The Dalits of Nepal and a New Constitution - ConstitutionNet

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The Dalits of Nepal and
a New Constitution
Citizenship according to Surname of the
Dalits :
Public interest litigation was filed against the practice of
issuing citizenship to Dalits according to their respective
professions, and not according to their surnames. This
has led to discriminatory practices which prevent the Dalits
from seeking other professions, seeking place of
residence as tenants and has contributed to various forms
of social exclusion.
The Court held that this practice of issuing citizenship to the
Dalits on the basis of their profession and not their surnames
was clearly discriminatory as they were not treated like
other citizens of the country.
The Court directed the Government
• to ensure that citizenship is given to Dalits according
to their respective surnames and not on the basis of
their profession.
• to correct the citizenship of the Dalits according to
their surnames, treating them equally with other
citizens in every respect.
Case: DNF vs. Office of Prime Minister and Council of Ministers,
Writ No: 3021/061, Decided on 15 May 2006.
Child with no known father entitled to be
assumed to be Nepali
The children of Badi women who are compelled by their
caste status to work as prostitutes (as indeed of other
prostitutes) often find themselves in difficulty in claiming
their citizenship certificates because their father are
unknown. This was so especially under the 1990 Constitution
which passed citizenship through the father only.
The Supreme Court ruled that such children were entitled
to citizenship under Article 9(2) of the constitution which
said that “Every child who is found within the kingdom
of Nepal and the whereabouts of whose parents are not
known shall, until the father of the child is traced, be
deemed to be a citizen of Nepal by descent”.
Case: Tek Tamrakar for Pro-Public vs. Cabinet Secretariat,
HMG/Nepal, Writ No: 121/060, Decided on September
15, 2005.
No entry to Dalits in Sanskrit Hostel :
A PIL action was filed against the criteria for eligibility to
stay in Tindhara Sanskrit hostel as students. According to
the rules of the university hostel one needed to have
performed bartabandha (which is performed only by the
higher castes and not by Dalits) to enter the hostel, among
other requirements.
The Supreme Court held that this criterion for entering the
hostel was clearly against the right to equality under article
11 of the Constitution.
The Court directed the university only to adopt criteria for
entering the hostel that did not violate the right to equality
under the Constitution of Nepal.
Case: Dil Bahadur Bishwakarma vs. HMG/Nepal and Council
of Ministry, Writ No: 44/062, Decided on 19 January 2006.
''Muluki Ain could not limit Constitution and
narrow meaning of “discrimination''
The Muluki Ain (National Code) of 1963 provided for the
punishment of people who committed acts of discrimination
on the basis of “untouchability”. But an “Explanation”
attached to this provisions said that practices that were
traditional in temples and public places were not
“discrimination”.
The Supreme Court held that this “Explanation” was contrary
to the Constitution Article 11(4), and it was not justified by
Article 19(2) of the 1990 Constitution about the rights of
religious denominations, and that the “Explanation” was
legally of no effect.
Case: Man Bahadur Biswakarma vs. HMG/Nepal, NKP 2049,
Vol. 12, p. 1010. 66
The reader of these summaries may get the impression
that the Supreme Court has made a great contribution to
the rights of Dalits. But there is a serious problem in
implementation of Court orders; this applies not just to
cases involving Dalits, but all sorts of cases protecting rights.
The National Judicial Academy carried out a study of
implementation of Supreme Curt orders and the conclusions
were not encouraging.
Explanations for the failures to implement directives are
many including:
• Orders not being made widely available
• Absence of any department in office of Attorney-
General to deal with such directives
• Absence of any implementation mechanism at the
office of the Prime Minister
• Lack of awareness on part of government about
directives. 67
66
See Ram Krishna Timalsena, Some Landmark Decisions of the Supreme Court of Nepal (Kathmandu: Supreme Court, 2003) at p. 223.
67
Taken from INSEC, Human Rights Yearbook 2008 (English Edition) (Kathmandu: INSEC, 2008), at p. 76-7.