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Opening the Door to Equality: Access to Justice for Dalits in Nepal

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In Nepal, the caste system is characterized as one of denials, discrimination, deprivation and domination. Under this caste structure, those in the lowest category-Dalis-are regarded as “untouchable”. The adoption of the Caste-based Discrimination and Untouchability (Offence and Punishment) Act in May 2011 was a milestone in the fight against caste based discrimination in the country. However, to have real impact, this new Act must be accompanied by systematic reforms that address the deeply entrenched prejudices and structural failures that make the justice system inaccessible to the majority of Nepali people, and especially those from the Dalit community. This report identifies factors that directly and indirectly perpetuate caste-based discrimination in Nepal, in relation to access to justice for victims. The analysis is based on data gathered through OHCHR’s work in Nepal between 2006 and 2011, focusing on the Far Western region of the country as a case study for the overall situation. The report stresses the critical importance of properly investigating cases of caste-based discrimination and prosecuting the perpetrators, providing legal redress and appropriate compensation for victims. The aim is to contribute to combating caste-based discrimination and untouchability in Nepal and in turn to enhancing the rule of law in the country. The report should serve as an advocacy tool to promote the reforms and changes necessary to promote equal access to justice for all. “Access to justice” is defied broadly in this report, with four factors identified as necessary for equal access to justice for persons negatively affected by caste-based discrimination: strengthening the normative legal framework; increasing legal awareness; providing access to appropriate forums and improving the effective administration of justice; and strengthening accountability, enforcement of law and oversight. The report examines the international human rights framework applicable to caste-based discrimination, emphasizing that non-discrimination and the right to equality are core international human rights principles. Nepal has committed to several international human rights treaties and mechanisms which uphold these principles and obligate them to systematically enforce the rights of victims of caste-based discrimination victims in Nepal. There is also an elaboration of the national legal framework, including constitutional prohibitions on caste-based discrimination, the progressive role of the Supreme Court in
enforcing these prohibitions, and a review of available remedies and the criminal procedure. The main section of the report, utilising information collected by OHCHR through monitoring and investigation of emblematic cases presents a systematic analysis of the challenges faced by Dalits in seeking justice under the law against caste-based discrimination. It includes an
analysis of such diffiulties including: low levels of awareness of caste-based discrimination as a crime; inadequate legal provisions concerning punishment, compensation and accountability; obstacles in the application of the law and procedures; socio-economic factors inflencing access to the justice system; various institutional challenges including insuffiient resources and inadequate representation of Dalits; and challenges faced by the national human rights institutions in fulfiling their mandated roles. A number of concrete and positive steps taken by the Government of Nepal, the judiciary
and civil society to eliminate caste-based discrimination and untouchability are also highlighted, acknowledging the essential and complementary role of these actors in ensuring equal access to justice. The report concludes that a holistic approach needs to be taken to ensure access to justice for victims of caste-based discrimination and untouchability.

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