By the Center for Human Rights and Global Justice at New York University School of Law, the Dalit NGO Federation (Nepal), and the International Dalit Solidarity Network. Republished courtesy Smita Narula, NYU.

In creating the new constitution for Nepal, the Constituent Assembly
has the opportunity to crystallize the country’s peace, advance Nepal’s
political, economic and social development, and demonstrate a
commitment to the inherent dignity of all individuals. In order to
fulfill these paramount goals, the rights of all of Nepal’s Dalit
population – especially women and “lower” Dalit castes – must finally
be realized.

This Joint Statement draws on Nepal’s international human rights
obligations to identify how to best achieve the rights of Dalits.
Taking the Interim Constitution as a predictor of future constitutional
arrangements, this Joint Statement also concretely identifies how to
enhance the effectiveness of these constitutional provisions.
Experience in Nepal, and in other caste-affected countries such as
India, has shown that guaranteeing rights on paper is not enough;
strong implementation and enforcement are critical to close the gap
between a constitutional vision and the social reality to date.

Factual and Legal Starting Points
The pervasive caste system in Nepal has a firm hold on society. At its
root, it is nothing but a discrimination system in which certain
people, by virtue of their birth into a particular social group, are
forever branded as inferior. This distinction defines every conceivable
aspect of a Dalit’s existence, including citizenship, access to land,
health, and education. The grossest manifestation of this
discrimination system is the practice of “untouchability” – the
complete repudiation and segregation from other castes, including a
prohibition on touching non-Dalits and their possessions, upon belief
that Dalits are “polluted”.

Both government and private actors
subject Dalits to extreme forms of exploitation, including: community
segregation; prohibition on entering public spaces; denial of access to
food, water, and land; and coercion into caste-based occupations deemed
too “spiritually impure” for “higher castes”. Attempts by Dalits to
defy this social order are met with punitive violence and social
ostracism, and the State frequently fails to prevent or punish such
acts.

Moreover, Dalit women and girls endure the
intersectional burden of caste and gender discrimination, and they bear
the brunt of exploitation and violence. Additionally, Madhesi Dalits in
the Southern region and certain Dalit castes like GAINE and BADI are
more marginalized and excluded and thereby face further barriers to
enjoyment of human rights.

Nepal’s International Human Rights Obligations
Nepal’s implicit and explicit endorsement of caste discrimination is illegal
under international law. Nepal is a party to the following
international human rights treaties: the International Convention on
the Elimination of All Forms of Racial Discrimination (ICERD), the
Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW), the International Covenant on Civil and Political Rights
(ICCPR), the International Covenant on Economic, Social and Cultural
Rights (ICESCR), the Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT), and the Convention
on the Rights of the Child (CRC).

These treaties create
binding obligations that must be carried out in good faith to respect,
protect and fulfill rights. Core among these obligations are
non-discrimination (in both intent and effect) and equality, both
formal (de jure) and substantive (de facto).

Nepal’s human rights record has been examined by the relevant treaty bodies that
monitor the treaties’ implementation. These bodies have found that
Nepal has not fulfilled many of its international legal obligations,
despite the fact that these obligations continue to apply to Nepal
irrespective of the political mechanisms that are envisaged in the
transition to democracy.

Securing Dalit Rights in the New Constitution
This Joint Statement assumes that the essential articles in Nepal’s Interim
Constitution will be carried over into the new constitution and makes
only the most important recommendations to improve these protections. A
new constitution that affirms these obligations should contain
provisions to:

Ensure access to citizenship, including the provision of citizenship certificates to Dalits.

Protect the right to equality and non-discrimination for all persons by
requiring formal and substantive equality, prohibiting discrimination
on any ground, repudiating “utouchability” and racial discrimination,
and providing for “special provisions to ensure real equality in the
enjoyment of all rights, including employment and education.

Secure the right of Dalits to meaningfully participate in State structures and
decision-making, including the drafting of the new constitution and
national development activities, on the basis of proportional
inclusion.

Prohibit registration of political parties that exclude Dalits in membership, leadership or nomination for political positions.

Guarantee all freedoms to Dalits, including freedom of religion and the right to
marry freely, and ensure that there are no unlawful or undue
restrictions on these civil and political rights which prevent their
implementation in practice.

Ensure Dalits’ economic, social and
cultural rights, by guaranteeing their justiciability and by
specifically ensuring: education rights; the right to a clean
environment; the right to the highest attainable standard of physical
and mental health and free basic health services, along with the
underlying determinants of health, such as water and safe, adequate
housing; rights regarding labor, employment and social security; and
the right to property, including through ensuring entitlement to tenure
or comparable redress in cases where Dalits’ land tenure has been
compromised by previous discrimination.

Guarantee Dalits’ children’s
rights by: guaranteeing the right to his or her identity and name, as
well as the right to be nurtured, to basic health and social security;
prohibiting all exploitation of children; and affirming that the
child’s best interests are the primary consideration in actions
involving the rights of children.

Ensure the rights of Dalit women
by: prohibiting discrimination and violence against women; requiring
all appropriate measures to modify the social and cultural patterns of
conduct; and guaranteeing property rights, reproductive rights and
rights concerning family relations.

Ensure Dalits’ right to be free
from torture and other cruel, inhuman or degrading (CID) treatment or
punishment by prohibiting all acts of physical and mental torture or
CID treatment and ensuring that all such acts are punishable by law and
by appropriate penalties which take into account their grave nature.

Realize constitutional rights and protections by ensuring that Dalits’ rights
are implemented and enforced and that law enforcement, the judiciary
and government commissions treat untouchability as a serious crime.

Issues of Implementation and Enforceability
The Interim Constitution, particularly through Articles 32 (Right to
Constitutional Remedy), 33 (Responsibilities of the State) and 107
(Jurisdiction of the Supreme Court), recognizes that rights must be
enforced to be meaningful. To ensure that law enforcement, the
judiciary, and government commissions promote rather than undermine
rights and consequently treat untouchability as a serious crime, the
new constitution should remove unlawful restrictions on rights
guarantees and give both citizens and non-citizens the constitutional
right to petition the Supreme Court to have a law declared
unconstitutional.

The new constitution should also strengthen the
national commissions, by providing for the financial autonomy of the
National Human Rights Commission and establishing the National Dalit
Commission as a constitutional body. These changes will help end
impunity for caste-based discrimination and ensure Dalits’ real
enjoyment of equality, including for those who face multiple forms of
discrimination.

Conclusion
In drafting the new constitution, the Constituent Assembly is tasked with the paramount
responsibilities of crystallizing the peace after Nepal’s prolonged
civil war and fulfilling Nepal’s international legal obligations to
secure fundamental rights. Once the Constituent Assembly has made
constitutional protections and guarantees in line with the
recommendations above, the State must take further legislative,
administrative, budgetary, judicial and educational measures to
eliminate and prevent caste-based discrimination in both the public and
private spheres and to respect, promote, implement and monitor the
human rights of those facing cast discrimination.