Abstract
Untouchability is a menace for society, treating an individual only on the basis of their caste is not justified. This article talks about untouchability that is persistent in Nepal, though it has been abolished by lawmakers. Although an act related to this i.e. Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2011 has been passed the perception and the notion of the society has not changed. Individuals especially those belonging to the lower castes face this unequal treatment and seem to tolerate this indiscriminate treatment and there has been little movement against discrimination.
Introduction
She was not allowed to draw water from the well, and when she did, she was abused. The only reason for her being a Dalit woman. Nepal is a sparsely populated country located in South Asia with a diverse population consisting of various religious and ethical practices. Even with these characteristics the country still practices caste-based discrimination, which though prohibited in the Nepali Constitution is still persistent in the ideology of people. Mainly, there are four classes present in Nepal, Brahmin, Kshatriya, Vaishya, and Sudra. Owing to the people being ritualistic, the upper caste society that includes Brahmin, Chhetris, and Thakuris don’t accept food and water from the lower caste people, as it is considered to be contaminated or polluted (jhuto), and if the family is more orthodox then they don’t even come in contact with the Dalit and if they do, then they take a bath so as to purify themselves (1)
.
Dalits are not allowed to go to places of worship; they face difficulty while they seek jobs even though they are qualified, and cannot marry inter-caste because of the prevalent taboo that is associated with their caste(2). Many of them refrain from raising their voices against the injustice they suffer fearing that the officials, most of which belong to the upper-caste communities, will be biased towards their own caste (3).
Laws and conventions
The caste system that is prevalent in Nepal was first codified in the National Legal Code (Muluki Ain) in the year 1854 by the Rana rulers of Nepal and was in effect until 1951 (4), which happened because the rule of Rana was over. The Muluki Ain was based on the caste system like the Brahmins were exempted from paying certain taxes and from compulsory labor. Even the punishment that was accorded to the offenders was based on the caste hierarchy that they belonged to, which means that if an individual belonging to an upper caste commits an offense then the punishment given shall be lesser in contrast to other castes (5).
If an individual belonging to the upper caste commits a wrong which includes acceptance of food or water or getting involved in some activity with a Dalit or committing murder, rape, or marrying a Dalit then they are punished more severely which might include the stripping off their upper caste title and renouncing them as a Dalit or a lower caste (6).
The submission of the draft “Caste-based Discrimination and Untouchability Crime Elimination and Punishment Act” will help in improving the legislative framework and the prevailing discrimination. It will provide suggestions and recommendations to the policymakers on how to best deal with the problem using international standards, if the bill is approved then it will be a major step in preventing caste-based discrimination.
The “International Convention on the Elimination of All Forms of Racial Discrimination (7)”, prohibits discrimination based on descent. The convention also asks the governments to take such measures, which will help in ostracizing discrimination from its roots like elimination of segregation in education, employment, housing, and the right to move freely to any place of choice. It also makes the government acknowledge a remedy for the victim against the offender be it a private individual or a public servant (8).
The plight
It has been discussed that people from the Dalit community face discrimination in every sphere, but talking about the women, they even face more than men with no property or money and no stability as such for the education purpose of their children (9).
Even amongst the Dalit people women from Badi Community (10) are treated as sex workers and are trafficked, the main destination is from Nepal to India, and the main reason for their being trafficked is the perception of them being of lesser value than other human beings. Many girls believe that they are being taken as domestic help and hence from the money that they earn, they could support or help support their families hence they fall into the wrong hands and are trapped by the brokers who sell them off.
“According to Section 7 (1) (a) of the Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2011”, a person found guilty of even insinuating that someone is from a “lower caste” can face imprisonment for a term from three months up to three years coupled with a fine from one thousand rupees up to twenty five thousand rupees (11). However, in a country like this where the Dalits are deprived off their rights because of their caste and are also being killed such law is only a drop in the ocean. They even lack economic and political connections and hence can do little when their family members are killed. Even the leaders protect those who commit crimes against the Dalits (12).
Often, it also happens that, the victim is unable to prove the charges because of the lack of evidence hence the law should be moulded and amended to incorporate such changes.
Furthermore, as has been noted, the Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2011 is not effective owing to the fact that section 8 of the Act bars obstruction of investigations. However, Dalits have not been encouraged to seek remedies under law, making evidence gathering difficult. The political parties are not empathetic to the rights of the Dalits also most of them come from the non-Dalit upper caste group (Dalits form around 20% of the total Nepalese population, (as per the data available in 2005 1(3)). They could have formulated some strong opinions and voices when they were in power, but they failed to do so.
Most of the time, victims are reluctant to make legal claims out of concern for consequences and blame. Dalit rights activists claim that because police are frequently reluctant to file reports, victims are discouraged from seeking redress. When victims seek justice, they may encounter insults, threats, and even social estrangement, which discourages many from going to court.
For many of them caste discrimination is normal and hence they don’t find a need to work for its abolition.
Most of the times it has also been seen that the political party supports the accused because of which justice is denied to the victim. In addition, it has been seen that a few of the judges are progressive others still have the orthodox view and hence it can be said that most are conservative, however no official figures show the same– political scientist Khanal (14), he also says that “Those who are at the helm of police and other administrations are also conservative, when it comes to caste and caste-based discrimination.” It has also been seen that the Dalit organisations are working as proxies for the political parties, a change can only be brought about when these organisations turn towards the needs of the Dalits and work for their cause.
Caste-based Discrimination and Untouchability (Offence and Punishment) Act, 2011
The Act states that untouchability and caste-based discrimination is prohibited in both the public and private spheres and if found that a public official is committing the same they will be liable for a greater punishment. It also asks the offenders to pay compensation to the victims and even criminalizes incitement to caste discrimination (15).
“This is the first time ever Nepal has adopted specific legislation for addressing the serious crime of caste-based discrimination and untouchability,” says Jyoti Sanghera, who heads OHCHR-Nepal (16).
According to OHCHR and National Dalit Commission, discrimination is rampant in Nepal and has served as the basis for creating an economic, social, and political bias against the Dalits. It is also said that the same has been a factor for creating forced displacement, sexual exploitation, bonded labor, arson, etc. (17) It was also stated by the Parliament in 2006 that the country is an “Untouchability free state” but reports suggest that they are not given adequate representation in the professional sphere be it media, politics or the corporate sector.
This act might prove to be an achievement for all those people who have undergone discrimination only when it is correctly implemented and from the statistics, it can be said that the implementation hasn’t taken place in the correct direction.
Their status
There were not many educational institutions in the year 1951. And when the schools were built, Dalits were not allowed to get enrolment because of which they couldn’t get professional and neither semi-professional jobs and ended up working in traditional caste-based occupations or as a servant (18).
The constitution gave rights to the Dalits to have education in schools and colleges but still, the strength is less as most of the time the parents are unable to pay for the school expenses, books, or fees. Even the survey which was conducted on 14% of the untouchables in Nepal, shows that the percentage of Dalits in graduated far less than the national average (0.04% of the whole sample, had studied up to the B.A. level, far below the national average of0.64%). (19).
However, even if Dalits earn a professional degree they don’t necessarily get a professional job in relation to it because employers are more willing to hire a high-caste Nepali rather than an untouchable.
In addition, these people lack professional or political connections with the high-caste Nepalese due to which their last hope of finding a job is lost. In the case of Nepal, for appointment to higher posts relatives of the employers are often preferred, because of which these relatives have a greater advantage over any person who is a Dalit. This is because there are more high-caste Nepalese than Dalits (Dalits only form 20% of the total Nepalese population (20) ), and because of this they end up working in their caste-based occupation.
As this article has attempted to describe, the untouchable/lower caste are caught in a vicious economic cycle, where because of their lack of education they don’t get the job and hence can’t provide for their basic needs (according to statistics many of them have reported that they don’t have enough money so as to provide for their sustenance needs (21) ). In the end, they can’t give education to their children and this cycle continues.
Why aren’t they protesting?
Many of the Dalits don’t even know their rights under the Nepali Law and hence they don’t come out to protest, they also don’t indulge themselves in any political activity or seek help from the NGOs, and hence the support that they might have received is also curtailed. Alternatively, the other reason could also be that the victims are hesitant to file the case for appeals because of the cost involved and the lack of motivation, time, and effort (22).
Surprisingly, many of them have also accepted their position in society and hence accept the treatment that they receive from their neighbors. The Dalit people believe that they deserve such treatment owing to their caste being lower in the caste hierarchy. For instance, in the Doti region, a majority of the people accept the caste system and believe in the purity and pollution concept, where they themselves are polluted and not pure. They also believe that every member of a society has some role to follow be it the polluted one or the pure one. When they are asked about their position in society they talk about a famous Nepali proverb
which says “You can’t make something good out of bad” They have accepted the status accorded to them in society (23).
These instances do reveal a lot about the mentality of the Dalits who consider themselves to be inferior, and thus there is limited protest from this group.
In a nutshell, it can also be said that the Dalits are discriminated against in terms of religious and cultural spheres. They are forced to go for traditional caste-based occupation and forced labor, given less access to educational and political rights, and hence are unequal in terms of status. So, just like in the case of India, where Ambedkar had talked about graded inequality, in the case of Nepal from the above analysis it can be said that graded inequality is prevalent, and hence the same leads to meager protests from them.
Way Forward
The problems faced by the Dalits are usually ignored by the important stakeholders be it the government, police, lawmakers, or the judiciary even Dalits themselves also hesitate and in turn don’t speak up against the injustices that they face (as mentioned in the earlier part of the article). These problems if resolved can help in improving the socio-economic status of the Dalits and it will also be beneficial for other individuals as well as it will lead to the betterment of the society in general and hence as a modern society the country will grow.
Some investigation needs to be done regarding the discrimination that persists so that the necessary changes can be done. The income that the Dalits receive in the traditional caste-based occupations can be increased or some vocational training can be provided so that they can improve their skills. Some bank officers can be recruited to help the Dalits in securing loans so that a new business can be set up, examples of India can be taken in this regard like the MUDRA loan or the Stand-Up India scheme, where loans are provided to small business units. These measures will help them in generating income which will in turn help for their basic needs.
Conclusion
At the end, it can only be said that all humans are humans from the time of their birth and hence discriminating between them in terms of their caste or race is highly problematic. In addition, someone being born in a lower caste is not equivalent to having a communicable disease i.e. so they can’t be touched. They are normal human beings, with all the traits of a normal human. No child from the womb itself understands that they are untouchable; it is society that creates this notion. One is born as an innocent one just like others and must be treated in the same manner. One is not someone born with ten legs or nine hands due to which one is termed as an untouchable, or the one who creates fear.
The mentality of society should change; the law will play an important role in this regard and its correct implementation. Making an act without its proper execution has no point. Also, social awareness must be created. The organizations that work for the cause of the Dalit society should be supportive and proactive in solving their problems. All individuals are equal and hence should have equal rights.
Bibliography
- Thomas Cox, The current socioeconomic status of untouchables in Nepal, 4 OPSA, 90, 90-109 (1994)
- Lekhanath Pandey, Caste-based attacks spur outcry over social discrimination, DW, (16 June 2020) https://www.dw.com/en/nepal-deadly-caste-based-attacks-spur-outcry-over-social-discrimination/a-53827719.
- Dina Jangam (feeder), Speak Up Stop Discrimination-NDC and OHCHR-Nepal Observations on the Untouchability Bill, Gon-OHCHR, 2010
- “Rukamanee Maharjan”, “Nepal must do much more to protect most vulnerable community”, Development and Cooperation.
- Parbat Portel, “Despite laws in place, justice still out of reach for Dalits in Nepal,” The Kathmandu Post, https://kathmandupost.com/national/2021/10/19/despite-laws-in-place-justice-still-out-of-reach-for-Dalits-in-nepal.
- “Dalit women in Nepal” “International Dalit Solidarity Network”, https://idsn.org/key-issues/Dalit-women/Dalit-women-in-nepal-2/.
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- Darnal, S., Dalits of Nepal: Who are Dalits in Nepal? ICIMOD, 2005
1 Thomas Cox, The current socioeconomic status of untouchables in Nepal, 4 OPSA, 90, 90-109 (1994).
2 Lekhanath Pandey, Caste-based attacks spur outcry over social discrimination, DW, (16 June 2020) https://www.dw.com/en/nepal-deadly-caste-based-attacks-spur-outcry-over-social-discrimination/a-53827719.
3 Gopal Sharma, “Dalit killings in Nepal spark outrage over caste discrimination”, Reuters (17 June 2020), 6:44 PM), https://www.reuters.com/article/us-nepal-rights-discrimination-trfn-idUSKBN23O23F
4 Supra note at 1.
5 “Rukamanee Maharjan”, “Nepal must do much more to protect most vulnerable community”, Development and Cooperation, (22 June 2021)https://www.dandc.eu/en/article/despite-legal-protections-nepals-dalits-suffer- serious-discrimination
6 National Legal Code (Muluki Ain) of 1853
7 International Convention on the Elimination of All Forms of Racial Discrimination, 1965, art. 1(1), 2(1) UNGA Resolution 2106 (XX).8 Dina Jangam (feeder), Speak Up Stop Discrimination-NDC and OHCHR-Nepal Observations on the Untouchability Bill, Gon-OHCHR, 3 (2010).
9 “Dalit women in Nepal” “International Dalit Solidarity Network”, https://idsn.org/key-issues/Dalit- women/Dalit-women-in-nepal-2/. (access date: 25 August 2022)
10 “Nepal” “International Dalit Solidarity Network”, https://idsn.org/key-issues/forced-prostitution/
11 Caste Based Discrimination and Untouchability (Offence and Punishment) Act, 2011§7(1)(a)
12 Supra note 10.
13 “Darnall, S.”, “Dalits of Nepal: Who are Dalits in Nepal?” ICIMOD.
14 Parbat Portel, “Despite laws in place, justice still out of reach for Dalits in Nepal,” The Kathmandu Post, https://kathmandupost.com/national/2021/10/19/despite-laws-in-place-justice-still-out-of-reach-for-Dalits-in- Nepal.
15 Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2011 §9
16 Nepal: UN welcomes new law on caste-based discrimination, (25 May 2011), United Nations, https://news.un.org/en/story/2011/05/376232.
17 Supra note 17.
18 Supra note 1.
19 Supra note 1.
20 Supra note 13.
21 Supra note 21.
22 Supra note 10.
23 Supra note 1.
Aashi Jain
2nd year, National Law University and Judicial Academy
