Legal Equality between Recognition and Redistribution: Constitutional Drafting and Adjudication in India and Nepal
The paper uses the constitutional Right to Equality as a prism to investigate Nepal’s post-conflict process of state-restructuring aimed at securing social justice and inclusion for the many marginalised groups in the country. The core argument is that the embattled – and yet unfulfilled – shift from the predominantly negative notion of equality under the 1990 Constitution to a positive one after 2006 requires to address the demands for both recognition and redistribution raised by the People’s War. First, the paper examines and compares the formulation of the Right to Equality with regard to group entitlements in the Indian Constitution, Nepal’s 1990 Constitution and 2007 Interim Constitution, and the CA Committee Report draft. Second, focusing on post-1990 Indian constitutional adjudication pertaining to the Other Backward Classes (OBC) category, the analysis concentrates on the crucial role of an activist Supreme Court in negotiating the interplay of culture and class in the design of affirmative action measures. Thus, the paper seeks to explore the relationship between the politics of cultural recognition on the basis of identitarian group claims and demands for redistribution of wealth and income amongst different social strata. These categories are treated as the two axes along which demands for institutional reform in Nepal have been more or less violently articulated since 1990.