Human rights in context: The case of Dalits in Nepal

This essay will examine the issue of caste-based discrimination against Dalits in Nepal. In its brevity, the essay is not intended to provide an all-encompassing description of human rights law, nor the internal workings of the UN system, but rather an overview of the issue and the way in which the international human rights treaty system in particular has responded, with a short recommendation as to what can be done to address the issue. Beforehand, however, it is important anthropologically and socio-politically to locate and define the origins and concept of ‘Dalit’.

“Untouchable” and “caste” have been greatly misused over centuries, particularly in the Western world.[1] As previously argued:

‘“Casta” is Roman for “lineage” used in Europe to define families of winemaking grapes. The Portuguese colonialists used the term to encompass two concepts, varna, which defines spiritual qualities and hierarchical ritual purity, and jati, endogamous hereditary groups. (Spencer-Shrestha 2006, p.2)

The status of being “untouchable” is therefore misleading; it describes a person that is avarna, (without varna[2]), an outcast (Dudley-Jenkins 2003, p.13), but equally part of the varna system, even if not defined within the traditional description of the varna body (Galanter 1984, p.8). Approximations as to the number of different jati that exist are as many as 100,000 across South Asia (Spencer-Shrestha 2006, p.3), none of which are region-wide, but many of which will be regarded locally as avarna. Historically, jati could climb up or fall down the varnas depending on a range of economic and social changes. The arrival of the British in South Asia changed this; seizing on the Manusmṙti and framing it as a legal text, they began to institutionalise and fix the intersection, leading some academics to regard “caste” as an entirely colonial construct (Zwart 2005, p.5).[3] Today, however, as Indian Supreme Court Justice Iyer has recognised, arguments over the past are defunct – the notion of “untouchable” has been interwoven into modern social reality (Sharma 1989, p.vii).

Discussions on how best to define “untouchables” began during the Indian push for independence. In Nepal, a great number of terms exist, including those that are offensive like achut (ritually polluting), pani nachalne (those not to share water with), pariganit (scheduled) and talo jat (low level jati), as well as those that are less offensive and merely descriptive, such as upechit (ignored), utpidit (oppressed) and bipana (downtrodden). In neighbouring India, Mahatma Gandhi’s attempt to use harijan (god’s people) from the 1930s onwards largely failed with many considering the term condescending. Instead, India utilised a legal terminology, ‘scheduled castes’ throughout its constitution and laws. Despite initial hesitation and controversy, in recent years, Dalit (‘suppressed’ in Sanskrit), first used by the activist Mahatma Jotiba Phule, has become the self determined term used across the region as a catchall to describe those jati that are avarna (DFID and World Bank 2006; UNDP 2008).[4] Dalit as the person who requires support and protection can therefore be separated from “untouchable”, as the practice that violates the rights of the former.

The issue

In Nepal, the practice of treating someone as “untouchable” is illegal. The 2006 Interim Constitution states that all citizens shall be equal before the law, with no discrimination on the basis of caste.[5] It goes further, creating a right against untouchability that when violated is both punishable and compensationable.[6] There are applicable articles on the right to social justice, covering inclusion of Dalits in state apparatus,[7] and the right against exploitation, particularly exploitation based on custom.[8] The Constitution outlines non-enforceable obligations, such as state policies that promise the restructuring of the state to include Dalits,[9] the repealing of all discriminatory laws,[10] the economic uplifting of Dalits,[11] and the pursuing of affirmative measures for Dalits.[12] Non-enforceable Directive Principles in the Constitution prevent economic inequality and exploitation,[13] and establish harmony between castes.’[14] Political parties are prohibited from registering if membership is caste-specific,[15] and Dalits should be included in the executive committees of all parties,[16] and proportional representation of Dalits is encouraged within the Constituent Assembly.[17]

The 1963 Muluki Ain, or country code, contains Nepal’s penal law. It provides under Article 10(a) of the Chapter on Decency, as amended in 2006, that any person discriminating on the grounds of “untouchability” or denying access to public areas or utilities on the basis of caste, may be punished with imprisonment of between three months and three years, or with a fine of between 1,000 and 25,000 rupees, or both (Government of Nepal 2007, para. 37). The 1954 Civil Liberties Act also requires equality before, and equal protection by, the law under Section 3, and prohibits restrictions on access to or denial of services on the basis of caste. Schedule I of the 1992 State Cases Act places the obligation of investigation and prosecution of caste-based discrimination offences under the responsibility of the state, in effect placing it under criminal law.

However, under Nepal’s civil law system such limited explanation of the offence of caste-based discrimination has led in practice to very few prosecutions. A wide-ranging report by the UN Development Program (hereafter, UNDP) on the status of Dalits in Nepal summarises:

‘[Nepali laws state that] no-one must be discriminated against on the grounds of caste, and “Any contravention of this provision shall be punishable by law”. But if no such law is ever passed, the provision has very little effect. (UNDP 2008, p.41)

According to another report from 2010, legislation has been shown to be inadequate and ineffective, lacking any proper definition of either “untouchability” or “caste-based discrimination” (National Dalit Commission and OHCHR 2010, p.4). As such, the review continues, the vagueness of the aforementioned legal provisions has led to a situation in which the police are unwilling to investigate and the authorities are reluctant to prosecute. Instead, police and the judiciary encourage appellants to settle cases using informal mediation. Moreover, despite the constitutional guarantee of non-discrimination, academics have identified 58 laws on the Nepali books that contain discriminatory content, which exclude, restrict, or segregate Dalits (Bhattachan, Sunar et al. 2007, p.7).

Article 154 of the Constitution establishes in as many words the National Dalit Commission (hereafter, NDC).[18] The government created the NDC in 2002 with a mandate to increase the participation of Dalits in ‘mainstream development’ and create a ‘favorable environment’ for equal rights.[19] The NDC is neither statutory nor has it any power, however. The well-regarded NGO, Asian Legal Resource Centre, has, in a shadow report to the UN, described the NDC as ineffective, non-independent and subject to political influence (Asian Legal Resource Centre 2003). It continues: ‘Despite the weight given to the National Committee in the report of the State, this agency has been a complete failure.’ The NDC has not taken advantage of its potential power to help Dalits, and nor has the statutory National Human Rights Commission (hereafter, NHRC) or the National Women’s Commission included or been responsive to, Dalits. All three mechanisms work under government departments rather than independently, and all are financially reliant on the whims of politicians. Worse still, the ‘political appointees’ running the NDC seem to have exercised the sole purpose of silencing any alternative Dalit opinions.

The last major census estimated the number of Dalits in Nepal at 3.6 million, or 13.8 per cent of the population.[20] Under the regime of limited legal protections, discrimination against Dalits has been identified by academics in 205 different practices: 54 based on denial of access, nine on forced labour, 20 regarding ‘dominance’, and the rest on other grounds such as occupation (Bhattachan, Sunar et al. 2007, p.4). This has led to severe differences in the poverty, education and health statistics between Dalits and non-Dalits, as shown in Tables 1, 2 and 3.

Table 1[21]

Literacy rate (6yrs+) Secondary school pass Undergraduate pass
Non-Dalit 49.3 % 15.8 % 3 %
Dalit 33.8 % 3.8 % 0.4 %
Dalit women[22] 24.2 %

 

Table 2[23]

Per cent below poverty line
Non-Dalit 46.8 %
Dalit 66.7 %

 

Table 3[24]

Per cent food sufficient Per cent food insufficient
Non-Dalit 41.9 33.3
Dalit 33.3 33.3

Qualitative research abounds as to the discrimination faced by Dalits, particularly Dalit women who are faced by multiple levels of discrimination being first a Dalit, then a woman, and finally a Dalit woman. While it is not the role of this essay to provide a repository of cases, a case study is fitting.

The case of Muna Devi Damai:

On 8 April 2003, Muna, a Dalit, was called to the house of her neighbours, Bir Bahadur and Parbati Thapa, both of the high Chetri caste. Upon arriving, Muna was taken by her hair and pushed to the ground by Bir, whereupon Parbati held her down. Both Bir and Parbati began to kick and punch Muna, before Bir brought human faeces pre-mixed with ground chilli and forced the concoction into Muna’s mouth. Muna, who had during this time been struggling and shouting for help, then fainted. Her children, too young to stop Bir and Parbati, had stood by crying and then carried the unconscious Muna back to their house. Later, other neighbours came to Muna’s house to express sympathy, but all refused to help. Muna tried to submit a First Information Report, the document required by police in order to investigate a crime, but local police refused to accept it. While the exact reason for the attack is unknown, the feeding of faeces is often the result of accusations of witchcraft (bokshi). Muna suffered multiple discriminatory acts, both from Bir and Parbati, to the community’s lack of help, to the police’s refusal to investigate (Asian Legal Resource Centre 2003).

The applicable international human rights treaties[25]

Nepal has ratified or acceded to a number of applicable international human rights treaties, including the International Convention on the Elimination of All Forms of Racial Discrimination (hereafter, ICERD), the Convention on the Rights of the Child (hereafter CRC), the Convention on the Elimination of All Forms of Discrimination against Women (hereafter, CEDAW), the International Covenant on Civil and Political Rights (hereafter, ICCPR), the International Covenant on Economic, Social and Cultural Rights (hereafter, ICESCR), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereafter, CAT).[26] Nepal signed, but has not yet ratified, the Vienna Convention on the Law of Treaties, which binds all parties and requires them to perform treaties in ‘good faith’. However, Nepal’s 1990 Treaty Act confirms that all international human rights treaties prevail and have supremacy over national laws.[27]

The name Dalit or the terms “untouchable” or “caste” do not appear in any international human rights treaty. As such, human rights organisations and activists, exasperated by the failure of national legislation, courts and statutory bodies tasked with ending discrimination against Dalits campaigned for the identification of a precise source of international law that would force governments to change and provide redress (Keane 2007, p.8). Such a source was identified under ICERD’s definition of racial discrimination, which, as will be discussed later, became synonymous with caste.[28] Article 2 of ICERD states that Nepal should not only prohibit all forms of racial discrimination, but also take positive, proactive steps to end such discrimination, and is encouraged to take affirmative action,[29] necessary in order to achieve de facto non-discrimination. Article 4 goes further than the ICCPR[30] by requiring Nepal to declare illegal and prohibit organisations or actions that disseminate ‘ideas based on racial superiority or hatred, incitement to racial discrimination’, in clear conflict with the ICCPR’s prioritisation of freedom of expression.[31] Because of this clash, Nepal entered a reservation against Article 4, declaring its constitutional provision for freedom of expression more important, although in recent years the government has stated its willingness to withdraw the reservation.[32] A further issue within ICERD is the limitation of the provisions on the basis of citizenship, which is often withheld on the basis of racial discrimination.[33]

‘The convention is not applicable in cases of “distinctions, exclusions, restrictions or preference” made by a State Party between citizens and non-citizens and cannot be interpreted as affecting the laws regulating nationality, citizenship or naturalisation, “provided that such provisions do not discriminate against any particular nationality” […] The denial of citizenship as a tool for discrimination has been applied in several states (Rehman 2009, p.417)

This gap has since been clarified to add that access to citizenship itself can be a prominent discriminatory barrier.[34]

Further obligations in international law can be broken down according to treaty:

ICCPR: Article 2(1) and Article 16 are the primary provisions for non-discrimination in the ICCPR.[35] As a party to the ICCPR, Nepal is obligated to provide for everyone subject to its jurisdiction,[36] including Dalits, the prohibition of arbitrary denial of the right to life;[37] torture or cruel, inhuman, or degrading treatment or punishment;[38] slavery, servitude, forced or compulsory labour;[39] arbitrary arrest or detention;[40] and unlawful attacks on honour or reputation.[41] Nepal is also obligated under the ICCPR to prohibit incitement to discrimination against Dalits,[42] and establish a criminal justice system that guarantees their equality before the law.[43]

ICESCR: Nepal is obligated under the ICESCR to guarantee economic, social and cultural rights, without discrimination against Dalits,[44] and take steps toward the realisation of such rights.[45] In addition, Dalits have the right to freely choose or accept work,[46] that remuneration for such work should be without distinction of any kind,[47] and that they must be able to exercise the right to ‘enjoy the highest attainable standard of physical and mental health.’[48]

CAT: Prohibition of torture ‘has been universally recognized as a customary international law norm and as a jus cogens norm applicable in times of war and peace, from which no derogation is permitted’ (Centre for human rights and global justice 2008, p.43). CAT forbids torture and other cruel, inhuman or degrading acts for, ‘any reason based on discrimination of any kind’.[49] Nepal is obligated under CAT to take ‘effective legislative, administrative, judicial or other measures to prevent’,[50] criminalise,[51] investigate[52] and punish[53] torture and other cruel, inhuman or degrading acts. Moreover, Nepal is bound to especially protect marginalised persons or groups such as the Dalits by, ‘fully prosecuting and punishing all acts of violence and abuse against these individuals.’[54]

CEDAW: Nepal is obligated to provide by all appropriate means the elimination of discrimination against women,[55] including Dalit women, while ensuring that their rights are not restricted by ‘customary and all other practices’ [sic].[56]

CRC: Nepal is obligated to respect and ensure the rights of Dalit children ‘without discrimination of any kind’ and protect such children ‘against all forms of discrimination or punishment on the basis of the status’.[57] Nepal is also required to protect Dalit children from economic exploitation or from carrying out any work deemed hazardous to their health and development.[58]

The aforementioned treaties require a situation of non-discrimination to be present on two levels, the formal or de jure establishment of non-discrimination within law, and a substantive or de facto situation of non-discrimination in practice.[59] As Meron states:

‘Past acts of discrimination have created systematic patterns of discrimination in many societies. The present effects of past discrimination may be continued or even exacerbated by facially neutral policies or practices that, though not purposefully discriminatory, perpetuate the consequences of prior, often international discrimination. (Meron 1985, p.298)

In order to fulfil its obligations, Nepal must ensure that no law, policy or institution provides de jure or de facto discrimination against Dalits,[60] including both direct, intentional discrimination and indirect discrimination.[61] Nepal is also obligated to ensure that there exists an, ‘effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity’,[62] to ensure that Dalits’ rights are protected. Furthermore, any Dalit who claims their right to effective remedy should have such ‘determined by competent judicial, administrative, or legislative authorities’,[63] supported by a government that undertakes to ‘ensure that the competent authorities shall enforce such remedies when granted.’[64]

Finally, Nepal is required to respect its human rights obligations, by not violating human rights, protect human rights, by protecting Dalits from abuse, and fulfil human rights, by providing effective remedies.[65] General Comment 16 of the Committee on Economic, Social and Cultural Rights also requires Nepal provide de facto support through the availability and accessibility of effective remedies and redress.[66]

The UN response

The UN has responded to the issue of discrimination against Dalits in Nepal in a number of ways. Two of the most important are the manner in which the Committee for the Elimination of Racial Discrimination (hereafter, CERD)[67] has reframed ICERD to include caste-based discrimination, and the second being the investigation of such discrimination by the UN Sub-Commission and the resultant creation of special rapporteurs and associated principles.

CERD’s major role in tackling discrimination against Dalits has been its recognition of caste-based discrimination as a form of racial discrimination, placing it under ‘descent’ in ICERD’s definition of racial discrimination[68] when making its 1996 Concluding Observations of India’s 10th to 14th periodic reports:

‘Noting the declaration in paragraph 7 of the report, reiterated in the oral presentation, the Committee states that the term “descent” mentioned in article 1 of the Convention does not solely refer to race. The Committee affirms that the situation of the scheduled castes and scheduled tribes falls within the scope of the Convention. It emphasizes its great concern that within the discussion of the report, there was no inclination on the side of the State party to reconsider its position.[69]

CERD’s move was due both to the external campaigning of INGOs such as the International Dalit Solidarity Network, and the internal work of CERD expert member, Patrick Thornberry, who argues in his book:

‘It is an obvious point – but easily missed – that the umbrella term for the Convention is ‘racial discrimination’, not race. Thus, racial discrimination is given a stipulative meaning by the Convention: as precisely the five terms set out in Article 1, which means ‘race’ but four other terms as well. It is thus clear that the scope of the convention is broader than […] notions of race, which in any case may express many usages. (Thornberry 2005, p.19)

Since 1996, CERD has published General Recommendation No. 29, which clearly states that caste-based discrimination falls under ‘descent’ and therefore fits the remit of ICERD:

‘[CERD is] Strongly condemning descent-based discrimination, such as discrimination on the basis of caste and analogous systems of inherited status, as a violation of the Convention,[70]

The Recommendation goes on to say that parties to ICERD have an obligation to identify those castes at risk,[71] legislate against caste-based discrimination,[72] implement such legislation,[73] and if necessary adopt affirmative action measures.[74] It also states that parties should especially consider women,[75] segregation,[76] and dissemination of ‘hate speech’.[77]

Since CERD’s recognition of caste under ‘descent’, the latter has been adopted as the de facto term representing discrimination against Dalits in international frameworks. This has not been without resistance; the government of India remains strongly hostile to such a link, and has said so in its repeated representations to CERD.[78] In its latest State Report to CERD, the Government of India repeated its case:

‘In this context the Government of India reiterates its position that ‘caste’ cannot be equated with ‘race’ or covered under ‘descent’ under Article 1 of the Convention. [79]

India maintains that while it is fully committed to providing affirmative action for ‘scheduled’ castes and tribes, caste pre-dates race theory (Keane 2007, p.10). CERD has however remained steadfast, advising in its 2007 Concluding Observations that:

The Committee takes note of the State party’s position that discrimination based on caste falls outside the scope of Article 1 of the Convention. However, after an extensive exchange of views with the State Party, the Committee maintains its position expressed in General Recommendation No. 29 “that discrimination based on ‘descent’ includes discrimination against members of communities based on forms of social stratification such as caste and analogous systems of inherited status which nullify or impair their equal enjoyment of human rights.” Therefore, the Committee reaffirms that discrimination based on the ground of caste is fully covered by Article 1 of the Convention.[80]

India has attempted to block the recognition of caste in other fora too. Despite caste appearing in early drafts of the outcome document for the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance,[81] the final ‘Durban Declaration and Programme of Action’ includes no such reference, due to last minute lobbying by India and Nepal (Keane 2007). Since then, however, under pressure internally and externally, Nepal has distanced itself from India’s position, increasingly recognising in its submissions to the UN that caste-based discrimination is indeed a form of racial discrimination. In Nepal’s latest report to CERD in 2007, the government states that it is, ‘fully committed to the XXIX general recommendation of the CERD Committee’ (Government of Nepal 2007, para. 129).

Recognition of caste-based discrimination has been repeated in CERD ‘General Recommendation No. 32: Special Measures’ (2009) and CERD Concluding Observations for Bangladesh (2001), Chad (2009), India (1996 and 2007), Japan (2001 and 2010), Madagascar (2004), Mali (2002), Mauritania (2004), Nepal (2001 and 2004), Nigeria (2005), Pakistan (2009), Senegal (2002), United Kingdom (2003) and Yemen (2006). Although the ICCPR’s Human Rights Committee has remained largely silent on the violation of civil and political rights in caste-based discrimination, with the exception of one brief mention of India in 2000 (Keane 2007, p.18), other UN fora referencing caste have included: CESCR’s ‘General Comment No. 20: non-discrimination’ (2009) and reviews of India (2008), Japan (2001) and Nepal (2001 and 2008); CmDAW’s reviews of India (2000 and 2007), Japan (2009) and Nepal (2004); CmAT’s review of Nepal (2005); and CmRC’s review of Bangladesh (2009), India (2000 and 2004), Japan (2004), Mauritania (2009), Nepal (2005) and Pakistan (2003).

Following CERD’s recognition of caste-based discrimination as a form of racial discrimination, INGOs continued their campaign by urging the UN Sub-Commission, a body created (and since replaced) to investigate new human rights issues, to, during a working group on contemporary forms of slavery, ‘undertake a study on caste-based discrimination and its manifestations in contemporary forms of slavery in the south Asian region.’[82] Two years later, the newly renamed Sub-Commission responded, repeating CERD’s recognition, and supplementing ‘descent’ with ‘work’, and then deciding to, ‘entrust Mr. Rajendra Kalidas Wimala Goonesekere with the task of preparing […] a working paper on the topic of discrimination based on work and descent.’[83] By 2002, Goonesekere’s paper was complete and Asbjørn Eide and Yozo Yokota had been chosen to expand, or possibly dilute, the paper to include countries outside of Asia.[84] After Eide and Yokota completed the expanded paper in 2003, the Sub-Commission asked them to prepare a second working paper, this time to focus on ‘legal, judicial, administrative and educational measures taken by the Governments concerned’ and develop a set of proposed principles and guidelines for all relevant actors, taking full account of CERD’s recently published ‘General Recommendation 29 on descent-based discrimination’.[85] With both papers finished, the Sub-Commission then recommended that the UN Human Rights Council (hereafter, HRC) mandate Eide and Yokota, as the first Special Rapporteurs on Discrimination Based on Work and Descent, to submit a final report to the 58th session of the Sub-Commission.[86] The recommendation was adopted without a vote and the resulting report was submitted to the Office of the High Commissioner on Human Rights (hereafter, OHCHR) in June 2007.

It was two years later in March 2009 when the HRC agreed, with India voting against, to publish the Special Rapporteurs’ final report.[87] Released for the 11th session of the HRC in June 2009, the report includes as an annex the ‘Draft principles and guidelines for the effective elimination of discrimination based on work and descent’, which refers to ICERD, CERD’s General Recommendation No. 29, the Durban Declaration, the 2005 World Conference, International Labour Organization Convention No. 111, the UNESCO Convention on Cultural Diversity, the UNESCO Convention on Discrimination in Education, and the United Nations Global Compact.[88] The draft principles follow CERD’s General Recommendation No. 29 but also clearly include “caste”.[89] The principles refer to a number of applicable rights,[90] and cover both de facto and de jure discrimination. They call for governments to protect, investigate and prosecute, and create special measures for affirmative provisions, equal opportunities in work, and access to justice, education, health, food, water and shelter. Special mention is made to women and children as affected by multiple levels of discrimination, and governments are required to ‘eliminate’ discriminatory customs.

Following publication of the draft principles, UN High Commissioner for Human Rights, Navi Pillay, called for the eradication of the ‘shameful concept of caste’ and the promotion of the principles.[91] The OHCHR Strategic Plan 2010-11 also outlined ‘Countering discrimination, with a particular focus on women and caste’ as a key thematic priority.[92] UN Special Rapporteur on Contemporary Forms of Racism, Githu Muigai, called for states to ‘engage in substantive discussions’ on caste-based discrimination and recognise the principles, and Independent Expert on Minority Issues, Gay McDougall, welcomed and called for further discussion on the principles too.[93] On 20 April 2011, Deputy High Commissioner for Human Rights, Kyung-wha Kang, while in Nepal reiterated that, ‘Protecting the rights of those historically discriminated on the basis of caste will continue to be a priority for our Office in Nepal, as well as OHCHR at large. The High Commissioner has made it her personal commitment to advancing these issues in public statements and writings.’[94] However, as yet they remain in draft form.

What more can be done?

In formulating a strategy to prevent caste-based discrimination and support equality for Dalits, a number of immediate actions are necessary.

Action 1: Enact a national law

In Pravin Kumar Mahato vs. Government of Nepal,[95] the Supreme Court of Nepal issued a mandamus directive order to the government to pass within a year a comprehensive law to enact the constitutional pledge to prohibit caste-based discrimination and create special provisions for Dalits. The government has since reported this obligation to CERD, although it remains unfulfilled:

‘The Court has clearly stipulated or pronounced that the constitutional expectation against untouchability is to formulate law with compensatory provision, making it punishable. The existing punitive provision under the Country Code, 1963 is not sufficient as per the constitutional spirit. (Government of Nepal 2007, para.138)

The government has equally assured CERD that in response to its previous review, it has undertaken to ensure that the NDC becomes a statutory, independent and fully-funded organ of the state:

‘A bill designed to provide statutory status to the NDC has been drafted for introduction in the Legislature-Parliament. (Government of Nepal 2007, para.134)

As such, the government submitted in July 2009 a draft bill to the Constituent Assembly titled the ‘Caste-based Discrimination and Untouchability Crime (Elimination and Punishment) Act’. The bill has been reviewed by a number of organisations, including the NDC and OHCHR, and provides for the penalisation of caste-based discrimination and “untouchability” in access to public places and facilities, provision of goods and services, and employment.[96] The bill also criminalises incitement to discrimination, provides for compensation, and brings increased punishments for public officials discriminating in their work. On a procedural level, the bill allows for civil society organisations to assist in bringing cases, and ensures police and prosecutors treat cases in confidentiality.

Unfortunately however, the bill has a large number of important weaknesses. According to the NDC and OHCHR report, the bill fails to sufficiently codify international legal commitments. The bill prolongs the Muluki Ain flaw of failing to define caste-based discrimination and “untouchability”, which, as has been established earlier, has been a significant cause in the failure of prosecutions. Similarly the bill fails to identify or list acts considered to be discriminatory, or classify levels of seriousness, or provide for a proportionate range of punishments that can be applied according to the severity of the act. The NDC and OHCHR report also urges the government to ensure that the necessary responsibilities and procedures required by the police and prosecution to promptly and successfully bring cases to court are included, and that the police are accessible, responsive to and protective of complainants. The report rightly suggests that, bearing in mind the context of Nepal, additional provisions be included to allow for the geographical distance and the potential expense for complainants, and ensure that the police and judiciary speak in a language that is easily understood.

NGOs should campaign to hold the government to account, both to provide an effective law on caste-based discrimination, and an effective statutory body to work on behalf of Dalits. The priority of such a campaign would be upon the judicial executive pillars, working to support judges to better follow up on their decisions, while pressuring the government and senior officials to implement such orders. Additional work could be done to lobby the legislature to reject, redraft and improve the bill.

Action 2: Prosecute

As has been established earlier, one of the primary motivations for the continuation of caste-based discrimination is a lack of implementation of laws, including the successful prosecution of perpetrators. Although widespread prosecutions should be a medium term objective for the government, in the short term, in order to metaphorically and publicly ‘draw a line in the sand’, the government should engage in strategic litigation. NGOs and INGOs, such as the Asian Legal Resource Centre, have already developed a list of cases that could be the basis for strategic litigation, including the aforementioned case of Muna Devi vs. Bir Bahadur and Parbati Thapa (Asian Legal Resource Centre 2003). Strategic litigation should concentrate on generating precedent in the Nepali courts, by, for example, focusing on discrimination against women or child Dalits in order to show the multiple levels of such discrimination. Other cases should include examples of senior government officials discriminating, as well as senior individuals in the private sector and in the police. Cases should alternately include violent assault, sexual assault, torture, kidnapping, denial of access to communal facilities, and prohibition on the basis of religious or customary practices. Such cases should also establish precedents for both criminal remedies, such as imprisonment and fines, and civil remedies, such as compensation.

Action 3: Fulfil CERD’s recommendations

CERD has made a number of recommendations to Nepal that remain to be implemented. NGOs should focus their national campaigning on raising awareness of the government’s responsibility to implement such recommendations, and lobby the government to do so. The recommendations to be emphasised by NGOs include: firstly, CERD repeatedly highlighted that the government of Nepal has failed to publish (and probably collect) enough disaggregated data, including data on both violations and enforcement.[97] Such data could be used by the government both to track the occurrence of caste-based discrimination, and therefore better understand it, and provide a basis for programmatic and policy implementation and prioritisation. Secondly, Nepal’s representations to CERD seem to imply that the government fails to understand properly or keep track of its own legislation, legal mechanisms or enforcement.[98] Thirdly, while Nepal has consistently prioritised policies on awareness-raising and educational programmes, CERD has called on the government to place more emphasis on ‘enforceable rights-based action’,[99] and promoting awareness within the actual organs of the state that are prolonging caste-based discrimination, in particular the judiciary, teachers and the police.[100] Fourthly, CERD has reiterated that Nepal should strengthen the National Human Rights Commission and NDC, making them statutory, independent, effective, national and properly budgeted for,[101] and introduce special measures for Dalits to be represented more within the media.[102] Finally, the government should respond urgently to CERD’s request for Nepal’s 17th, 18th and 19th periodic reports, which were due three years ago, on 1 March 2008.[103]

Action 4: Improve the international mechanisms

The fourth and final action should be the main focus of INGOs: improvement of the international mechanisms to prevent and punish caste-based discrimination, and those states that intentionally or otherwise perpetuate such discrimination. As has been established, despite the creation of draft principles on discrimination based on work and descent, they have not as yet been adopted. INGOs should concentrate on mobilising friendly member states, other related UN mechanisms, such as the special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, and the OHCHR to pressure the General Assembly to adopt the principles and create a permanent special rapporteur. Once adopted, the broad nature of the principles would require their integration into other treaty bodies, such as CmAT, CmEDAW and CmRC, amongst others. A broad based usage of the principles, together with greater research on caste-based discrimination, perhaps along the lines of UN High Commissioner Pillay’s suggestion of an ‘observatory on discrimination’, could result in wider awareness among the media, research institutions, private enterprise, as well as other INGOs and NGOs.

Conclusion

The issue of caste-based discrimination against Dalits is of great importance in the 21st century, and remains one of the last customary bastions of discrimination, resulting in a mixture of both short term atrocities and long term effects on levels of education, health and access to employment. Despite attempts by visionary leaders such as Gandhi and Ambedkar from the early 20th century onwards, with the exception of small gains in urban areas and amongst the educated, little seems to have changed. The 1990s growth in NGOs across South Asia, particularly in newly democratised Nepal, together with the latter’s opportunity to create new constitutional and legal standards that could act as inspiration for the much larger neighbouring state of India, have made some changes. CERD has been of significant importance to the movement; with a fairly progressive procedural setup, CERD has been able to raise the issues faced by Dalits from being grounded in the rights of minorities, to one that is grounded in racial discrimination, and therefore a matter of jus cogens according to Rehman (Rehman 2009, p.431). There remains much to be done, both by governmental and non-governmental entities, although the most impactful action as has been established would be the development and implementation of an accessible, responsive and progressive legal system.

Appendix 1: status of ratifications by Nepal

Treaty Date ratified/ acceded to
Convention on the Prevention and Punishment of the Crime of Genocide. 9 December 1948International Convention on the Elimination of All Forms of Racial Discrimination. 7 March 1966Amendment to article 8 of the International Convention on the Elimination of All Forms of Racial Discrimination. 15 January 1992

International Covenant on Economic, Social and Cultural Rights.    16 December 1966

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. 10 December 2008

International Covenant on Civil and Political Rights.    16 December 1966

Optional Protocol to the International Covenant on Civil and Political Rights.    16 December 1966

Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity. 26 November 1968

International Convention on the Suppression and Punishment of the Crime of Apartheid.    30 November 1973

Convention on the Elimination of All Forms of Discrimination against Women.    18 December 1979

Amendment to article 20, paragraph 1 of the Convention on the Elimination of All Forms of Discrimination against Women.    22 December 1995

Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women.    6 October 1999

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.    10 December 1984

Amendments to articles 17 (7) and 18 (5) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment .    8 September 1992

Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.    18 December 2002

International Convention against Apartheid in Sports.    10 December 1985

Convention on the Rights of the Child.    20 November 1989

Amendment to article 43 (2) of the Convention on the Rights of the Child.    12 December 1995

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.    25 May 2000

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.    25 May 2000

Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.    15 December 1989

International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.    18 December 1990

Agreement establishing the Fund for the Development of the Indigenous Peoples of Latin America and the Caribbean.   Madrid, 24 July 1992

Convention on the Rights of Persons with Disabilities.    13 December 2006

Optional Protocol to the Convention on the Rights of Persons with Disabilities.    13 December 2006

International Convention for the Protection of All Persons from Enforced Disappearance.    20 December 2006

17 Jan 1969

30 Jan 1971-14 May 1991-
14 May 1991

14 May 1991


12 Jul 1977

22 Apr 1991


15 Jun 2007

14 May 1991



1 Mar 1989

14 Sep 1990


3 Jan 2007

20 Jan 2006

4 Mar 1998



7 May 2010

7 May 2010

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[1] See for example Galanter, M. (1968). Changing Legal Conceptions of Caste. Structure and change in Indian society. M. Singer. Chicago, Aldine: 299-336.

[2] There are four Varna in the Vedas, a religious text for Hindus, not to be confused with a monistic text like the Christian Bible.

[3] Manusmṙti should be translated from Sanskrit as ‘Manu’s memories’ rather than ‘the law according to Manu’ as is often cited. Ambedkar, an “untouchable”, Chairman of the Drafting Committee of the Indian Constitution, and founder of the Indian reservations system, famously burned a copy of Manusmṙti in 1927 to protest at the manner in which it symbolised injustice towards “untouchables”. Ambedkar wrote: ‘As for myself, I do not feel puzzled by the origin of caste in India for, as I have established before, endogamy is the only characteristic of caste and when I say origin of caste I mean the origin of the mechanism for endogamy’ Ambedkar, B. (2002). Castes in India, their origin, mechanism and development. The essential writings of BR Ambedkar. V. Rodrigues. Oxford, Oxford University Press.

[4] It is often for example ignored that there is a hierarchy of jati regarded as avarna, or put differently, a system of internal discriminate within those regarded as Dalits.

[5] Art. 13: Right to Equality (1) All citizens shall be equal before the law. No person shall be denied the equal protection of the laws. (2) There shall be no discrimination against any citizen in the application of general laws on grounds of religion, race, gender, caste, tribe, origin, language or ideological conviction or any of these.

[6] Art. 14: Right against untouchability and racial discrimination (1) No person shall, on the ground of caste, descent, community or occupation, be subject to racial discrimination and untouchability in any form.  Such a discriminatory act shall be liable to punishment and the victim shall be entitled to compensation as provided by the law. (2) No person shall, on the ground of caste or tribe, be deprived of the use of services, conveniences or utilities available to the public, or be denied access to any public place, or public religious places, or be prevented from performing any religious act.(3) No person belonging to any particular caste or tribe shall, in relation to the production or making available of any goods, services or conveniences, be prevented from purchasing or acquiring such goods, services or conveniences; and no such goods, services or conveniences shall be sold or distributed only to members of a particular caste or tribe.(4) No one shall be allowed to purport to demonstrate superiority or inferiority of any person or a group of persons belonging to any caste, tribe or origin; or to justify social discrimination on the basis of caste and tribe; or to disseminate ideas based on caste superiority or hatred; or to encourage caste discrimination in any form.(5) Any act contrary to the provisions of clauses (2), (3) and (4) shall be punishable in accordance with law.

[7] Art. 21, 138(1), 154

[8] Art. 29

[9] Art. 33(d1)

[10] Art. 33(n)

[11] Art. 35(10)

[12] Art. 35(14)

[13] Art. 34(4)

[14] Art. 34(5)

[15] Art. 142(4)

[16] Art. 142(3)

[17] Art. 63(4)

[18] Art. 154. Formation of Commissions: The Government of Nepal may form necessary commissions to safeguard and promote the rights and interests of different sectors of the country including women, Dalits, indigenous ethnic groups [Adivasi Janajati], Madhesi, disabled, labourers or farmers. The provisions for the formation, functions, duties and powers of such commissions shall be as determined by the law.

[20] Census Bureau (2007). “Nepal in Figures.” Retrieved 01/05/2011. Many Dalits place the real number as between 20 to 25 per cent, but claim that the government has either changed the figures or have failed to properly count Dalits UNDP (2008). The Dalits of Nepal and a New Constitution: A Resource on the Situation of Dalits in Nepal, their Demands and the Implications for a new Constitution. Kathmandu, UNDP.

[21] Census Bureau (2007). “Nepal in Figures.” Retrieved 01/05/2011.

[22] Acharya, S. (2007). Social Inclusion: Gender and Equity in Educational SWAPs in South Asia Nepal Case Study. Kathmandu, UNICEF.

[23] NESAC (1998). Nepal Human Development Report. Kathmandu, NESAC.

[24] UNDP (2008). The Dalits of Nepal and a New Constitution: A Resource on the Situation of Dalits in Nepal, their Demands and the Implications for a new Constitution. Kathmandu, UNDP.

[25] There remain many other sources of international law that apply to Dalits that this essay cannot cover, including customary international law, and non-treaty sources within the Human Rights Council, such as the Universal Periodic Review. For more information, see: Smith, KM (2010), Textbook on International Human Rights, Oxford, Oxford University Press.

[26] For more information on international law and in particular how treaties bind state parties, see: Steiner, Alston & Goodman (2008), International human rights in context, Oxford, Oxford University Press

[27] The Treaty Act situates the Nepali legal system as monist, or a civil law system, but many academics within the country argue that Nepal actually has a dualist, common law system, which would require national laws to be enacted to make international treaties applicable domestically, and that the Act is some kind of legal aberration: ‘The International Covenant on ESCR and other international treaties have an unclear status in Nepal’s legal order. Nepal’s constitutional history and legislative practice suggest a dualist legal system while the Treaty Act of 1991 sees that international legal instruments prevail over the Constitution and laws.’ FIAN International and Rights and Democracy (2007). Parallel Information, The Right to Adequate Food in Nepal Geneva, OHCHR.  The judiciary however err on the side of caution and appear to regard international treaties as applicable within the courts.

[28] ICERD Art. 1(1): ‘In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

[29] ICERD Art. 1(4) and 2(2)

[30] ICCPR Art. 20(2)

[31] ICCPR Art. 19

[32] CERD (2003). State report, 15th and 16th periodic reports of Nepal. New York, UN. p.8

[33] ICERD Art. 1(2)

[34] CERD (2004). General Recommendation No. 30: Discrimination against non-citizens. New York, CERD.  para. 13 Art. 1(1) and 5(e)

[35] ICCPR Art. 2(1) and 26

[36] ICCPR Art. 2(1)

[37] ICCPR Art. 6

[38] ICCPR Art. 7

[39] ICCPR Art. 8

[40] ICCPR Art. 9

[41] ICCPR Art. 17

[42] ICCPR Art. 20

[43] ICCPR Art. 14 and 15

[44] ICESCR Art. 2(2) and 3

[45] CESCR (1999). General Comment No.12: the right to adequate food. New York, CESCR.

[46] ICESCR Art. 6

[47] ICESCR Art. 7

[48] ICESCR Art 12(1)

[49] CAT Art. 1(1)

[50] CAT Art. 2(1) and 16(1)

[51] CAT Art. 4

[52] CAT Art. 12

[53] CAT Art. 4(1)

[54] CmAT (2007). General Comment No.2: Implementation of article 2 by States parties. New York, CmAT. para. 21

[55] CEDAW Art. 1

[56] CEDAW Art. 5

[57] CRC Art. 2(1) and 2(2)

[58] CRC Art. 32(1)

[59] CESCR (2009). General Comment No.20: Non-Discrimination in Economic, Social and Cultural Rights. Geneva, CESCR. para. 7: ‘Guarantees of non-discrimination and equality in international human rights treaties mandate both de facto and de jure equality. De jure (or formal) equality and de facto (or substantive) equality are different but interconnected concepts. Formal equality assumes that equality is achieved if a law or policy treats men and women in a neutral manner. Substantive equality in concerned, in addition, with the effects of laws, policies and practices and with ensuring that they do not maintain, but rather alleviate, the inference disadvantage that particular groups experience.’

[60] ICERD Art. 1; ICESCR Art. 2(2); ICCPR Art. 26

[61] CERD (1993). General recommendation No. 14: Definition of racial discrimination. New York, CERD. para. 2.

[62] ICCPR Art. 2(3)(a)

[63] ICCPR Art. 2(3)(b)

[64] ICCPR Art. 2(3)(c)

[65] CESCR (2005). General Comment No.16: The equal right of men and women to the enjoyment of all economic, social and cultural rights. Geneva, CESCR.  para. 17

[66] Ibid. para. 21

[67] At the time of writing, CERD had received 40 communications from individuals in the 53 states that have agreed that CERD can hear individual cases, 17 of which were inadmissible, and 12 of which contained no violation. The most common complaint was regarding racial discrimination within the workplace.

[68] ICERD Art. 1(1)

[69] CERD (1996). Concluding observations, 10th – 14th periodic reports of India. New York, CERD.

[70] CERD (2002). General Recommendation No. 29: Article 1, paragraph 1 of the Convention (Descent). New York, CERD.  preamble

[71] Ibid.  para. 1

[72] Ibid. para. 3

[73] Ibid.  para. 4

[74] Ibid. para. 6

[75] Ibid. paras. 11-13

[76] Ibid. paras. 14-17

[77] Ibid. paras. 18-20

[78] See, for example, India’s 1996 State Report CERD (1996). State report, 10th – 14th periodic reports of India. New York, CERD. para. 7: ‘Article 1 of the Convention includes in the definition of racial discrimination the term ―descent‖. Both castes and tribes are systems based on ―descent‖ since people are normally born into a particular caste or a particular tribe. It is obvious, however, that the use of the term ―descent‖ in the Convention clearly refers to ―race‖. Communities which fall under the definition of Scheduled Castes and Scheduled Tribes are unique to Indian society and its historical process. As conveyed to the Committee during the presentation of India‘s last periodic report, it is, therefore, submitted that the policies of the Indian Government relating to Scheduled Castes and Scheduled Tribes do not come under the purview of Article 1 of the Convention. As a matter of courtesy to the members of the Committee, the Government is, however, happy to provide any information that they may require on this subject.

[79] CERD (2007). Concluding observations, 15th to 19th periodic reports of India. New York, CERD.

[80] Ibid. para. 8: ‘The ACJP and the South Asian Human Rights Documentation Centre provided shadow reports/information to CERD for its examination of India‘s periodic report urging them to raise the issue of discrimination on the basis of caste. This is reportedly the first time any NGO had submitted a shadow report on caste-based discrimination to a UN treaty body. It was an auspicious move for subsequent norm entrepreneurship on caste because it pushed CERD into taking a juridical position on whether caste fell within the remit of the committee. CERD made clear that caste- based discrimination did fall within its mandate, specifically under ‘descent’ in Article 1.1. The Indian delegation firmly rejected this assessment but the dialogue positioned CERD as an early ally of advocates on caste and ICERD as a relevant international standard. Lennox, C. (2009). DALITS AND NORM ENTREPRENEURSHIP ON CASTE-BASED DISCRIMINATION. London, Institute of Commonwealth Studies, University of London.           

[81] Durban, South Africa, 31 August to 7 September 2001

[82] Sub-Commission on prevention of discrimination and protection of minorities (1998). Fiftieth session: contemporary forms of slavery. New York, UN. paras. 35-36

[83] Sub-Commission on the promotion and protection of human rights (2000). Resolution 2000/4. New York, UN. para. 4. According to discussion at the time, the addition of both ‘work’ and ‘descent’ was at the request of the Indian sub-commissioner, Soli Sorabjee, who argued that he would not support the investigation if it made any reference to caste.

[84] Sub-Commission on the promotion and protection of human rights (2002). Resolution 2002/108. New York, UN.

[85] Sub-Commission on the promotion and protection of human rights (2003). Resolution 2003/22. New York, UN. para. 7(a-c)

[86] ‘The Human Rights Council, taking note of resolution 2006/14 of24 August 2006 of the Sub-Commission on the Promotion and Protection of Human Rights, affirms the mandate of the Sub-Commission’s Special Rapporteurs on discrimination based on work and descent and asks them to complete their study on this topic, including finalizing draft principles and guidelines for the effective elimination of discrimination based on work and descent, and to submit their final report in 2007 to the Sub-Commission or its successor body, or in the absence of either, to the Council. The Council also endorses the Special Rapporteurs’ proposals to organize (i) two regional workshops, one in Asia and one in Africa, before the end of the first quarter of 2007 by obtaining independent funding, in order to encourage the interactive participation of representatives of affected communities in discussions with the Special Rapporteurs on this topic; and (ii) a consultation meeting in Geneva during the second quarter of 2007 in order for the Special Rapporteurs to receive the views of Governments, United Nations bodies and agencies, non-governmental organizations and representatives of affected communities on the finalization of the draft principles and guidelines for the effective elimination of discrimination based on work and descent. The Human Rights Council requests the United Nations High Commissioner for Human Rights to provide adequate assistance and support to the Special Rapporteurs to enable them to complete their study, including with regard to the organization of the proposed workshops and consultation meeting.’ Sub-Commission on the promotion and protection of human rights (2006). Resolution 2006/14. New York, UN.

[87] HRC (2009). Decision 10/117: Publication of reports completed by the Subcommission

on the Promotion and Protection of Human Rights. Geneva, HRC.

[88] Sub-Commission on the promotion and protection of human rights (2009). Final report of Mr. Yozo Yokota and Ms. Chin-Sung Chung, Special Rapporteurs on the topic of discrimination based on work and descent. New York, UN.

[89] Ibid. para. 2

[90] Para. 7 includes: the right to physical security and life and the right to be free from violence; the right to equal political participation; the right to fair access to justice;  the right to own land;  the right to equal access to public and social services;  the right to freedom of religion;  the right to marriage on free will  the right to education;  the right to cultural identity;  the right to equal opportunity and free choice of employment;  the right to equal, just and favourable conditions of work;  the right to be free from forced or bonded labour;  the right to be free from cruel, inhumane or degrading treatment;  the right to health;  the right to adequate food, water, sanitation, clothing and housing.

[91] Pillay, N. (2009). “Tearing down the wall of caste.” Retrieved 01/05/2011.

[92] OHCHR (2009). Strategic Management Plan 2010-2011. Geneva, OHCHR. p.101

[93] 64th session of the UN General Assembly, October 2009

[95] Supreme Court of Nepal (2005), Pravin Kumar Mahato vs. Government of Nepal, Writ No. 3061, 2061

[96] National Dalit Commission and OHCHR (2010). Speak Up… Stop Discrimination! NDC and OHCHR-Nepal Observations on the Untouchability Bil. Kathmandu, National Dalit Commission and OHCHR. p.4

[97] CERD (1999). Concluding observations, 9th to 13th periodic reports of Nepal. New Yokr, CERD. paras. 8,13,14,16,17,18,19

[98] Ibid. paras. 9 and 18. CERD (2004). Concluding observations, 15th and 16th periodic reports of Nepal. New York, UN. para. 14

[99] CERD (1999). Concluding observations, 9th to 13th periodic reports of Nepal. New Yokr, CERD. para.12

[100] Ibid. paras. 11 and 20. CERD (2004). Concluding observations, 15th and 16th periodic reports of Nepal. New York, UN. paras. 15, 18, 20

[101] CERD (2004). Concluding observations, 15th and 16th periodic reports of Nepal. New York, UN. paras. 9, 10, 11

[102] Ibid. para. 102

[103] Ibid. para. 25

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