The Dalits of Nepal and a New Constitution - ConstitutionNet

The Dalits of Nepal and
a New Constitution
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poverty, unemployment, price rise, corruption, etc. The 1989
Act is a salutary legislative measure in that direction.”
“In our opinion, calling a member of the Scheduled Caste
`Chamar’ with intent to insult or humiliate him in a place
within public view is certainly an offence under Section
3(1) (x) of the Act. Whether there was intent to insult or
humiliate [a person] by using the word `Chamar’ will, of
course, depend on the context in which it was used.”
The 1990 Constitution provided for the Supreme Court of
Nepal to provide remedies for breaches of human rights,
including by a procedure similar to the Indian PIL.The
following issues have arisen in public interest litigation
regarding the rights of Dalits in Nepal:
• Social discrimination.
• Rights of dalit women, especially of Badi women.
• Discrimination against dalits in connection with using
public places and facilities.
• Discrimination against dalits in connection with equal
access to natural resources.
• Discrimination in marital life.
• Discrimination in the field of social, religious and
traditional practices.
• The need for effective legal framework against the
discrimination against Dalits.
• Discrimination in connection with the place of residence
(denial of residence on the basis of one belonging to
the Dalit community).
Enforcement of Rights of Dalits
through Directive Principles of
State Policy
Directive principles of state policy are provisions which
are not enforceable in any court, but seek to direct the
state towards attaining certain values that are considered
necessary in society 65 . One of such values is the
elimination of all kinds of socio-economic and political
discrimination operating. It is the responsibility of the
government to uphold these directive principles of state
policy in every field, and the judiciary should seek to
implement them wherever it is possible. As will be seen
in the cases below, the Supreme Court has time and
again emphasized the importance of directive principles
of state policy in bringing about equality among the
citizens.
Some Cases regarding Rights of
Dalits before the Supreme Court
Reservation in Medical Studies under T. U. for Dalits, women
and other backward classes :
It was decided by Tribhuvan University that for M.B.B.S and
other medical studies, a reservation of 45% was necessary
for Dalits, women and other backward classes (such that,
10% to dalits, 15% to other backward classes and 20% to
women) and the remaining 55% was to be open for general
competition. This was challenged on the basis that it was
against the right to equality incorporated in the Constitution
and was thus against Article 11, 12 and 16 of the
constitution.
The court decided that although the reservation of medical
seats was aimed at bringing substantive equality among
the citizens, it could not be considered valid, because
according to Article 11 (3) and 24 (2) of the 1990
Constitution it was necessary to first pass legislation before
reservation could be declared.
However, the court directed the government to pass
legislation in this field keeping in mind the Directive
Principles of State Policy.
Case: Praddosh Chhetri vs. HMG/Nepal, NKP 2061, Vol. 7,
p. 901.
Discrimination in Public Water Sources:
Public interest litigation was filed seeking the abolition of
separate public water sources for different castes, and the
recognition of their right to access water from such sources,
on the basis that discrimination was against the right to
equality under Article 11 of the constitution. It was also
against Article 26 (2) of the constitution which dealt with
Directive Principles of State Policy, which sought to
strengthen social relations among the various communities.
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See Appendices 2 and 3.