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Caste based Discrimination and Untouchability (Offence and Punishment) Act 2011

Kathamandu, 14th September 2011

Adv. Ratna K. ShresthaHuman Rights/Legal Officer

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International Context

Principle of Non-Discrimination and Core values of HR • Charter of the United Nations 1945 (Article 1.3)• Universal Declaration of Human Rights 1948 (Article 1

and 3)• International Convention on Elimination of Racial

Discrimination 1965 (Article 1)• International Covenant on Civil and Political Rights 1966

(Article 26)• International Covenant on Economic, Social and Cultural

Rights 1966 (Article2)• International Convention on the Elimination of All Forms

of Discrimination Against Women 1979 (Article 1 and 2)

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National Context

Interim Constitution of Nepal 2007• Preamble of the Constitution• Right to Equality (Article 13)• Rights against Untouchability and Caste based

discrimination (Article 14)• Right to Constitutional Remedy (Article 32)

Treaty Act 1990• Provisions of the international instrument to be as of

national laws (Section 9)

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Caste based Discrimination and Untouchability (Offence and Punishment) Act 2011

Salient features:• Specific legislation to deal untouchability and caste

based discrimination (CBD)• Preamble of the Act in line with the core value of Human

Rights• Criminalization of untouchability and CBD• Broader definition of untouchability and CBD offence• Extra-territorial jurisdiction• Special criminal procedure (Summary Procedural Act)• Punishment as per the gravity of the offence• Provision regarding compensation

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Major Provisions of the Act

Preamble of the Act• Protecting rights of the individual – Live with equality,

freedom and dignity• Realizing principle of equality in terms of rights and

human dignity• Social harmony crimnalizing any act of untouchability,

exclusion, prohibition, expulsion or any such act and making it punishable

Broader definition of the related terms• Such as; Untouchbility and CBD, Public Places, Public

Services, Public Occasions, Individual holding public post etc.

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What is untouchability and CBD? (Section 4)

• Any discriminatory act based on tradition, custom, religion, culture, cultural practices, caste, ethnicity, descent, community or occupation against any one

• Prohibition, expulsion, social exclusion, demonstration of any kind of intolerant behavior in any public or private place

• Deprivation from using and enjoying public services

• Deprivation from organizing public event

• Instigate, provoke or abet that amounts to untouchability or CBD

• Prohibiting from carrying any occupation or business or force to do any such

• Deprivation to perform any religious activity

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What is untouchability and CBD? (Contd…)

• Preventing from producing, distributing or selling goods, services of facility

• Producing, selling or distributing any goods, services or facility targeting for caste of ethnicity

• Ostracizing or preventing any family member from/to house or village

• Preventing from inter caste marriage or naming ceremony or compelling to divorce

• Demonstrating hierarchical supremacy or justifying social discrimination

• Refusing from employment or dismiss or discriminating in remuneration

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Where to file the complaint? (Section 5)

• To the nearest police office (as prescribed)• If it is committed outside of Nepal, to the nearest police

office of the district where the defendant resides or is• If the Police office does not register the FIR, may

complain of such to the NDC or Local Body (as prescribed)

• NDC or Local Body shall write to the concerned police, who then take necessary action after necessary investigation

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What will be the punishment? (Section 7)

• One month to Three years of imprisonment or Five Hundred to Twenty Five Thousand Rupees fine or both (Depending on the gravity of the offence)

• Any individual supporting, instigating or provoking shall be subjected to half of the punishment given to the principle offender

• Additional fifty percent of the punishment, if it is committed by the individual holding public post

• Those who causes obstruction may be subjected to half of the punishment given to the principle offender (based on the report of the investigating officer)

• This Act shall not impose obstruction in taking action, if any act is also considered as an offence under other prevailing laws

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What will be the compensation? (Section 9)

• The court may make the offender provide compensation from Twenty Five thousand to One Lakh Rupees to the victim

• The court may order to provide appropriate amount to the victim from the offender to cover medical and additional expenses

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What is the statute of limitation? (Section 11)

• Case should be lodged within 3 months from the date of committing offence

• (This time limitation starts from the date of the offence to filing the case with the court)

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Some other provisions

Assistance may be sought

Investigating Officer may seek assistance from local leaders, civil society, or org. working on the issues.

To provide cooperation• Duty of all the concerned to cooperate in the investigation

Rules may be formulated• The GoN may formulate necessary rules for the

implementation of this Act

Repeal• No. 10A of the Chapter on Miscellaneous of the Country

Code has been repealed.

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Criminal Proceedings of the Untouchability and CBD cases

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Way forward

• Massive dissemination of the Act• Formulation of the Regulation • Awareness campaign • Common understanding of the issue among all the

concerned stakeholders • Role of NHRIs importantly NDC• Monitoring Mechanism