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July 21, 2006

Memorandum for Dalit Rights in the Interim Constitution of Nepal

We support this demand for Dalit Rights in Nepal’s new Constitution. It is thorough and is a just demand to set right centuries of discrimination. Many of Nepal’s Dalits have been driven to violence in order to fight for their rights. The new Nepal must unite all the peoples of Nepal and treat them as created equal before God. The document acknowledges that the Dalit identity remains regardless of religious affiliation and therefore requires the new State to address the rights of all Dalits.

This is pleasantly contrary to the injustice continuing against India’s non-Hindu Dalits who are deprived of any ‘affirmative action’. Despite even that blatant discrimination, Ambedkar made his historic decision to move to Buddhism. Only after years of campaigning and agitation, have Dalit-Buddhists and Dalit-Sikhs had their rights restored.

The poverty-stricken Dalit-Christians continue to suffer this further discrimination under successive Indian governments, even though they have proven that the caste stigma is perpetuated in the Christian community and that their social needs do not vanish when they embrace another faith. The vast majority of India’s Christians are Dalits. The Supreme Court is now hearing public interest litigation on the blatant religiously-based discrimination against Dalit-Christians.

The Government-appointed Mishra Commission is trying its best to scuttle the issue and has been constantly delaying its report. Instead considering the direct plight of Dalit-Christians, they are now asking some eminent panel of a private company to discuss the issue. The blatant diversionary and discriminatory tactics of the Commission is on full public display. So much for the Government spin on justice for India’s Dalits.

~Joseph D’souza

Memorandum for Dalit Rights in the Interim Constitution of Nepal

The Dalits in Nepal have been discriminated and excluded by the State directly and indirectly for ages now. Untouchability practices have been quite prevalent in the country and the state has till date taken no effective measures to curb such practices. The Nepal government, despite its ratifications to various international conventions has failed drastically in emancipating the lives of 4.5 million Dalits. For instance the Concluding Observations of the CERD on Nepal dated 12th March 2004 (CERD/C/64/CO/5) made various recommendations for elimination of all forms of caste based discrimination of the Untouchable Dalits of Nepal. It recommended to the Nepal Government to implement special measures to advance and protect the persons subjected to discrimination, to undo under-representation of the disadvantaged groups in governmental bodies, legislative bodies and the judiciary. However, the reality remains that, the Dalits not only experience incessant discrimination and subjugation but also less adequate representation in the legislative, executive, judiciary, local bodies and services under the Nepali Government.

In this context, after the collapse of the Nepal's monarchy, the coalition of seven political parties' government and the Communist party of Nepal (Maoist) have agreed to frame a new interim constitution within one month. On this account, a six member drafting committee comprising of legal luminaries was nominated by those political parties to draft the interim constitution. The mandate of the drafting committee was to submit a draft of interim constitution by 15 days. While the people in Nepal demand for inclusive democracy where the interests of all sections of the society especially the Dalits, women and minorities are met, it's very unfortunate to note that the present Nepal government has outlined an exclusive methodology wherein the interests groups were deprived of from any representation whatsoever in the drafting committee. Such a divisive role played by the government causes heavy dents on the fabric of the nation that is crawling towards democracy and rule of law.

Therefore, in this context, we fervently appeal and submit in this memorandum that while making the new constitution we incorporate in it all human rights, fundamental rights and freedoms protecting the Dalits in tune with the International Conventions as fundamental rights in the interim constitution so that each succeeding executive government would be bound by the constitution and in the governance would take effective measures to ensure enjoyment of their fundamental rights, freedoms and non-discrimination. Understandably, the memorandum voices the concerns and interests of the Dalits and we as well are aware of other concerns from other sections such as women, minorities and ethnic communities with whom we are in solidarity with.

Memorandum for Dalit Rights in the Interim Constitution of Nepal

Group rights

Identification of Dalit communities
• The state shall identify castes who have suffered from the social practice of untouchability and work and descent-based discrimination within a period of (six months) from the commencement of the interim constitution.
• The list of caste identified by the criteria above shall be known as Dalits and this list shall be specified by law. (Special right to form association and political organization)
• Notwithstanding any thing else in this constitution, the Dalits shall enjoy the special right to form associations and political organizations to protect and promote their language, identity, culture, religion, region and their other interests.

Fundamental Rights

Right to dignity
• All persons shall enjoy the right to live with dignity free from any action by the state or by any person which compromise this dignity.
• The state shall not discriminate against any person who claims to be a citizen so long as his/her father or mother is a citizen of Nepal at the birth of the child.
• The state shall take all measures to create a suitable environment where all persons may achieve this right.

Rights against untouchability
• "Untouchability" is abolished and its practice in any form and in any public or private place is forbidden. Enforcement of any disability arising out of "untouchability" shall be treated as heinous offence punishable in accordance with law.
• The state shall enact a comprehensive and stringent law to eradicate the practice of untouchability by creating an independent court system and a special prosecution machinery to accord the highest priority to such offences.

Anti discrimination
• Everyone is equal before the law and has the equal right and benefit before the law.
• The state shall not unfairly discriminate against any citizen only on the grounds of caste, race, sex, sexual orientation, religion, culture, region, descent, language, marital status, ethnic or social origin and disability.

Positive discrimination
• The state shall take all measures to ensure that citizens fully enjoy their rights and freedoms.
• To promote the achievement of equality the state shall take legislative and other measures to protect or advance persons, groups of persons by unfair discrimination.
• The state shall ensure that Dalits are (proportionally and equitably) represented in all public institutions including the executive, legislature and judiciary at all levels, and public education.
• The state shall take all necessary measures, by reserving seats or posts at all levels and all stages of recruitment, appointment and promotion till Dalits are adequately represented. The state shall take special measures to ensure that the Dalits are (proportionally and equitably) represented in all sectors of the economy and society including privately owned enterprises and institutions.
• The state shall enact suitable laws to implement the provisions set out above in a period of (one year).

Rights against exploitation
• No one may be subjected to slavery, servitude or forced labour including (begar, haliya, khali, balighare, badi).
• No one may be subjected to forced prostitution, trafficking and other forms of sexual exploitation.
• No children under the age of 16years shall be employed in hazardous or dangerous occupations.
• The state shall enact a law that prohibits all such practices and makes them punishable.

Right to Education
• The state shall ensure that every citizen gets free, equal and compulsory education which enables them to participate fully in the economy and the political life of the country.
• The state shall take all measure to ensure that Dalits are adequately (proportionally and equitably) represented at all levels of the education system by providing facilities, opportunities and monetary support to achieve the realization of these rights.

Right to family
• Every citizen shall enjoy the right to choose a spouse irrespective of religion, caste, region, language.

Right to property
• Every person shall have the right to acquire, own, possess and enjoy the benefits of land anywhere in the territory of Nepal without discrimination.
• The state must take reasonable legislative and other measures to foster conditions which enable its citizens to gain access land on an equitable basis.
• The state shall take all reasonable legislative and other necessary measures to ensure that Dalits own and occupy adequate land to ensure a dignified livelihood.

Right to work
• The state shall guarantee Dalits employment on terms and conditions which allows them to lead a decent and dignified life.
• The state shall ensure that there is no discrimination in the payment of wages on the basis of caste, gender, religion, language.

Right to adequate housing
• Everyone has the right to have access to adequate housing.
• The state shall ensure that there is no discrimination against Dalits with respect to access to housing in any part of the territory of Nepal.

Right to freedom of religion
• Everyone shall have the right to practice, profess and propagate any religion of their choice.
• No person shall cease to be a Dalit because of conversion to another religion.

Directive principles of state policy

Access to justice
• The state shall ensure that every citizen shall have the opportunity to have any dispute resolved by the application of law before an independent and impartial tribunal using a fair procedure.
• The state shall ensure that Dalits have access to free and competent legal services to represent their interests.

Distribution of resources
• The state shall ensure that the ownership and control of the material resources of the community are distributed equitably to serve the common good.
• The state shall ensure that Dalits shall have (proportional and equitable) control and ownership over the material resources without any discrimination.
• The state shall in its annual budgetary exercise allocate funds, in proportion to the population, towards special program and schemes to advance the social, economic and political interests of Dalits.

Recognition and representation

Representation in the constituent assembly
• Dalits shall be represented in the constituent assembly equitably and proportionally.
• (All decisions by the constituent assembly which relate to fundamental rights, directive principles and the political institutions of the nation shall be adopted unanimously)

Representation interim government
• Dalits shall be represented in all the institutions which make up the interim government equitably and proportionally.

Representation in all political bodies
• Dalits shall be represented equitably and proportionally at all levels, and among all candidates fielded by, the political party.

Independent constitutional institutions

National Dalit Commission
• There shall be a National Dalit Commission comprised of 5 members appointed by a constitutional council which includes the Prime Minister, leader of the opposition, speaker of the House of Representatives, president of national assembly, and the chief justice of the Supreme Court.
• The National Dalit Commission shall monitor the implementation of the constitutional and statutory provisions, as well as ratified International Conventions, which protect and promote Dalit rights and interests.
• The Commission shall submit an annual report to the Parliament certifying compliance with all the relevant constitutional provisions and actions taken to remedy any failures to comply.
• The National Dalit Commission shall have the power to entertain complaints from any concerned/affected individuals and summon any person and direct them to provide to any information necessary to make suitable orders to resolve the complaint.

Key Points Which Emerged out of the three day Consultation

Major provisions outlined by three day consultation amongst Dalit activists, constitutional and legal experts, human rights defenders, jurists, and other prominent personalities.

• We urge the drafting committee of interim constitution to ensure equitable, proportionate and compulsory representation of Dalits in the constituent assembly, interim government and all other state machineries.
• We urge the drafting committee of interim constitution and all political parties, to Identify Dalits, who suffer from the social practices of untouchability and work and descent based discrimination, so as to list them through the interim constitution.
• We urge the drafting committee of the interim constitution to ensure right to dignity, right against untouchability by enacting a comprehensive and stringent law to eradicate the practices of untouchability.
• We urge the drafting committee of the interim constitution to ensure equitable and proportional representation of Dalits in all public institutions i.e. the executive, the legislative and the judiciary.
• We urge the drafting committee of the interim constitution to ensure that the Dalits are equitably and proportionally represented in all privately owned enterprises and institutions.

The Monarchy has come to an end and an interim political set up is in place now. The exercise for drafting a new Constitution for Nepal has also started in right earnest.

Posted by klajja at July 21, 2006 11:13 PM

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Comments

Testing comments.

Posted by: Amber at July 23, 2006 09:19 AM

Sir
I AM AN OBC.
pleaze explain me the income/wealth test decided fro the Creamy layer which says "persons having groos national in come of 2.5 lakh or persons having wealth above exemption limits prescribed in wealtn tax act?"."I WANT TO KNOW WHAT IS THE "EXEMPTION LIMIT OF WEALTH" THAT IS PRESCRIBED IN THE WEALTH TAX ACT OF INDIA?" Sir we have some residential house which costs "15lakh rupees",
"5lakh rupees"in shares and other"5lakh rupees"in chit funds and my father has the "gross annual income as 1.7lakhs" do we fall in creamy layer category Sir please reply me as fast possible .I have to appply for the cat exam

Posted by: Rakesh at August 9, 2006 04:02 PM

There is lot of attrocities,harrassment had been faced by the dalit students by their Teachers and they(teachers) don't allow freely go thier dalit students to exel in their studies and they keep on harrass and pin pointing towards their students for one and other reason to degrade their dignity and respect and not allow to study freely,

Posted by: SB Bhankhar at September 4, 2006 10:56 AM

ionolsen22 Great website! Bookmarked! I am impressed at your work!

Posted by: tester at October 19, 2006 01:21 PM

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