Lawyers National Campaign against Untouchability, Nepal

Advocate Santosh Giri and Mameeta Giri  Human Rights Lawyers (Nepal)Currently Law Students in
SFO, CA  As a supplement to the dissolution of the Parliament in 2002, the February 1^st Royal Proclamation ruled out the possibility of an executive based on the elected legislature. The historical decision of the Supreme Court dissolving RCCC, one of the components of the present regime has indeed lifted the veil of the power ruling authority. Increasingly, the political activists have been house-arrested, imprisoned, abducted and even exiled. Local elections have been forced without the representation of the majority of the popular will. Human Rights defenders are being detained in huge numbers. The freedom of press is being infringed day-by-day. And, international communities watch aloof!  Raising the issues by exploiting the sentiments of the people of Nepal on various natures of existing social injustices and inequality; centuries long suppression and a long history of slavery (now abolished) in Nepal; in 1996 a political bloc took up arms against the state. The insurgency started then has already claimed more than 12000 lives in 10 years. One who is brutally killed in the frontier on either side is either a low ranking gunman who had taken that job because he was uneducated, poor, exploited, forced, suppressed or did not have better opportunities. Among those who died were also those known as the ‘untouchables’, promised of equal treatment when the war ends!  

They took part in the revolt to make their dream come true, of just being treated as equal. Thousands of these innocent, uneducated and emotionally wounded speechless people are being forced into the war. Most were killed in suspicion of being envoy of the other side. Thousands have been internally displaced yet not given the status of Internally Displaced People IDPs under international laws; thousands have migrated to the neighboring nation India in order to protect their lives and are facing even harsher living condition; children and women are being trafficked at a huge rate; to sum up with the exploitation is getting worse day-by-day. Based on Hinduism, the society in
Nepal (the only official Hindu state) is basically divided into four classes of caste. The uppermost being the Brahmin or the pure; followed by Kshetriya or the warriors and state employees; the Vaisya or the economically active in small or large businesses and the lowest being Shudra or the ‘untouchable’ actually the laborers! The practice of untouchability literally divided the society as the former three as touchable and the latter as an untouchable.  Followers of Hindu religion, the medieval kings of
Nepal, one after another ratified untouchability as legitimate in one way or other. Jayastithi Malla, one of the medieval kings, through his royal decree, classified the Nepali society into those four divisions. The state ratified this customary practice in 1843 AD and included in its first written codified law ‘Civil Code’ a provision that legalized untouchability in
Nepal. One of the chapters in the code required mandatory untouchability practice against the untouchables and degradation of the touchable to untouchables upon violation of the law.  After a century, in 1963 AD, the state abolished untouchability in writing but by then the practice had itself deep-rooted into the minds of uneducated Nepalese for the generations to come. The state’s only action was repealing the existing provision and replacing it with a single impunity-provision of prohibition on practice of untouchability or illegalizing. However, no procedures were enacted, in order to curb the three millennium old culture, Hindus have been practicing nor to criminalize untouchability. After reinstatement of multiparty democracy in 1990 AD, The Constitution of theKingdom of
Nepal 1990 finally declared ‘practice of Untouchability’ as a crime. Later in 1993 AD untouchability was declared as a crime against the state and not only against the victim alone; but still adequate procedures are yet to be legislated.

 Innumerable direct and indirect practices of untouchability continue to foster in the Nepalese society everyday. Usual segregating practice of untouchability include social boycott; ban on economic activities; social exclusion on inter-caste marriage, deep-rooted intra-group discrimination, arson of community habitat, murders, rapes, heinous hate crimes, bar from entering religious, public and private places, prohibition on usages of public recourses like water, community forest, farms and intimidation to conduct degrading activities such as taking care of carcasses, cleaning toilets tanks etc. Even though the people from this community have special occupational skills and have been fulfilling the needs of the society functioning as ironsmith, cobbler, tailoring, pottery, woodcraft and indigenous craftsmanship using locally available resources; on contrary the society has not been treating them equally or even with the least respect. An axe made by an untouchable finds a place inside the home but the creator keeps squatting outside, hoping for the least income! The kitchen if filled with nearly every utensils made by them but one is never allowed to put a foot inside! The public tap foundation and construction is made on their sweat but, their thirst cannot be quenched from the same tap! The statue of a god made by an untouchable blesses all but him! The attire the priest wears is sewed by one but may not receive a blessing from him!  Only few incidents of untouchability are reported or receive media attention. Nearly none of these reach court and even if it does, one is forced to withdraw it on threat of social exclusion. During these 16 years of criminalization of untouchability, one can still count the cases on fingers. Although
Nepal has ratified some international instruments which prohibit racial discrimination, the government agencies, civil service and the general public tend to ignore them.  Today, the ‘untouchables’ also known as the ‘Dalit’ Community (literally meaning oppressed), constitute nearly 1/6th (four million according to the latest population census) of the total population (23 million) and continue to be inhumanely treated. Due to the weak law, forms and practice of Untouchability are still persistent.  

The worst scenario in this regard is that, people have been lured into the ongoing conflict for the sake of injustice they have faced. Promises of equality, freedom from discrimination and equal protection from this point forward are probably the phrases; vulnerable victims-of-untouchability hears, confesses and swears upon when someone hands over a gun on their hand. Why not?  Segregated Schools still exist, segregated water taps and even segregated habitat. One may not study Sanskrit (the world’s oldest language) as the social rule, probably someone feared that the Vedas (other than the later commentaries of Manu or Manusmriti) actually did not clearly mention about untouchability and the superiors always wanted to oppress the inferiors.  Some of them, the people from ‘Dalit’ community may have joined the armed conflict own their own, knowing the consequences but majority of others are coerced every now and then. While one has to flee from their village after threat of the rebels to join their army or die, the security personnel on the other hand torture them as terrorists. There was a moment, a few months back or probably a year, when ‘Dalits’ were openly referred as being allies of the insurgents. At the same time, in Saptari a group of insurgents stormed into a ‘Dalit’ village, gang raped women and threatened them to life. They never claimed the responsibility.  For years, in Lahan (eastern
Nepal), tension arises between the superior and the inferiors when ‘Dalits’ refuse to continue collect carcass and resist demeaning jobs. They are collectively banned from using public water resources, buy or sell anything in the local market and from using the local road! In 2004, in one incident 60 houses in a single village were burnt, all ‘Dalits’! The same year, hundreds were beaten in the center of a town when they collectively tried to enter a temple in Chitwan. Even today, the Royal army and the police refuse to enroll them in high ranking officers and limit them to the more vulnerable low ranks. On March 5^th 2006, a family was publicly banned from using a local well in the capital city,
Kathmandu! It clearly shows how deep rooted the problem is! 

Political parties and their allies, present and past governments and even the royal palace have expressed their grave concern towards such inhumane treatment against the ‘untouchables’ every now and then, but unfortunately only in papers and announcements.  In 2004, the Supreme Court ordered the government to make appropriate laws to curb untouchability (LANCAU v. HMG) but in the absence of the popular will and an executive based on an elected legislative, laws were not been drafted. The ‘ordinance’ (whereby the king issues new laws every six months) custom of the King’s rule did not seem to entertain this fact as well. A King backed up by an army can formulate any rules but lacks public support. The Supreme Court, the only legitimate authority, does not have an army to execute its orders but people follow its decisions because they respect the institution and its independent authority. In May 2006, the dissolved House of Representatives has been reinstated amidst pressure of mass demonstration of the public. The new full democratic government has the first responsibility to adopt the Supreme Court’s decision to make law to curb untouchability. Social Engineering should not be late anymore. Therefore, untouchability, one of the primary notions behind the ongoing conflict, needs to be uprooted without hesitation and without any reservation. In the 21st century, where we witness the human civilization’s extreme liberty in the other parts of the world such as the
United States, it’s a shame that we still preserve baseless barbaric culture of fostering untouchability practice in another part.  As one of the factors for ending the civil war, social saturation and absolute equality are inevitable. Law can be used to draw a line, to provide justice to those who have faced atrocities since centuries and to allot consequences for those who fail to respect other human. Policies have to be adopted so that exclusion of poor ‘Dalit’ children from attending public schools comes to an end, followed by numerous others. No government authority should be allowed to establish a caste system or even indirectly support or be silent and blind regarding all atrocities going on. Affirmative action should be strictly opted as remedy for social justice and for desegregation. The
US history of severe racial discrimination and application of affirmative action through leading cases can be taken in account as an example to pave our path towards absolute equality. The culture of power as tool of the superiors alone must come to and end and inferiors should be provided equal access.  

In the pursuit of social equality, the job should not be just to punish every individual who discriminate against another but to set up such rules and mechanism that prohibit unsocial unjustifiable pattern strictly and end the present conflict.