Untouchability English - New.pmd - OHCHR-Nepal - Office of the ...

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Open Dialogue on Draft Legislation Series - Ito be “impure” and are stigmatised as “untouchable” to other castes. Inthe nineteenth century, untouchability was actually codified in law,stratifying Nepali society in a hierarchical system with Dalits at the bottom.Although this anachronistic legislation has been since amended, thepractices continue, violating human rights of many Nepalis, in particularin less-developed and more remote areas. Dalits are being denied accessto vital resources, such as public water taps, as well as temples,restaurants and other public places. Occupational segregation impedesaccess to employment, with Dalits restricted to traditionally assignedoccupations, including road-sweeping, leatherwork and even forced sexwork. Despite the Government’s commitment to abolish such practices,many Dalits remain trapped in bonded labour relationships. Those whooppose discriminatory practices face the risk of being ostracised orboycotted or becoming victims of violence. In this regard, OHCHR andthe National Dalit Commission have verified through monitoring andreporting incidents of physical assault, arson, forced displacement, sexualviolence and labour exploitation. There are several instances where Dalitshave been severely injured and hospitalised, simply on account of theirDalit identity.III. International obligationsThe Government of Nepal is obligated to take measures to prohibit castebaseddiscrimination and untouchability under international human rightslaw. Non-discrimination and equality are core international human rightsprinciples, binding on all states. A number of international human rightsinstruments, including the International Covenant on Civil and PoliticalRights, require Nepal to respect and protect the right to equality andnon-discrimination of all persons within its territory “without distinctionof any kind”.Furthermore, under the International Convention on the Elimination of AllForms of Racial Discrimination, to which Nepal is a State party since1971, the Government is obligated to prohibit discrimination based ondescent, which includes caste-based discrimination, as a form of “racial2
Open Dialogue on Draft Legislation Series - Idiscrimination”. The Convention further obligates the Government to takeall appropriate measures, including: enacting legislation to outlaw allforms of discrimination; preventing, prohibiting and eliminating practicesof segregation in housing, education and employment; and securing theright to access for everyone to any place or service intended for use bythe general public.More specifically, under the Convention, the Government is obligated tocriminalise all acts of caste-based discrimination, including thedissemination of ideas based on caste superiority or hatred. TheConvention further obligates the Government to ensure a remedy andreparations for victims, regardless of whether the perpetrator is a privateindividual or a state official. Significantly, the victims should also havethe right to participate in the criminal or other similar procedures againstthe perpetrators with adequate protection against any form of intimidationor reprisals.IV. National legislation and existing gapsThe current Nepali legislation meets international obligation to a certainextent. The Interim Constitution guarantees the right to equality, providingthat there shall be no discrimination against any citizens based on caste,and further prohibits untouchability in any form, establishing liability ofthe perpetrator and entitling the victim to compensation. The InterimConstitution also prohibits denial of access to, or use of, any public places,goods or services on the basis of caste, and the encouragement of castesuperiority. In addition to the Interim Constitution, the Civil Code (MulukiAin) criminalises “discriminatory behaviour of untouchability” along with“boycotts or restrictions against any person on the basis of caste”,penalising such acts with imprisonment and/or fine.However, the current legislation has proved inadequate and ineffectiveto actually curb discriminatory practices. The lack of a proper definitionof what constitutes “caste-based discrimination” or “untouchability”makes prosecution difficult, and to a certain excent explains theauthorities’ reluctance to do so. Partly because of the vagueness of the3
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Untouchability English - New.pmd - OHCHR-Nepal - Office of the ...

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