Caste Based Discrimination and Untouchability Offence

(This is excerpt of opening remarks given by Dr Bipin Adhikari as Chairperson of Nepal Constitution Foundation at the bill review programme on the Bill of Caste Based Discrimination and Untouchability Offence and Punishment Act 2067/2010 organised on May 03, 2011)

Though Nepal's Constitution of 1990 prohibited untouchability and caste based discrimination, no legislation could be enacted during the period of its applicability. That underlines the importance of this legislation.

The objective of the Bill is to consolidate legal provisions already existing and eradicate caste based discrimination and untouchability and to give justice to the victims and punish the culprits.

The Bill prohibits caste based discrimination and untouchability in Section 3. Section 4 enlists the discriminatory practices that are forbidden under the Act. Some of these are - restricting entry into public places including places of worship, denying employment, disallowing usage of public services, prohibiting marriage etc on the basis of caste and promoting caste based violence in any form or media. Section 5 enables complaint to be made to the police. The investigating officer can receive assistance from other agencies or institutions which have been working on the issues of caste based discrimination and untouchability.

Section 7 is the penal provision which prescribes punishment ranging from one month to 3 years imprisonment and fine ranging from Rs 500 to Rs, 25,000, depending on the offence. Additional punishment is prescribed for people in responsible public positions who commit such offences in Section 8. Sections 9 and 10 prescribe punishment for people who either obstruct investigation or make false and malafide complaints. A limitation period of 3 months is prescribed for making complaints. Section 11 provides that a compensation amount of Rs. 1 lakh may be provided as compensation. The cases filed under this Act will have the state as the complainant party. It's a case where public prosecutor files the case in the court. Section 16 requires every related person to assist in the investigation.

There are many improvements that can be made in the Bill. In the preamble itself the term "general public" could be replaced by a more preferable term "every Nepali citizen or any person" in order to be more specific. The terms caste based discrimination and untouchability have not been defined in the Bill. Since these are the key terms upon which the Bill is based on, they need to be properly defined in the 'definition' section.

The Bill gives the impression that it is only applicable when a person commits such discriminations. It should be clarified in the bill that besides persons, even public authorities and other institutions can commit such an offence and a liable to fall under the purview of the Act. The Act also needs to specifically prohibit discrimination and untouchability even in religious programmes conducted by private individuals outside the sphere of the state. The investigation under the Section 6 should also be enabled to seek assistance from other human rights institutions, Dalit Commission, National Human Rights Commission and other communities.

Forced labor on the basis of caste is also seen as a deplorable practice and the Act should specifically prohibit such practices as well. The provision for complaint Section 5 should clarify that both written and oral complaint can be made to the nearest police station. This is because many rural people are unable to make a written complaint. In the Bill the Court is empowered to grant a maximum amount of Rs. 1 Lakh as compensation. Rather than placing a limit on the amount, the court should be empowered to grant any amount that it deems reasonable and fit depending upon the varying circumstances of the case.

Due to the difficult terrain and illiteracy of people the limitation period (to make complaints) may be increased from 3 months to a more reasonable time frame. The Bill also needs to address the issue of community practicing caste based discrimination and untouchability and not just the individual.

Bipin Adhikari
Nepal Constitution Foundation

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