The Dalits of Nepal and a New Constitution - ConstitutionNet

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The Dalits of Nepal and
a New Constitution
Appendix 4
Protecting the rights of Dalits in the Courts
- Ankit Dhakal 64
It is very important that the rights given by the Constitution
– to Dalits or any other persons – should be enforced. This
means that if there is any breach of the rights, action must
be taken by complaining to the Human Rights Commission,
or other body with powers to deal with such claims, or the
courts. There have been a number of cases before the
courts of Nepal about the rights of Dalits. Some of these
could be called “Public interest litigation” (PIL). PIL aims at
protecting the fundamental rights of the citizen equally
irrespective of their poverty, illiteracy and social standing.
The Supreme Court of India developed a particular form of
public interest litigation that we are looking here. The
procedure adopted by the court differs from ordinary courts
procedure in a number of ways:
• Cases can be started informally – by a letter to the
court, and sometimes judges have even started cases
themselves after reading about some injustice in the
press
• Concerned organisations, such as NGOs, have been
able to bring cases on behalf of marginalized groups,
even though the NGOs themselves have no legal
interest in the problem
• The court has set up committees, or commissioner
individuals to investigate issues and report to the courts
– in ordinary cases the parties and the courts must
take the initiative to prove the facts
• The court will order the public body concerned to
report back to the court on progress made.
These relaxations of normal court rules can only be used
where human rights are at stake, and only where the rights
of the disadvantaged are concerned. Wealthier sections of
the community are expected to follow the usual rules. (But
some take the view that some of the recent cases are
more concerned with the interests of the middle classes.)
Some of the famous PIL cases have included the cases abut
the blinding of “under trial” prisoners in Bihar, the state of
protection homes for women, and various environmental
cases like mining in the Doon Valley and the diesel buses
in Delhi.
A very recent case before the Indian Supreme Court was
not a PIL case. It concerned the use of the word “chamar”
when referring to a Dalit. In the box is an extract from an
account of this in The Hindu of August 20 2008. This also
shows the importance of laws to enforce the principles of
the Constitution, and how important it was for the Dalit
affected to take the initiative to insist on his rights.
NEW DELHI: The Supreme Court has deprecated the practice
of upper castes denigrating the Scheduled Castes and the
Scheduled Tribes and said “this is a disgrace to our country.”
“Our Constitution provides for equality which includes special
help and care for the oppressed and weaker sections who
have been historically downtrodden. The SC/ST
communities in our opinion are also equal citizens, and are
entitled to a life of dignity in view of Article 21 of the
Constitution as interpreted by this court,” said a Bench
consisting of Justices Altamas Kabir and Markandey Katju.
The Bench was dealing with a criminal appeal whether the
use of the word ‘Chamar’ (an SC name) was an offence
attracting the provisions of The Scheduled Castes and The
Schedules Tribes (Prevention of Atrocities) Act, 1989.
Writing the judgment, Justice Katju said: “In the age of
democracy, no people and no community should be treated
as being inferior. However, the truth is that in many parts
of our country persons belonging to the SC/ST are
oppressed, humiliated and insulted. This is a disgrace to
our country.”
The Bench said: “The caste system is a curse on our nation
and the sooner it is destroyed the better. In fact, it is dividing
our country at a time when we must all be united as Indians
if we wish to face the gigantic problems confronting us -
64
Ankit Dhakal is a Nepali student at the National Law School in Bangalore, India. He was an intern with UNDP for a few weeks in 2007. This section is based on research
he did in that capacity. Case names were added by Binda Magar of UNDP.