What legal tools have been tried for ending caste-based discrimination?

It is a bizarre thing how humans have managed to hold themselves superior to their fellow humans at the mercy of their castes. One’s inheritance of a particular surname has been a factor to decide the overall fate of that person throughout their life.

How did the seed of this segregation sow itself within our grounds? Why are we still infested with this terrible disease of human-hate even at this stage of developed societal consciousness? Have the so-called low castes been handed back their birthright of a blemish-free existence?

History of Caste-Based Tortures

Caste discrimination is a serious and pervasive human rights problem that is estimated to affect more than 260 million people in all geographical regions, in particular Asia and Africa. Caste discrimination is found in varying degrees in India, Nepal, Pakistan, Bangladesh, Sri Lanka, Japan, Micronesia, Yemen, Senegal, Burkina Faso, Mali, Chad, Ghana, Niger, Mauritius, Mauritania, Madagascar, Nigeria, Kenya, Ethiopia and Somalia, Suriname and possibly more countries. It also occurs in Diaspora communities in Europe, North America, and Asia.

Caste is a hereditary and hierarchical system of social grouping distinguished by degrees of purity, social status, and exclusiveness. Historically, it is believed that the caste system begun with the arrival of the Aryans in India around 1500 BC.

The use of the word ‘Dalit’ was initiated during the Dalit struggle that emerged in 1927 A.D. in India. Govinda Research Nepal Journal of Development Studies finds out that Dalit means ‘oppressed’ or ‘suppressed’, although it refers not only to the Dalit of Nepal and India but also to all disadvantaged groups oppressed by caste-based untouchability practices. The 19th-century writing of Jotirao Govindarao Phule, Dr B.R Ambedkar as well as the Dalit Panthers – a political group formed in 1972 in Maharashtra, India first employed the term. The aspiration behind it was to designate a dignified and non-derogatory term to refer to the people or communities that were placed outside of the Varna system and were referred to as Avarnas (Untouchables). It is hence, paramount to clarify that the term Dalit itself is not a caste or a caste indictive term but a socio-economic category of people excluded from the original Varna system.

Over the total population of 36 million, the Dalits in Nepal comprise of 13.6% of the total population according to the 2011 census. However, researches have suggested that the percentage could be over 20% with an estimation of 5 million people. The Dalit Development Committee of the Ministry of Local Development (MoLD) has identified 22 Dalit groups (Previously stated as 28).

The Manusmriti also inscribes violence to be meted towards those who fall into the fifth category, in verses like the following: “A low-caste man, who tries to place himself on the same seat with a man of a high caste, shall be branded on his hip and be banished.” “If he mentions the names and castes with contumely, an iron nail, ten-finger long, shall be thrust red-hot into his mouth”. They are often forcibly assigned the most dirty, menial, filthy and hazardous jobs, such as cleaning human waste, sewage, removal of corpuses and garbage. The work they do adds to the stigmatization they face from the surrounding society.

Untouchability based on casteism was practiced in Nepali society even before the promulgation of the General Code of 1910. According to the code, individuals of different caste groups were subjected to different punishments for the same crime. Based on this fact, the claim that the code encouraged casteism (untouchability) is true. The hierarchical order that was established by the 1910 code places Dalit at the bottom of the social structure but not outside of it. Pani nachalne (water touched by whom is not accepted) and the Acchut (untouchable) within the fourfold are strictly prohibited to have physical contact with the top three castes and were subjected to legal punishment as extreme as death by stoning or other forms of death penalty in accordance to the national code of 1910.

Two studies show that most Dalits suffer from discriminatory practices involving food and drink (38.9%) and prohibition of entry into houses, temples and other public places (28.3%). Both studies show that incidence of caste based discrimination is higher in the western region than in the eastern region of the country. It means that the form and extent of discrimination against Dalits are positively correlated with the extent of development of the area where they reside.

International Efforts

The term “caste” does not appear in the non-discrimination provision of the Universal Declaration on Human Rights (UDHR) but, subsequent practice by UN treaty and charter-based bodies has affirmed that it falls under the purview of international human rights issues. The UN Committee on the Elimination of Racial Discrimination (CERD) has reaffirmed in General Recommendation 29 that discrimination based on “caste and analogous systems of inherited status” falls within the scope of descent in Article 1(1) of the Convention. Caste discrimination has been defined as “discrimination based on work and descent” by the UN Sub-Commission on the Promotion and Protection of Human Rights. A set of draft UN principles and guidelines for the effective elimination of discrimination constitutes the first comprehensive framework to prevent and address this form of discrimination globally. It offers a strong tool to encourage specific anti-discrimination legislation and relevant policy measures for governments and their agencies, the UN and other international agencies, educational institutions, non-governmental organizations and the private sector. These principles and guidelines were published by the Human Rights Council in May 2009. The United Nations Office of the High Commissioner for Human Rights (OHCHR) published a comprehensive guidance tool addressing caste-based discrimination in 2017 entitled “Guidance Tool on Descent-Based Discrimination: Key Challenges and Strategic Approaches to Combat Caste-Based and Analogous Forms of Discrimination”. The tool has been welcomed by UN stakeholders as well as human rights activists across the world.

The International Dalit Solidarity Network (IDSN) works on a global level for the elimination of discrimination based on caste, work and descent. The International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Elimination of all forms of Discrimination of Women (CEDAW) and Convention on the Rights of the Child (CRC) are some other prominent legal frameworks where non-discrimination clauses can be found, and can be called upon through their specialized perspectives. They have managed to place caste discrimination firmly on the international human rights agenda.

Foreign Laws

India: The Indian Constitution designated the untouchable groups as Scheduled Castes (SCs), and they were made entitled to the benefits of affirmative action. Most importantly, Article 17 of the Constitution banned the practice of untouchability in any form. The Untouchability (Offences) Act, 1955 was promulgated and was later rechristened with amendment as The Protection of Civil Rights Act, 1976. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted as the previous laws did not prove much helpful. In 2013, the Indian parliament enacted The Prohibition of Employment as Manual Scavengers and Their Rehabilitation Act outlawing all manual excrement cleaning jobs designated for the ‘Dalits’ which was seconded by the Supreme Court’s verdict in March 2014. It also recognized a constitutional obligation to correct the historical injustice and indignity suffered by these communities by providing alternate livelihood and other assistance.
Bangladesh, Pakistan and Sri Lanka: No quota system exists in Bangladesh.In Pakistan a 6% quota for government jobs for minorities has been reinstated but it is not implemented. In Sri Lanka, the state has turned a blind eye to caste discrimination assuming that a welfare state approach would eliminate discrimination and social and economic disadvantages.
Japan: Slaughter men, undertakers and those people working with leather and other “unclean” professions such as sanitation have long been marginalised. Though the caste system was abolished in 1871, prejudice and barriers still remain. The lowest of these outcasts, Eta, meaning “abundance of filth” is said to be worth one seventh of an ordinary person.

Nepali Legislation and Present Situation

King Mahendra tried to prohibit untouchability through the Muluki Code of 2020 but it remained as it is for several years until Nepal was declared as an untouchability free nation by the Parliament on 21 Jestha 2063 BS. In Nepal, “Day for the Elimination of Racial Discrimination and Untouchability” is celebrated every year on Jestha 21 since then.

The Caste-Based Discrimination and Untouchability (Offence and Punishment) Act, 2068 (2011) was introduced and is still applicable with following provisions:

Summary procedure to be followed
Government of Nepal to be plaintiff
The courts may order the offender to provide restitution to the victim from Twenty Five Thousand to One Hundred Thousand Rupees
Half of the offender’s punishment given to the person causing hindrance or obstruction as penalty
Restriction on casted based discrimination and untouchability
Punishment of imprisonment for a term from one month to three years or a fine from Five Hundred Rupees to Twenty Five Thousand on the basis of crime.

The Constitution of Nepal has following provisions against the widely prevalent caste-based discrimination:

Right to Live with Dignity
Right to Equality
Right against Untouchability and Discrimination
Right to Social Justice
Rights of Dalit

Among the guaranteed fundamental rights, the Rights relating to Dalit are elaborate and are in coherence with the concept of positive discrimination. Following accesses to the mainstream of development have been ensured in letters:

Participation in all bodies of the State on the basis of the principle of proportional inclusion.
Free education with scholarship, from primary to higher education and special provision for technical and vocational education.
Special provision regarding health and social security.
Usage, protection and development of their traditional occupation, knowledge, skill and technology and according provision of skills and resources.
One-time land provision to the landless.
Provision of settlement for the homeless..

In 1854, The Muluki Ain was constituted, and gave differential privileges, rights and duties to higher, middle and lower caste groups in Nepal. The practice of ‘untouchability’ was abolished in 1963 and anti-discrimination reforms have been an integral part of the last four constitutions of the state. Subsequent to the signing of the Comprehensive Peace Agreement (CPA) in 2006, after a decade long civil war, the Nepali state has been persistent about its strong commitment to eliminate caste-based discrimination that exists in the country. A number of legal and policy reforms have been enacted, one of which is the Untouchability (Offence and Punishment) Act which came into action in 2011. The 2011 act on untouchability paved paths for many policy level changes and affirmative action, specifically to the civil service hiring quotas, special scholarships for the caste affected children as well as guidelines for local bodies with spending targets for marginalized people to name a few. However, implementation of these policy reforms to promote social inclusion has been shamefully weak.

Constitution promulgated prior to 1990 had no meaningful provisions for elimination of caste based discrimination. Article 4 of the 1990’s constitution for the first time ensured that any form of discrimination based on caste was punishable by law. Bhattachan points out that since then, “Dalit Upliftment and Protection Bill of 2002 ”, “National Dalit Commission Act of 2003”, “ Reservation Act Bill of 2005”, “ Caste Based Untouchabiltiy Crime Act of 2006” are some of the examples of many failed efforts to uplift the status of the Dalits. Constitution of Nepal (CON) 2015 is the present governing constitution of the state. It contains a comprehensive list of fundamental rights and provisions for the effective protection of Dalits and other marginalized groups that are in line with the UDHR, ICCPR, ICESCR and other international human rights instruments. The constitution also recognizes ‘the right against untouchability and caste based discrimination’ and ‘the rights of Dalits’ as fundamental rights’; all forms of discriminatory treatment on the ground of caste is outlawed and entails compensations that are provisioned by law for the victims.

According to a Human Rights Watch report, on May 23, 2020, a 12-old Dalit girl was found hanging from a tree, a day after community leaders in one of the districts of Nepal ordered a 25-year old man of a different caste who had raped her to marry her as a “punishment”. The same day five Dalit men were killed in another district that involved a dispute over inter-caste marriage. It has been 59 years since late king Mahendra declared the abolition of caste-based untouchability. Despite constitutional guarantees and empowerment provisions, impunity for caste based discrimination remains rampant. The killings of 47 Dalits in a span of 16 years are a gruesome reminder of how the Dalits are mistreated in society.

Following the abolition of untouchability some six decades ago, Nepal was once again declared a caste- discrimination-free society in June 2006, defining any kind of caste-based discrimination illegal with provisions of punitive action and a fine. But, National Human Rights Commission reported six Dalit youths were killed in Rukum, two years ago as a result of discrimination against the Dalits. The major problems the Dalits still face in society are that they are not welcomed to religious and cultural feasts and festivals. Some Dalit families have also been found to have changed their family names to avoid caste-based social discrimination.

Although Nepal is party to the Convention on the Elimination of All Forms of Racial Discrimination, the Committee tasked with monitoring the treaty observed that despite the abolition of “untouchability” in Nepal, Dalits continue to face deep-rooted discrimination, including issues surrounding inter-caste marriages.Dalits in Nepal and other countries experience discrimination at every level of their daily lives, limiting their employment and educational opportunities, the places where they can collect water or worship, and their choice of who to marry, says OHCHR.

Conclusion

Although we can see a vast difference throughout the decade, we still have a long way to go to end all forms of caste-based discrimination especially in the rural parts. The classification is glorified as ‘diversity’ but equal appreciation for all is seldom advocated. The laws cannot work sufficiently because it is our deep-rooted cultural mindset that needs an amendment.