social justice and reservation rights are equity rights.
Reservations are given to larger groups which have further marginalization. For example:- in Madhesi groups, there are higher caste and lower caste and they must be provided with reservation but within the Madhesi group reservation must be prioritized for lower caste and poor Madhesi.
In Nepal, structural inequalities are intensely entrenched, with the economic power intimately co-related to caste and ethnicity. High castes dominate the bureaucracy, military, media, political leadership and also the business sectors.
Ethnic federalism is conceived by advocates as the better mode to elude the clench of dominant groups. It is essential to negotiate with different delineation of inequality dominant and among indigenous communities.
But, Nepalese government lacks a legal framework to contribute opportunities, resources, benefits to fulfil their basic needs and means to make the fulfilment of the indigenous communities. They must be brought to the level where other people or communities are existing. The government must make people engage in activism that intends to uplift the voices and cultures of indigenous people as a whole.
Nepal has adopted the various International conventions and treaties that promote the people from the vulnerabilities and the indigenous people. CEDAW (1979), ICCPR (1976), ICESCR (1976) Indigeneous and Tribal People’s Convention 1989, etc. that directly and indirectly present those people through the process of the legislation.
Further, Nepal itself has also come up with the legislation considering the situation and the needs of the people. The Constitution of Nepal (2072) is also the result of the ethnic movement of post-1990s. The constitution has envisioned social justice through the representation of ethnic groups in all sector of society.
The constitutional organs in the constitution like National Inclusion Commission, National Dalit Commission, Tharu Commission, Indigenous Nationalities Commission, Madhesi Commission and Muslim Commission are direct results of the ethnic movement. But there is still the question of implementation of the essence of ethnic movement.
There are some points mentioned below to support and protect the rights of the indigenous people as well as communities and they are:-
Raise public awareness : Building awareness and informing public education is crucial to the execution of indigenous people’s rights.
Focus more on their priorities : Indigenous people who are actually poor can not choose their way of living themselves. They are not getting even basic facilities like food, shelter, education and medical services.
Encourage the government to fulfil wider rights : Universal Declaration of Human Rights, states that every human has rights to education, rights to medical health, right to a quality standard of living and many more. They must be fulfilled by the state itself as it is the guardian of citizens.
Fulfil the gap between law and practice : It is the major challenge to protect the rights of indigenous people. The law is only mentioned more rather than being done in practicality. The American Scholar, Roscoe Pound Rightly presents his concern regarding the law in book and law in practice. Further, Eugen Ehrlich explains the concept of Living Law. He regards only those as living law which are practised.
So, the proper implementation of the law should be done. The legislation brought favouring to the problematic situation must be made living. That would lead to the proper functioning of society through effective legislation.
Structural Change : The most important step for ensuring rights and equality of indigenous community is to bring tremendous structural change in the structure of both state and society. The milestone of structural change is to give utmost autonomy to communities of indigenous people of cultural, education and economic policies
There are many such points to protect the rights of indigenous people but it is only being mentioned rather than being done in practice. The essence of ethnic movement must be implemented through active extension and implementation of rights of indigenous people for a conflict less and prosperous society.
(Aryal is currently a second year student pursuing B.A.LL.B at Kathmandu School of Law.)
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