Introduction

The caste system is a complicated and intricate structure of social stratification, not just a simple surface idea. However, it has remained unchanged for centuries with regional variations in its expressions and traits, not just in Nepal but also throughout South Asia. Caste functions as a social instrument, a power mechanism, and a defining standard for creating collective identities among distinct communities.

Despite being criminalized by different legislation, caste-based discrimination and untouchability are still widely practiced in Nepal. Those in the lowest category (Dalit) are regarded as “untouchable.” Moreover, the act of a Dalit making physical contact with people from “touchable” castes or their objects is considered to be “polluting”, thus severely curtailing Dalits opportunities to participate in the society. Caste as a category is embedded in the fabric of several societies in South Asia. It is a socially inscriptive identity, one which cannot be chosen but which is acquired by birth. In Nepal, sanctioned by Brahmanical texts for centuries, the caste system has rigidly classified individuals according to their descent and occupation. In 1854, the Civil Code (Muluki Ain) encoded this system, formally categorising individuals according to their occupation into a four-layer hierarchy:

(1) Tagaddhari (“sacred thread wearing” such as Brahmin and Chetri);

(2) Matawali (“liquor drinking”);

(3) Pani nachalne choi chhito halnu naparne (“touchable low castes”); and

(4) Pani nachlne choi chito halnu parne (“water unacceptable and purification required if touched”, or “untouchable low castes”)

Today, caste continues to play a determining role in regulating aspects of everyday life including marriage, birth, death, and other key cultural, social, economic, and political engagements in many parts of South Asia. In Nepal, on account of predominantly rural and traditional social structures, caste has continued to be a dominant marker of the conduct of daily functioning of its citizens. Caste results in discrimination, domination, inequality, and disparity, primarily through a lack of cultural and social power and access to resources. An individual’s access to justice, jobs, and other rights and privileges are graded within this matrix of power, which is dependent on caste affiliation. While the institution of caste may be gradually evolving and loosening its grip on society, it has not disappeared. It remains not only as a decisive factor in the traditionally continuing forms of social arrangements but also continues to influence modern events such as elections.

In Nepal, the caste system leads to widespread discrimination, deprivation, and exclusion, particularly affecting Dalits, who make up over one-eighth of the population. Despite their numbers, Dalits are under-represented in political, educational, and professional spheres. Practices of “untouchability” restrict their access to shared water sources, temples, and inter-caste marriage, limiting their social participation. This discrimination extends to education, where Dalit children may be forced to sit separately or stand at the back of classrooms, affecting their learning experience. According to a 2009 UNDP report, caste-based disparities in human development are more pronounced than regional differences. The rigid caste system, passed down through generations, keeps Dalits trapped in low-status jobs and poor living conditions, perpetuating their socio-economic vulnerability.

Caste-based discrimination under international human rights law

The principles of non-discrimination and equality

The principles of non-discrimination and the right to equality are core human rights principles that are enshrined in the Charter of the United Nations, the Universal Declaration of Human Rights, and all international human rights treaties. These principles are now considered to have attained jus cogens status in that they are applicable to all countries, whether or not a State is a party to a particular international treaty. In addition, the jus cogens status means that countries cannot limit the application of these principles in any circumstances, including when national security is threatened.

Nepal has demonstrated its commitment to equality and non-discrimination by ratifying several key international human rights instruments. These include the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, as well as conventions on eliminating discrimination against women, protecting children’s rights, and ensuring the rights of persons with disabilities. Notably, Nepal ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in 1971. By joining these treaties, Nepal has pledged to guarantee rights without discrimination based on factors such as national or social origin, property, birth, or other status. The ICERD, in particular, obliges Nepal to prohibit any distinction, exclusion, restriction, or preference based on race, color, descent, or national or ethnic origin, further strengthening the country’s legal framework against caste-based discrimination.

Constitutional prohibition of caste-based discrimination

Nepal has a long-standing constitutional tradition of guaranteeing the right to non-discrimination and equality as part of fundamental rights. Since the promulgation of the 1951 Constitution, “caste” discrimination has been prohibited within wider equality and non-discrimination provisions. However, it was the 1990 Constitution that explicitly prohibited caste-based discrimination and untouchability and made the commission of such practices punishable. The constitutional regime against caste-based discrimination was further strengthened by the Interim Constitution of 2007, which guarantees the “fundamental” right to “equality before the law” and “equal protection of laws,” stipulating that there “shall be no discrimination in the application of general laws against any citizens based on caste, and that the State shall also not discriminate on such ground.” Significantly, the Interim Constitution further spells out the “right against untouchability and racial discrimination.” Article 14 prohibits racial discrimination and untouchability in any form, establishing the liability of the perpetrator and entitling the victim to compensation.

The constitution of Nepal 2015, article 18(3) provides that the state is expressly prohibited from engaging in discriminatory practices among its citizens based on considerations such as origin, religion, race, caste, tribe, sex, economic condition, language, geographical region, ideology, and other relevant matters.

Article 24 provides the right against untouchability and discrimination, which contains that Individuals are entitled to be free from any form of untouchability or discrimination in both private and public spaces, irrespective of their caste, ethnicity, origin, community, occupation, or physical condition in sub article 1 of article 24.

Article 40 has provided the right to Dalits in which Dalits possess the right to equitable participation in all state agencies, guided by the principle of proportional inclusion. Special legal provisions shall be established to empower, represent, and facilitate the participation of the Dalit community, extending to areas beyond public service employment.

Laws regarding positive obligations of the Government

Nepal’s legal framework extends beyond criminalizing caste discrimination to require proactive measures against social evils, including untouchability. The 2017 Local Self-Governance Act mandates district and village committees to implement measures to eliminate social ill-practices, while the Social Welfare Act of 1992 requires the government to take effective action for the welfare of backward communities. Although not directly related to the Untouchability Act, these provisions can facilitate access to justice for discrimination victims by encouraging local-level awareness programs. To be most effective, these initiatives should reference the legal framework and provide information on accessing and enforcing individual rights, potentially empowering victims to seek justice through the legal system.

The Supreme Court’s progressive role in prohibiting caste based discrimination and untouchability

The Supreme Court of Nepal has been instrumental in enforcing provisions against caste-discrimination in the Constitution by taking proactive positions in relation to cases concerning caste-based discrimination and untouchability, frequently in response to public interest litigation cases. This has also been reflected in Court reviews of law and policies where it has consistently declared elements that it has found discriminatory as unconstitutional. Three years after the promulgation of the 1990 Constitution, in the Man Bahadur Bishwokarma case, the Supreme Court reviewed the constitutionality of an explanatory clause for section 10A under the Civil Code’s chapter on miscellaneous. This clause exempted the Dalits from accessing temples and religious places from the prohibition of caste-based discrimination. The Court found the explanatory clause contrary to the right to equality and declared the clause a violation of Article 11 of the 1990 Constitution which prohibited caste-based discrimination. Similarly, the Supreme Court found a traditional practice of restricting Dalit students from receiving education at public Sanskrit schools to be discriminatory and ordered that access to education must be provided by fair means, without discrimination, and in accordance with the principle of equality as guaranteed under the Interim Constitution of 2007.

The Supreme Court has also taken steps towards the prohibition of caste-based discrimination and untouchability by issuing a number of orders requiring the Government to adopt legislative and other measures to address the discriminatory practices. For example, the Court ordered the Government to enact appropriate legislation to fulfill its obligation under the ICERD and to take the necessary steps toward raising public awareness on caste-based discrimination and untouchability. The Court also directed the Government to instruct its officials to abide by their duties as prescribed by law in order to bring an end to caste-based discrimination and untouchability. Similarly, it acknowledged the need for legislation to ensure equal rights and to provide social justice, such as reservations or quotas for the protection and advancement of marginalized castes, including Dalits.