Nepal's legal efforts and historical period

Human dignity, equality and self-respect are the first conditions for building any civilized, democratic and rule of law-enforced society, but Nepali society has historically been trapped in the cycle of inhumane practices like caste discrimination and untouchability for centuries. Although Nepal is a multi-ethnic, multilingual and multicultural country, caste discrimination and untouchability have not been eradicated even in the modern era.

Nepal ratified the 'International Convention on the Elimination of All Forms of Caste Discrimination, 1965' in 1971, i.e. on 21 Jestha 2063 BS, the parliament declared the country an 'untouchability-free country'. The government has also been celebrating that day as the Day for the Elimination of Caste Discrimination and Untouchability. In terms of time, today marks the 20th anniversary of this historic declaration, while the ‘Caste Discrimination and Untouchability (Offences and Punishments) Act, 2068’ has entered its 16th year of implementation as a specific law. It seems that Nepal has taken 41 years to formulate a specific law that makes caste discrimination punishable since ratifying the said international convention.

Looking at the constitutional history of Nepal, Article 11(4) of the Constitution of the Kingdom of Nepal, 2047, banned untouchability for the first time and added 10K. No. to the Civil Code, adding a provision for 1 year imprisonment or a fine of 3,000. Later, the Interim Constitution of Nepal, 2063 established it as a fundamental right. Article 24 of the Constitution of Nepal, drafted in 2072 BS, further refines the right against untouchability and discrimination, defining it as a ‘serious social crime’ and providing for compensation to the victims. Similarly, Sections 160 and 166 of the Criminal Code, 2074 BS, also prescribe imprisonment of up to 3 years for discrimination and degrading treatment.

Deep-rooted social roots and structural impact

Harmful practices and customs based on ethnicity, gender and religion are based on deeply rooted patriarchal, social and religious values/beliefs that have been ingrained for centuries. Even though communities may view them as traditional or normal, such practices expose marginalized groups and women to violence, physical and psychological health problems and even death.

Wedding invitations, touching at parties

According to the United Nations Country Team (UNCT), such harmful practices are a serious obstacle to development outcomes, hindering inclusive governance, economic development and education, ultimately posing a major challenge to the 2030 Agenda for Sustainable Development.

Community mentality and the direct experience of the Dalit community

In this context, a detailed survey conducted among 4,000 citizens in 16 districts of Nepal has revealed the horrific form of caste discrimination at the grassroots level. 97 percent of the citizens participating in the survey have admitted that caste discrimination still exists in their community, while a large number of participants from the so-called upper castes have been found to still believe in untouchability and impurity. Nearly 50 percent of the participants have said that Dalits are not allowed to enter the houses of non-Dalits in their community, with this problem being prevalent at 54 percent in Karnali and Sudurpaschim provinces and 46 percent in Madhes province.

This survey has also reflected the direct and painful experience of the Dalit community through statistics. Out of the 911 Dalit citizens participating in the survey, 54 percent have told the truth that they have faced direct discrimination due to their caste in the past one year. Of those who have faced discrimination, 74 percent have faced inhumane treatment such as being denied entry to the homes or kitchens of upper-caste families, 52 percent have been denied access to community drinking water taps, and 50 percent have been denied entry to village temples.

Obstruction in access to justice and lack of complaints

Despite facing such a large amount of discrimination and humiliation, it has been found that the majority of victims have never filed a complaint against their perpetrators at the ward office or police station. When examining the main reasons for not filing a complaint, 70 percent of victims said they did not want to cause further controversy or problems in the community where they live, while significantly, more than 20 percent of victims were not aware of the legal process on how to file a complaint with the relevant body regarding such incidents. This fact confirms that even though the law is strong on paper, the Dalit community is still forced to endure injustice at the ground level due to social fear, pressure, and lack of legal awareness.

Policy indifference and practical reality

Despite all this, the bitter reality is that the practice of untouchability, which is said to have been legally abolished, still persists in society. The law brought about revolutionary changes, but it could not change the mentality of society. Still, in many places in the country, Dalits are forced to drink contaminated water from streams and rivers when they are banned from wells, wells and taps. The inhumane chain of setting up separate kitchens for Dalits at public functions, banning entry to temples, and social boycotts to mental and physical torture for inter-caste marriages continues.

Caste discrimination in schools, a law 'limited to paper'

A review of the past 15 years shows that the act has not been effectively implemented, due to which its real meaning has not reached the people. A clear example of this policy indifference, administrative laxity and practical gap was seen in the meeting of the Law, Justice and Human Rights Committee under the Federal Parliament on 20th Jestha 2077 BS. The meeting, which called the then Home Minister, Attorney General and Inspector General of Police to discuss the mass murder of six youths including Nawaraj BK in Rukum West, had directed the Ministry of Home Affairs to establish a separate 'Dalit Cell' within the Nepal Police.

Parliamentary directive and the beginning of the 'Help Desk'

In the initial phase, there was widespread policy confusion and laxity in the implementation of the directive by the Speaker and the parliamentary committee. Only about a year and a half after the directive from the Parliament (2078 Kartik), the Ministry of Home Affairs issued the first circular to establish a 'Help Desk' targeting the Dalit community in all 77 district administration and police offices.

Before that, during discussions between the National Dalit Commission and the Nepal Police, there was a suspicion that naming a separate 'Dalit Cell' would lead to other discrimination in the society. For this reason, it was included within the currently operating 'Women, Children and Senior Citizens Cell' and help desks were started in various districts and local levels of the country by appointing contact persons (focal persons).

Institutional efforts and the need for a ‘fast track desk’

Further strengthening this effort, the Ministry of Home Affairs established a separate ‘Dalit desk’ at the Police Headquarters in Falgun, 2081 BS, about 5 years after the directive of the parliamentary committee, and directed the desks in 77 districts to be made more effective. In this way, although separate cells and desks were established for Dalits, no progress report has been made public on what/how much work they have done so far, so it can be easily estimated how effective those efforts have been.

Despite this, the deep-rooted roots of caste discrimination in society are confirmed by the movement led by Deepa Nepali in 2083 BS, when the Dalit community was not given a room on rent in the Maitighar in the capital. Taking such incidents that are prevalent across the country seriously, the government has recently given important instructions to operate a ‘fast track desk’ to immediately hear cases of caste discrimination.

After high-level discussions between the ministers and experts concerned, Home Secretary Rajkumar Shrestha has been directed to operate a ‘Fast Track Desk’ to expedite the process of registering complaints and taking action. Accordingly, the Home Administration has issued a circular to all 77 District Administration Offices to prioritize the effective implementation of the existing law, but such hastily issued instructions without clarifying why the previously formed cells or desks could not work effectively and what basic requirements (such as adequate budget, trained manpower, procedures and security arrangements) are required to operate the new ‘Fast Track Desk’ are likely to remain on paper as before. Until a serious review of the failures of the old structure is carried out, the new desk alone is unlikely to ensure justice to the victims at the ground level.

Violence and helplessness of justice after the promulgation of the Act

The promulgation of the ‘Caste Discrimination and Untouchability (Offences and Punishments) Act, 2068’ was a historic step in itself. But even after the implementation of the Act, it is a bitter reality that dozens of Dalits have suffered inhuman violence and lost their lives for touching water, touching the stove, entering a temple, or for inter-caste marriages.

According to a study conducted by Jagran Media Center, since the implementation of this special Act, 20 Dalit citizens have been brutally murdered due to caste discrimination and untouchability. The study has also revealed some representative incidents that shocked the society, including the murder of Tikaram Nepali of Rukum for supporting inter-caste love, Angira Pasi of Rupandehi, Maya Bik of Kailali, Ditiya Reshma Baraili of Dhanusha, and Roopmati Kumari Das of Morang, who were raped and abducted and murdered, Muna Sarki of Kalikot was beaten to death for calling her 'untouchable', Shreya Sunar of Kaski, Laxmi Pariyar of Kavre, Asmita Sarki of Jhapa, Rajesh Nepali of Parbat, Sangita Pariyar of Tanahun, Jhuma Bik of Taplejung, Sete Damain of Dailekh, Shivshankar Das of Saptari, and Manveer Sunar of Kalikot, among others, who lost their lives.

Among these, the unsolved death of Ajit Mijar of Kavre Panchkhal, who was killed due to inter-caste marriage, is still haunting the state. Mijar, who got married on Asad 25, 2073, was found hanging in the Parewatar forest of Dhading shortly after the wedding. The fact that his body has been lying in a teaching hospital in Maharajgunj for the past 10 years due to the state and legal system's failure to provide justice clearly shows the helplessness of our justice system.

Not only the loss of life, but also dozens of Dalit families have been displaced from their villages and societies due to caste oppression after the implementation of the Act. Even when such serious incidents occur, the police administration, which is considered the first door to justice, has been widely reluctant to accept complaints or FIRs. A study by the Samata Foundation shows that the police administration initially refuses to register untouchability cases and even if cases are registered due to all-round pressure, the verdict ultimately leans in favor of the perpetrator due to power, access and political pressure. Even after a decade since the establishment of the republic and the enactment of the new constitution, the failure to enact a single new, specific, unified law for the rights and overall security of the Dalit community is a major weakness of the state.

A worrying example: Rajesh Paswan's case

Amidst such a depressing and impunity-ridden environment, a recent decision from the Rautahat District Court (on 18th Jestha 2083 BS) seems to have kept the hope of legal redress and justice alive. The Rautahat District Court has delivered a historic decision in favor of the victim Rajesh Paswan in the incident of caste discrimination and beatings at a Chhath pandal in Vrindavan Municipality, Rautahat.

This case began on 3rd Mangsir 2080 BS, the day of Chhath festival. That evening, Rajesh Paswan, a member of the executive committee of Vrindavan Municipality, had reached the Bahuari-Piparia Chhath Ghat with the city mayor and other public representatives to exchange greetings. Separate Chhath pandals were built there for the Yadav community and the Dalit community. Paswan stopped there to watch the bhajan-kirtan as his family's ghat was also located in the same place.

In the meantime, some people from Bahuari village used abusive words and severely beat Paswan with kicks and punches, saying that a person from the so-called 'small caste' should not enter the pandal of the 'big caste'. The school principal Bharat Prasad Yadav, Rajesh Kumar Yadav, Pasindra Mahato and the then statistics officer (now deceased) Shankar Thakur were involved in the incident.

In the initial stage, due to pressure from the government and power, the police administration had created extreme difficulty in registering a case. But the complaint was registered only after continuous pressure and initiatives from various Dalit rights organizations/institutions, human rights activists and concerned bodies. Even after the case reached the court, Paswan had to face various types of social tension, threats and attempts to register false cases against him for 3 years. Finally, a single bench of District Court Rautahat Judge Harisingh Dhami upheld Paswan's claim and found the defendants guilty, sentenced them to imprisonment, fined them and ordered them to pay compensation to the victim. This verdict has set a positive precedent that it is possible to get justice even by fighting on the ground.

Case trends and 13-year statistical mirror

An examination of the official statistics of the 'discrimination and insulting behavior' (caste-related untouchability) cases filed in the District Attorney's Office for the fiscal year 2069/070 to 2081/082 sheds light on the real picture of the country's criminal justice system.

Details of case registration, verdict, conviction and acquittal in 13 years

Statistical analysis and trends

– Case registration trend: A total of 358 new cases have been registered and prosecuted in the 13 years. The highest number of cases registered in the fiscal years 2075/076 and 2077/078 is 45/45. This indicates an increase in legal awareness in the society or an increase in the incidence of discrimination.

– Comparative rate of conviction and acquittal: Out of the total 343 cases decided, only 165 have been convicted (found guilty) while 178 have been acquitted. Looking at the overall 13-year average, only 48.10% of cases have been convicted while 51.90% of cases have been acquitted. This shows the sad reality that the charges have not been proven in more than half of the cases.

– Numerical analysis of defendants: The number of defendants (accused) is very large compared to the number of cases. Out of a total of 963 defendants who have been convicted in 13 years, 535 (55.55%) have been acquitted, while only 428 (44.45%) have been convicted.

These statistics confirm that the rate of acquittal (51.90%) is higher than the rate of conviction (48.10%) in courts against caste discrimination and untouchability in Nepal, which confirms serious challenges such as lack of evidence in the investigation process, lack of witness protection for victims, or changing statements in court due to social pressure (being hostile).

Challenges and Structural Complexities of Law Implementation

Although legal provisions exist in Nepal to make caste discrimination and untouchability punishable, there are multifaceted and structural challenges behind its failure to be successfully implemented in practice:

– Lack of traditional social structure and awareness: Discrimination has been established as a social structure and system due to centuries-old customs, traditions and superstitions in Nepali society. Due to this, the awareness and legal literacy that untouchability and discrimination are ‘serious crimes’ have not yet reached the general public.

– Reluctance to file a complaint and forced reconciliation: There is a tendency for the victim to be reluctant to file a complaint or a complaint due to legal complications, social pressure or insecurity. Even if a complaint is registered, there is a wrong practice of forcing or forcing mutual reconciliation between the victim and the accused at the local level or under pressure from power centers before the prosecution process begins.

– Weaknesses in the criminal justice system and evidence collection: Most cases of caste-based untouchability are reported verbally. Due to the extreme lack of physical or digital evidence in such crimes, the investigation is forced to rely entirely on verbal evidence and witnesses. Due to the inability to collect sufficient evidence, the success rate of prosecution in court is extremely low.

– Insecurity of victims and witnesses and hostile testimony: The state does not have any solid infrastructure and mechanism to protect victims and witnesses in judicial proceedings. Taking direct advantage of this, when the defendants intimidate, intimidate or entice them, the victims or witnesses go to court and give hostile testimony, which is why the cases are failing.

– Inactivity of regulatory and coordinating structures: The constitutional body ‘National Dalit Commission’, which was formed for the rights and interests of the Dalit community, does not seem to be in a position to widely publicize and monitor the Act due to limited resources, means and manpower. Similarly, the ‘High-Level Implementation Committee on the Elimination of Caste Discrimination and Untouchability’ led by the Prime Minister and the ‘District Coordination Committee’ coordinated by the Chief District Officer at the district level are completely inactive.

Roadmap for Just Transformation

Caste discrimination and untouchability-related crimes are not just a social evil but a serious crime against the entire human dignity and fundamental rights guaranteed by the Constitution. The state should now immediately implement the following plans, including strategies and tactics, to put the two-decade-old paper declaration into practice and make the criminal justice system victim-friendly:

– Legal and procedural review: The Act should be reviewed to ensure that it is in line with the rights of Dalits guaranteed by the Constitution of Nepal. In particular, the time limit for such cases should be extended, the burden of proof should be placed on the defendant, the method of obtaining the deposition of witnesses and procedural reforms should be made for speedy trial of cases.

– Capacity development of stakeholders: To end the situation where victims do not get justice due to weak investigation processes, special training and capacity development programs should be conducted to increase the efficiency and sensitivity of investigators (police), prosecutors (government lawyers) and justice officers (judges).

– Awareness at the grassroots level: All three levels of the state (federal, provincial and local governments) should allocate budgets and launch a major campaign of social/cultural transformation against untouchability with clear policies and plans. For this, the subject of caste discrimination and untouchability as punishable crimes should be included in the school curriculum.

– Victim assistance and protection mechanism: In line with the spirit of the ‘rights of crime victims’ provided by the constitution, joint initiatives of government, non-government and civil society are necessary for victim assistance, social rehabilitation and complete protection of witnesses.

– Accountability and good governance: A culture and tradition should be developed to reward officials who honestly follow and implement the law and punish officials who are negligent or neglectful. It is necessary to continuously examine (inclusion audit) every policy, law, plan and budget made by the state from the perspective of eliminating caste discrimination.

Policy commitments and campaigns: Paper declarations and practical measures

The state and political parties have been making policy commitments from time to time for the justice and rights of the Dalit community. In this context, the Rashtriya Swatantra Party (RSWP), which has a large parliamentary majority and about two-thirds of the votes, through its ‘promise letter’ to ‘formally apologize to the Dalit and oppressed communities who have been historically marginalized immediately after the formation of the government and to pledge not to allow such discrimination in the future’ is a positive start.

तर दुई–तिहाइ नजिकको बलियो जनमत पाएको र दलित समुदायका लागि विशेष कार्यक्रमहरू ल्याउने वाचा गरेको पार्टी सरकारमा रहँदासमेत देशको नीति, कार्यक्रम र बजेट विनियोजनको यथार्थ हेर्दा दलित समुदायप्रति राज्य अझै पनि गम्भीर नभएको स्पष्ट देखिन्छ । विगतका सरकारहरूले जस्तै वर्तमान सरकारले पनि भाषणमा आश्वासन र कागजातमा मात्रै अधिकार सीमित गर्ने परिपाटीलाई निरन्तरता दिन खोजेको तथ्यहरूले प्रमाणित गर्दै लगेका छन् । सरकारले बजेट वक्तव्यमार्फत देशव्यापीरूपमा ‘छुवाछूतविरुद्धको राष्टि्रय अभियान’ सञ्चालन गर्ने घोषणा गर्नु आफैँमा सराहनीय कदम भए तापनि त्यसका लागि कति बजेट विनियोजन गरिएको हो भन्ने ठोस अङ्क र शीर्षक स्पष्टरूपमा उल्लेख नगरिनुले यो अभियान केवल प्रचारबाजीमा मात्र सीमित हुने त होइन भन्ने गम्भीर शङ्का जन्माउने ठाउँ प्रदान गरेको छ ।