Nepal is now trying to correct its historical wrongs against the Dalits.
In this connection, the Caste Based Discrimination and Untouchability
(Punishment and Offence) Act was passed by the Constituent Assembly in
2011. It was the first ever stand alone Act banning discrimination on
the basis of caste, ethnicity, descent, community or occupation in the
name of custom, tradition, religion, culture, ritual or any other
pretext. The preamble of the Act explicitly states that human dignity, freedom and equality of every individual should be protected by the law. It does not permit any kind of untouchability, exclusion, restriction, expulsion, contempt or any other discriminatory act that is against human dignity.
Furthermore, the Act provides legal remedies for victims of violation of rights enshrined in this Act, entitling them to compensation by the culprits.
According to section 4 (2) (a) and (b) of the Act, no Nepali citizen can prevent, control, restrict or prohibit any other Nepali citizen in any way from entering, attending or participating in programs organized either in public or private place. If any Nepali citizen is found to have entered, attended, or participated in programs organized in private and public places, he/she cannot be expelled by another Nepali citizen, either individually or collectively. Furthermore, the provision also bans any kind of intolerable behavior pertaining to caste based discrimination and untouchability.
As per the provisions in section 1 (2), this Act is applicable throughout the country as well as beyond Nepal. However, there is one important criterion that the Act misses. It does not address discrimination and untouchability committed by non-citizens. For instance, Nepal and India share many cultural practices and beliefs. A large number of Indians reside in Nepal, and vice-versa. If an Indian citizen practiced untouchability against a Nepali citizen (usually Tarai-Madhesi Dalits) the victim cannot lodge a complaint against the perpetrator, and vice-versa.
Section 4 of the Act details the kinds of actions that are considered offensive. It strictly prohibits caste based discrimination and untouchability on the grounds of tradition, custom, religion, culture, cultural practices, caste, ethnicity, descent, community or occupation. Though the Act aims to abolish untouchability even in private places (Section 4 (2)), it does not define the area and meaning of “private place,” which is another of its weaknesses.
There is yet another gap in the Act. Section 4(10) prevents a person from excluding his/her family member from entering the house and compelling the family member to leave the house or village. This legal provision does not ensure the right of Dalits to enter the house of non-Dalits or protect them from being evicted from a house or village on charge of untouchablility, which is one of the crucial agendas of the Dalit movement. However, a majority of right activists and advocates including lawmakers, especially non-Dalits, defend the provision on the grounds of private rights. Obviously, no one has the right to disturb anyone else in their private domain. But then, prohibiting Dalits from entering non-Dalits’ house or excluding them from houses is one of the key components of untouchablity.
Section 5 of the Act provides for a detailed complaint registering system. Sub-section (1) states that anyone who is found to have committed, or is going to commit, an offence referred to in section 4 may be declared a criminal by court. However, the complaint should to be lodged with the nearby police office. If the incident occurs outside Nepal, the complaint can be registered at the district where either the victim or the defendant resides. If the police refuse to register the case, it may be registered with National Dalit Commission.
Since police posts are not evenly distributed throughout the country, the victims of caste based discrimination and untouchability find it hard to receive immediate justice. Similarly, oftentimes the commission is beyond their access. In this situation, a local legal committee comprising diverse social groups and members from political parties should to be formed, where legal experts may act as facilitators. Such mechanisms could provide prompt help to victims and ultimately contribute to abolishing discrimination on the basis of caste.
Regarding penalty, this Act may be regarded as soft law. The judge may slap a fine or a punishment on the culprit, but not both. There is no “and” in the penalties, only “or”. Victims of discrimination expect the perpetrator be imprisoned rather than just fined.
Many right activists, both Dalit and non-Dalits, claim that this Act can significantly address the historical problems of Dalits. However, caste based discrimination and untouchability is also prevalent within and among non-Dalit communities. If any victim from non-Dalit community registered the case, he/she might make history because the issue of caste based discrimination and untouchability is still supposed to be related only to Dalits. But since the word “Dalit” is not mentioned in the Act, it cannot be said to be related only to Dalits. Every person who is discriminated against can benefit from this act.
The author is Policy Advocacy Coordinator at SAMATA foundation, Lalitpur
bijay.gulmi@gmail.com
source:- myrepublica
No comments:
Post a Comment