March 21 this year marks the 47th International Day against Racial Discrimination. The Day is being observed since 1966 in memory of the Sharpeville Massacre in South Africa that claimed the lives of 69 anti-apartheid warriors and injured many others on March 21, 1961. Following the socio-political changes post 1990, every March 21 has been marked the Day against caste discrimination in Nepal.
Unfortunately, caste discrimination in the form of social stigma is still alive in Nepal, despite a number of efforts made through both social activism and constitutional provisions to address it. Caste discrimination was declared an offense by the New Country Code (1963) 49 years ago; and subsequent legal documents such as the Constitution of Nepal (1990) and the Interim Constitution of Nepal (2007) have confirmed it as a punishable crime. Besides, Nepal has been a member of the International Convention on the Elimination of Racial Discrimination since 1971. Yet legal remedies do not appear sufficient to remove the sufferings of the victims of caste discrimination, including the Dalits. According to ActionAid Nepal, they continue to suffer from more than 205 kinds of discriminations.
Surprisingly, the trend of caste discrimination is increasing, as is demonstrated in the graph alongside. According to Informal Sector Service Center (INSEC), the number of events of such discriminations has nearly tripled, increasing from 38 in the year 2002 to 111 in 2012. Although the figures are far below the actual number of cases of caste discrimination, they still give us a fair measure of the problem.
Why is caste discrimination still so pervasive despite these constitutional provisions and remedial actions?
The most common answer regarding the inefficiency of constitutional provisions to deal with caste discrimination is prefixed with the term ‘lack’—lack of awareness, lack of access, lack of resources and so on. Arguably, some sorts of ‘lacking’ on the part of Dalits could be considered a contributing factor which is preventing them from enjoying their legal rights. Yet even those with seemingly high status and access to corridors of power who are still suffering caste-discrimination seem not to be looking for legal remedies.
As suggested by legal anthropologists, effectiveness of constitution largely depends on the nature of a society and its guiding principles. The way the constitution is perceived, accepted and controlled, therefore, should be taken into account while analyzing its effectiveness.
Nepal is a heterogeneous and a highly-stratified plural society with the cultural notion of purity and pollution as its guiding principles. These caste-driven cultural norms and values, in the form of customary laws, guide and govern the society. Indeed, people, when they are talking about laws, usually refer to these cultural norms and values. Hence, we have more than one legal order in our society: the official laws and customary laws. In such a climate of ‘legal pluralism’, official laws become less important since the customary laws, as institutionalized norms, hold a greater power to coerce, control and guide the society.
Guided by the notion of purity and pollution, these customary laws thus endorse, instead of eradicating, caste discrimination. It is, therefore, difficult for people to challenge such discrimination, as such a challenge is perceived as a violation of cultural norms. Anyone challenging them is stigmatized and dragged into the cultural court for punishment. The official law, often responding to the pressure from rights based organizations, interferes only if they involve killing of people—such as Manbir Sunar of Kalikot district who was murdered by his high-caste neighbors in December 2011 simply for touching their kitchen stove to light up a cigarette. In such a case, the culprit is taken into custody because of the gravity of the criminal act rather than for practicing caste discrimination.
Likewise, the way the constitution is communicated to people also determines its efficiency. How people perceive it and what controls the judicial process becomes instrumental in defining the value of the constitution. Although the official law is guided by the principle of human rights and justice, they are rarely communicated to the people at the grassroots because of a complex bureaucratic procedure it entails. On the other hand, local customary laws are easily accessible to all members of society and are endorsed to maintain social harmony, even at the cost of justice.
Since people feel secure following customary laws, they rarely look for legal remedies by going against the current.
In addition, people feel more secure following customary laws rather than challenging them. Therefore people rarely look for official legal remedies by going against prevailing cultural norms and values. Additionally, victims of caste discrimination do not feel adequately safe to seek out legal services due to the absence of an alternative social security system. Once they file the case, they should be ready for any risk arising from the perpetrator’s side. Likewise, the judiciary is unlikely to take a risk of handling cases that directly collides with their social beliefs. The prioritization of social harmony and security over justice and co-existence thus prevents many from seeking redress for caste discrimination.
Because of all these factors, victims of caste discrimination, despite their great suffering, feel uncomfortable approaching legal services. As demonstrated by a study undertaken by Lawyers National Campaign against Untouchability (LANCAU) in 2009, only 40 cases related to caste discrimination were filed in the court during the period of 1992-2008. Although caste discrimination is an embedded part of Nepali culture and is rampant throughout the country, anti-discrimination cases have been filed only in 26 district and four appellate courts.
The constitutional provisions have thus proven ineffective to ensure justice for the victims of caste discrimination because their underlying values are incongruent with the values assumed by the caste-driven customary laws. Since Nepal is again going to hold an election to the Constitution Assembly, it is high time policymakers and Dalit leaders thought up a mechanism to rigorously establish constitutional remedies for the victims of caste discrimination, while maintaining justice-based social harmony. Such a mechanism would help translate the words of the constitution into action. And if that happens, someday we might be able to mark March 21 not as a day to count new cases of discrimination, but to recall how the country successfully did away with an entrenched system of discrimination.
The author holds a Masters degree in Development Studies from University of Sydney
Khyamu06@gmail.com
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