Inclusive vis-à-vis Exclusionary Constitution: An Analysis of the Current Constitutions of Nepal and Bhutan from Ethnic Lens

I. Introduction

Nepal and Bhutan, two Shangri-las of South Asia, share similar geo-political features but substantially differ in terms of demographic size and ethno-political history. Nepal has accommodated 27 million people (CBS, 2012), whereas Bhutan has housed only 0.73 million (NSB, 2018). Nepal was under constitutional monarchy until 2007 and now is a federal republic, whereas Bhutan adopted constitutional monarchy only since 2008. Both countries are surrounded by India from three sides and China from the north, and landlocked situated in the foothills of the Himalaya along with narrow strip of the plains in the south. Moreover, both countries went through popular demands for multiparty democracy in the late 1980s and early 1990s. Nepal successfully accommodated its people’s longing for democracy in 1990, whereas Bhutanese people were compelled to wait another one and half decade even for the controlled democracy or the ‘king-driven transition to democracy’ (EPRS, 2014). Nepal welcomed emergence of ethnic organizations after the 1990s’ political change and further facilitated institutionalization of ethno-politics since 2007. For instance, so far, 55 ethnic organizations have joined the umbrella of Nepal Federation of Indigenous Nationalities (NEFIN) and there are several other advocacy organizations and political parties for ethnic rights outside the NEFIN umbrella. But, Bhutan remained stuck in the exclusionary policies against its ethnic minorities eventually forcing tens of thousands of Lhotshampas (Nepali-speaking population) to flee the country (Hutt, 1996, 2003, 2005; Rizal, 2004; Giri, 2004).

Benefitting from Nepal’s democratic constitution of 1990, the number of ethnic and indigenous organizations increased with varieties of agendas such as demand for development projects, promotion of culture and languages, ethnic autonomy and self-rule. Ethnic campaigns in Nepal, since then, have become a part of democratic practice as well as an inalienable component of everyday life. On the contrary, Bhutan adopted oppressive strategies with regard to accommodating ethnic and minority aspirations, although the country has also adopted parliamentary democracy since 2008. Thus, democratic practice in these countries has created two different and competing circumstances for their ethnic minorities.

Bhutan does not have long constitutional history per se but the regressive turn that the country took in terms of responding to the minority aspirations surfaced as soon as it amended the Citizenship Act in 1985 (Rizal, 2004). The amendment was particularly aimed at suppressing the emerging democratic and ethnic awareness of the Lhotshampas living in the country’s southern belt by forcing them to prove their ‘Bhutanese indigenousness’ (Giri, 2004; Hutt, 1996, 2003, 2005; Rizal, 2004). In both countries, ethnicity has a decisive position in defining social order. Particularly, Hindu caste values have taken ethnic shape in Nepal, whereas Drukpa values have become the very foundation of ethno-religious dominance against the minorities in Bhutan. With these two contrasting sets of pictures, I investigate the space of ethnicity in the current constitutions of the two countries and their strategies in responding to minority concerns—one, adopting ethnic inclusion as its constitutional value; the other, imposing restrictions.

The discussion in this article, hereafter, has been organized into seven sections. Second section deals with ethnic composition of both countries briefly. Third section brings out the history of constitutional practice in both countries from ethnic inclusion and participatory point of view. Fourth section explores how citizenship rights of the ethnic minorities have been reflected in the constitutional stipulations. Legitimacy and recognition of languages and ethnic markers of the ethnic minorities in the constitutional practice in both countries constitute the contents of the fifth section. Sixth section explores the space ensured for the minorities in these constitutions for political and bureaucratic participation. Last section concludes the discussion.

II. Brief Overview of Ethnic Composition

Both countries are multi-ethnic, multilingual and multi-religious. In Nepal, however, the panchayat constitution of 1962 was committed to promoting ‘unity in diversity’ with latent intention of assimilating minority cultural and ethnic values into state-protected Hindu caste values. The first census (the 1991 census) after the collapse of the partyless panchayat regime enumerated ethnic composition of several groups for the first time, although an implicit acknowledgement of the nascent ethnicity-based identity in the form of shetāmagurāli ¹ was already there even in the panchayat regime. Amid the risk of misusing ethnic enumeration of the population to promote intolerance and exclusion as observed in many countries such as the 1988 census conducted only in the southern Bhutan, Nepal—so far now—has been able to skip the risk. Meanwhile, Nepal government has officially enlisted 59 groups as ādivāsi/janajātis (Nepali term used equivalent to ethnic groups synonymously with English terms, indigenous nationalities) and established institutional bodies—National Foundation for Development of Indigenous Nationalities (NFDIN) and National Dalit Commission (NDC)—after the 1990s political change to mobilize and uplift the plight of the ethnic groups, minorities and the Dalits. ² Nepal Federation of Indigenous Nationalities (NEFIN), since 1991, also has been working as an umbrella organization of the ethnic groups for the welfare of the ethnic groups.

Main problem with the government’s enlisting of only 59 groups under indigenous nationalities was that the listing has systematically excluded Hindu caste groups (including Dalits) of both the hills and the plains. This exclusion has been marked by many sociologists and anthropologists as an effort of systematic construction of anti-Hindu definition of aboriginality (Adhikari & Gellner, 2016; Toffin, 2009). The post-panchayat censuses have recognized not only ethnicity but also linguistic diversity in Nepal. Consequently, the number of groups on the basis of caste/ethnicity and language has reached 125 and 123 respectively in the census of 2011 (CBS, 2012) that proves the country’s liberal and accommodative stance in addressing the claims of ethnic and linguistic identities of various groups. The conceptualization of the specialized commissions for the ethnic and religious groups in the Constitution of Nepal 2015 is a manifest recognition given to the ethnic and minority demands. ³

Contrastingly, Bhutan systematically conducted a census in 1988 only in the southern region with covert aim of adopting intolerant and oppressive measures against the Lhotshampas (Piper, 1995). This census guided by the 1985 Citizenship Act forced the Lhotshampas to provide documentary evidence of their domicile in the country in or before 1958 to be registered as a Bhutanese national. Those who could not provide the documentary evidence were forcefully expelled (Hutt, 1996, 2003, 2005; Piper, 1995). The two national censuses conducted in 2005 and 2017 conspicuously abandoned ethnic and linguistic enumeration of its population so that the ethnic and linguistic minorities could not reckon their collective strength. So, it is difficult to figure out the exact size of various ethnic and linguistic minorities in the country; however, the fact is that Lhotshampas are the second largest minority in the country. Besides them, there are several other small ethno-linguistic groups, who have also been struggling hard to get their voices heard. Ngalungs, Lhotshampas and Sarchhops make up the major ethnic composition in Bhutan, but the ethnic division primarily seems between the Ngalungs and the Lhotshampas (Hutt, 2003). The boundary between the Ngalungs and the Sarchhops is slightly blurred as both groups share the elements of Buddhist tradition. So, the non-Lhotshampas altogether are usually brought under Drukpa cultural framework, whereas the Lhotshampas are strictly segregated from the non-Lhotshampas due to the former’s attachment with Hinduism and ancestral connection with Nepal (Piper, 1995).

More than 20 minority languages and ethnic groups in Bhutan make it a country of ethnic mosaic (Varennes, 2008; Whitecross, 2007); however, the government is indifferent to bring them in national mainstream either by recognizing their ethno-political significance or by including them proportionately or inclusively in the democratic state-building process. Even the promotion of cultural diversity for the development of tourism has been thought to be threatening to the national integrity. Instead of promoting the cultures, rituals, religion, attires and lifestyles of the Lhotshampas even for the tourism development, the government has banned teaching of Nepali in the schools and wearing of Nepali attires in the public (Giri, 2004).

III. Brief Overview of Constitutional Practice

Nepal’s constitutional history begins from 1948 when Rana Prime Minister, Padma Shumsher Rana proposed a national statute to bring the governance under the principles of modern constitutionalism. This constitution was the first document to acknowledge fundamental rights and duties of Nepali people (Subedi, 1999); however, the statute could not come into force effectively due to Padma Shumsher’s death soon after and emergent political campaigns for democracy (Malagodi, 2013). Until 2015, Nepal was ruled under five different constitutions ⁴ (excluding the 1948 Statute), all which had endorsed the basic principles of social equality. That is, Nepal has seen altogether seven constitutions so far.

The Nepal Interim Government Act 1951 and the Constitution of Nepal 1959 both had adhered to the basic democratic values despite that they had been granted by the king. People learnt the basic concepts of democracy and democratic traditions such as how to and whom to vote during the period of the 1962 constitution although the constitution also had been bestowed by the king and party politics was prohibited under the king’s absolute power (Subedi, 1999). The political movement of 1990 caused the collapse of this constitution.

The Constitution of Nepal 1990, an outcome of people’s movement for democracy, turned to be a milestone in terms of ethnic rights because it paved the way for ethnic activism and establishment of ethnic organizations which was prohibited under the 1962 constitution. This constitution opened up space for debates on ethnicity and minority concerns and also created a ground for ethnic activism but did not come up with any constitutionally recognized institutional mechanisms to mainstream ethnic minorities for the post-panchayat nation-building. This constitution, although said to be a democratic, had been drafted by a team formed by the king and acknowledged by the major political parties, not by any form of elected body (Hutt, 1991). This constitution per se was a milestone in terms of accommodating ethnic aspirations as it conceded Nepal as a ‘multi-ethnic and multilingual country’ and guaranteed no discrimination on the basis of ethnic and linguistic identity (Article 4) but its failure to accommodate the agendas raised the Maoist insurgency, launched after six years of its promulgation gradually eroded its credibility. The Comprehensive Peace Accord signed between the government and the CPN (Maoist) caused the demise of this constitution in 2007.

The Interim Constitution of Nepal 2007, an outcome of the peace agreement between the government and the CPN (Maoist), and the substitution of the 1990 constitution, was opposed by a section of Madheshis soon after its promulgation in January 2007 on the ground that the major political forces remained indifferent to concede the federal system of government. Although the Maoist was adamant in favour of redefining polity and state structure based on core values of ethnic inclusion and self-rule since the beginning of the insurgency in 1996, even its top brass remained indifferent to get the federalism incorporated in the Interim Constitution in 2007. Major political forces till then ignored the fact that federalism could be taken as a means of conflict mitigation during peace process (c.f. Heiniger, 2010). The Madheshi protest eventually led to the first amendment to this constitution within just a month of its promulgation. This ‘historic’ amendment ratified in March 2007 incorporated the provisos of ‘proportional inclusion’ in the state organs particularly targeting to bring the Madheshis, Dalits, indigenous/nationalities and women in the national mainstream (Article 33[d.1]), and also conceded the federal system of government (Article 138) for the first time in Nepal’s constitutional history.

IV. Citizenship Rights of the Ethnic Minorities

The two constitutions elementally differ regarding recognition of the citizenship rights of the ethnic minorities. Particularly, the minorities having immigrant ancestral history have expressed concerns over the citizenship provisions stipulated in the constitutions of both countries; the Madheshis in Nepal and the Lhotshampas in Bhutan. Citizenship rights of the minorities have appeared controversial in many ethnically divided countries in South Asia such as Nepal, Bhutan, Sri Lanka and India. The controversy becomes even more challenging when ethnic minorities possess ancestral immigrant history in the countries like Nepal and Bhutan. Recently in India, the amendment of the Citizenship Act of 1955 in 2019 planned to accommodate non-Muslim immigrants only from Afghanistan, Bangladesh and Pakistan was strongly protested because it legitimized systematic exclusion of Muslim immigrants from those countries as well as Hindu Tamil immigrants from Sri Lanka (Veeraraghav, 2019). The division between the Pahadis and the Madheshis in Nepal, the Ngalungs and the Lhotshampas in Bhutan, and the Tamils and the Sinhalas in Sri Lanka in terms of understanding citizenship rights of those having ancestral immigrant history are contemporary challenges of South Asia.

Nepal’s constitution is a document of what is called power sharing between the political forces and also a result of politics of accommodation. So, the 2015 constitution has adopted liberal policies to accommodate the concerns of the Madheshis; however, some practical inconsistencies have not been addressed yet. Prior to this, the Citizenship Act of Nepal 1964 was replaced by the new Act in 2006 and the new Act allowed quite a few Madheshis who were unable to prove their Nepali descent to claim Nepali citizenship. Still, the Madheshi political parties and a section of women activists are not satisfied with the ‘progressive’ character of the 2015 constitution due to certain restrictive measures imposed for the naturalized citizens. Such as, Article 11(7) bars to acquire descent-based citizenship by a person born to Nepali woman citizen married to a foreign citizen even if he/she permanently domiciles in Nepal.

A bill had been tabled in Nepal’s parliament in August 2018 to amend the 2006 Citizenship Act to liberalize the provisos for the citizens by naturalization and the citizens by birth but it remained stuck there due to the lack of political consensus. In contrast, the Constitution of Bhutan 2008, by complying with the restrictive provisos of Citizenship Act of Bhutan 1985 that had led to the Lhotshampas stripping off their rights enjoyed since their arrival there, undermined the minorities’ right to acquire citizenship and claim their full citizenship responsibilities. The idea of citizenship principally consists of social, political and civil rights of the members of a nation-state (Marshall, 1950), so the aspiring democratic nation-states like Nepal and Bhutan cannot strip its members off from the democratic rights and responsibilities enshrined in several international human rights charters.

The Nationality Law of Bhutan 1958 promulgated under the accommodative policy of the King Jigme Dorji Wangchuck had encouraged coexistence between ethnic groups by safeguarding the citizenship rights of the minorities including the Lhotshampas. For instance, any foreigner domiciled in the kingdom for more than ten years and owned agricultural land within the kingdom was eligible to present a petition for Bhutanese citizenship under this law (Article 4(1[a & b]). This policy of integrating the Lhotshampas into national mainstream taken by the Bhutan government during the 1950s had successfully maintained ethnic harmony and coexistence until the 1980s (Hutt, 1996, 2003; Turner et al., 2011).

I agree with Barbara (Cruikshank, 1999, p. 3) but, at times, citizens are not only made but also unmade. The unmaking of the citizens in Bhutan gradually took root since the introduction of new Citizenship Act in 1977, which introduced further stringent measures for the naturalization; and reached to climax when the Citizenship Act of 1985 was promulgated. According to Piper (1995), the criteria for marital naturalization were also tightened under the 1977 Act. Provision of automatic citizenship for the spouse of a Bhutanese nationals was revoked and even the children of a Bhutanese mother and a non-national father were made to go through petition for citizenship. In addition, new criteria of knowledge of Dzongkha and the country’s history were also made mandatory. This stipulation had been targeted to the Lhotshampas who had little contact with the Ngalungs and almost no knowledge of Dzongkha because, till then, Nepali language and culture were also flourishing in the southern Bhutan and even the government had been promoting Lhotshampa culture whole-heartedly.

The country turned back from the policy of ethnic coexistence and harmony since the mid-1980s with forceful imposition of controversial Driglam Namzha campaign, an extreme form of cultural homogenization. This exclusionary homogenization policy instantly resulted in the arbitrary denial of citizenship to a large section of the Lhotshampas in the late 1980s and early 1990s (Giri, 2004; Hutt, 1996, 2003, 2005; Piper, 1995; Rizal, 2004; Wolf, 2012). The Citizenship Act of 1985 that turned severely intolerant towards the Lhotshampas intended to expel them from the country by further tightening the citizenship acquisition procedures. As a consequence, the 1988 census conducted under the aegis of this Act stripped off the citizenship cards of the thousands of the Lhotshampas who had been granted citizenship before and were expelled from the country. Gallenkamp (2010) has aptly termed it as ‘Bhutanization policy’ that, eventually, led to the extortions of the Lhotshampas physically, politically and culturally. The current constitution of Bhutan utterly failed to reappraise the exclusionary policy and also define the status of ‘left behind’ population. ⁷ The 1980 Marriage Act also discouraged matrimonial relation with foreigners, particularly singling out the Lhotshampas and undermining the fact that they had migrated to southern Bhutan since the nineteenth century. Cruikshank (1999) is of the view that citizenship is a socially constructed role as opposed to the dominant belief that it is a natural category in which individuals are born, but Bhutan remained stuck to the primordial understanding of citizenship to maintain alleged cultural purity and homogeneity.

Citizenship is usually considered a marker of political membership with certain rights and responsibilities, and also a means of inclusion and exclusion criteria (Brubaker, 1992; Marshall, 1950; Turner, 1997). So, curtailing citizenship rights of the immigrant minorities cannot be a democratic practice in new democratic and multicultural societies. Nepal, unlike Bhutan which forced the Lhotshampas to leave the country, does not have history of forcing the minorities to leave the country only on the ground of their immigrant history. Even the Indian immigrants migrated to Nepal during different epochs did not face expulsion. However, still, there is substantial trust deficit among the Madheshis, non-Madheshis and the state. Even in Bhutan, the Lhotshampas were not illegal migrants, rather they had migrated to the southern Bhutan since the 1880s as the British government in India encouraged Nepali immigrants to settle in the south (Giri, 2004).

The 2015 Constitution of Nepal has embraced most of the provisions of the Citizenship Act of 2006. The Article 10(1) of the constitution stipulates that no Nepali citizen shall be debarred from acquiring citizenship irrespective of caste, ethnicity and religion. In contrast, the 2008 Constitution of Bhutan has borrowed restrictive provisions of its 1985 Citizenship Act with inconspicuous intention of debarring the Lhotshampas from enjoying fundamental civil rights. Article 6[1] of the constitution intelligibly states that only those persons whose both parents are citizens of Bhutan can be a natural born citizen of the country, which apparently forbids the marriage with non-Bhutanese against well-established international practices. This stipulation is in line with the discriminatory Marriage Act of 1980 and Citizenship Act of 1985 and discourages affinal ties between the Lhotshampas and their co-ethnics from Nepal and India. On the contrary, the 2015 Constitution of Nepal permits any foreign woman married to a Nepali citizen to apply for the citizenship instantly after the marriage (Article 11[6]).

The two sub-clauses (3[c ⁸ & d ⁹ ]) of Article 6 in Bhutan’s 2008 constitution are intended to bring its naturalized citizens forcefully under the majority Buddhist cultural values by imposing Dzongkha and Drukpa culture, customs, traditions and history over the non-Buddhists. Article 8(3) which acknowledges Bhutan as a multi-cultural, multi-ethnic and multi-lingual country is in sheer contradiction with the policy of Driglam Namzha that has given legitimacy to impose Dzongkha language and Drukpa culture to the non-Drukpa minorities. Consequently, an individual who does not know Dzongkha and also not familiar with Drukpa cultures and traditions cannot obtain Bhutanese citizenship even if he/she meets all other requirements stipulated for the naturalized citizenship. Driglam Namzha is oppressive to everyone who are not part of the elite and not simply the Lhotshampas (Bothe, 2011). This homogenization policy was a response to the so-called threat experienced from Nepali language and culture similar to the Nepali ruling elites felt from Madheshi language and culture, and the west Pakistanis who also had viewed the culture of Bengali Hindus and Bengali Muslims as a threat to national unity before the declaration of Bangladesh in 1971 (Uddin, 2006, p. 125). In Myanmar also, ‘one nation, one people’ policy has plainly excluded Burmese minorities from the national mainstream and nation building process (Sakhong, 2012).

It appears that the 2008 Constitution of Bhutan promised to further strengthen the essence of the Marriage Act of 1980 and Citizenship Act of 1985 in terms of ethnic issues. For instance, merely marrying a non-Bhutanese becomes so costly that one would lose even the right to receive cash loans and seeds for cultivation. Further, also the children of such marriages have been punished by not automatically been admitted to schools (Giri, 2004; Varennes, 2008). In contrast, Nepal’s constitution has permitted children of ethnic minorities to receive primary education in their mother tongues and also guaranteed no discrimination on the basis of marriage with non-Nepali nationals. Ruling elites of both countries have taken the people of immigrant ancestral history as a threat to the exclusionary state-building process for long but particularly Bhutan, in this case, has devised more stringent state measures than Nepal.

According to the 1985 Citizenship Act of Bhutan, only those whose both parents are citizens of Bhutan can claim for citizenship by birth, whereas the aspirant must be permanently domiciled in Bhutan before 1959 and the name must have been registered in the census register to apply for the citizenship by registration. The striking point is that this constitution which is said to be democratic rather endorsed these discriminatory provisions instead of amending them. The provisions stipulated for citizenship by naturalization such as mandatory requirement of proficiency in Dzongkha and good knowledge of the culture, customs, traditions and history of Bhutan are problematic for the Lhotshampas having cross-border familial and affinal ties. Pattanaik (1998) has intelligibly summarized the citizenship policy of Bhutan into two contrasting phases—‘policy of accommodation (1958–1980)’ and ‘policy of absorption (1980 onwards)’; of which, the 2008 constitution unhesitatingly adopted the latter against the basic values of inclusive and liberal democracy.

Nepal Citizenship Act 2006 has stipulated jus sanguinis, jus soli and naturalized citizenship, of which latter two are targeted to accommodate, and not to discourage, the immigrants. Jus soli citizenship had been issued in an ad hoc basis during 2006–2008 to accommodate the demands of the Madheshis. ¹⁰ The Article 8(5) of Interim Constitution and the Clause 4 of the Citizenship Act of 2006 both state that ‘a person born within the territory of Nepal until April 13, 1990, and has been permanently domiciled in Nepal shall be the citizen of Nepal by birth.’ This provision was primarily intended to benefit the Indian immigrant families, so it was whole-heartedly welcomed by a section of the Madheshis, who claim their roti-beti (familial) connection with north India but opposed by the non-Madheshis on the ground that this provision is impregnated with Indian geopolitical interest. Since this was the one-time provision for a two-year period, only jus sanguinis and naturalized citizenship are available now as per the Constitution of Nepal 2015: namely, descent-based and naturalization.

Citizenship acquisition by marital naturalization in Nepal has been continued since the 1950s by which many Indian women married to Nepali nationals have been granted Nepali citizenship right instantly after their marriage without any restriction. ¹¹ The requirements for marital naturalization of the non-Nepali women seems relatively liberal that only the evidences of marriage to a Nepali citizen and initiating the process of terminating non-Nepali citizenship are enough to apply for marital naturalization in Nepal as per the 2006 Act (Clause 5). A section of Madheshi parties have been dissenting on two provisions of the Constitution of 2015—the restriction assigned to ‘the naturalized citizens’ (Article 289[1]) and the conditions set for the naturalized citizenship acquisition by ‘the foreign woman’ having a matrimonial tie with a Nepali national (Article 11[6]) (see Poudel, 2016). For them, such provisions undermine the rights of the naturalized citizens but, for others, there must be certain restrictions to differentiate naturalized citizens from the citizens by descent. The Madheshi dissenters claim that the Article 11(6) has given leverage to the state to formulate the laws against their interest in future as it contains the word ‘may’. ¹² An amendment bill has been tabled in the parliament to clarify this in August 2018; however, the political consensus has not been made yet to ratify the bill.

V. Legitimacy of Ethnic Markers of Minorities

Adoption of ethnic markers of a majority ethnic group in the constitutions and national laws with the aim of homogenizing cultural minorities has produced adverse consequences in many South Asian countries. As much as such adoption is intensified by the state actors, the minorities express their emotional attachment to their own ethnic markers. When a state expresses its special attachment to the ethnic markers of the majority, the minorities feel systematically threatened like what is happening in Bhutan since the 1980s. Ethnic markers like language, costume, etiquette, rituals and insignia are powerful tools that are used to define ethnic boundaries during inter-ethnic interaction. As ethnic markers are also social constructs and ethnic boundaries are the result of inter-ethnic interaction rather than isolation (Barth, 1969), any state’s concerted effort of undermining particular group’s ethnic markers gradually leads to the collapse of the group’s collective identity.

Besides stripping of the citizenship rights of the minorities by questioning their loyalty to the country, Bhutan launched efforts to crush the ethnic markers of the Lhotshampas (Rizal, 2004). Failure to reinstate the minorities’ ethnic markers in its constitution marks the intention of the Bhutanese constitution makers to delegitimize the very essence of an inclusive constitution so that the ethnic minorities would systematically submit to the interest of the ruling elites. Nepal also had tried homogenization policy rather overtly during the panchayat regime but failed to assimilate the ethnic minorities into Hindu cultural markers. Even the post-panchayat governments until the 2006–2007 political change remained indifferent to crush the remnants of the panchayat’s homogenization policy. However, the Constitution of Nepal 2015 has relatively abstained from using the ethnic markers of hill Hindus and progressively embraced the constitutional legacy of multiculturalism. Although the dominance of hill Hindu cultural and ethnic markers manifests noticeably in everyday life, Nepal has, now, abstained from promoting any hegemonic homogenization package officially. The trajectory that Bhutan has been following since the 1990s had already been followed by Nepal during the panchayat rule between 1960–1990.

Two population and housing censuses of Bhutan conducted nationwide in 2005 and 2017 do not detail any information on linguistic, religious and ethnic distribution of the population. This conspicuously contradicts the constitutional recognition of multiculturalism and also displays the state’s furtive policy of establishing ethnic homogeneity under the broad label of ‘Bhutanese’. Such policy gives leverage to the state to restrain from investing on or working for the promotion of the ethnic symbols and markers of the minorities. In addition, the composite index of GNH—which has been home-devised to measure ‘happiness’ of the Bhutanese people—alone cannot reflect trustworthy picture of the ‘happiness’ without disaggregated data on social and ethnic demography. In contrast, ethnic enumeration of its population has become a regular and a normal process in Nepal since the 1991 census and the country is enthusiastically prepared for receiving increasing number of ethnic groups as well as their enlisting and ethnicity-based disaggregation for policy purpose in the years to come.

The interpretation of the Bhutanese national flag in the 2008 constitution has implicitly accepted the multi-ethnic and multilingual character of the country but the constitution has not stipulated any directives or institutions to deal with ethnic diversity (see Schedule I). As per the interpretation, the white dragon in the Bhutanese national flag is believed to symbolize unified thoughts of its people despite their different ethnic and linguistic origin. The admission of ethnic diversity expressed in the interpretation of the national flag has not been followed in the constitution while defining political space and rights of the Bhutanese people. The flag represents Buddhist insignia and the constitution also has been written on Buddhist values like current Sri Lankan constitution which sets to foster Buddha shāsana (Buddhist rule) as the duty of the Sri Lankan state. The lower orange half of Bhutan’s national flag that extends to the top in the flag symbolises the flourishing of Buddhist teachings. Also, national emblem is based on four spiritual undertakings of Vajrayana Buddhism. The non-Buddhist minorities do not feel represented in these Buddhist markers chosen by the ruling elites, albeit the constitution claims that the white dragon symbolizes people’s loyalty, patriotism and great sense of belonging to the kingdom (see Schedule II). Similarly, the national anthem wishes the ‘teachings of the Enlightened One’ or the Buddhist teachings to flourish at the cost of withering of the non-Buddhist markers (see Schedule II).

The interpretation of the national symbol in the Bhutanese constitution is rich with appreciation of Vajrayana Buddhism, whereas the Article 3(1) has set out Buddhism as the spiritual heritage of Bhutan. The constitution that is predominated by the spirit of Vajrayana Buddhism eventually has been made the standard of measuring Bhutanese national identity and the basis of imposing restrictions on non-Buddhist ethnic values. The constitution urges the religious institutions and personalities to own responsibility of preserving and promoting Buddhist heritage without stipulating specific protection measures for other religious and cultural traditions (Article 3). Consequently, even the non-Buddhist ethnic minorities are obliged to promote Buddhist cultural traditions at the expense of their own but not vice versa (Varennes, 2008). Thus, Bhutan’s construction of Buddhism-based national identity systematically defies to bring the ethnic minorities to the national mainstream.

Constitutional legitimacy of ethnic symbols and markers gives power, pride and self-respect to the concerned ethnic groups and strengthens their loyalty to the nation. Nepal, now, seems to have realized this to a greater extent than ever before. Article 3 of the 2015 Constitution of Nepal comprehensively defines the nation in an inclusive way by endorsing the heterogeneity of Nepali society and culture. Correspondingly, Article 6 has assigned due status of national languages to all mother tongues spoken in Nepal, which principally differs from Bhutan’s constitution that has legitimized the supremacy of Dzongkha over others. Before 2007, Nepali language was the only language of the nation in Nepal, but now, is the language of official transaction only (Article 7). Its previous supremacy as an only language of the nation has been abolished but other mother tongues spoken in Nepal were upgraded as national languages; and, in addition to Nepali, the constitution allows the provinces to use one or more national language(s) that is/are spoken by majority of the people in that province as the language of official business (Article 7[2]). Constitutional recognition of language-based federalism and minority languages in India is an illustrative case that recognition of linguistic and ethnic identities always does not invite conflict but also sustains national integration and maintains lasting peace.

Nepal’s previous constitutions also had provided patronage to several Hindu and hill-based symbols and markers. Even the current constitution which has defined Nepal as a secular state has still remained stuck to few Hindu and hill-based symbols such as cow, Sanskrit text in the coat of arms, rhododendron arboreum and lophophorus. Cow (national animal) and Sanskrit are purely Hindu symbols, and rhododendron arboreum (national flower) and lophophorus (national bird) are necessarily not Hindu but associated with the hills, not with the Madheshis or the Tarai (Article 9 [2&3]). Cow is a sacred animal only for Hindus and their killing is punishable by law. Many non-Hindu ethnic activists have already raised voice against the status of cow as the national animal. Few others are critical to the secular character of national flag also but, the Sun and the Moon in Nepal’s flag are considered universal symbols that do not represent any religious or cultural dominance and the constitution also does not define the flag from Hindu perspective. Previous national anthem shrīmān gambhir nepāli … had inordinately praised the king and wished his long life but the current Nepali national anthem—composed by an ethnic lyricist ¹³ —appreciates multi-ethnicity and even embraces it as the nation’s strength rather than a challenge. The first line of the current national anthem—sayaű thűgā phūlkā hāmī, euṭai mālā nepālī (hundred flowers one garland we all Nepali)—suggests unity in diversity through a metaphor of a wreath of flowers (Schedule II).

The case of national costume is even more problematic in Bhutan nowadays. Before the mid-1970s, Nepali language as well as the festivals, customs, dresses and traditions of the Lhotshampas were officially recognized by the Bhutanese state (Piper, 1995), but systematic restriction on Nepali language and the Lhotshampas’ traditional dresses in public places that began from the mid-1970s pushed Bhutan from an ethnically accommodative to an ethnically exclusionary state. In addition, enforcement of Dzongkha—the language of the Ngalung elites and not yet fully developed—and Gho and Kirā as the national dresses which are not even suitable from climatic point of view for the people living in the southern plains on the Lhotshampas, no way seems convincing that this would promote national unity. Daurā Suruwāl and Sāri (previously the national dresses, but now official ones only) in Nepal, and Gho and Kirā in Bhutan have passed through similar pathways falling short to catch ethnic and minorities’ sensitivities of both countries because Daurā Suruwāl and Sāri have been disowned by the Madheshis in Nepal, whereas Gho and Kirā by the Lhotshampas in Bhutan.

The secular character of Nepal’s constitution has moderated the Hindu religious hill ethnic symbols and values from governing Nepal’s polity but Bhutan’s strong adherence to Buddhist religion and culture that has been apparently reflected in its constitutional texts has undermined the non-Buddhist symbols and markers. This goes, to a certain extent, against the universal principle of equality between the citizens as enshrined in the 1948 Universal Declaration of Human Rights. Bhutan’s constitution, in this sense, follows the footprints of the constitutions of the Maldives and Afghanistan. The Constitution of Maldives 2008 has embraced Islam as its state religion (Article 10) and as the basis of all laws of the country. The preamble of Afghanistan’s 2004 constitution begins with the name of Allah. It also has constitutionalized Islam as its state religion reluctantly allowing freedom to the religious practices within the bound of law (Article 2). Thus, Islamic values have been the core of the constitutions of the Maldives and Afghanistan. Strategic use of the Islamic insignia in Afghanistan initiated by the Talibans to achieve their goals still continues even after their collapse (Sinno, 2010, p. 37).

Bhutan’s preoccupation with Drukpa values and markers is to maintain legitimacy of the monarchy; otherwise the very base of the monarchy would have already been questioned. Adherence to the Drukpa symbols has certainly nurtured the Buddhist monarchy but forbade the non-Drukpa minorities from joining the mainstream of Bhutanese nascent democracy. Similar trajectory in which Hindu values were both the dominant and very basis of monarchy had been observed in Nepal also until 2007. Sovereignty resided in the people, as stated in Bhutanese constitution, does not urge all Bhutanese to enjoy their cultural and ethnic rights equally. Four major markers of Bhutanese national identity—flag, national anthem, national language and national costume—are rich with dominant Buddhist and Drukpa cultural values despite the claim of the chairperson of the constitution drafting committee that ‘religious, cultural, philosophical and political bases of the Country’ have been taken due consideration during the drafting of the constitution (Tobgye, 2015, p. 7).

Connection between Buddhism and Bhutanese state becomes more than intelligible while the constitution defines Buddhism as a spiritual heritage of the country. Furthermore, the constitution has directed the religious institutions and personalities to be responsible in promoting the spiritual heritage of the country but, at the same time, has self-contradictorily urged the Buddhist monarch to take guardianship of all religions. As mentioned earlier, the national censuses of Bhutan that avoided religious, linguistic and ethnic disaggregation of the country’s population are the disappointing examples for ethnic inclusion though the constitutional texts pay lip service to non-discrimination on the grounds of language, religion or ethnicity (Article 7[15]).

On a lighter note, even before turning to a secular state, the central space for religion in Nepali politics was not because of its theological significance but for secular reasons (Basu, 2010). ¹⁴ So, perhaps, the previous constitutions of Nepal also had assured the freedom of practising one’s religion and culture. The 2015 constitution also has guaranteed the rights of ethnic minorities to use their language, practise their religion and promote their cultural civilization and heritage (Article 32). Nepal’s constitution, in this regard, contradicts with Bhutan’s constitution that has imposed Driglam Namzha. Driglam Namzha compels the ethnic minorities to abandon their age-old traditions and submit to the majority values, and denies the right to freely participate in the cultural life of one’s community as stipulated in the constitution (Article 9[23]). Bhutan is the country where its citizens are punished or even imprisoned for not wearing state-imposed costumes (Giri, 2004, p. 16).

A closer look at the 2008 Constitution of Bhutan reveals the institutionalization of ethnic hegemony of certain groups and exclusion of the others, particularly the non-Buddhists although the constitution, to some extent, seems being in harmony with international human rights treaties (Varennes, 2008). Nepal, on the other hand, introduced mandatory provision for proportional enrolment in civil service to reduce the high caste dominance in the bureaucracy (see second amendment of Civil Service Act 2007). As a result, the share of the ethnic groups in civil service seems gradually increasing although, a sort of glass ceiling seems working against the minorities especially in the higher echelons of Nepal civil and security service. Denial of minority and ethnic rights has been a primary feature of Bhutan state-building process that cannot be justified with the country’s fascination with the GNH. Bhutan’s assertion of promoting happiness through the GNH is rather ironic, while large number of its citizens have been disenfranchised and stripped of their citizenship and property rights only on the ground of possessing immigrant ancestry or history (Pellegrini & Tasciotti, 2014).

VI. Political and Bureaucratic Space for Ethnic Minorities

Nepal and Bhutan have conflicting trajectory of bringing ethnic minorities in the constitutional bodies, political and bureaucratic decision making apparatuses. Both countries have adopted bicameral parliamentary system in which the members are directly elected by the electorates. Democracy in Bhutan, according to Turner et al. (2011), is state-directed-and-managed although it seems that the country has established major democratic institutions. Unlike Nepal’s constitution, Bhutan’s constitution has not embraced the principle of social and ethnic inclusion per se. So, inclusive—let alone proportional, representation of underrepresented social groups in the parliament—constitutional bodies and bureaucratic apparatuses are a myth in Bhutan. Its bicameral parliament—namely, National Council and National Assembly—has not been designed to provide any space for ethnic representation, whereas Nepal’s bicameral federal parliament—National Assembly and House of Representatives—has been designed on the basic principle of proportional representation and social inclusion.

Bhutan’s constitution has embraced [only] the values of liberal democracy (Tobgye, 2015), not the values of inclusive democracy, so the constitution has discouraged social and ethnic inclusion in the state-building process. Bhutan’s upper house, National Council, is principally non-political, which consists of 20 members elected and five members nominated by the king but can make political decisions. The lower house, National Assembly, consists of maximum 55 members directly elected but refrains from any sorts of inclusive or proportional representation from various ethnic groups. In contrast, Nepal’s parliament has adopted inclusive election which has been instrumental in bringing minorities and underrepresented groups in the legislative body. Of 275 members in the House of Representatives, 60% are elected through first-past-the-post system from 165 constituencies and 40% through proportional representation assuming the whole country a single constituency. Same proportion has been set for the seven unicameral provincial assemblies as well. Even among the 59 members of Nepal’s National Assembly, at least 22 seats for women, seven for Dalits and another seven for persons with disability or minority has been secured (Article 86).

The principle of inclusion in Nepal has further been expanded to the local government also. Even for the seats of a village council, village executive, municipal council, municipal executive and ward, some reservation for women, Dalits and minorities have been guaranteed as per the Article 25 and Article 216 of the 2015 constitution. This has opened up the avenues for mobilization of the ethnic mass from the grassroots level so that the true essence of ethnic inclusion could be embedded in the inclusive and democratic practice of Nepal. This opportunity is lacking in Bhutan as the Article 22(17) of the Bhutan constitution prohibits members of local government to have political affiliation, let alone ethnic form of inclusion in its local government.

The ultimate aim of espousing proportional representation in various state organs in Nepal is to guarantee the inclusive representation of various ethnic and cultural groups (Article 84[2]). For the first time in Nepal’s history, the seats of the president and the vice-President have been demarcated ethnically not allowing the candidates of president and vice president to be elected from same ethnic group or gender (Article 70). Defining the seat of the head of the state ethnically in a modern democratic constitution seems contradictory with the principle of general equality, on the one hand, but displays the state’s interest to avoid strong ethnic presence of a single group, on the other. Instead of choosing consociational form of inclusion, Nepal’s constitution does follow a loose form of proportional representation. The 2015 constitution has faintly urged most of the state apparatuses to follow inclusive principles while appointing their office bearers. For example, Article 282 has recommended the government to consider the principle of inclusion, though not proportionately, while appointing ambassadors and other emissaries. Such few non-mandatory provisions have given leverage to the government to attain its political interest, rather than comply with the essence of ethnic inclusion.

The principles of inclusion have been extended to civil service, other public corporations and even security services with certain percentage mandatory representation of the minority groups. The constitution has acknowledged the second amendment of the Civil Service Act also had markedly restructured the entry and promotion procedures in Nepal’s civil service according to the essence of the Interim Constitution of 2006. So far, the Act has reserved 45% seats in civil service for various sections of disadvantaged groups, whereas 27% of 45% seats has been allocated to the state-recognized 59 ethnic groups (Clause 7[1]). As a result, the share of the ethnic groups in civil service seems gradually increasing although, a sort of glass ceiling seems working against the minorities especially in the higher echelons of Nepal’s civil and security services. In addition to this, the 2015 constitution has moved few steps ahead by setting up constitutionally recognized minority-based commissions so that they could take care of the concerns of their people. ¹⁵

An intriguing fact in Nepal’s case is that despite strenuous efforts of making state organs inclusive, the Constitution of Nepal 2015 also has not stipulated any mandatory provisions for the representation of the ethnic minorities in the executive and the judiciary, except in a vague sense. The vaguely put provision has been manipulated by the ruling political parties to maximize their private interests such that even the Ministry of Women, Children and Social Welfare has been occupied by a male minister. The Article 42 states that socially disadvantaged people, people from backward region and economically weak shall have the right to participate in the state bodies on the principle of proportional inclusion, but this alone is not enough to make the executive and judiciary inclusive. There seems no reflection of legally binding ethnic inclusion to form the Council of Ministers and appoint judges; however, in practice, there is a trend of appointing few from different social identities merely to pay lip service to inclusion to meet the ruling party’s political or private interests.

Recognition of ethnic representation by any of the three constitutional bodies—legislature, judiciary and executive—in Bhutan seems out of imagination so far. In other words, the country has principally delegitimized the notion of ethnicity constitutionally. There is an instance of how majority Drukpa cultural and religious values have inflicted even the judiciary in Bhutan, which otherwise is expected to be free from such sectional values. Whitecross, (2007, p. 709) writes, ‘the courtrooms of the High Court of Justice in Thimphu, the capital of Bhutan, are elaborately decorated drawing heavily on Buddhist iconography and symbolism.’ Bhutan has allowed majority Drukpa norms and values, by implicitly incorporating in its constitution, to dominate the minority ones against its own claim of abstaining from ethnicizing politics and civil life of its citizens. Its claim of abstaining from incorporating the agendas of ethnic inclusion in its constitutional provisos does not necessarily ensure that minority values and interests are recognized and protected.

Bhutan’s constitution has granted the parliament power even to dethrone the king by its two-third majority (Article 2[20]), on the one hand, and assigns godly status to the king on the other. Dethroning ‘god’ and the symbol of Drukpa national unity, nevertheless constitutionally possible, seems practically impossible. In countries like Bhutan, majority ethnic group, who is in power, usually claims that political mobilization of the minority groups through ethnic parties can be a curse for a country. Due to such fear, the Constitution of Bhutan 2008 sticks to two-party system but prohibits formation of ethnic and regional parties. The constitutional provisions in terms of political parties have been derived from the tradition of unification and consensual politics, so parties cannot be established on ethnic line which impedes effective political participation of the Lhotshampas (Gallenkamp, 2010).

The existence of ethnic and regional parties does not always pose a threat to national integrity as it is believed, but can provide a smooth exit to ethnic tension and dissatisfactions if handled properly (Chandra, 2011; Horowitz, 1985). Article 15(3) of Nepal’s constitution also prohibits the candidates and political parties from invoking any form of regionalism, communalism and religious hatred against any groups but does not bar the registration of the parties with ethnic agendas. This article clearly states that the ‘[c]andidates and political parties shall not resort to regionalism, ethnicity and religion to incite voters for electoral gain.’ However, everyday practice is opposite because the Madheshi parties primarily lobbying only for the Madheshis are de facto ethnic parties and are based largely on ethnic electorates. Lobbying for a particular ethnic section is not unconstitutional under Nepal’s current constitution; however, jeopardizing harmonious relation between ethnic groups has been strictly prohibited. There is no doubt that Nepal’s constitution has envisioned ethnic harmony along with ethnic inclusion in the nation-building process although political parties lobbying for the interests of specific ethnic groups have been popular since 2007. Their popularity has been viewed as a consequence of practicing inclusive democracy rather than a threat to ethnic harmony.

VII. Conclusion

Comparative analysis of the current constitutions of the two Himalayan nations from ethnic lens reveals two contrasting sets of pictures. Nepal appears committed to institutionalize the very principles of inclusive democracy by allocating wider space to its ethnic and minority voices and concerns in both polity and civil life than ever before, whereas Bhutan’s commitment to liberal democracy has rather stripped of the fundamental rights of the minorities, and still, the country has not realized the gravity of inclusive democracy. Cultural, linguistic, religious or ethnic heterogeneity for countries like Nepal and Bhutan can be rich sources of national identity and pride but Bhutan seems failing to capitalize this. Nepal’s 2015 constitution is also not free from criticism from the point of view of ethnic inclusion; however, the fact is that this constitution has moved far ahead in terms of empowering the ethnic minorities than the Constitution of Bhutan 2008.

On the backdrop of turning blind eye to the basics of ethnic inclusion, Bhutan government has been promoting the notion of GNH since 1972 as an alternative to GNP and the Bhutanese constitution also has accepted this. But are the minorities happy there? Are they free to express their ethno-political demands peacefully? Have they been given opportunity to join hands with the majority for inclusive nation-building? The answer is absolutely no. There is clear contradiction between the domestic policies taken for the Lhotshampas and the policies for GNH. Bhutan’s reluctance to acknowledge ethnic diversity in practice and provide space to the minorities in national statute on the backdrop of being the proponent of GNH has unmasked the Janus-faced nature of the Bhutanese regime.

Nepal’s constitutional and legal provisions have, at least, created several institutional mechanisms to institutionalize inclusive democracy in which the minorities can claim their reasonable space. As a consequence, the process of inclusive nation-building has been expanded from the centre to the local level realizing ethnic diversity and minority voices as strengths of a new democracy. The making of the Constitution of Nepal 2015 itself has stood as an epitome of practising inclusive politics. On the contrary, the 2008 Constitution of Bhutan, although promulgated after so-called public consultation, failed to listen to the voices of the minorities making itself one of the exclusionary constitutions in South Asia. To borrow Tocquevillian (2010[1835]) tone, a constitution cannot be claimed inclusive simply because people are ruled by constitutionally defined elected representatives unless its diverse ethnic and cultural groups whole-heartedly realize the true sense of ownership of their constitution.